Erhardt v. Steinhardt/Opinion of the Court

Counsel for plaintiff in error concedes that the bitters in question are proprietary preparations, and would be dutiable as such if there were no other governing clause; but contends that, as between the paragraph relating to proprietary preparations, and the paragraph relating to cordials, liqueurs, and other similar spirituous beverages, or bitters containing spirits, the latter should control; that the familiar rule that the more specific designation governs cannot be applied, because neither of the two paragraphs is more specific than the other; and that the beverage rate should be applied under the last clause of section 2499 of the Revised Statutes as amended in 1883 (22 Stat. 491), providing that, 'if two or more rates of duty should be applicable to any imported article, it shall be classified for duty under the highest of such rates.'

But we are of opinion that this contention cannot be sustained on the ground simply that Boonekamp bitters were a proprietary bitters, and also a bitters containing spirits. The proprietary paragraph has such enumerating force that a proprietary bitters, having a special character and value as such, protected by trade-mark and recommended as a remedy, although it contains spirits, as bitters generally do, cannot be treated as nonenumerated, or as so falling within two separate clauses as to involve the same result, unless that conclusion be compelled by other facts and circumstances disclosed in regard to it. The real inquiry here was whether the article, though confessedly dutiable as a proprietary preparation within the statute, was so similar to cordials, liqueurs, arrack, absinthe, kirschwasser, or ratafia, as to be also susceptible of being assessed under the clause applicable to the latter. This was a question of fact, and, we think, properly left to the jury, if there was any evidence upon which a verdict for defendant in error could be justified. The question was, indeed, reduced to a very narrow compass, for it was admitted that absinthe was the only article named in the cordials clause to which the government could claim that Boonekamp bitters bore substantial similarity, a concession based on the view that absinthe was the only 'bitters' specified in the clause.

Absinthe, according to the Century Dictionary, is 'the common name of a highly aromatic liqueur of an opaline-green color and bitter taste,' and is prepared by 'steeping in alcohol or strong spirit bitter herbs,' the chief of them being wormwood. It was not denied that it is bitter, that it is used as a beverage, and is not a proprietary preparation. It appeared that the wormwood 'has a medicianl effect upon the human system as a tonic,' and that the article contains anisette, a cordial. On the other hand, Boonekamp bitters is a proprietary preparation, recommended to the public as such, and, as prepared according to a private formula, as a remedy for certain specific maladies. The label is duly registered at the patent office. There was evidence tending to show that it contains rhubarb, orange peel, turmeric, and an essential oil, probably oil of anise; that it is bitter; that it is not attractive as a beverage, and hardly used distinctively as such; and that, while it is sold largely by liquor dealers, and used at bars, it is chiefly so sold for use and used in water, wines, or spirits, as a bitter, and for its cathartic, as well as tonic, qualities. A bottle of the bitters was produced for the inspection and consideration of the jury. Both articles contain alcohol in about the same proportion.

We are unable to conclude otherwise than that there was evidence tending to show that Boonekamp bitters were not substantially similar to absinthe, and that there was, therefore, no ground for taking the case away from the jury. The verdict that there was no such similarity determined that these bitters were properly classified under the proprietary preparation clause, and this excluded them from all other provisions. The rate of duty on the bottles was dependent on the rate of duty on the contents, and the determination as to the latter controlled.

Judgment affirmed.