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ERHARDT V. STEINHARDT, 153 U. S. 177 (1894)

U.S. Supreme Court

Erhardt v. Steinhardt, 153 U.S. 177 (1894)

Erhardt v. Steinhardt

Argued March 30, April 2, 1894

Decided April 23, 1894

153 U.S. 177


Whether Boonekamp bitters, imported in September, 1889, were so similar to absinthe as to be susceptible of being assessed under the clause applicable to it was a question of fact properly left to the jury

The jury having determined that fact adversely to the government, it follows that such bitters were at that time to be classified under the proprietary preparation clause of Schedule A of the Act of March 3, 1883, c. 121, 22 Stat. 488, 494.

The rate of duty on the bottles was dependent upon the rate of duty on the contents.

Page 153 U. S. 178

This was an action to recover duties paid under protest on certain goods imported in September, 1889, and invoiced as "Boonekamp Bitters." The collector rated them under the paragraph in Schedule H of section 2502, Act of March 3, 1883, 22 Stat. c. 121, 505, reading:

"Cordials, liquors [liqueurs], arrack, absinthe, kirschwasser, ratafia, and other similar spirituous beverages or bitters, containing spirits, and not specially enumerated or provided for in this act, two dollars per proof gallon,"

and assessed the bottles in which the bitters were imported at three cents apiece under the paragraph of the same schedule, reading:

"Wines, brandy, and other spirituous liquors imported in bottles, shall be packed in packages containing not less than one dozen bottles in each package, and all such bottles, except as specially enumerated or provided for in this act, shall pay an additional duty of three cents for each bottle."

The importers claimed by their protest that the articles should have been assessed under the paragraph of Schedule A of said act, 22 Stat. 494, which provided as follows:

"Proprietary preparations, to-wit: all cosmetics, pills, powders, troches, or lozenges, sirups, cordials, bitters, anodynes, tonics, plasters, liniments, salves, ointments, pastes, drops, waters, essences, spirits, oils or preparations or compositions recommended to the public as proprietary articles, or prepared according to some private formula, as remedies or specifies for any disease or diseases, or affections whatever, affecting the human or animal body, including all toilet preparations whatever, used as applications to the hair, mouth, teeth, or skin, not specially enumerated or provided for in this act, fifty percentum ad valorem,"

and that the bottles should have been subjected to thirty percent ad valorem under the paragraph of Schedule B, 22 Stat. 495, reading:

"Green and colored glass bottles, vials, demijohns, and carboys (covered or uncovered), pickle or preserve jars, and other plain, molded, or pressed green and colored bottle glass, not cut, engraved, or painted, and not specially enumerated or provided for in this act, one cent per pound; if filled, and not otherwise in this act provided for, said articles shall pay thirty percentum ad valorem in addition to the duty on the contents. "

Page 153 U. S. 179

It appeared that the bitters in question are made in Antwerp, and advertised as a proprietary preparation, compounded according to a private formula. The wrapper represented the enclosed articles as

"Fine Stomachic Bitters, known as 'Boonekamp,' the outcome of a fortunate discovery made by Mr. A. E. Boonekamp, of Antwerp, Belgium, in the year 1815."

That they possessed valuable properties "as an appetizer and as a regulator to the human system" and as having "aperient and digestive qualities," that "as a preventative against all forms of epidemic disease they are invaluable," while,

"taken in doses of one spoonful before each meal, they aid digestion, and impart a healthy and vigorous action to the system. They also make a pleasant, refreshing beverage taken with water, gin, or aniseed cordial."

A certified copy of the Flemish label, as registered in the Patent Office, and the invoice in French, were put in evidence.

Testimony was given tending to show that the bitters were prepared by a secret formula; that they were claimed to be valuable for aperient, digestive, and tonic qualities, and used for the cure or relief of cramps, dyspepsia, dysentery, and sick stomach; that they were called patent medicines, and sold by dealers in such medicines and by grocers. It was admitted by plaintiffs that their principal trade in the article was with liquor dealers, and evidence was adduced that they were sold by liquor firms, and in the wine and spirit department of wholesale groceries, and generally dealt out from retail bars. One bartender testified that he dispensed these bitters to his customers, and "that some liked it in whisky, some in gin, and some liked it straight." Another witness said they were not made to please the palate, as cordials were, and that "people will shake themselves when they drink them." It further appeared that the bitters were below proof, containing only about 47 1/2 percent of alcohol by weight, while "proof spirits" require 49 1/2 percent, and that they contained rhubarb, orange peel, turmeric, and an essential oil supposed to be oil of anise.

Samples of these bitters were before the jury for examination and comparison, and there was evidence to the effect that

Page 153 U. S. 180

substantially all bitters contained more or less alcohol; that absinthe contained wormwood and anisette, and was bitter; that neither absinthe nor kirschwasser nor arrack nor curacoa was a proprietary preparation, and that cordials, liqueurs, and the like did not contain drugs. Testimony was given as to the value and character of the bottles, but it was not returned in the bill of exceptions. The court charged the jury as follows:

"It is unnecessary for me to detain you except to state the question which it will be for you to answer in this case, affirmatively or negatively: is plaintiffs' bitters substantially similar to either cordials, liqueurs, arrack, absinthe, kirschwasser, or ratafia? In determining the question of substantial similarity, you may take into consideration any or all of these compositions, the appearance presented to the senses, its adaptability for use, the uses for which it is sold, and the effect that it produces. Looking at the question of similarity or dissimilarity on those various grounds, you will determine whether is does or does not present any substantial similarity to those enumerated articles."

The defendant excepted "to the ruling of the court in sending the specific question to the jury, as embodied in the charge."

The jury, after deliberation, answered the question submitted by the court in the negative. Defendant's counsel then moved the court for the direction of a verdict for the defendant on the ground that the articles, although proprietary, were also bitters, containing spirits; that the articles being equally provided for in both sections, the collector was entitled to assess the higher rate of duty under the last paragraph of section 2499 of the Revised Statutes as amended. This motion was denied, and defendant excepted. The jury thereupon rendered a verdict, under the direction of the court, for the plaintiffs, and, judgment having been rendered thereon, this writ of error was sued out.

Page 153 U. S. 181

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