United States v. J. E. Bernard & Co. ( 1946 )

Garrett, P. J.,

dissenting:

I respectfully dissent. The painting here at issue, concededly a work of art, was not created by the artist to be reproduced and used ■on the cover page of any sort of publication but solely as a work of art. It was not made for, or upon the order of, Abbott Laboratories. The agent of Abbott Laboratories seems to have seen it for the first time on display in a studio in Montreal, Canada.

In the Cheney Bros, case (47 Treas. Dec. 1064), cited in the majority ■opinion in its discussion of the legislative history, the designs in water colors there involved seem to have been created for the purpose of being reproduced as etchings and engravings to be printed on silk and used for industrial purposes. Notwithstanding this, the Customs Court held them entitled to free entry under paragraph 1704 of the Tariff Act of 1922, which is in part predecessor of paragraph 1547 of the Tariff Act of 1930.

I am of opinion that paragraph 1547 of the Tariff Act of 1930 was formulated to meet the decision in the Cheney Bros, case, supra; that it was intended to make dutiable paintings, sketches, drawings, etc., which were created, or executed, for industrial use, and that it was not intended to make dutiable actual works of art not created for industrial use.

I do not regard the situation with respect to the leather paragraph and the musical-instruments paragraph as being analogous to the situation here.

I may add that whether the use made of the painting here involved was an industrial use is, in my opinion, at least questionable, but no useful purpose would be served by elaborating upon it in a dissenting opinion.