United States v. Merckens

17 C.C.P.A. 318, 1929 CCPA LEXIS 71

• Court: Court of Customs and Patent Appeals
• Decided: November 25, 1929
• Docket: No. 3191
• Status: Published

Opinions

Hatfield, Judge,

delivered the opinion of the court:

This is an appeal by the Government from a judgment of the United States Customs Court holding that certain small slot machines were dutiable at 30 per centum ad valorem under the provision for “all other machines or parts thereof, finished or unfinished, not specially provided for,” contained in paragraph 372 of the Tariff Act of 1922. The paragraph reads as follows:

Par. 372. Steam engines and steam locomotives, 15 per centum ad valorem; sewing machines, and parts thereof, not specially provided for, valued at not more than $75 each, 15 per centum ad valorem; valued at more than $75 each, 30 per centum ad valorem; cash registers, and parts thereof, 25 per centum ad valorem; printing presses, not specially provided for, lawn mowers, and machine tools and parts of machine tools, 30 per centum ad valorem; embroidery machines, including shuttles for sewing and embroidery machines, lace-making machines, machines for making lace curtains, nets, and nettings, 30 per centum ad valorem; knitting, braiding, lace braiding, and insulating machines, and all other similar textile machinery or parts thereof, finished or unfinished, not specially provided for, 40' per centum ad valorem; all other textile machinery or parts thereof, finished or unfinished, not specially provided for, 35 per centum ad valorem; cream separators valued at more than $50 each, and other centrifugal machines for the separation of liquids or liquids and solids, not specially provided for, 25 per centum ad valorem; combined adding and typewriting machines, 30 per centum ad valorem; all other machines or parts thereof, finished or unfinished, not specially provided for, 30 per centum ad valorem: Provided, That machine tools as used in this paragraph shall be held to mean any machine operating other than by hand power which employs a tool for work on metal.

Exbibit 1 is representative of the merchandise. It is composed of glass and tin and is approximately 6% inches in height and 3 inches in width. It is in the nature of a so-called vending machine, having a slot in which a penny may be dropped, whereupon, by the pulling of a slide, a small bar of chocolate is delivered to the operator. The pulling of the slide causes the penny to drop into a receptacle at the bottom. When the supply of small chocolate bars is exhausted, others, called refills, may be supplied, and the article is again ready for operation. On one side of the exhibit appears the following: “A cent saved is a cent earned.” The articles are somewhat fancifully decorated with designs intended to attract the attention of children and were, undoubtedly, designed to be used by them.

The merchandise was assessed for duty by the collector at the port of New York as “toys” at “70 per centum ad valorem” under paragraph 1414 of the Tariff Act of 1922, which reads as follows:

Par. 1414. Dolls, and parts of dolls, doll heads, toy marbles, of whatever materials composed, air rifles, toy balloons, toy books without reading matter other than letters, numerals, or descriptive words, bound or unbound, and parts thereof, garlands, festooning and Christmas tree decorations made wholly or in chief value of tinsel wire, lame or lahn, bullions or metal threads, and all other toys and parts of toys, not composed of china, porcelain, parían, bisque, earthen or stone ware, and not specially provided for, 70 per centum ad valorem.

The importer protested the assessment, claiming that the merchandise was dutiable as machines at 30 per centum ad valorem under paragraph 372.

The court below, in an opinion by Sullivan, J., said:

On cross-examination it was further established that, to operate the article, not only must a cent be inserted in the slot but the handle must be pulled, or, in other words, “the piece of chocolate slips out when you pull the lever in the front, not otherwise”; that there is “no use for this other than by children”; that “it appeals to the sense of the child” as “an incentive to use the penny to get the chocolate out of the machine”; that “it is not to be used as a toy”; that “it could be used by adults,” but “it is more to appeal to a child.”'

While this article probably amuses the child, it is clear that amusement is not its only purpose. It tends to impart to the child lessons in thrift, and, in addition, it serves as a container for pieces of chocolate, and to prevent the child from eating the same unless he pays for it. We think “it is reasonably capable of use for some practical purpose other than the amusement of children”; therefore under the well-known rule in the Illfelder case, 1 Ct. Cust. Appls. 109, 111, T. D. 31115, “it can not be classed as a toy.”

It is contended by the Government that the articles in question have no practical use; that they are designed solely for the amusement of children; and that the facts in this case bring the articles within the rule announced in the case of Illfelder v. United States, 1 Ct. Cust. Appls. 109, T. D. 31115. In that case, in an opinion by Smith, J., this court, among other things, said:

In common speech, and as popularly understood, a toy is essentially a plaything, something which is intended and designed for the amusement of children only, and which by its very nature and character is reasonably fitted for no other purpose. Although an article may be chiefly used for the amusement of children, if its nature and character are such that it is also reasonably fitted for the amusement of adults, or if it is reasonably capable of use for some practical purpose other than the amusement of children, it can not be classed as a toy unless it is affirmatively shown by the importer that it is so known and designated by the trade generally.

The evidence in the case, while not very satisfactory, is sufficient to establish that the articles were designed, not only for the purpose of amusing children, but also for the purpose of instilling into the child mind the value of money and the idea of thrift — the child operator must pay for each piece of candy he obtains. Of course, children might be entertained to some extent by the mere mechanical operation of the machines, but we are inclined to the opinion that this entertainment is but incidental. It must be borne in mind that the machine will not function unless it contains these “bars”' and that the real purpose of the operator is to secure one or more of them. It might be said also that the articles are convenient containers for chocolate bars and, to a degree, serve the purpose of “penny banks,” and that the articles were designed for all of these purposes. There is no evidence in the record that they are ever used by children as mere playthings, nor does an inspection of the exhibit in the case, in our opinion, indicate that they are so used. Confining our consideration of the case to evidentiary, as distinguished from imaginary, facts, we are of opinion that the so-called vending machines are not mere playthings but are reasonably capable of use for practical purposes other than the amusement of children, and that they were so intended and designed. They do not, therefore, come within the definition of toys as announced in the Illfelder case, supra.

It is further contended by the Government that the articles are too flimsy and too small to come within the definition of a machine as announced in the case of Simon, Buhler & Baumann v. United States, 8 Ct. Cust. Appls. 273, T. D. 37537. We there said that a machine is “a mechanical contrivance for utilizing, applying, or modifying energy or force or for the transmission of motion.” This definition was approved by this court in the case of United States v. Janson Co., 16 Ct. Cust. Appls. 315, T. D. 43075, and it was there held that radio receiving sets were machines within the definition.

It is true, as argued by counsel for the Government, that the articles are somewhat flimsy in structure, and simple in operation. However, they are not, for these reasons, excluded from the provisions for machines. We think they are clearly within the definition of machines as laid down in the Simon, Buhler & Baumann and Janson cases, supra, and we so hold.

The judgment is affirmed.