Thomas v. F. B. Vandegrift & Co.

153 F. 591, 1907 U.S. App. LEXIS 5115

• Court: U.S. Circuit Court for the District of Eastern Pennsylvania
• Decided: February 21, 1907
• Docket: No. 48 (1,553)
• Status: Published

Opinion

HOLLAND, District Judge.

In 1892 this same article of importation was before the district court in Delaware county, in the state of Delaware, in this circuit, and it was then held:

“So far as inventors, manufacturers, and importers can fix the designation of an article under the revenue laws, it has been done in the present case through letters patent, invoices, and advertisements. An English patent, No. 3,722, dated March 23, 1885, was issued to David Purves for ‘a new and useful improvement in boiler flues,’ and he subsequently obtained letters patent for the same invention from the United States, No. 372,487, dated November 1, 1887. This flue has acquired a high reputation among scientific writers and practical steam engineers, and is known as ‘Purves’ ribbed flue,’ as ‘Purves’' ribbed furnaces,’ and .as ‘Purves’ ribbed boiler flue.’ ” In re Whitney (C. C.)-53 Fed. 237.

In that case the classification assigned to the imported article was under the unenumerated iron and steel clause of the act of October 1, 1890, and duties assessed under the provisions of paragraph 215, Schedule'C, § 1, c. 124=4, 26 Stat. 582. The importer protested against this classification, insisting that the article was not a. furnace, but was a “Purves’ ribbed boiler flue,” and the District Court sustained the decision of the board in this view. Since that time there-has been other legislation, and it is true that under Act July 24, 1897, c. 11, par. 152, § -1, Schedule C, 30 Stat. 163 [U. S. Comp. St. 1901, p. 1641], “welded cylindrical furnaces made from plate metal” are dutiable at two and one-half cents per pound. But at the time this legislation. was enacted this article of importation was not, by a definite, uniform, and general usage, commercially designated as a furnace. 1 Fed. St. Ann. C. When first made, they were known as “flues,”' and then as “flues or furnaces,” and are becoming more and more referred to as “furnaces,” but they are still known in the trade, to some extent, as “flues.”

In view of the fact that the court has passed upon this question and tl\e article is known by both terms in the trade, and the further fact that the Board of General Appraisers has uniformly required the articles imported to be classified as flues when the matter was before them, we are not convinced that the government in this case has established that the commercial name of this article is a furnace.

The decision of the Board, of General. Appraisers is affirmed.