as it appears in the record, is indefinite and unsatisfactory. He stated, in the first instance, that the imported material is 62 yards in length and 72 and 60 inches in width. Afterwards he testified that the imported pieces are 6 yards in length and 72 inches in width. There being no sample in the case, and the invoice being silent on this subject, the exact size of the imported material is not ascertainable. The witness further stated that as imported the articles were "bed blankets" and are used for this purpose; that after importation he cuts the material, between two lines therein, into "generally about two" blankets, each 72 inches in width and 84 inches in length, which is the standard size of the single blankets, and binds the cut edges; at once thereafter he stated that he cuts the blankets to make them "3 yards long," or 108 inches. He further testified that he bought the material as blankets and remanufactured it into blankets; that this merchandise is not remanufactured into any other article; that it can be used as a pair of double blankets; that they are not so used in this country, because his blankets are too heavy; that he does not know whether anybody else has sold similar blankets as double blankets without cutting them. Again he stated that he had not tried to sell the merchandise as a pair of blankets, and immediately thereafter that he had tried to do so, but without success.

As has been observed, this testimony is not satisfactory. It does, however, show that the articles are of blanketing material, more than 3 yards long, have no distinct line of demarcation for separation therein, and are intended to be ultimately used for bed blankets.

A case in point is United States v. International Forwarding Co., 15 Ct. Cust. Appls. 198, T. D. 42235. There, blanketing material from 4 to 5 yards in length was imported. It was developed by the testimony in that case that the material in about 50 per centum of the cases was cut into single blankets and so sold, and in the remaining portion cut and made up into sport coats, shirts, and the like. The court held the merchandise to be dutiable as manufactures of wool, saying inter alia:

Paragraph 1111 fixes the limitation as to the length of blankets that shall be classified thereunder, and the language employed indicates that Congress understood there might be blankets of more than 3 yards in length. If so, they must be classified elsewhere.

There is no claim of any subterfuge for the purpose of evading or avoiding the proper classification of these blankets. If it be assumed that they are suitable and designed, after importation, to be made into two smaller ones, or that, in fact, they serve the purposes of two separate blankets, the classification, nevertheless, must depend upon their condition when imported.

Clearly the blankets here are not within that rule. They are not imported in long running lengths. They are not so made that the identity of two separate blankets is fixed with certainty. In addition to that, the record shows that some 50 per cent of these blankets are used in making garments.

Here, as in the case cited, the claim is made that the imported merchandise is, in fact, blankets not exceeding 3 yards in length, imported in the piece, and that, under the doctrine announced in United States v. Buss, 5 Ct. Cust. Appls. 110, T. D. 34138, Artistic Weaving Co. v. Maguire, 13 Ct. Cust. Appls. 140, T. D. 40964, and Rogers v. United States, 14 Ct. Cust. Appls. 51, T. D. 41552, they should be held dutiable as such.

The rule announced in these cases is well summed up in United States v. Buss, supra, in these words:

The rule of decision is therefore established that where such articles are imported in the piece and nothing remains to be done except to cut them apart they shall be treated for dutiable purposes as if already cut apart and assessed according to their individual character or identity. This follows, however, only in case the character or identity of the individual articles is fixed with certainty and in case the woven piece in its entirety is not commercially capable of any other use.

If it be assumed that blanketing material more than 3 yards in length may be imported in such form as to be dutiable under said paragraph 1111 as blankets not exceeding 3 yards in length, as to which proposition we do not find it necessary to now express an opinion, it is quite evident that the Government has not brought itself within the rule so clearly stated in United States v. Buss, supra. A consideration of the testimony of Cronin clearly shows this.

In the alternative, the Government argues that if the goods are not properly classifiable as blankets they are dutiable as woven fabrics under paragraphs 1108 and 1109 of the Tariff Act of 1922; that as the importer has not made a proper claim in his protest under these paragraphs he must fail and the collector's classification be sustained. In our opinion, United States v. International Forwarding Co., supra, disposes of that contention. It was there said:

The Government further contends that these blankets, if not classifiable under paragraph 1111, are properly dutiable under paragraphs 1108 and 1109 of the act, which provide for woven fabrics, wholly or in chief value of wool, of two kinds, one weighing not more than 4 ounces per square yard and the other for such fabrics exceeding that weight. As to this claim, we agree with the board that as the importations are blankets-that is, distinct entities—they have passed beyond the character of woven fabrics and therefore fall within the provision for manufactures wholly or in chief value of wool, not specially provided for.

To a greater degree, perhaps, in the case at bar, the imported merchandise is blankets. No issue is made as to that. The only controverted point is whether each piece of woolen fabric constitutes one or more than one blanket. See, also, in this connection, United States v. Milbank, Leaman & Co., 14 Ct. Cust. Appls. 166, T. D. 41693. The judgment of the court below is affirmed.

O. G. HEMPSTEAD & SON v. UNITED STATES (No. 3120)1

1. GLASS HYDROMETERS AND STORAGE-BATTERY TESTERS-SCIENTIFIC ARTICLES FINDINGS OF COURT Below-EVIDENCE.

Whether the imported merchandise consisting of hydrometers and storagebattery testers, in chief value of glass, blown, and used in making certain tests of alcoholic liquors and storage batteries, is to be considered as scientific articles is a question of fact to be determined from its use as shown by the record., Upon this question the court below has found against the appellant, and as such finding is not against the weight of the evidence and not without evidence to support it, the judgment of the lower court will not be disturbed.

2. SCIENTIFIC ARTICLES-CHIEF USE-USE IN TRADES.

Whether the scientific character of an article is to be determined solely by its' chief use is not here decided, but if an article be commonly used in the trades, that fact does not, in itself, render it any the less a scientific article.

United States Court of Customs Appeals, January 9, 1929

APPEAL from United States Customs Court, Abstract 5939

[Affirmed.]

Comstock & Washburn (J. Stuart Tompkins of counsel) for appellant.

Charles D. Lawrence, Assistant Attorney General (Fred J. Carter, special attorney, of counsel), for the United States.

Lamb & Lerch (John G. Lerch of counsel), amici curiæ.

[Oral argument December 4, 1928, by Mr. Tompkins, Mr. Lawrence, and Mr. Lerch]

Before GRAHAM, Presiding Judge, and BLAND, HATFIELD, and BARBER (retired), Associate Judges

GRAHAM, Presiding Judge, delivered the opinion of the court:

O. G. Hempstead & Son imported certain articles at the port of Philadelphia, entered variously as "chemical glassware" and "scientific glassware." The samples introduced in evidence show the merchandise to be of six kinds, namely: First, Exhibit A. Spirit hydrom-` eters, with proof and Tralle scales, which hydrometers are used to determine the alcoholic content in distilled liquor. Second, Exhibit B. Similar spirit hydrometers equipped with thermometers for guidance in testing, and lettered "U. S. Customs House hydrometer for spirit." Third, Exhibit C. Hydrometers used in testing the specific gravity of malt beverages. Fourth, Exhibit D. Storage-battery testers. Fifth, Exhibit E. Hydrometers similar to the first class, but larger, and used for the same purpose. Sixth, Exhibit F. Baumé's hydrometers, used for determining the specific gravity of liquids. All of these are in chief value of glass and are blown. They are all constructed along similar lines and each consists of a weighted lower end, surmounted by an elongated, circular, glass bulb, which in turn is surmounted by a smaller glass tube containing a printed scale

1 T. D. 43173.

or scales, according to its variety, each being securely sealed, by blowing, at both ends.

The collector classified the merchandise as scientific glassware under paragraph 218 of the Tariff Act of 1922 at 65 per centum ad valorem.

The importer protested. Various claims were made in the protests, but as but two of them are relied upon in this court, these will be the only claims noticed, namely, that the goods were dutiable, first, at 55 per centum ad valorem as "all articles of every description not specially provided for, composed wholly or in chief value of glass or paste, or combinations of glass and paste, blown or partly blown in the mold or otherwise, or colored, cut, engraved, etched *" under said paragraph 218, and, second, at 50 per centum ad valorem under paragraph 230 of said act, as manufactures of glass or paste or of which glass or paste is the component material of chief value, not specially provided for. The Customs Court overruled the protests and importer has appealed.

* *

The debated portions of said paragraph 218 are as follows:

*

PAR. 218. Biological, chemical, metallurgical, pharmaceutical, and surgical articles and utensils of all kinds, including all scientific articles, utensils, tubing, and rods, whether used for experimental purposes in hospitals, laboratories, schools or universities, colleges, or otherwise, all of the foregoing, finished or unfinished, composed wholly or in chief value of glass or paste, or a combination of glass and paste, 65 per centum ad valorem; * * table and kitchen articles and utensils, and all articles of every description not specially provided for, composed wholly or in chief value of glass or paste, or combinations of glass and paste, blown or partly blown in the mold or otherwise, or colored, cut, engraved, etched, frosted, gilded, ground * * * 55 per centum ad valorem: * * *

The issue made in argument here is whether the imported articles are, in fact, scientific articles. In the court below several witnesses were called and examined to develop the use of this merchandise. These witnesses all agree as to the general uses of the various articles as herein before set out. The specific issue made by their testimony seems to be as to whether they are used in a scientific way, by scientists, or in a utilitarian way, in business or trade, by laymen. A brief résumé of their testimony may be helpful.

Richard Wimmers, for the protestant, testified that the goods were sold to wholesale druggists, supply houses, wholesale hardware houses, and to wholesale malt and hops supply dealers, and not to laboratories, schools, etc.; that these articles were much inferior to the ones sold to schools, etc.; that they are made with printed scales, and that such scales are not accurate; that accurate scales are put on by hand; that the use of these instruments requires no skill; that the malt liquor testers (Exhibit C) are principally used by home-brewers, and the battery testers by those in the radio or automobile business; that these instruments are tested before being sold, and if their imperfections in scale are but slight they are sold.

H. L. Balderston, a witness called by the protestant, testified that he manufactured and sold goods like those imported; that they were sold to measure the approximate density of liquids; that these instruments are not suitable for use as scientific instruments, as they are not accurate enough; that he sold these articles to people who deal in "hootch supplies."

Charles C. Roberts, chief chemist of the Arthur H. Thomas Co., wholesalers and importers of laboratory and scientific apparatus, a witness for the Government, stated that he was familiar with the use of all of the imported articles except the malt and brew testers (Exhibit C); that his firm used the same and sold them to scientific laboratories; that such articles, with printed scales, have a definite use in such laboratories and are considered scientific instruments among chemists; that they are listed in the catalogues of his company as scientific instruments; that, for more accurate work, other methods and written-scale hydrometers are used; that an approximation is often a scientific test; that no hydrometers are absolutely perfect.

Francis Freas, a dealer in and manufacturer of hydrometers and thermometers, testified, for the Government, that he sold instruments like these in issue, to manufacturing institutions which maintain firstclass laboratories, for laboratory use; that they are used in such laboratories for experimental purposes, by chemists; that he has also sold them to the University of Pennsylvania; that the malt and brew testers are sold for use in making homemade beer, and to vinegar companies; that the only practical use for the battery testers is the commercial use of testing batteries; that many of the imported articles are used by people in making alcoholic liquors, since the enactment of the national prohibition act.

L. B. McSorley, chief chemist of the United States customhouse at Philadelphia, also called by the Government, testified that he had used instruments like Exhibits A, E, B, and F in his laboratory for scientific purposes—namely, determining the specific gravity in liquids. That he has used the battery testers for determining the specific gravity in an electrolite.

The appellant argues that the facts developed in the case at bar lead to the conclusion that the imported goods are not scientific articles. Whether the scientific character of an article is to be determined by intrinsic character or principal use has been a debated question. The Supreme Court, in Robertson v. Oelschlaeger, 137 U. S. 436, in considering the language "philosophical apparatus and instruments," as it appeared in Schedule N of the Act of March 3, 1883, expressed the view that the use of the imported articles should govern their classification and determine whether they were philosophical apparatus or not. In United States v. Presbyterian Hospital, 71 Fed. 866, the Circuit Court of Appeals for the Second Circuit