Opinion of the Court.

sary to charge a defendant with liability in a court of law. The operations of the government in the collection of its revenue ought not to be embarrassed by requiring too strict an adherence to the forms and modes of proceeding recognized in courts of law, so long as the rights of its tax-payers are not. wantonly sacrificed. In this case notice was given to the defendant by letter and telegram, but as these notices were actually received at his office, he has no right to complain that they were not served personally. Jones v. Marsh, 4 T. R.. 464; Johnston v. Robins, 3 Johns. 440; Walker v. Sharpe, 103 Mass. 154; Clark v. Keliher, 107 Mass. 406; Blish v. Harlow, 15 Gray, 316; Wade on Notice, § 640.

The first day fixed for the hearing was in June, 1883, when the defendant and the appraisers attended, but the government was not ready to proceed, and the hearing was adjourned indefinitely, with an understanding that the defendant should be notified of the day when the case would be again taken up. Nine months elapsed without any action, when on March 18, 1884, the general appraiser at New York addressed a letter to the defendant at Philadelphia, notifying him that the reappraisement would take place at his office on the 20th day of March, at noon. Defendant at that time was in Cuba, but the letter was received by his brother, a clerk in his office, who wrote the appraiser in Earnshaw's name that Mr. Earnshaw was out of the country and was not expected back before the beginning of May, "and I must, therefore, ask you to be kind enough to postpone the said reappraisement." In reply to this a telegram was sent to the effect that the case was adjourned to March 25th, at noon, a postponement of five days from the time originally fixed. To this telegram no attention was paid, and it appears that the reappraisement was not held until the 31st, nearly a week after the day fixed in the telegram. On the 10th of May, when the defendant returned, he received a demand for payment of the duties according to the reappraisement.

The amount of business done by the defendant does not distinctly appear, but considering that this suit is brought to collect the difference in duties upon eleven different importations

Opinion of the Court.

of iron ore from a single foreign port during the latter half of 1882, it is but fair to infer that it was of considerable magnitude. Defendant knew before leaving for Cuba that proceedings were pending for a reappraisement of duties upon these cargoes, and were liable to be called up in his absence. Under such circumstances the appraiser might reasonably expect that he would leave some one to represent him, or at least that his clerk would act upon his notification to appear on the 25th, and ask for a further postponement on the ground of the defendant's continued absence, if the personal presence of the latter were in fact important. Had he done so and his application been refused, a much stronger case would have been presented by the defendant. He did not do so, however, but neglected to appear or to request a further postponement, and practically allowed the hearing to take place by default. In view of the neglect of the defendant to make any provision for the case being taken up in his absence, and of his clerk to appear and ask for a further postponement of the hearing, we cannot say that the appraisers acted unreasonably in proceeding ex parte and imposing the additional duties without awaiting the return of the defendant. Indeed, if a court of justice should fix a day for the trial of a case, though the court were informed that a party could not be present on that day, and the attorney of the party refused to appear and demand a further postponement, we should be unwilling to say that it would constitute such an abuse of discretion as to vitiate the judgment.

There was no error in the ruling of the court below, and the judgment is, therefore,

Affirmed.

Statement of the Case.

UNITED STATES v. PERRY.

APPEAL FROM THE CIRCUIT COURT OF THE UNITED STATES FOR THE SOUTHERN DISTRICT OF NEW YORK.

No. 794. Argued October 26, 28, 1892. Decided November 7, 1892.

Paintings upon glass, consisting of pieces of variously colored glass, cut into irregular shapes and fastened together by strips of lead, painted by artists of superior merit especially trained for the work, representing biblical subjects and characters and intended to be used as windows in a religious institution, imported in fragments to be put together in this country in the form of such windows, are subject to the duty of 45 per cent imposed by paragraph 122 of the tariff act of October 1, 1890, 26 Stat. 573, c. 1244, upon stained or painted window glass and stained or painted glass windows wholly or partly manufactured, and not specially provided for in this act; and not to the duty imposed by paragraph 677, 26 Stat. 608, c. 1244, upon paintings specially imported in good faith for the use of any society or institution established for religious purposes, and not intended for sale.

THIS case arose out of the importation of certain stained glass windows containing effigies of saints and other representations of biblical subjects. These windows were imported and entered November 24, 1890, as "paintings" upon glass for the use of the Convent of the Sacred Heart, located at Philadelphia, and consisted of pieces of variously colored glass cut into irregular shapes, and fastened together by strips of lead, and intended to be used for decorative purposes in churches, and when so used are placed upon the interior of the window frame, and are backed by an outer window of ordinary white glass. The outer window is necessary, as such paintings require for their proper exhibition a transmitted light. These paintings had been executed by artists of superior merit, especially trained for the work, and represented biblical subjects and characters, such as St. Agnes, St. Joseph teaching our Lord, St. Mark the Evangelist and St. Peter, and other pictorial representations of like kind, designed for religious instruction and edification. They did not come to this country in a completed state, but in fragments to be put together in the form of windows.

Opinion of the Court.

Upon these articles the collector of the port levied and collected a duty of 45 per cent imposed by paragraph 122 of the tariff act of October 1, 1890, 26 Stat. 573, c. 1244, upon "stained or painted window glass and stained or painted glass windows, wholly or partly manufactured, and not

specially provided for in this act."

Against this classification defendant duly and seasonably protested, claiming the articles were exempt from duty as "paintings specially imported in good faith for the established for relig

use of any society or institution

purposes,

and not intended for sale,"

ious under paragraph 677. A hearing was had before the board of general appraisers, who overruled the protest and affirmed the action of the collector. Respondents thereupon filed a petition in the Circuit Court for the Southern District of New York, praying for a review of the decision of the general appraisers, as provided in section 15 of the act of June 10, 1890, 26 Stat. 138, c. 407. The Circuit Court reversed the decision of the board of appraisers, and held the paintings to be entitled to free entry. In re Perry, 47 Fed. Rep. 110. From this decision the United States appealed to this court.

Mr. Assistant Attorney General Maury for appellants.

Mr. W. Wickham Smith (with whom were Mr. Charles Curie and Mr. D. Ives Mackie on the brief) for appellees.

MR. JUSTICE BROWN after stating the case, delivered the opinion of the court.

It is difficult to fix the proper classification of the importations in question under the act of October 1, 1890, without referring to the prior acts upon the same subject.

By the tariff act of March 3, 1883, 22 Stat. 497, c. 121, there was imposed a duty of 45 per cent upon "porcelain and Bohemian glass, chemical glass ware, painted glass ware, stained glass, and all other manufactures of glass not specially enumerated," while "paintings, in oil or water colors,"

Opinion of the Court.

(Id. 513,) were subject to a duty of 30 per cent; and "paintings, drawings and etchings specially imported in good faith" for religious institutions (Id. 520,) were admitted free. Under this and similar prior statutes, which did not differ materially in their language, it was uniformly held by the Treasury Department that the term "paintings" covered all works of art produced by the process of painting, irrespective of the material upon which the paint was laid; and that paintings on glass, which ranked as works of art, were dutiable as paintings, and when imported for religious institutions were entitled to admission free of duty. Like rulings were made with respect to paintings on ivory, silk, leather and copper, having their chief value as works of art. The term was also held to include wall panels painted in oil and designed for household decoration. A like view was taken by this court in Arthur v. Jacoby, 103 U. S. 677, of pictures painted by hand upon porcelain where the porcelain ground "was only used to obtain a good surface on which to paint, and was entirely obscured from view when framed or set in any manner, and formed no material part of the value of said paintings on porcelain, and did not in itself constitute an article of china ware, being manufactured simply as a ground for the painting, and not for any use independent of the paintings."

In the meantime, however, the manufacture of stained glass began to be a recognized industry in this country. Strong protests were sent to Congress against these rulings of the Department, and demands were made for the imposition of a duty upon stained glass windows as such, to save the nascent industry from being crushed out by foreign competition. Accordingly, in the act of October 1, 1890, we find a notable change in phraseology and the introduction of a new classification. By paragraph 122 a duty of 45 per cent is imposed upon "all stained or painted window glass and stained or painted glass windows, and hand, pocket or table mirrors, not exceeding" a certain size; while by paragraph 465, "paintings, in oil or water colors," are subject to a duty of only 15 per cent. The former exemption of "paintings, drawings, and etchings specially imported" for religious institutions is