No. 70 | 2d Cir. | Jan 7, 1905
The articles in question are ping-pong balls. They were returned and classified for duty as “manufactures of pyroxylin,” and were assessed as such by the collector, under paragraph 17, Act July 24, 1897, c. 11, § 1, Schedule A, 30 Stat. 152 [U. S. Comp. St. 1901, p. 1628], which is as follows:
“Collodion and all compounds of pyroxylin, whether known as celluloid or by any other name, 50 cents per pound; rolled or in sheets, unpolished, and not made up into articles, 60 cents per pound; if in finished or partly finished articles, and articles of which collodion or any compound of pyroxylin is the component material of chief value, 65 cents per pound and 25 per cent, ad valorem.”
The importers protested, claiming that said articles were dutiable as toys, under paragraph 418 of said act (section 1, Schedule N, 30 Stat. 191 [U. S. Comp. St. 1901, p. 1674]), which is as follows:
“Dolls, doll-heads, toy marbles of whatsoever materials composed, and all other toys not composed of rubber, china, porcelain and parian, bisque, earthen or stone ware, and not specifically provided for in this act, 35 per cent, ad valorem.”
In reversing the action of the collector, the Board of General Appraisers held as follows:
“We find from the papers before us that the articles described on the invoices as ‘ping-pong balls,’ arei of the same general character as those passed upon in G. A., 1,644 (T. D. 13,223), and board decision (unpublished) dated April 30, 1903, protest 55,065B, and there held to be toys. Following these rulings, we sustain the protests. * * *”
The Circuit Court affirmed the decision of the board. No evidence was taken either before the board or in the Circuit Court. The argument in the court below was confined to the question whether, in the absence of any evidence upon a question of fact, the Board of General Appraisers had the power to reverse the finding of fact by the collector. It is unnecessary to consider how far this argument might be applicable in a case where the collector had acted upon the evidence of witnesses produced before him. It has no relevancy to the question at issue in the case at bar, where the only evidence consisted in the articles themselves. The collector, the board, the court below, and this court are all equally entitled to avail themselves of such information as may be derived from an inspection of the articles in connection with the facts of common knowledge and experience, of which judicial notice may be taken. Here it does not even appear that the Board of General Ap
“An article constructed for the amusement of children; a plaything, as a doll or Noah’s ark; hence: any trifling or amusing object; any bauble or knickknack; trinket; trifle.” Standard Diet.
We cannot close our eyes to the fact that the game of'ping-pong is ordinarily played on a table which is of such a height that it would be difficult for children to play the game; that it is a game indulged in by adults, and one which requires a degree of skill not ordinarily possessed by children; and that ping-pong balls are sold in stores where athletic goods such as footballs and baseballs, tennis and golf balls, are sold. The. fact that small boys indulge in games of baseball and football does not serve to bring the balls within the category of toys. These ping-pong balls are imported and sold to be used in a game of skill played by adults.
The decisions of the Circuit Court and of the Board of General Appraisers are reversed, and the classification of the collector is sustained.