Spiers v. United States , 43 Cust. Ct. 149 ( 1959 )

DISSENTING OPINION

Donlon, Judge:

I dissent. On the weight of evidence and the law, it is my opinion that the record does not support a finding that this stained glass window is a work of art, within the congressional intention as expressed in paragraph 1810.

Congress has made two eo nomine provisions for stained glass windows. The competition, therefore, is not between an eo nomine provision, on the one hand, and a general or unspecified provision, on the other hand. The competition is between one eo nomine provision (paragraph 1810) for those stained glass windows which are worhs of art when imported to be used in houses of worship and valued at $15 or more per square foot, which are duty free, and another eo nomine provision (paragraph 230(a)) for other stained glass windows, which are subject to duty. If the window here in litigation meets the statutory conditions of paragraph 1810, the importer has the right to have it come in duty free. If it does not meet those conditions, he should pay duty-

There were six witnesses, all more or less qualified as experts to form an opinion on the artistic merits of works of art. Only two of these witnesses ever saw the window. Both of these witnesses testified that, in their opinion, this window is not a work of art. They gave reasons for the opinions they had formed. They also pointed out certain characteristics of the window as they had viewed it which they thought the photograph did not adequately show.

The other four witnesses all testified without having seen the window. On trial, they were shown a photograph of the window. They listened to a description of how and by whom the window was designed and made, and they heard a statement read as to the training and experience of those who contributed effort to the window either as artist and or as artisans. Two of these four witnesses, testifying for the party in interest, were of opinion that this window, which they had never seen, was a work of art. Two of them, testifying for the American manufacturer, were of opinion that this window, which they had never seen, was not a work of art. One of the two latter witnesses is the only one of the six experts who works as an artist in the medium of stained glass.

If not inadmissible, certainly opinion evidence that an object which the expert witness has not viewed is or is not a work of art is too speculative and uncertain to rebut the opinion evidence of expert witnesses who have personally viewed the object.

Our appeals court expressed its view of such testimony (as to a sculpture) in Marshall Field & Co. v. United States, 5 Ct. Cust. Appls. 191, saying, at pages 194, 195:

It may be, and with good reason, that the board doubted the ability of any one of these witnesses, although testifying in good faith, to give satisfactory evidence from a photograph of an article as to whether the article was the production of a professional sculptor or a skilled artisan.

Assuming, as the evidence shows, that works of this kind must be made from a model which is a professional sculptor’s creation, it must also be assumed that a skilled artisan might with his tools be able to produce a close imitation thereof, so close, indeed, that not every photograph thereof would disclose whether the artisan or the sculptor did the work or whether or not the sculptor supervised it.

It is well known that while the photographic art may produce vivid and realistic pictures of articles placed before the camera, yet so much depends upon position, light, shadow, skill of photographers, and perfection of the apparatus in each case that it can hardly be said as a matter of law that photographs like these, which show but one view or presentation of the object, furnish a sufficient representation thereof to enable one, however skilled as a sculptor or as a judge of sculpture, to declare from an inspection of a given photograph that it is the production of a professional sculptor only. A photograph taken with the camera in a different position, showing a different view of the article, might reveal evidence that on the whole the artisan and not the professional sculptor produced the original. [Italics quoted.]

Opinion evidence of this kind, if it is admissible on such an issue as we have here, which is by no means conceded, must in the very nature of things be uncertain, and should be carefully scrutinized, notwithstanding the witness himself may have no doubt as to the correctness of his opinion. If such evidence is admissible its office is only to aid the triers to form their opinion upon the very question as to which the witness is permitted to express the opinion which he entertains.

It is not of the class of testimony given by the person who produced the article. Such evidence if credible and not rebutted might, if disregarded by the triers, be a ground for and demand a reversal.

No reason appears in this case why such evidence was not offered, nor does it appear why typical exhibits were not produced.

Twenty years later, our appeals court ruled on the admissibility of photographs of alleged works of art. In United States v. Mrs. Adelaide Ehrich, 22 C.C.P.A. (Customs) 1, the court said:

Some question has arisen as to the weight to be given to the photographic exhibits, Illustrative Exhibits A, B, and O. This court has never held such photographs to be inadmissible, but has indicated, in some eases, that such photographs, standing alone, are not sufficient upon which a witness, without other knowledge on the subject, may pronounce the objects shown by such photographs to be works of art. This was the holding in Marshall Field, v. United States and Freidlaender Co. v. United States [19 C.C.P.A. (Customs) 198], supra. However, such was not the case here. At least two of the witnesses had seen the imported articles and knew of their method of construction. The photographs were admissible, to be given sneb weight as they are entitled to in connection with the other testimony, as to the character of the imported articles. [P. 5.]

Applying this doctrine to the record before us, I find that here, also, two of the witnesses had seen the imported window and knew of its method of construction. The photograph, then, and evidence based upon a view of the photograph but without viewing the window, is to be given only such weight as it is entitled to in connection with other testimony as to the character of the window.

It does not appear why the party in interest failed to present the testimony of a single qualified witness who had actually viewed the window. If there was some good reason why this could not be done, the court is not informed as to what that reason is.

Evaluation of an object as a work of art is not objective. It is a subjective experience. In the idiom of the day, it has been said that unless a painting or sculpture or other object of so-called art “sends you,” it is not, for you, a work of art.

It is not necessary that the court itself should view an alleged work of art, although that is helpful. Nor is it necessary that judges should experience personal artistic appreciation. It is, at the least, desirable and perhaps necessary that those who testify to their personal evaluation of an object as being a work of art or as not a work of art, shall have viewed the object they are evaluating. Otherwise, it is hard to see how they may truly state whether or not they experience the subjective reaction identifiable with what their training leads them to expect in a work of art. Without the evidence of some such witnesses, the presumption that the collector’s classification in work of art cases is correct, cannot easily be overcome.

Here, we have appropriate opinion evidence to overcome the presumption, and there is nothing of comparable weight in rebuttal.

I do not share the view of the majority that ecclesiastical art is of an inferior order. Indeed, to the contrary, some of the greatest art of the ages is church art. There are church paintings, of course, that are not art.

Nor do I find that the precedents cited in the majority opinion are authority for a holding that the evidence of record establishes that this window is a work of art.

The test under paragraph 1810 is that the window shall be a work of art. On the record before us, I am of opinion that this window is not a work of art under paragraph 1810.

The majority cite the decision in Wm. S. Pitcairn Corp. v. United States, 39 C.C.P.A. 15, construing paragraph 1547(a). Congress provided, in paragraph 1547(a), dutiable classification not only for a sculpture, which is itself a work of art, but also for copies, replicas, or reproductions of sucb a sculpture, of a value as low as $2.50 each. That is quite different from the duty-free provision now before us.

In the recent decision of another division of this court, Ebeling & Reuss Co. v. United States, 40 Cust. Ct. 387, C.D. 2009, also cited by the majority, articles were held, on testimony which was described as uncontradicted, to be original glass sculpture or statuary within the purview of the dutiable provision of paragraph 1547(a). The court had the opportunity of viewing the articles, and found them to be “within the class of modem suggestive art” (page 393) and “sculptures of modern art” (page 394).

The testimony here is not uncontradicted. We have not viewed the window. Moreover, there is no such specific statutory provision for duty-free entry of modestly priced copies or replicas of an artistic stained or painted glass window, as there is for dutiable entry of modestly priced copies and replicas of an artistic piece of sculpture. Indeed, no claim is asserted that this window is a copy of some other window which, itself, is a work of art. This window is the original. Tt must be a work of art in order to merit duty-free entry under paragraph 1810.

That the dutiable provision in paragraph 1547(a) for copies and replicas of sculpture is susceptible of interpretation as to congressional intent, in the tariff sense, different from the provisions of the duty-free paragraphs for works of art, was aptly stated by our appeals court in the Pitcairn case, supra, at page 36:

The Congress did not create the new law embraced in paragraph 376 of the 1913 tariff act idly, nor has it been retained idly. The amendment as to valuation adopted by the Congress which passed the 1930 Act is believed to have a significance which aids in interpreting the paragraph. That phraseology has not been considered by us previously.

The Congress obviously intended that some forms of statuary and sculpture and copies, replicas, or reproductions of same should be classifiable under paragraph 1547(a), supra. If figurines, such as those here involved, are held not to be so classifiable, it seems to us the paragraph will be greatly mutilated even if not wholly emasculated.

Our problem is to ascertain what Congress intended when it enacted the duty-free provision for stained or painted glass windows in paragraph 1810 of the Tariff Act of 1930. This provision was new in the Tariff Act of 1922, where it was paragraph 1707. The history of that provision is matter of public record. The controversy then, as here, was between importers and the American industry. The importers sought a broad provision for duty-free entry of all stained or painted glass windows of a value of $15 or more per square foot, to be used in houses of worship. The House bill embraced their views. The story was otherwise when the House bill went over to the Senate side of Congress. What happened there, as recounted by our appeals court, is pertinent here.

* * * When the bill went to the Senate Committee on Finance strong representations were there made by American producers of such goods, asking that this paragraph be so modified as to exclude such products from the benefit of the free list provisions of the paragraph, the argument being made that the American industry was being endangered by such free entry. Senate Hearing, Vol. VI, pp. 5011-5059. The Senate Committee on Finance and the Senate, in apparent partial compliance with this request, amended the bill to the form now appearing in the statute; in other words, by limiting the free entry provision to stained or painted window glass or stained or painted glass windows “which are works or art when imported to he used in houses of worship and when ordered after the passage of this act, valued at $15 or more per square foot.” [Emphasis quoted.] [Frei Art Glass Co. v. United States, 15 Ct. Cust. Appls. 132, 138.]

In inserting into paragraph. 1810 the limiting words “which are works of art,” I am of opinion that Congress intended that stained or painted glass windows, in order to be entitled to duty-free entry, should in conception and execution meet the accepted standards for works of art such as are permitted to come in, duty free. The context suggests this, and there is nothing to indicate any other intention.

Whether all high-priced stained and painted glass windows imported to be used in houses of worship should come in duty free, as importers urge, is a question of policy for Congress to decide. It is not our province, or that of the Treasury Department, to make such policy. Congress has spoken. Duty-free entry is to be permitted only for those windows “which are works of art.” Importers should not be permitted to achieve either by executive decree or by judicial fiat a victory they did not succeed in winning in Congress. They should go back to Congress if they want to change the law.

There is a well-recognized distinction between the skills of an artisan and those of an artist. The artisan is one “trained to manual dexterity in some mechanic art or trade; a handicraftsman; a mechanic.” The artist is one “who professes and practices an art in which conception and execution are governed by imagination and taste; a person skilled in one of the fine arts.” (Definitions quoted are from Webster’s New International Dictionary, second edition, 1956; emphasis supplied.)

On the record before us, it is not necessary here to decide whether the assistance of artisans in the execution of a work by the artist whose conception it is, negatives its status as a work of art. Here, the record shows no opinion by any one who had ever viewed the window, that tins is a work of art. And the record shows, not mere incidental assistance to the artist by the artisans, but rather that they, the artisans, did all of the work of execution from the design of the artist’s conception. There is no proof of execution, even in part, by one whose execution is “governed by imagination and taste.”

On the authorities here cited, and on the record before us, I find that the American manufacturer has overcome the presumption that the collector’s classification is correct, and the party in interest has not offered evidence of comparable weight in rebuttal. On the weight of evidence, I find and hold that this stained glass window is not a work of art which is entitled, as such, to duty-free entry under pa ragraph 1810.