IN BE EISNER.
other commercial secnrltles executed by private persoJlS, and used tor purposes ot private business."
Not only are the acts for which the petitioner is under indictment in the state court created offenses by the laws of congress, and their punishment defined thereby, but they are offenses exclusively cognizable by the courts of the United States, by force of section 711 of the Revised Statutes of 1874. .That section provides that the jT!.risdiction vested in the courts of the United States, "of all crimes and offenses cognizable under the laws of the united States, shall be exclusive of the courts of the several states." By section 5328 a large class of offenses cognizable by the courts of the United States are withdrawn from the operation of section 711; but offenses arising under the laws relative to national banking associations are not enumerated as within the exception. The conclusion seems inevitable that the offenses for which the petitioner has been indicted are exclusively cognizable by the courts of the United States. It is proper to say that if any serious doubt were entertained as to the want of jurisdiction of the court of general sessions of the city of New York, and its consequent want of authority to retain the petitioner in custody, such a disposition of the present proceeding would be made as would permit that question to be raised, in the event of a conviction upon the indictment, after a trial. As it is, however, the petitioner is entitled to be discharged from custody.
In ra EISNER et aL
(Olrcult Court, S. D. New York. March 14, 1893.)
CUSTOMS DUTIES-CLASSIFTCATION-MALT EXTRACT-PROPRIETARY MEDICINES.
"Johann Hoff Malt Extract," a medicinal compound of many ingredients, made by a secret formula, Ilnd containing 12 per cent. malt extract, and entered for 15 years as a proprietary medicine, is dutlable as a proprietary medicine, under paragraph 75 of the tariff act of October 1, 1890, at 25 per cent. ad valorem, and not under paragraph 338, imposing a duty on "malt extract, fluid, · · · in bottles or jugs, 40 cents per gallon; solld or condensed, 40 per centum ad valorem." FerlnlSon v. Arthur, 6 Sup. Ct. Rep. 861, 117 U. S. 482, followed.
Appeal by the Importer from a Decision of the United States Board of General Appraisers affirming a decision of the collector of the port of New York. Reversed. Dudley, Michener & Ray, for importer. Thomas Greenwood, Asst. U. S. Atty., for collector. COXE, District Judge. The appraisers found that the merchandise imported was a fluid malt extract dutiable at 40 cents per gal· Ion, under paragraph 338 of the tariff of 1890, which is as follows:
"Malt extract, fluld, · · · in bottles or jugs, forty centa per gallon: BolId or condensed, forty per centum ad valorem."
:!'It:'ls sa1dthafthis Is the ftrsttime the term.'"nWt extract" ever appeared in a tari1f act. The importer insists that it should have been classified:under ,paragraph 75,which readsa8 follows:
"Allmedicl.mL1 preparations, including medicinal proprietary preparations, of il!l I:lot I\.,component part, aI:ld not specially provided for in this act, twenty-five per cent,um ad valorem."
In approaching the question whether or not the importation is a fluid malt extract, care should be taken to guard against the impressioi, unfavorable to the appellant's contention, which is produced by the undisputed fact that the merchandise is imported as "Johann HOOf's Malt Extract," a.nd that it is advertised, sold, labeled and even described in the protest by that name. If calling it "malt extract" makes it malt extract the appellant has no standing in court. But the q,uestion is, what is it? not what is it called? Keeping this distinction in mind the evidence in this court seems to establish the proposition that it is not the malt extract of conitnerce and not the ' article which the lawmakers must have had in mind when pal"ltgraph 338 was enacted. The Johann Hoff Malt Extract is a compound of. many ingredients, made by a secret formUla, consisting of herbs, rootl, leaves, dextrine, water, hop extract and malt extract, but there is only 12 per cent. of the latter. It might with eql1al propriety be called a "hop extract," or by anyone of its numerous ingioedients. If this course had been adopted, and the compound had been known, for instance, as "Hoff's Herb Extract," it will hardly be contended that the presence of 12 per cent. of malt would make it dutiable under paragraph 338. Although some matters might, perhaps, have been made clearer by the proof, the court is satisfied that the merchandise in question was never known as a ''malt extract" commercially, in the sense in which that word must be used as applicable to the tariff law. Of course this particular compound has long been known to the trade and commerce of this country, but it is thought that importers and large, dealers would not understand the term "malt extract" to include ,Hoff's extract, and would not fill an order for malt extract bv sending the Hoff compound. The very fact that its composition is unkn9wn would prevent such a classification. That it is a medicinal proprietary preparation is not disputed, and it is not argued for thecoUector that it contains alcohol. It is thought, therefore, that paragraph 75 specifically describes it, and that the collector should have classified it under that paragraph. It is not often that an authority is found which is an exact precedent for the case in hand. There are always some distinguishing facts, but the case of Ferguson v. Arthur, 117 U. S. 482, 6 Sup. Ct. Rep. 861, approaches much nearer than is usual to the facts of the present case. In principle the two cases are identical. "Henry's Calcined Magnesia" was held to be dutiable as a "proprietary medicine," although another paragraph assessed duty upon "magnesia, calcined, twelve cents per pound." Indeed, it would seem that the merchandise in the Ferguson Case was mucli nearer to "magnesia, calcined," than the merchandise here is to "malt extract, fluid." It was, in fact, calcined magnesia, out prepared by a secret formula, which gave it peculiar advantages. Here the merchandise in ques-
WOOTTON V. MAGONE.
lion is not in a proper sense "malt extract" at all. It will be seen :by the following comparison that every a:r;gument applicable to "Henry's Calcined Magnesia" applies with equal or greater force to "Hoff's Malt Extract:"
ily, a firm of manufacturing chemists in Manchester, England, for the last one hundred years, and has a peculiar value in the market. That the article in question is a medioinal preparation there can be no doubt. The circular sets forth its virtues as a remedy in disease, and calls it a "medi· cine. " It has a character of its own, distinct. from the ordinary calcined magnesia, which must arise from the special mode of manufacture. Henry's article is not the ordinary cal. cined magnesia, dutiable by the pound, but something is done to that ordinary calcined magnesia by the Henrys which, in connection with the manner in which it is put up and sent forth, makes it a proprietary medicine, although the base of it IS magnesia calcined.
It has been prepared by the same fam-
Henry's Calcined Mag-nesia.
ily, a firm of manufacturing chemists in Berlin, Germany, for the last twenty-five years, and over, and has a peculiar value in the market. That the Holf extract is a medicinal preparation there can be no doubt. The circulars and labels set forth its virtues as a remedy in disease. call it a "medi· cine, " and recommend that it should be taken under the advice of aphysician. It has a character of its own, distinct from the ordinary malt extract, which arises from the special mode of manufacture and from the fact that only twelve per cent. of malt is used. Holf's article is not the ordinary malt extract dutiable by the gallon, but something is done to the small percentage of malt extract found there, together with the other ingredients, by Holl', which, in connection with the manner in which itis put up and sent forth, makes it a proprietary med icine. The base of it is not shown to be malt extract.
It bas been prepared by the same fam-
Holf's Malt Extract.
The court does not lose sight of the distinctions pointed out by the counsel for the collector, based upon the changed language of the tariff, since the decision of the Ferguson Case; but it seems to the court, in view of the principle there enunciated' and of the conceded facts that the article in question contains but 12 per cent. of malt extract, and is a proprietary medicine put up by a secret formula, that it is more appropriately assessed under paragraph 75 than under paragraph 338. Immutability of the law is a wise maxim of politi· cal economy which is too often lost sight of by the legislative power both state and national. Frequent alteration, whether by the legislature, or by those who interpret the law in the first instance, unsettles business and retards prosperity. By adopting a reasonable uniformity of construction the courts,as far as possible, should see to it that commerce is not vexed by unnecessary changes. For fifo teen years the merchandise in question has entered our ports as a proprietary medicine. No reason exists for a change now. The decision of the board is reversed.
WOOTTON v. MAGONE.
(Circuit Court, S. D. New York.
CuSTOMS DUTIES-ASPHALT MASTIC-CLASSIFICATION UNDER THE TARIFF ACT OF MARCH 3, 1883.
Asphalt mastic, an article produced by crushing an asphaltum mined or quarried in rough chunk.'3, often called "rock," and by melting llnd together such crushed asphaltum and a natural mineral bitumen gathered in the island of Trinidad or elsewhere, and by afterwards casting for transportation the mixture so obtained in molds into loaves or cakes, Is not