IN BE WHITNEY·.
termined,. he Il1ust be sent back. to his ·country by the treasury department at Washington. To prevent an unreasonable and possibly oppressive detention it must be within one year. Meanwhile he must keep from entering thecommuIrlty of the people of the United States, and therefore he is to be imprisoned. To prevent expense to the government, and as a sanitary matter, he is to be made to work. This, it seems to me,. is the meaning of the clause relied upon to authorize trial and punishment for a crime. There is nothing in the statute declaring that it shall be a crime or a mi&demeanor for a Chinese to come into the country. The unlawfulness is not made the basis of criminal procedure or detention, but rather' is made the warrant to send him back. The imprisonment spoken of in the statute is that which is necessary to effectuate his return. It seems to me that section 4 deals with proceedings before $ec()I:m;nissioner conducting an examination which is political, and not. cciln,inal, alld. amounts to a direction to him and to the autho..-itief! who conduct the transportation or removal back to China, and is twofold: First, that a Chinese adjudged to be here unlawfully shall be removed within a year; second, that till removal he shall be kept in prison and made to work. In accordance with these views, I must direct that this indictment be quashed, and that the defendant be remanded to the custody of the commissioner, to be dealt with according to law.
In re WHITNEY.
(Circuit Court, D. Delaware.
CUSTOMS DUTIES-CLASSIFICATION -BOILER FLUEB.
Certain imported articles were invoiced as "Purves' rlbbedboller flues," They consisted of ribbed cYli'llders flanged at one end, designed and adapted for use in the boil,)rs of steamboats. They are made to order, and dellvered in the condition in which they leave the factory, and known by the inventor, maker, importer, and seller, and by practical as. "ribbed boiler fJ,ues." Both English and American have been isSUed for them as an "improvement in boller flues." wenknown scientific works describe these articles as "flues," etc. An extensive manufacturer of corrugated furnace flues, similar in all essential features to the articles in question, advertised such articles as "corrugated boller flues w'lth flanged or plain ends." They were in use for nearly four years prior to the tariff of October I, 1890. Held, that the articles are dutiable as "boiler flues," under Schedule C, par. 157, at 21-2 cents per pound, and not at 45 per centum ad valorem under Schedule C,par. 215, as manufactures not enumerated, composed wholly or in part of iron, steel, etc.
Application for a Review of the Board of General Appraisers' Decision. Affirmed. Curie, Smith & Mackie, for petitioner. Beniah Watson, F. S. Dist. Atty., and John Proctor Clark, for tho United States WALES, District Judge. This is an application by the importer, under the provisions of section 15 of the act of congreSS entitled "An
the laws iJ;l relation to the collection of the revenue," ;J"lllle 10, 189(), (26 St. U. S. 138,) for the review of a decision made (by,the board of United States general appraisers, reviewing the clasai,icationfor duty by the collector of the port of Wilmington, of entered at said port on the 21st of August, 1891. The import,ed .articles were invoiced as "4 Pur\"es' ribbed boiler tiues," :were claimed by the importer to be dutiable at 2 1-2 cents per pound, under paragraph 157, Schedule 0, of the act of congress of October 1, 1890, entitled "An act to reduce the revenue, and equ3,lize duties on imports, and for other purposes," (26 St. U. 8. 567,) which reads as follows: "Boiler or other .tubes, pipes, flues, or stays, of wrought iron or steel, two and one half cents per pound." The collector held tha,t the imported articles were dutiable under the provisions, of paragraph 215, Schedule 0, of the same act, as follows: "Manufactlires, ,articles, or wares, not specially enumerated in this act, composed wholly or in part of iron, steel, lead, copper; nickel, pewter, zmo, 'gold, silver, platinum,aluminum, or any other metal, and whether ,partly or wholly forty-five per centum ad valorem." ThA. importer protested against this classification, and his protest has been sustained by the board of appraisers.. 'The'iIn.ported articles consisted of certain ribbed steel cylinders, eooh.onebeing 91·2 feet in length, 45 inches in diameter, flanged at one end, and weighing 8,104 1-2 pOUllds. They were, manufactured at Sheffield, and the respondent is the sole importer of them in the United States. They are not kept in stock, but are made to order, and delivered to the purchaser in the condition in which they leave the factory. The importations in qupstion were designed and adapted for the boilers of steamboats which were being built for the Stonington Line by the Harlan & Hollingsworth Oompany. The manner of their uaemay be described in the language of the government's witness (Kafer) in' answer to the question:
When thus ready for use in a boiler, all of the cylinder, except about inches at the front, would be surrounded by water. The cylinder IlOW becQcffie, jn practically a furnace, and, as contended by the appellant, is no longer, if it ever was, a boiler flue, such as is profor iJl parl,tgraph 157, above quoted. On.the other hand, it is . claimed thaf,·thedyli'ndersare none the less tIues from being partly cOIlverted int.() furnaces after they have been put in place in the boiler. A flue may be defined to be a pipe, tube, or passage JOl' the conveyof, smoke, hot gases, .heated air, etc. The practical operation of the Purves flue is this: After the fire has been started, the smoke, flame, and hot air pass over the bridge wall into. ,bridge wall connection, ·thence through the .to . the back connection,. thence through the re-
turn flues to the uptake; The grate :bars and bridge wall fill up from one half to two thirds of the cylinder, according to the length of the latter, which varies from 9 to 18 feet, so that some portion of it is used as a flue independently of the furnace appliances. This cyl: inderdiffers from the old-faBhioned boiler flue in the use to which it is applied, but does it differ so widf'ly as to lose the descriptive name and meaning of "flue?" It is a comparatively modern production, and has been largely substituted for the rectangular furnac-e in marine boilers. So far as inventors, manufacturers, and importers can fix the desig· nation 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 flhe 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." It is true that Mi'. Whitney at one time issued a circular, advertising himself as the sole agent in the United States for the sale of "Purves' patent ribbed steel boiler furnaces;" but he had also, when a member of the fIrm of Williams & 'Vbitney, in 1889, advertised these same arti· des as ''Purves' patent ribbed boiler tiues." It is also true that on a previous importation of articles of the same kind and make, they· were invoiced as "2 patent Purves' ribbed steel furnaces," and that the duty of 45 percent. ad valorem on them was paid without protest; but the invoice contained the following words em its face: ''Memo. Above flues sent to replace two similar flues shipped per Indiana on 17 Jan. to above-named Harlan and Hollingsworth Co." The most conclusive evidence on the question of nomenclature is perhaps that furnished by the advertisements of the Continental Iron Works, of )3l'ooklyn, N. Y. This concern is a large manufacturer of .corrugated furnace flues, whiCh are similar in all essential features to the Purves ribbed flues, and are applied to the same uses; the only difference being that the former are corrugated, and the latter are ribbed. In the Scientific American, the Iron Age, Power, and similar publications, running through the years 1887, 1888, 1889, 1890, and 1891, may be found the following advertisement:
"The Continental Iron Works. Brookyln. N. Y. Sole manufacturers of corrugated boiler flues. their own patents and those of Samson Fox, of Leeds. England. l\fade in all sizes, ",ith flanged or plain ends."
In addition to this, among other exhibits containing descriptive ad· vertisements, will be found fl. little book, (Exhibit M,) with the fol· lowing title:
"Pox's Patent Corrugated Boiler Flue.. A description of the processes pursued in the various stages of their manufacture. etc. Presented by the sole manufacturers. the Leeds Forge· Company, Limited. Samson Fox, C. E., Managing Director, Leeds, 1886."
This book contains a cut illustrating the manufactured article, which is precisely similar in all respects-corrugations being substt.
urged in. of flue in flu,e the old boiler flue JnQ,tio;tledin the PllevjOUS tari, and before the inventions of of ,Fox were :&ut we have no certain assurance of tb.at,cpX1EIt,rucijOJl.!,an9:wp.enever, the, intention of congress is uneerWn of 1;lle,llol,1bt must bein favor of tp.ei.Jnporter. lIetre ¥J anl.U'ticle:kllown by the j;nventorand the maker, by the importer, and by practical engineers, as a "ribbed furnace flue" or fiue,".a;o.d occasionally. as a "ribped furnace;" but aU being ;equivalent and llleaning the', sa.me thing. These newlY-i.n:Vfl;o.ted fiue$ in u,se for nearly four years before ot"fue 9f October, were known in the UniteQ. States, and iUs fairly presumable th&t th,QY, were nQt u;:Qik.nown tq, old fiqe imparted heltt Ell11'I'QunQing it,and,'i.3Pdqes the modernflue, whether the latw:rij)Illa,(le patent or under the Fox patent. ThesQitn:l:\e,wprks authority, found<among the el:· one exception; speak of the Purves invention as "a flue wb.enused as, a., furnal16," and of naval QiUcers to the navy depl.U'tment,lmal\.e use of Uke exprelilsiO,:Q.S. But,: as already observed, the fiues" ,made by the iron works .a.tBrooklyn, accoJq.panied. byftn illustrative.cut of one of the manubwtuneQ; produc1ll, stamped: would seem to the 'botllas to the, to the sub· $tanoo0fi tl!.e articleinlPQrted. '. , f !! .' ' , been Elaid that these goods are dutiable underpl;WJ!,graph 157 at 21-2 cen11sper pOlllld,and that the decision of the bQardof D1ll.Btbe
...·'ue. inte:q.(f t(),include thif'\
:Tn re' PHELPS, Colleetorof Customs;:
D. Cal!t?:rnia:November 28,1892.)
CUSTOM!r DUTIll:S"-'C!.ASSLtIOATroN-SUMATRAToBACoo....JCIGAR WRAPPERS.
"On .81, qH\lsti0p' whej;b,er .certaln lIllPPrtations of Sumatra topiga,r WrllpJlers, and dutiable at two dollllJ,'$ pet pound UI1ller the tarift! a,.ct of October 1, 1890, (Schedule F, par. 242,)' there was an irreconcilable' oon1lict between the witnesses for the importer and those for the goveJ:Ument, the tortnerc1aiming that the tobacco W/1stoo for wrappers;, buUt appel4"lildthat a large part of the, imPortation haqlllreadybeen 8 01dfor wrappers at $2.65 per pound, whlleit$, 'Value for' could not $1 of $1.25 per pound, and that it liad been made into cigars, arid sold to the trade. Pending the .mallEj from, of the tobac.oo, were appar· entlY' of, Rood JUld .dElteriQJ;ated" ,dJ:Ylng during the courser of' five months; BbU, that the tobacco' was' dutiable at $2 per pound.
Application of.Timothy G.,Phelpa, collector of customs for the port of 8a.n,Fl'ancisco,Cal., for a review 0fthe questions of law and fact involved in the decision of the board of general appraisers on duty at,the port}of New York on the 19th: day of December, in respect't\:) the claSSification of .146-bales of leaf tobacco, imported by