New York Daily News v. United States

65 F. 493, 13 C.C.A. 16, 1895 U.S. App. LEXIS 2236

• Court: Court of Appeals for the Second Circuit
• Decided: January 9, 1895
• Docket: No. 69
• Status: Published

Opinion

LACOMBE, Circuit Judge.

The board of appraisers found that "the merchandise is an eight-page pictorial paper, entitled 'New' Yorker Lustige Blatter.’ It contains stories, poems, selections of German humor, and other current literature of the day.” It is imported to he used as a supplement to the German edition of the New York Sunday News. The collector classified it as "printed matter,” under paragraph 423, Tariff Act Oct. 1, 1890, and assessed duty at 25 per cent. The importers protested, claiming that the merchandise was within the description of paragraph 657, and therefore free of duty. Paragraph 657, which is found in the free list, is as follows:

“Newspapers and periodicals; hut the term ‘periodicals’ as herein used shall be understood to embrace only unbound or paper-covered publications, containing current literature of the day, and issued regularly, at stated periods, as weekly, monthly, or quarterly.”

The only point in dispute is whether the publication was “issued” as a periodical before it reached the port of entry. The title “Lustige Blatter” means “funny paper.” It is the trade mark or name of a paper which has for many years been prepared and published in Munich, appearing weekly. Its circulation is very large, the whole issue comprising about a million copies. It is circulated as an extra to other weekly publications, — some 20 or 30 of them, as the evidence shows, — appearing in Munich, Berlin, and elsewhere. The title or heading of each issue invariably contains the name “Lustige Blatter,” but to that name there are added or prefixed other words or symbols, indicative of the particular periodical to which it is an extra or supplement. In every other respect all the copies of each issue are identical. The circuit court held that the copies in question had not been issued as periodicals before importation, but that they were “like patent insides or outsides of newspapers sold partly printed, to be completed for publication”; evidently being of the opinion that the publication reaches here without the title or heading. The evidence, however, indicates that the contrary is the fact; the heading “Yew Yorker Lustige Blatter,” and the cut of the Brooklyn Bridge, which differentiate the copies going to its readers here from those going to Berlin or elsewhere, being printed in Munich with the rest of the paper, which is complete when it reaches here. We are of the opinion that congress did not intend, by the proviso to paragraph 657, to restrict the privilege of free entry to such periodicals only as come here to individual subscribers. One hundred or one thousand or ten thousand copies of such a weekly paper as the Illustrated London Yews may surely be imported, under the terms of the paragraph, by a single newsdealer, and by him distributed to subscribers of whom the English publishers are wholly ignorant; and in such a case it would seem that the right to free entry would not be lost should the publishers stamp on all such copies the words, “For circulation abroad,” or should prefix to the well-known title of their periodicals .the words “Yew York Edition.” The Lustige Blatter is, upon the evidence, a periodical issued weekly to its German readers, as an extra to other German papers, and to its readers here as an extra to the Sunday edition of the Daily Yews, and as such is entitled to free entry. The decision of the circuit court is reversed, and the ruling of the board of appraisers is sustained.