Part 24

“It was addressed to an actress. She came down to see me and said, ‘I want my _Ulysses_.’ I said, ‘Lady, I ain’t going to give it to you. It’s a dirty book.’ ‘Well,’ she said, ‘at least let me look at it.’ I looked at her and said, ‘Lady, are you married?’ She said, ‘No, I am not married.’ And then I said, ‘Well, lady, I ain’t even going to let you see it.’”

After this revealing interview, Cairns decided to work with the Treasury and Customs in an advisory capacity. A procedure was set up whereby questionable items were forwarded to him at Baltimore for his recommendation before the Bureau made any formal ruling. The procedure worked so well that it was continued through the years.

Cairns left Baltimore to join the Treasury in 1937 as the Senior Assistant General Counsel. He remained with the Treasury until December, 1942, when he came to the National Gallery in his present post. Over the years, Cairns’ work as a “censor” has become less difficult as the courts have become more liberal in their interpretations of what constitutes obscenity and what does not. Cairns now receives only about 5 to 7 per cent of the questionable imports and he does not consider them to be difficult cases.

More than 90 per cent of the questionable items are what Cairns refers to as “junk,” and “hard core” pornography. There never is any question about the hard-core pornography. It consists of filthy pictures and objects obviously manufactured with a lascivious and lewd intent. Customs examiners have learned over the years to recognize such shipments almost immediately by the wrapping of the packages, the names of the shipping companies, and the countries of origin. For a time France was the source of most of the pornographic material. Then it was Italy. Then the source shifted again back to France. Then to India. For a time Japan was the major supplier of pornography, and at present Sweden is a leader in this field.

In some cases, Cairns advised test cases so that the court might decide the issue and establish a legal precedent. One such case involved the importation of birth control items by a doctor in seeming violation of the law banning “any article whatever for the prevention of conception.” Did the statute mean such items could not be imported for medical purposes? Cairns thought it a point for the court to decide--and the decision was that the statute was not intended to exclude such imports by a medical practitioner.

Another such case involved the importation of acknowledged hard-core pornography in 1950 by Dr. Alfred C. Kinsey, the Indiana University professor whose controversial “Kinsey Report” on human sexual behavior created a stir in the late 1940s.

The Kinsey case developed when Dr. Kinsey had shipped from Europe to the Institute of Sex Research of Indiana University a case filled with pornographic books, sailors’ postcards, and photographs of males and females in the sexual act. Customs previously had banned such items with no voice raised in objection. But a nationwide interest was aroused when Collector of Customs Alden H. Baker at Indianapolis took one look at the Kinsey material and declared it “damned dirty stuff.”

Baker refused to release the shipment to Dr. Kinsey and defended his position by saying, “There is nothing scientific about it.... If you saw some of these pictures, you wouldn’t think they were scientific.” He shipped the material to Washington, where Customs officials--and Cairns--agreed with the collector that it was unadulterated pornography specifically banned by law.

Kinsey protested the material was necessary to his research and that since it was for scientific study the government had no right to withhold it from him and from his colleagues at the Institute. He issued a statement saying, “You can use the Bible or almost anything for obscene purposes. Any material you can think of can be made obscene by perverting it to erotic stimulations.... The Institute of Sex Research at Indiana University considers this issue is one that concerns all scholars the world over who need access to so-called obscene materials for scientific investigations which in the long run may contribute immeasurably to human welfare.”

Kinsey appealed to members of Congress for an amendment to the tariff laws which would permit him to have access to the material impounded by Customs. Then he went to see Cairns, to ask for his help. As Cairns recalled the meeting, “He came to see me about it and said that I had admitted the works of Havelock Ellis and he felt he was entitled to have the material on which Ellis based his studies. I said that may be, but before you came to see me, you had asked Congress to amend the statute to permit you to import hard-core pornography. How can I, as an administrator, say that the statute doesn’t cover you when you have already asked for an amendment which they have refused to grant?”

In any case, the test case served its purpose. The court held that since the material was intended for scientific use, the statute barring pornography did not apply in this case. The ruling did not mean that the court was lowering the bars for importation of pornographic material to everyone who wished to import it into the country. It only meant that the bars were being lowered for the Institute of Sex Research in its investigations.

Cairns considers it no great accomplishment to separate the obscene from the artistic. “I have long been of the view,” he once said, “that any man of letters can tell whether the impulse behind a book is literary or pornographic.”

Once when asked if reading and viewing pornographic material over a long span of years had had any effect on his own morals, Cairns grinned and said, “According to the theory of censorship I should be fairly corrupted by now--but I don’t believe I am. I just find the stuff boring.”

20

OF TOY CANARIES AND PIRATES

One day in 1957 an examiner in the New York Customs Appraiser’s Stores opened a packing case received from Switzerland. He lifted out a small brass object resembling a canary cage. On a tiny swing in the cage sat an extremely lifelike little bird. When the examiner wound a key in the bottom of the cage, the bird threw back its head, opened its beak, and burst into song. It ruffled its feathers and wagged its tail as it trilled its merry little time.

The examiner called to a colleague nearby and said, “Hey, Joe! Come and look at this one.”

He turned the key and they watched the little bird perform. The examiner said, “Cute, isn’t it?”

“If my wife sees it, she’ll want one,” the other examiner replied. “It certainly is beautifully made. How are you going to classify it?”

There was the rub. What was this tiny cage with the singing bird? Was it a toy, dutiable at 50 per cent of its value? Was it a musical instrument, subject to a duty of 35 per cent? Or was it, as the importer claimed, simply a “manufacture of metal,” subject to a duty of 20 per cent?

The examiner disagreed with the importer. He ruled that the little singing bird with the music box in the bottom of the cage was in fact a musical instrument. This opinion was sustained by the appraiser. The appraiser’s decision was supported by the Collector of Customs.

The importer took the case to court. His attorney called one company witness who testified the imports were designed as ornaments for home decoration. He said they could be used as a nice toy--but they weren’t toys. And he had “never known it to be used in an orchestra.” Therefore it could not be held to be a musical instrument.

After the court heard the testimony and listened to the trilling of the tiny bird in its small brass cage, the court was moved to lyrical language in its decision, saying:

It may be contended that this bird does not emit a continuous melody, and that it is not an instrument upon which a chromatic scale can be played.... Music is the one harmonious science that dispells discord, softens the winds, and makes all nature kin. It has quickened the step for the warrior in the field of battle; has riveted the attention of the savage on the march of his enemy; has stirred the ambitions of men to higher ideals; and caused the beauty of the human heart to speak in friendliness and love....

Indeed, if it was not for sweet music, human life would be so dreary as to be unbearable. It matters not whence it may arise, from the throat of the opera singer or of the bird. From the scintillating trills of the flute or the low notes of the Chinese gong, music is yet the curious and most harmonious succession of sounds conceivable. It is the anesthetic of life.

The instrument in question is a musical one, and the tuneful ear of the Collector was correct in thus classifying it.

The protest is overruled.

The case of the Singing Canary underscores one of the most important functions of the U.S. Customs Bureau--the classifying of millions of imports which arrive in the United States and the determination of their dutiable value. The Customs Appraiser’s Stores--the port depots where the imports are examined--are sometimes a weird world in which things are not what they seem.

Every schoolboy is taught that a whale is a mammal. But when whale steaks reach the Customs examiners, they are classified as “fish cut to portions.” A tomato is a fruit to a botanist. But to every housewife and the Customs examiner it is a vegetable. Botanists classify rhubarb as a vegetable--but in Customs’ language it is a fruit.

Customs examiners are not just being arbitrary and ornery when they make these classifications in defiance of the botanist and the dictionary. The contradictions came about because the U.S. Court of Customs and the U.S. Court of Customs Appeals have made these rulings for the purpose of identifying imports so that a proper rate of duty may be paid upon them.

The courts have said over and over that in the language of commerce and in the everyday language of the streets, a whale must be considered to be a fish because it lives in the sea. Also, they have said the tomato is a vegetable because it is sold and eaten as a vegetable. And rhubarb in the legal world has become a fruit because it is bought and sold as a fruit.

In most cases, the appraisers have no difficulty in establishing the proper rate of duty to be paid on an import because the rate is fixed by law and the import is easily identified. But there are a great many imports not identified in any of the tariff acts or the amendments adopted by Congress, a lack which often creates difficulties, as it did when one importer brought in a shipment of Chinese mah-jongg sets.

The dominolike pieces used in playing the game were made of bone and bamboo. The importer and the government agreed that the material of chief value in the mah-jongg pieces was bone. The importer insisted that the duty should be 20 per cent of the value because the games were “manufactures of bone.” However the Collector classified these sets as “dominoes” and set the duty at 50 per cent. He ruled that the mah-jongg pieces came under the paragraph 341 of the Tariff Act of 1913 which provided for a duty of that rate on “dice, dominoes, draughts, chess men, and billiard, pool, bagatelle balls, and poker chips of ivory, bone or other material.”

This case also found its way into the Customs Court. The government attorneys argued that the mah-jongg pieces should be classed as “dominoes by similitude” even though they were not specifically listed under the acts passed by Congress.

The importer argued through his attorneys that the mah-jongg sets were not specifically named by Congress in any of the classifications established in the various acts and therefore the duty should be applied on the “component material of chief value.”

In this case the ruling went against the government. The court held that the mah-jongg sets were properly classifiable at 20 per cent as manufactures in which bone was the “component material of chief value.”

The appraisers’ staffs make millions of classifications each year on imported items, and there is remarkably little dispute over their decisions. Out of these millions, no more than 700 are disputed and contested in the courts annually.

Sometimes a seemingly obscure and innocuous ruling on a classification will blow up a storm across the country. Such a case developed when an importer brought in from Europe do-it-yourself kits containing parts of a miniature electric train and engine to be assembled by the purchaser.

The locomotives, freight cars, cabooses, passenger cars, track, and other equipment were precision-made scale models of larger railroad equipment. They were all made to a standard “HO” scale of 3.5 millimeters to one foot. The trains were designed to run at the scale speed, which meant that at maximum speed they would travel 60 feet a minute. At that speed, they would simulate the operation of a full-size train.

All of the equipment was manufactured according to the strictest standards set up by the National Model Railroad Association. This Association has been described as “an organization of adult model railroad hobbyists founded in 1935 to make and promulgate standards for wheels, flanges, rails, switches, and other working parts of model railroads, with the purpose of achieving interchangeability of equipment from different manufacturers.”

The examiner who inspected the imported miniatures classified them as “toys”--and as such subject to duty of 50 per cent of their value. In the Tariff Act of 1930, Congress had described a toy as “an article chiefly used for the amusement of children, whether or not also suitable for physical exercise or for mental development.”

The ruling brought a pained cry from miniature railroad hobbyists across the country.

Toys, indeed! The hobbyists were outraged that this import should be put in the same category with playthings and that anyone should have the affrontery to think that such railroad equipment--even though Lilliputian in size--could be put together, and operated, by a mere child.

When the Collector at the Port of New York supported the ruling of the appraiser that the miniature railroad equipment should be classed as toys, the ruling was appealed to the U.S. Court of Customs. And when the case came to trial the importer had behind him ranks of witnesses from all walks of life ready to dispute the government’s description of the equipment: dentists, technical consultants, salesmen in various lines of business, doctors, lawyers, editors, publishers, and writers.

One after another, the witnesses took the witness chair to deride this nonsense that the miniature trains were made “for the amusement of children.” They gave technical testimony on the operation of these miniatures to prove that no child could be trusted with them and in fact could not operate them.

To prove this point one witness testified, “It requires a knowledge of electricity and requires a thorough understanding of how the trains operate. For example, our accessories all operate on alternating current; our trains run on direct current. It is necessary to know the two types of current which our power-packs provide to connect up the wires correctly. In the case of the alternating current, they have two leads; one would be a common terminal, connecting all the different accessories and switches, and another would be a specific one which would go to each individual switch.... The locomotive can also be operated from an overhead wire with pantographs they have located on the roof. This makes it possible to operate two trains on the same track under independent control. To do this, it is necessary to set up a catenary system, which is an overhead wire system, such as the Pennsylvania and New Haven Railroad use in this area. This, naturally, requires wiring.”

The importer insisted that the miniatures should not be classified as toys but should be classified as electrical equipment subject to a lower rate of duty.

Under this barrage of expert testimony from adults who play with small trains, the court overruled the Collector. The court held that the model railroad sets were not “toys,” because they were used chiefly by adults or by grown-up children and that they “do not come within the legal meaning of the word toy.”

In years past, Customs officials tried to establish a detailed classification system in which the examiner could refer to a given page in a book and quickly come up with the answer as to classification and duty of any item. But the system broke down under the weight of a vast number of new products arriving on the market. Discussing this effort a Customs Bureau official said: “On tariff classification, a number of people, who call up and ask for rates, think there is a detailed, logical breakdown and that we just thumb through a book and come up with an answer. To someone who hasn’t worked with classification, that seems like the way to do it. That is the way the old-timers used to try to classify. They used to try to set up categories with a place for everything, and everything in its place. But every time anyone set up one of these classification systems, along would come some new item which didn’t fit anywhere. So the present tendency in classification systems is to set up a specific category for the more important items, and then to set up what might be called a basket category to catch everything else.”

The impossibility of achieving an easy index for classifying imports was illustrated in recent years when a machine arrived from Europe described by the importer as “printing machinery.”

The machine had the equivalent of a type font but, instead of type, the font contained pictures of type on a transparent plate. The type-setter, using a keyboard similar to that on a linotype machine, punched out sentences on a roll of perforated tape. Then the tape was fed into the machine, and as each perforation passed an electronic control, a transparent plate bearing the image of a letter dropped into place to be photographed by a high-speed camera. In this way a full sentence was formed with photographed characters. This process was continued, letter by letter, until a column of “type” was set up on a film. Then the film was developed and, by a photoengraving process, was reproduced on a metal plate ready for printing on paper. In all the process there was no actual type used.

Customs was baffled by this one. Was the machine to be classed as photographic equipment, printing equipment or as typesetting machinery? It did not set type. It did not actually print. And it was more than a mere camera. The Bureau decided this was a case in which the court should hear all the arguments and make a decision--and a decision has yet to be made.

When Congress passed the 1930 Tariff Act there were roughly 700 categories of imports. Since that time--with the adoption of the Reciprocal Trade Agreement Act--the number of categories has been increased by the thousands. Most of the increases were in categories created to help foreign countries expand their trade in the United States. The duty on a comparatively few imports has been revised upward as a measure of protecting some of the American industries from lower-cost foreign competition. In the vast majority of cases the revisions have been downward, following the trend toward removing tariff barriers by international agreement.

In arriving at the dutiable value of an import, Customs officials are bound by the Tariff Act, which lays down the rules under which they calculate the true value of an article. This system of appraisal is complex and varies from category to category. Congress has proclaimed that duty on certain items shall be fixed on the foreign value--that is, the selling price in the country of production. Some items are appraised on their export value--the price which the exporter pays for them. Others are valued on their United States value, which means the price at which the exporter sells them in the United States. Some appraisals are based on cost of production.

Duties based on the American selling price are designed solely to protect certain American industries from foreign competition. Among the leading industries receiving this protection are the rubber and coal-tar dye industries. For example, an importer may be able to purchase a pound of coal-tar dye in Switzerland for $2. But if that dye is competitive with a dye of a similar shade produced in the United States, then the import will be appraised at $5 a pound, notwithstanding the fact that the importer paid the Swiss manufacturer only $2 a pound for the product.

However, most appraisements are made on the basis of export value, the price charged by the manufacturer or the seller in the foreign country.

The imports brought to the Appraiser’s Stores for examination form a cross section of the commercial treasures of the world and they are unbelievably varied. The examiners--trained by years of study and on-the-job experience--have become experts in appraising the quality and the value of a staggering number of imports. Whether the import is wool, cotton, silk, sugar, hog bristles, furs, diamonds, ore, chemicals, exotic foods, or an antique table, there is someone with a background of knowledge on the subject.

One of the largest single sources of Customs revenue continues over the years to be duties collected on raw wool which has not yet been processed for manufacturing. The wool examiner is one of the most highly trained of the specialists within the Bureau. He must be--because the Tariff Act of 1930 requires him to be able to identify by type thirty different wools from all parts of the world, in addition to being able to determine whether a shipment of hair is from the Angora rabbit, the Cashmere goat, the Bactrian camel of Central Asia, or the llama and vicuna of South America.

The Bureau has found that the only way to obtain these specialists is to recruit young men who are interested in this field of work, and to train them under the guidance of experienced examiners. The recruits must spend hours with books outside their regular work hours, in addition to attending technical training schools and visiting manufacturing and processing plants throughout the United States.

As far as the Tariff Act is concerned, the term “wool” includes not only the fleece from sheep, but the fiber from other animals. This is why the examiner must be able to distinguish Cashmere goat hair from the hair of the Angora goat raised in the southwestern part of the United States; and to learn the subtle differences between two grades of coarse hairs as well as the variations between the finest of fleeces.

Wool is graded by numbers, starting with 36 for the coarsest and moving through the 70s to the very finest. A miscalculation in the grading can deprive the Treasury of revenues--or cause an injustice to an importer.