United States v. Borgfeldt , 1926 CCPA LEXIS 56 ( 1926 )

Babble,, Judge,

delivered the opinion of the court:

The question raised by the Government’s appeal here is whether certain music boxes were properly classified by the collector as toys under paragraph 1414 of the Tariff Act of 1922, or should have been classified as musical instruments under paragraph 1443 of the same act, as claimed by the importer and held by the Board of General Appraisers.

We quote the paragraphs:

Par. 1414. Dolls, and parts of dolls, doll heads, toy marbles, of whatever materials composed, air rifles, toy balloons, toy books without reading matter other than letters, numerals, or descriptive words, bound or unbound, and parts thereof, garlands, festooning and Christmas-tree decorations made wholly or in chief value of tinsel wire, lame or lahn, bullions or metal threads, and all other toys, and parts of toys, not composed of china, porcelain, parian, bisque, earthen or stone ware, and not specially provided for, 70 per centum ad valorem.

Par. 1443. Musical instruments and parts thereof, not specially provided for, pianoforte or player actions and parts thereof, cases for musical instruments, pitch pipes, tuning forks, tuning hammers, and metronomes, strings for musical instruments composed wholly or in part of steel or other metal, all the foregoing, 40 per centum ad valorem; tuning pins, $1 per thousand and 35 per centum ad valorem; violins, violas, violoncellos, and double basses, of all sizes, wholly or partly manufactured or assembled, $1 each and 35 per centum ad valorem; unassembled parts of the foregoing, 40 per centum ad valorem.

Two protests are involved in this case, hut the merchandise is the same in each and the protests were heard together before the board.

At the trial of the case before the board, the Government introduced no witnesses; the importer one.' He produced ’ collective Exhibit 1 which was accepted as representative of the importation. It consists of four music boxes. The smallest is a cylindrical metal box about 3 inches in diameter and 134 inches in height. The other three are made of wood. Two are about 4 by 334 by 2 inches, and the other about 7by 4% by 4 inches, in size. The cylindrical box has the alphabet printed around the perimeter of one end and all the boxes are ornamented by one or more pictures on their exteriors.’ Inside each box is some mechanism to which is attached a crank, the handle of which protrudes from the box. When this crank is continuously turned, the mechanism produces complete airs or musical selections, one box producing one, two boxes producing two, and one three. The name of each selection is'inscribed on the box by which it is produced. All the boxes appear to'be substantially constructed and attractively finished. The mechanism is entirely inclosed. The boxes are marked as made in Switzerland and were appraised at from 19.20 to 37.80 francs per dozen.

Aside from testifying as to the representative character of these boxes and as to the musical selections played by each, the witness gave no further testimony except to say that they were sold “ to the musical trade; to the musical department of the toy department.”

The Government contends, first, that there was no evidence sufficient to overcome the presumed correctness of the collector's classification, and second, that the articles are not musical instruments but more in the nature of musical toys.

As to the first contention, this court has always recognized that the collector's classification is presumed to be correct. It has also repeatedly held that such presumption may be overcome by the probative effect of the samples in the case. Krusi v. United States, 1 Ct. Cust. Appls. 168, T. D. 31213; United States v. Perkins, Id. 323, T. D. 31430; Wolff v. United States, 2 Ct. Cust. Appls. 11, T. D. 31572; United States v. International Forwarding Co., 6 Ct. Cust. Appls. 25, T. D. 35272; Veit, Son & Co. v. United States, 11 Ct. Cust. Appls. 81; T. D. 38732.

As to the second contention, it may be observed that the question of what is a musical instrument has been frequently considered by this court as well as other tribunals, but it is not necessary here to review all the numerous pronouncements on that issue.

Among other cases the Government cites Jacot et al. v. United States, 65 Fed. 415, decided by the Circuit Court of Appeals in the Second Circuit. The question there was whether certain music boxes were dutiable as manufactures of metal or as toys, under the tariff act of 1890 in which there was no provision for musical instruments. The court in determining the issue seems to have adopted the test put forward-by one of the witnesses, that it was “the quality of the instrument, which is governed by the price, largely.”

In view of the circumstances of that case, the court may have adopted that test as appropriate; nevertheless, it can not be regarded as of general application, and no other decision of the board or the courts is cited in support of such a rule. Moreover, in the numerous cases before this court that rule has never been adopted. While it may be worthy of consideration, because the quality of an instrument may bear some relation to the price thereof, yet it is obvious that whether or not a thing is a musical instrument must be determined by its quality, that is, its capacity or ability to produce music as that word is commonly understood. United States v. Sears, Roebuck & Co., 7 Ct. Cust. Appls. 60, T. D. 36388; United States v. Bernard, Judae Co. et al., 13 Ct. Cust. Appls. 306, T. D. 41230.

In these cases many authorities are cited, and carefully examined and considered on the question of the meaning of the term “ musical instrument.”

In Webster’s New International Dictionary one of the definitions of instrument is “a contriyanee by which musical sounds are produced,” followed by a description of the means of their production, and the word "music box” is described in terms that are measurably applicable to the boxes here, except that the mechanism producing the music is referred to as clockwork..

The Government- also argues that flimsiness in structure is to be considered in determining what is a musical instrument, and cites cases on that issue. It may be admitted that this matter is proper of consideration, but it is eliminated in this case because inspection shows that these music boxes are not flimsy. Though small, they are apparently durable.

Paragraph 1414 of the present act names certain articles that shall be classified thereunder, such as toy balloons, toy marbles, etc. It contains no provision for toy music boxes, but does provide for all other toys, exclusive of those made of certain materials, not specially provided for.

On the other hand, musical instruments are named in paragraph 1443. In terms it covers all such instruments not specially provided for, and, in view of the common meaning of the term “musical instruments,” we think the board was justified in concluding that the music boxes here were such instruments.

It must be remembered that the question before us is whether or not the finding of the board is sustained by the evidence and we can not hold, in view of the probative effect of the samples themselves, that its finding is unsupported by or contrary to the weight of the evidence.

In Illfelder v. United States, 1 Ct. Cust. Appls. 109, T. D. 31115, a toy was defined as "essentially a plaything, something which is •intended and designed for the amusement of children only, and which by its very nature and character is reasonably fitted for no other purpose. * * * If it is reasonably capable of use for some practical purpose other than the amusement of children, it can not be classified as a toy unless it is affirmatively shown by the importer that it is so known and designated by the trade generally.”

There is nothing in the case to bring these music boxes within that definition other than the presumed correctness of the collector’s classification, and we can not say that the board erred in finding, as in effect it did, that this presumption was overcome by the probative effect of the samples themselves.

Assuming that these boxes are used by children, the board may well have been of opinion that the letters of the alphabet printed on one of the boxes were for the education of children and that all the boxes were capable, and designed for the purpose, of accustoming and educating the ear to appreciate correct combinations of harmonious notes which constitute a musical composition, thus imparting the beginnings of a musical education.

We have examined every case' cited by the Government and find nothing therein that requires a different conclusion.

In its opinion in this case the board cited J. C. Roebold & Co.’s case, T. D. 39396, G. A. 8596, 43 Treas. Dec. 18; Baldwin Shipping Co.’s case, Abstract 46414, 44 Treas. Dec. 451; and George Borgfeldt & Co.’s case, Abstract 47641, 46 Treas. Dec. 620, which may be referred to.

The judgment of the Board of General Appraisers is affirmed.