Part 64

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.”

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.