(OCrcuCt Oourt, 8. D. New York. January 11, 1899.)
OtISTOll8 DUTIEs-CLASSIFIOATION-" BENEDIOTINE CORDIAL. It
The l4.qy.eur cordial known as "Benediotine It prepared in France after a secret formula derived from Benedictine monks of the abbey of Feoamp. in that country, and put up in bottles with labels signed and trade-marked by the proprietors. and acCompanied. in the case of each bOttle. by a circular claiming for. the liquor certain therapeutic and prophylactic qualities; but the· fact appearing in evidence that the" Benedictine." was a pleas,aIlt after-dinner drink, taken. in small liqueur glasses, and that the greater part of it' was sold to grocers, liquot dealers, and private families,and used 88 a that it was dutiable under Schedule R (paragraph 818, Tariff Ind. New) of the .tariff act of March 8, 1888, as a cordial con.tainiog spirits, at two dollars per gallon, and not as a proprietaty preparation under Schedule A (paragraph 1111, Tariff Ind. New) of the same act.
(SflllabuB 1YJJ the Cou1't.)
. AIllllication by the imllorters under. the Ilrovisions of secto simplify the laws in tion 15:of the a,et of congress relation to the collection of the approved June 10,1890, for a review by the United States circuit.court of the decision of the board of United. States general aIlllraisers affirming the decision of the collector at the port of New York in the cla,ssi.fication for'duty of certain Benedictine entered at said Ilort, Selltember, 22, 1890, which was assessed and bottles each, 3 for duty as "cordial (not Ilroof) cases of gallons toJhe case," at the rate oft:wo dollars Iler gallon,.1,lnder the Ilrovisions of Schedule H (HeyI's Tariff' Ind. New, par.B13) of the tariff act 'of March 3, 1883, and at three cepts per bottle on the bottles containIng the same, under the provisions of paragraph 310 of the same schedule and act. Said paragraIlh 313 rea,ds.as follows: "Cordials, liquors. arrack. absinthe. kirschwasser, ratafia. and other similar spirituous beverages or bitters.· containing spirits, and not specially enumerated or provided for 1n this act,' two dollars per proof gallon." The imllorters duly Illotested, claiming that'the merchandise was dutiable at 50 Iler cent. on the valueQf the Benedictine, as a Ilrollrietary prepllration, under Schedule A (Beyl's Tariff Ind., New, Ilar. 99) of said t!\riff act, and at 30 percent. on the value of the filled bottles conta,iQing the same, under Schedule B ,Of sllid act, (Heyl's Tariff Ind., New, . par. 133.) Said Ilaragraph 99 Ili-ovides as follows: , "Proprietary preparations. to-wit, aU cosmetics, pUIs, powders, troches or lozenges. sirups, cordials, bitters, anodynf's, tonics. plasters. liniments, salves, ointments, pastes, drops. waters, essences, spirits. oils,or preparaor tions orcQmpoilitions, recommended tothe public as proprietary prepared accol'ding to some private formula as remedies or specifics for any ,disease all diseases or affections whatever, affecting the human or animal body, includinK .all toilet preparations whatever, used as applications to the ,hair. mouth. teeth,or skin, not specially enumerated or provided for in this act, fifty per centum ad tlalO1·em. , ·. was. before .the board of the United States general allpraisers, all an officer of the in behalf of the imllorters and of the goyernm,ent, by which, and from the sam!)le of ,the liqueur Ilra-
IN BE GOURD.
dllced, it appeared that the article was known as "Benedictine," and was manufactured at Fecamp, in France, by a company who claimed to have derived the Latin formula for its production from the Benedictine monks who formerly inhabited the abbey at Fecamp, and that such formula was a secret, and the article was protected by trade-marks in Europe and the United States. A circular accompanying each bottle contained in French a high-sounding advertisement regarding the lence and attractiveness of the liquor, and laying claim on its behalf to certain therapeutic and prophylactic qualities, and stating that it was, (translated,) "in short, a beneficent and agreeable liquor, of which the daily and moderate use can only facilitate the functions of the organism." It was, however, admitted by the importers' witnesses that the article was known and recognized as a cordial, and that it was a pleasant afterdinner drink, taken in small liiqueur glasses, and that by far the greater part of it ,was sold in the trade to grocers, liquor dealers, and private families. In behalf of the government, it was shown by the testimony of an expert chemist that an analysis of the cordial in question gave: Absolute alcohol, by volume, 42.24· per cent.; by weight, 32.82 per cent. A practicing physician also gave evidence that many of the favorite cordials and beverages, such as peppermint cordial, (creme de fMnthe,) anisette, kirschwasser, and absinthe, contained substances which were medicinal; two of these, absinthe and kirschwasser, being specifically enumerated in the paragraph (313) of the tariff relating to "spirituous beverages," under which the collector had classified the Benedictine. It was also proved by the testimony of the manager of the bar in one of the largest and oldest hotels in New York city that the Benedictine was served at his liar in sman liqueur glasses to customers, as were also the other cordials which had been testified to by the physician above referred to; that they were all used as beverages, and sometimes mixed in punches. Hartley <to Coleman, for importers. Edward X'dchell, U. S. Atty., and Jama T. Van Ren8silaer, Asst. U. S. Atty., for collector.
WHEELER, District Judge. As to this article in the bottle, Benedictine, paragraphs 99 and 313 of the act of 1883 use the same words, to some extent, "cordials" and" bitters." One names cordials as "beverages," and the other names cordials and quite a lot of other things as "proprietary articles," or articles recommended for medicine,or "prepared according to some private formula." It seems to me, in looking this over, that the idea of congress in those two paragraphs was to separate these things into beverages and medicinal preparations; and that whatever was medicine was to come in under one paragraph, and whatever was a beverage was to come in under the other paragraph. On the proofs, I think this is a beverage, not a medicine; and therefore I think it should fall under paragraph 313, and not under paragraph 99. ituous beverages or bitters" of certain classes come under 313, while 99 is for" proprietary articles," including things recommended to the pub-
110·as' cc propnemit1artioles ,·or prepared· itp :some., pri Vll te '. mula, -as ;remediftSlor·speaifics for any .disease, or:dUJeases or affections W:batever is medicinal, whatever." Ai1d(,that,iI think, is the recommended :a&J;fuctti....;..it may be good for somethiug,or it mllY buHfit is of of stuff that is got up to folks think it will eurethem.-...+tbatcomesunder .paragraph 99; but iOt is for a drink, for uselUla beverage :and not for cUle,then it will Q9me under 818; llnd Iso'decide this,oilse; The decision of the board of United States generalappraisers ,is
(CCreuCt C'0urt.B. D. NewYor1c. February 11, 1892.)
Two artioles, produCed at a period prior to the year 1700, do not oobstitut6aool. leotion of antiquilieElj ititbmthe meaning of. the provisi<>11 for ,suoh oolleotlons uontaiued of the tariff act of Ootober1, 18\10, (26 U. S. St. p. 567.)
OJ' ANTIQUITIBS-AoT OOT. 1, 1890,CONSTR1:Tlm.
2. S.c;itether or not aD. at, stiCh period is within this provision does not depend'upon the faotwhether it has belonged to a colleotlon of antiquities, or iI$ imported to luC)ha oollection,but whether it ilia part of suoh a oollection When it is brought in., ' ' , . , ' .cS'IItltlbus btl the' Coun.J
, At Law. Appimlby Louis Stem fora review ofthe decision or United general appraisers. ' . .The above-named Lotii!l$tem imported Apdl 27, 1891. by the Spree, from a foreign:oountry into the port of New York, two antique Gobelin 'tapestries. made of wool and silk, wool being the component material of Qhief value. " These two tapestries were classified for duty as ures made -in' part of wool under the provision for such manufactures lcontained in paragraph 892 of the tariff act of October 1, 1890. (26 U. p. 567 ,)and duty at the compound rates' prescribed thereby for S. ,manufactures of that kind was exacted thereon by the collector of that 'port.' Against this classification and this exaction the importer tes'ted,claiming that these tapestries were a collection.orantiquities and pr()ducts of'a period prior to the' year 1700, were suitable for souvenirs, 'Were purchased by :him for the purpose of adding to his collection of antiquities in New York, and, ,were, therefore, entitled to entry free of duty, under the provision for such collection contained in paragraph 524 ofthe same tariff act, which reads: '''Cabinets of old coins and medals, and other collections of antiqUities; but tbe term' antiqUities, 'SBUSed in this act, shall include on Jy such articles as
are suitable for
souvenirs or cabinet c911ections, and which shall have been prqlluced at any period prior, to tbeyearseventeen bundred."·
The board of United States generalappraisers,llfter taking evidence, found that these two tapestries were made of wool and silk, wool being