H. A. Whitacre, Inc. v. United States , 22 C.C.P.A. 623 ( 1935 )

Graham, Presiding Judge,

delivered the opinion of the court:

The appellant imported at the port of New York, on various dates from April 14, 1924, to August 30, 1928, certain shipments of articles afterwards stipulated to be works of art. These were classified after entry, by the collector at the port, as manufactures of marble under paragraph 233 of the Tariff Act of 1922.

The importer filed twenty-two protests covering all of the entries, in which it claimed the goods to be free of duty under paragraph 1704 or 1708, or, alternatively, dutiable as works of art under paragraph 1449 of said act. The protests under said paragraphs 1704 .and 1708 are not insisted upon by the appellant, but the issue is confined to the claim by the importer that the. goods are dutiable under said paragraph 1449 which is as follows:

Par. 1449. Works of art, including paintings in oil or water colors, pastels, pen and ink drawings, and copies, replicas, or reproductions of any of the same; statuary, sculptures, or copies, replicas, or reproductions thereof; and etchings and engravings; all the foregoing, not specially provided for, 20 per centum ad valorem.

Prior to the submission of the cause in the trial court, the parties entered into the following stipulation:

It is hereby stipulated and agreed between counsel that the merchandise described in Schedule “A” hereto annexed and made a part hereof, consists of works of art which are the professional productions of a sculptor; that said articles are carved from marble and that they are not originals nor first or second replicas, and that the protests may be submitted, the right to a first docket call and to amend the protests being hereby waived.

Dated New York, December 11, 1933.

Walden & Webster,

Attorneys for Plaintiff.

Richard E. Pitzgibbon,

For the Assistant Attorney General,

Attorney for the United Stales.

Schedule “A”, mentioned in said stipulation, shows the invoice description of the goods involved in the twenty-two protests to have been “crucifixes”, except in Protest No. 266921-G/42013, in which the invoice description of the contents of cases 7338, 7340, 7342, 7346, and 7348 was “crosses”, and in protest No. 90634-G/70425, in which, the contents of cases 8 and 9 bore the invoice description “dogs.”

The case was submitted on said stipulation, the proceedings on the various protests being consolidated for purposes of trial. The United States Customs Court held that the said stipulation of facts was not sufficient, under the law, to justify a finding that the goods were dutiable under said paragraph 1449. The court held, in a very well considered and well expressed decision, that the definition of the term “works of art” in said paragraph included only works of the free fine arts, and that a stipulation that they were works of art was not sufficient to bring them within said paragraph. In support of this proposition, the court cited a large number of cases in this court, including Frei Art Glass Co. v. United States, 15 Ct. Cust. Appls. 132, T. D. 42214, and the last of which is Alexander & Oviatt v. United States, 21 C.C.P.A. (Customs) 97, T. D. 46410, and then overruled the protests. In this decision the court followed the law as many times expressed by this court.

Following this decision, the importer filed an application for rehearing. This petition for rehearing represented that the court had been in error in its construction of said stipulation, it being argued that a stipulation to the effect that the imported goods were works of art carried with it the concession that they were works of the free fine arts.

A rehearing was granted on March 21, 1934. On May 9, 1934, the parties entered into the following additional stipulation:

In addition to the facts heretofore agreed upon, it is hereby further stipulated and agreed between counsel as follows:

1. That the articles in question are products of the free fine arts.

2. That the protests may be submitted upon this and prior stipulation.

Dated'New York, May 9, 1934.

Walden & Webster,

Attorneys for Plaintiff.

William Whynman,

For the Assistant Attorney General,

Attorney for the United States.

May 17, 1934. Disapproved:

Genevieve R. Cline, J.

William J. Keefe, J.

Walter H. Evans, J.

H. H. Crum, Examiner. 5/10/34.

A. K. Thomas, C. A. Appraiser.

On May 17th following, the three judges of the Third Division of the court made a notation upon said stipulation, “Disapproved”, which was signed by each of the judges. On May 22nd, the cause came up for bearing. On this hearing, the record shows, in substance, that the judges of the division were of opinion that counsel for the parties had stipulated a conclusion of law which was not binding upon the court. The court requested counsel for the importer to call Mr. Crum, the examiner, who had approved the later stipulation of May 9, 1934, as a witness. Counsel for the importer refused to do this, insisting that the facts had been stipulated. Thereupon the court called the witness Crum and, over objections, examined him as to his reasons for changing his mind relative to the dutiability of these imported goods.

The examiner stated, when he was finally permitted to make an explanation, that it was the administrative practice to classify goods of this kind as works of the free fine arts when he first had charge of this line of importations; that, afterward, the practice changed because it was believed that even though the figure of Christ upon these crucifixes was a work of the free fine arts, that it was a part of the crucifix of minor value, and, therefore, that the goods should be classified as manufactures of marble. Plowever, thereafter, records were submitted to the office, and those in charge of classification became advised that the corpus of Christ was the part of major value of the article, and that, therefore, the original practice of considering- the article as a work of the free fine arts was the proper practice, and that in 1928 the office returned to the practice of classifying such articles as works of the free fine arts under said paragraph 1449, and had continued this practice since that time. This testimony was delivered on May 22, 1934.

The witness Crum also stated that when he approved the last stipulation he was of the impression that the stipulation concerned crucifixes only. It also appears from his testimony that the crucifixes are used as grave markers.

The trial court was of opinion that the stipulation was not binding upon the court, relying largely upon the opinion in Swift & Co. v. Hocking Valley Railway Co., 243 U. S. 281. Thereupon, the stipulation was rejected and the protests were overruled.

The trial court doubtless felt, and not without reason, that the parties, if they were intending to simplify the issues or to effect a compromise of the case, should have done so by stipulation in the first instance of all the facts, in this way avoiding the necessity of a piecemeal consideration of the case. The procedure of counsel, in this respect, does not commend itself.

The importer has appealed and alleges as errors the failure of the court to hold the imported goods dutiable under said paragraph 1449, in rejecting the stipulation, and in calling and examining the witness Crum over the protest of the appellant.

When the matter came on for hearing before this court, counsel for importer moved to dismiss his appeal as to those items involved in the appeal, bearing the invoice description of “crosses” and “dogs”, which have been hereinbefore specifically mentioned. As to the crucifixes, counsel for the importer insists that the first stipulation, supplemented by the second, should have been accepted and acted upon by the trial court, and that as a result thereof the goods should have been classified under said paragraph 1449 as works of the free fine arts. On the other hand, counsel for the Government files a brief in which it is contended as follows: That the trial court, when dissatisfied with the stipulation, might call a witness “ex mero motu” to ascertain the true facts; that the stipulation was not binding, but that it must be considered with other evidentiary facts of record and be given such weight as the court might deem proper; that the court might set aside the stipulation on—

the ground of fraud, duress, mistake of fact or against public policy, or under such other circumstances which may appeal to the discretion of the Court in the interest and furtherance of justice;

that the examiner was mistaken as to the facts contained in the second stipulation, and that the court below acted within its powers in rejecting the stipulation and finding the goods not dutiable under said paragraph 1449.

The first point for consideration is: Was the second stipulation of May 9, 1934, one of law or one of fact. If it were merely an agreement of the parties as to a conclusion of law to be deduced from certain facts, then it was not within the power of the parties to perform what is, obviously, a judicial function. If it were merely an agreement of the parties as to the material facts of the case, then, under ordinary circumstances, it was within the power of the parties to do this. Bear River Paper & Bag Co. et al. v. City of Petosky et al., 241 Fed. 53; Pacific Trading Co. v. United States, 19 C. C. P. A. (Customs) 361, T. D. 45508.

The parties hereto had, in their first stipulation, agreed that the imported articles were works of art, were carved from marble and were the “professional productions of a sculptor.” This, however, was not sufficient to bring the imported articles within the scope of said paragraph 1449. They must also be works of the free fine arts. A long fine of cases in this court have firmly established this rule. It is unnecessary here to cite these many cases. United States v. Olivotti & Co. 7 Ct. Cust. Appls. 46, T. D. 36309, is the one most commonly referred to. Our most recent expression upon the subject is United States v. Ehrich, 22 C. C. P. A. (Customs) 1, T. D. 47019.

If the first stipulation did not establish facts sufficient to justify a finding that the imported articles were works of the free fine arts, what elements were lacking? That inquiry is answered by our language used in the Olivotti case, supra. In considering that language, we must bear in mind that if these imported articles are to be held to be works of the free fine arts, it is because they are sculptures. In the Olivotti case we made use of this expression, which has been often quoted by us since its pronouncement:

* * * Sculpture as an art is that branch of the free fine arts which chisels or carves out of stone or other solid material or models in clay or other plastic substance for subsequent reproduction by carving or casting, imitations-of natural objects, chiefly the human form, and represents such objects in their true proportions of length, breadth, and thickness, or of length and breadth only. * * *

In other words, the facts necessary, in addition to those admitted by the first stipulation, to establish that the imported articles here were sculptures and works of the free fine arts, were that the articles were “imitations of natural objects, chiefly the human form,” representing “such objects in their true proportions of length, breadth, and thickness, or of length and breadth only,” chiseled or carved “out of stone or other solid material” or models “in clay or other plastic substance for subsequent reproduction by carving or casting. ” If such facts were supplied, the imported articles would be classifiable as works of the free fine arts under said paragraph 1449.

Each element here is a fact, susceptible of proof. If the question of whether an article be a work of the free fine arts or not is an ultimate fact, why may the parties not dispense with proof and agree to such ultimate fact? To permit them to do so, facilitates and expedites the work of the courts, encourages compromise and lessens litigation. In our opinion, it was not the intent of the parties, in making the stipulations here involved, to attempt to stipulate the “legal effect of admitted facts,” but rather to agree upon the essential facts upon which judgment might be entered by the court.

This case is much different from Swift & Co. v. Hocking Valley Railway Co., supra. In that case the amended petition set forth an agreement, by which it fully appeared that the Swift company was a licensee only of certain lands owned by the railway company. The Swift company demurred, thus admitting all material facts in the petition. Afterwards the parties stipulated “for the purpose only of reviewing the judgment,” that the “cars in question were placed” upon “the private track of Swift and Company.” The Supreme Court held that the court might not be controlled by the agreement of counsel on a subsidiary question of law, if the stipulation were to be construed as an agreement concerning the legal effect of admitted facts. The court also was of the opinion that counsel might not agree to certain facts which were not the real facts in issue, for then the case would be moot. The stipulation, therefore, was held to be a nullity.

No such case is here presented. The second stipulation does not create a different state of facts than that set forth in the first stipulation, but rather should be considered as adding to and supplementing the facts first agreed to.

We have, on numerous occasions, upheld the right of the parties, through their attorneys, to stipulate facts and to settle and compromise the litigated subject matter. A clear expression of our views appears in Pacific Trading Co. v. United States, supra. There we said:

* * * We know of no good reason why, in the absence of fraud, reputable attorneys, representing the parties in litigation, may not freely agree upon and stipulate concerning ultimate facts, even though such stipulated facts control the result of the lawsuit. Where there is nothing apparent of imposition, unfairness, or dishonesty, importer’s counsel and the attorney for the Government, in cases like the one at bar, have the right to confess judgment or consent to a decree against their respective clients, United States v. Zucca & Co., supra, and we are at a loss to understand why they can not stipulate an ultimate fact which controls the kind of judgment to be rendered. In the case at bar there is no implication of unfairness, imposition, or dishonesty.

* * * * * * *

In the interest of saving time and expense, it is often desirable, and clearly within the rights of the parties litigant, to agree by stipulation to the elimination of what might otherwise be controverted issues. This is frequently done, and we think properly so, by agreeing as to ultimate facts which are controlling of such issues. We know of no good reason why stipulations entered into by an attorney representing the United States Government in a lawsuit should be treated by the court differently from stipulations entered into by attorneys representing other clients.

Similar views were expressed in Smith & Nichols (Inc.) v. United States, 18 C. C. P. A. (Customs) 16, T. D. 43974; United States v. Zucca & Co., 11 Ct. Cust. Appls. 167, T. D. 38959.

There is here no suspicion of imposition, unfairness or dishonesty, even were we to consider the testimony of Examiner Crum, called and examined by the court. Whether the court was acting within its rights in so calling Crum, is not material here, for, in our view of the matter, the situation was not altered by his testimony. It should be borne in mind that neither stipulation was the stipulation of this examiner, but was that of the Assistant Attorney General, who had full power to bind the Government.

The Assistant Attorney General is not in position here to attempt to be relieved from the effects of such stipulation. “The Government made no effort to be relieved from its stipulation and, so long as it stands, it is binding upon the parties and the court.” Smith & Nichols (Inc.) v. United States, supra; United States v. Cartier, Inc., 20 C. C. P. A. (Customs) 215, T. D. 45994; Carnegie Steel Co. v. Columbia Iron Co., 185 U. S. 403, 444.

The theory of the Government counsel that the stipulation is only evidentiary in its character, or that it may be overcome by testimony, is absolutely untenable. No testimony tending to establish facts contrary to the facts stipulated can be considered by us. United States v. Cartier, Inc., supra. The stipulation should have been accepted as establishing the facts in the case. United States v. Champion Coated Paper Co. et al., 22 C. C. P. A. (Customs) 414, T. D. 47422.

It is suggested that the imported articles cannot be classified as works of the free fine arts because they are, as shown by the first stipulation, not “originals nor first or second replicas.” No such contention was made by either counsel in the case, is not mentioned in the assignment of errors, and was not mentioned or relied upon by the trial court in its decision. The trial court simply held that the second stipulation “is not binding on the court.”

But if this point were in the case, it is, in our opinion, without merit. Said paragraph 1449 provides for “statuary, sculptures, or copies, replicas or reproductions thereof.” The first and second stipulations, combined, are to the effect that the imported articles are the professional productions of a sculptor, carved from marble, not originals or first or second replicas, and are products of the free fine arts. The effect of such stipulations is that these articles are reproductions, and works of the free fine arts.

But, it is urged, a reproduction cannot be a work of the free fine arts, and- that we have so stated in United States v. Olivotti & Co., supra, and in United States v. Wanamaker, 19 C. C. P. A. (Customs) 229, T. D. 45336. We find no expression in the first cited case that intimates any such view. In the Wanamaker case, supra, we had before us reproductions of certain ancient linen tapestries, such reproductions having been made by skilled needle-women, said to have been artists. The testimony showed that the originals were considered to be artistic, and “a work of art.” The court called attention to the distinction which had always been made by this court, as in the Olivotti case, supra, between articles which were works of the decorative arts and those of the free fine arts, and commented upon the fact that, so far as the record showed, the imported articles might well belong to the decorative arts. There was no proof that either the originals or the reproductions were works of the free fine arts. The court properly held that the imported articles could not be held to be works of the free fine arts. There was no holding in that case to the effect that if the reproductions had been shown to be works of the free fine arts, they could not be so classified, because not originals.

The appeal is dismissed as to the merchandise contained in cases numbered 7338, 7340, 7342, 7346, and 7348, in protest 266921-G/ 42013, and cases numbered 8 and 9, in protest 90634-G/70425. We agree with the conclusion of the trial court as to the protest claims under said paragraphs 1704 and 1708. As to the claim under said paragraph 1449, our views are as hereinbefore expressed, and the judgment is reversed and the cause is remanded for further proceedings in conformity herewith.

Garrett, Judge, dissents.