The importers protested that the collector's classification of the merchandise was incorrect and set up the claim that the marble panels, swags, and bows were dutiable as sculptures at 15 per cent ad valorem under that part of paragraph 470, which reads as follows: 470. Paintings in oil or water colors, and sculptures, not specially provided for in this section, fifteen per centum ad valorem; but the term "sculptures" as used in this act shall be understood to include only such as are cut, carved, or otherwise wrought by hand from a solid block or mass of marble, stone, or alabaster, or from metal, and as are the professional production of a sculptor only,

The merchandise was returned by the appraiser as "manufactures of marble," and this return was confirmed by the deputy appraiser, who reported to the collector that in his opinion the importation consisted of manufactures of marble which were not works of art or sculptures.

On the hearing before the Board of General Appraisers the importers introduced testimony showing that the panels and the ornamental swags and bows on which they rested were carved marble and that the panels were carved into a representation of allegorical forms and figures. No evidence was offered or introduced, however, establishing or tending to establish that the panels or the swags or the bows were the professional production of a sculptor only. The importers did attempt to prove by the Government examiner, an admitted expert in art, that the importation was of an artistic merit equal to that of the vase involved in the case of United States v. Baumgarten (reported in 2 Ct. Cust. Appls., at p. 321; T. D. 32052). As that testimony, even if it had been admitted in evidence, would have established at best nothing more than that the carved mantels under discussion were highly artistic in character, we do not see just how it would be possible to deduce from it the conclusion that the carvings were the "professional production of a sculptor only." From the fact that a true sculpture is artistic it does not follow at all that every artistic production in stone or metal is the work of a sculptor. The goods in controversy are carved marble, and they may be fully as artistic as those involved in the Baumgarten case. Nevertheless, upon the fact that they are carved marble and artistic there can not be builded the presumption that they are any more the work of the professional sculptor who originates than of the skilled ornamentalist or stone carver who merely makes a mechanical copy. The carved marble vase which was the subject of controversy in the Baumgarten case was a copy, it is true. It was, however, a copy executed by a sculptor of ability and reputation, ranking as one of the highest and best artists in Italy. More than that, it was a copy stamped with so much of the originality and individuality of the sculptor who chiseled it that the connoisseur could readily recognize it as that particular sculptor's handiwork. Such a composition is entitled to be classed as a sculp

ture, and is something more than the mechanical facsimile or reproduction of the skilled artisan. In this case the importation was proved to be the carved representation in marble of artistic subjects, but whether the carvings were the production of the sculptor, the ornamentalist, or the skilled stone carver was not established. While, therefore, the importers did claim in their protest that the carved panels and attendant ornaments imported by them were the professional work of a sculptor, they failed on the hearing to prove that claim by competent evidence. With that as the state of the case before it, the board had no other recourse than to sustain the collector, and, in our opinion, the protest of the importers was properly overruled. The decision of the Board of General Appraisers is affirmed.

(T. D. 33040.) Gauffre leather.

LOUIS DEJONGE & Co. v. UNITED STATES (No. 934).

RUSSIAN CALFSKINS, LONG Grain.

There is no commercial designation shown, but the artificially embossed surface of the goods makes them aptly described as "gauffre leather" in the common and ordinary acceptation of the term. The importation was dutiable as calfskins tanned and dressed, under paragraph 451, tariff act of 1909, and was subject to the cumulative duty imposed in the proviso of that paragraph upon gauffre leather.— United States v. White (2 Ct. Cust. Appls., 80; T. D. 31632).

United States Court of Customs Appeals, December 16, 1912. APPEAL from Board of United States General Appraisers, G. A. 7362 (T. D. 32505). [Affirmed.]

Comstock & Washburn (George J. Puckhafer of counsel) for appellants.

William L. Wemple, Assistant Attorney General (Charles E. McNabb, assistant attorney, of counsel), for the United States.

Before MONTGOMERY, SMITH, BARBER, DE VRIES, and MARTIN, Judges.

MARTIN, Judge, delivered the opinion of the court:

The merchandise involved in this case consists of certain leathers imported by appellants from Russia, and invoiced as 100 hides of light red Malja, American grain, glaze.

Duty was assessed upon the importation at 15 per cent ad valorem as calfskins tanned and dressed, and also cumulatively at 10 per cent ad valorem as gauffre leather, all under paragraph 451 of the tariff act of August 5, 1909.

The importers protested against the assessment, and contended that the leathers were dutiable at but 15 per cent ad valorem as calfskins dressed and finished, or at that rate as bookbinders' calfskins, under paragraph 451 of the act; or at the rate of 7 per cent ad valorem as

grain leather, under the provisions of paragraph 450. Various other claims were made in the protest, which need not now be specifically mentioned.

The protest was duly tried upon evidence by the Board of General Appraisers, and upon consideration was overruled. The importers now appeal to this court for a reversal of that decision.

The following is a copy of the pertinent parts of the paragraphs above cited:

450.

*

*

* Provided, That on and after October first, nineteen hundred and nine, grain, buff, and split leather shall pay a duty of seven and one-half per centum

ad valorem;

451. dressed,

* * *

*

*

*

*

Dressed upper and all other leather, calfskins tanned or tanned and other skins and bookbinders' calfskins, all the foregoing not spe

*

cially provided for in this section, fifteen per centum ad valorem; Provided, That leather cut into shoe uppers or vamps or other forms, suitable for conversion into manufactured articles, and gauffre leather, shall pay a duty of ten per centum ad valorem in addition to the duty imposed by this paragraph on leather of the same character from which they are cut

It is at once apparent from the record that the importation is calfskins dressed, and liable as such to the primary duty of 15 per cent ad valorem imposed by paragraph 451, and that the only question in the case is whether or not the leather is also gauffre leather, subject to the cumulative duty of 10 per cent ad valorem imposed by the concluding proviso of that paragraph. The testimony upon that issue is conflicting.

The leathers in question consist of entire calfskins, which were tanned, dressed and finished in Russia. Upon the grain side the leather has a solid red color, and its surface is broken by uniform lines of wavy depressions. These lines are not the natural grain of the leather, although they very remotely resemble that. They are artificially impressed upon the surface of the leather by some mechanical process, either by means of rollers or of dies, and give the leather an attractive and ornamental appearance. The leather is uniformly known in trade as "Russian calf, long grain," and is not commercially known in the leather trade of this country as gauffre leather. The importers undertake to prove by the testimony that there is no leather made or bought and sold in this country which is commercially known to domestic manufacturers of leather or dealers in that commodity as gauffre leather; and they furthermore undertake to prove that there is a class of leather known by commercial designation to the leather trade and bought and sold therein as embossed leather, but that the leather here in question does not come within that commercial designation. No testimony was offered by the Government to contest the first of these two propositions, but the ond proposition was directly contradicted by a number of the Government's witnesses.

sec

Inasmuch as the record does not show any commercial usage of the word "gauffre" as applied to leather, that term as used in paragraph 451 must be understood in its common and ordinary acceptation. In looking to the approved lexicons for this meaning, the following definitions commend themselves as authoritative:

Oxford Dictionary:

*

Goffer, gauffer.-Also * * gauffre, to stamp or impress figures on cloth, paper, etc., with tools on which the required pattern is cut; f. gaufre, honeycomb. The usual sense of the English word is in French expressed by gauffrer a la paille, trans. To make wavy by means of heated goffering-irons; to flute or crimp.

Standard Dictionary:

Goffer.-1. To form plaits or flutes in; crimp leather; gauffrer, honeycomb.

Century Dictionary and Cyclopedia:

*

Goffer.-Also written gauffer; * * crimp,

* figure

*. 1. To

plait, flute, or crimp. 2. To raise in relief, especially for ornamental purposes, as thin metal, starched linen, or the like.

A consideration of the testimony and an inspection of the exhibits place the importation directly within the foregoing definitions as applied to leathers. The indented lines which appear upon the grain side of these leathers are stamped or impressed thereon by mechanical processes with tools on which the required pattern is cut; the figures between the depressions are raised into at least relative relief by means of the indentations thus imposed upon the processed surface; the impressed figures belong distinctively to the character to which the term "gauffre" was primarily applied; that is, they form plaits and flutes, and are crimped, corrugated, and wavy. In the absence, therefore, of any commercial limitation upon the meaning of the term, the importation is aptly and exactly described by the statutory term in question.

In the case of United States v. White (2 Ct. Cust. Appls., 80; T. D. 31632) this court considered the subject of gauffre leather upon an assessment made under the same provision as that applied in the present case. In that case, as in this, it was not claimed by either of the parties that the term "gauffre leather" possessed any peculiar trade or commercial signification. The leather involved in that case was concededly embossed leather, and was described in the opinion as follows:

The merchandise presents a light-gray appearance, approximating that of silver. It is concededly embossed by the use of a stamp, the impressions of which are plainly visible upon the 'reverse side of the merchandise, presenting raised effects upon the surface. There are added upon the surface figures in black. The appearance presented is that of a finished or ornamental leather in imitation of a lizard's skin.

The court in that case held the leather to be gauffre leather under paragraph 451 and sustained such an assessment by the collector.

The court there defined the term "gauffre leather" to be substantially synonymous with embossed leather.

In the White case, above cited, the face of the imported leather was particolored, which aided in producing a lizardlike effect upon the surface, whereas no such elaborate decoration has been worked upon the surface of the present importation. But in adverting to that feature of the article then before the court it was said that "the importation consists of embossed leather to which there has been added colored figures for fancy effect;" and also "it has, in addition to embossing, certain figures in jet or black." The coloring of the leather was thus distinguished as a process wholly additional to the process of embossing it.

In this connection it should be observed that the statement made in the White case, that the terms "gauffre" and "embossed" as applied to leathers are substantially synonymous, was not based upon any restricted or peculiar commercial signification of either of those words; to the contrary, both terms were used and intended in their ordinary signification. Therefore, in the present case the testimony produced by the importers in proof of a commercial meaning of the term "embossed" can have no application. In the White case it was conceded that the leather involved was embossed leather, and therefore the meaning of that term was not disputed and was not made the subject of commercial testimony. The decision in that case therefore implies that the word "embossed" is substantially synonymous in its ordinary signification with the word "gauffre" as used in the act. And in this connection it may safely be said that the leathers now before the court are embossed leathers within the common acceptation and descriptive force of that term. See Stiner v. United States (2 Ct. Cust. Appls., 347; T. D. 32079).

It is contended by counsel for the importers that the leather involved in the White case was much more elaborately and richly decorated by the embossing process than that now before the court and that the rule laid down therein should not therefore apply to this case. In answer to this, however, it may be said that it was not the extent or quality of the embossing which determined the decision in the White case, but only the fact that the leather therein was actually embossed.

It will be observed that the present importations are whole or uncut calfskins, whereas the cumulative duty of 10 per cent ad valorem, by the terms of paragraph 451, is levied in addition to the duty already imposed by the paragraph on leather of "the same character as that from which they are cut." It is therefore contended that the provision for gauffre leather can not apply to these entire calfskins, because it can not be said that they have been cut from any other leathers. This contention was considered and over

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