Davis v. United States , 77 F. 172 ( 1896 )

SHIPMAN, Circuit Judge.

In the spring and summer of 1893, Mr. Theodore M. Davis of Newport, who had been making, for his own use, a collection of antiquities of various kinds for 12 or 15 years, was traveling in Europe, partly or wholly for the purpose of looking at works of art, and seeing if there was anything which he desired to add to his collection. He purchased in Florence a piece of tapestry from one collector and a painting from another. In London, he bought, by correspondence, a picture which was then in Bergamo, Italy, and he also bought two other pictures from different dealers. Each of these works of art was produced before 1700, and was purchased to be added to that department in the collection to which, it belonged. They were never assembled anywhere, but each came in a separate vessel, and the five articles reached New York in June, July, and August, 1893. Against the collector’s assessment of duties, the owner protested, upon the ground that each was free of duty by virtue of paragraph 524 of the free list of the tariff act of October 1, 1890, which is as follows:

“Cabinets of old coins and medals, and other collections of antiquities. But tlie term ‘antiquities,’ as used in the act, shall include only such articles as are suitable for souvenirs or cabinet collections, and which shall have been produced at any period prior to the year seventeen hundred.”

The board of general appraisers sustained the collector, and the circuit court affirmed the decision of the board.

The construction of the paragraph in question was considered by (his court iu the three cases of Glaenzer, Stern, and Marquand, which are reported in 5 C. C. A. 225, 55 Fed. 642. The result of the three decisions was to emphasize the conclusion that the statutory exemption from duty of articles of antiquity existed only in the case of a collection which was such at the time of the importation, and that exemption was not permitted to a single article which was to become a part of a collection. The mere purchase of articles of antiquity singly, at separate times, is insufficient to constitute them a collection, if they have not been brought together anywhere, because tlie paragraph is based upon the idea of an assemblage; and, while congress could have exempted articles of antiquity which were to become collections, it has refrained from doing so. In the presenl case, the articles were separately purchased, were shipped separately, and came into this country one by one. Each article stands in (he same position that the statuette in the Marquand Case occupied; while, on tlie other hand, no article is within the Stern Case, in which we construed the term “collection” with liberality. The decision of the circuit court is affirmed.