44 F. 551 | U.S. Circuit Court for the District of Massachusetts | 1890
I think this case ought to be decided by reference to the composition and use of the liquid substance which is contained in these bottles. The plaintiff claims that such substances as are included under the name “proprietary preparations” have use as medicines distinctively, and that such as are included under the paragraph beginning “cordials, liquors, arrack,” etc., have use as intoxicating beverages. I think, however, that the last-named substances, while used as intoxicating liquors, liave also a use as tonics, not in the sense in which that word is commonly used, but in the sense in which it is discriminatively used in describing the operations of various substances upon the functions of the human body. That tonic effect undoubtedly is an effect distinctly different, physiologically, from the intoxicating effect. It therefore follows that the fact that this substance is not used as an intoxicating beverage, which I infer from the fact that it is not sold in bar-rooms, is not conclusive upon the question whether it be or be not a tonic. But the composition of the substance, as well as the representations of the makers of the substance, seem to me to be conclusive upon that question. With great accuracy in their advertisements and on their labels, they describe the uses of this substance, and they describe it, in the first place, to be a preservative against fevers, and, in the second place, as having “tonic properties,” and as being an “excellent restorative.” Substances having-such qualities do not come within the description of remedies for disease, and I'therefore find this substance in question to he under the definition of that schedule of the act under which the collector has decided it to be dutiable.
Plaintiff’s counsel contends with much acuteness that the clause relating to proprietary preparations contains a specific enumeration as compared with the clause under which I find this substance to be dutiable. The words “generic” and “specific” are relative words. The name which is said, by comparison with some other name, to be “specific,” is so said because the definition given of the name alleged to be specific limits the subject under consideration more or further than the definition which is assigned to that name which is called “generic.” In this case I see no substantial difference in extent and breadth of specification between these two sections. The two names given are, in substance, “proprietary remedies” on one hand, and “spirituous beverages” or “bitters” on the other, and they seem to me to be, for practical purposes, equally general.
On the question of the tax assessed upon the bottles, 1 am convinced by the argument of the learned counsel that the protest is sufficient to authorize a recovery if such an error had been made as he claims to ex
Judgment for .the defendant.
