In re Gourd

49 F. 728, 1892 U.S. App. LEXIS 1651

• Court: U.S. Circuit Court for the District of Southern New York
• Decided: January 11, 1892
• Status: Published

Opinion

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 k beverage, not a medicine; and therefore 1 think it should fall under paragraph 313, and not under paragraph 99. “Spirituous beverages or bitters” of certain classes come under 313, while 99 is for “proprietary articles,” including things recommended to the pub-lie as “proprietary articles, or prepared according to some private formula, as remedies or specifics for any disease or diseases or affections whatever.” • And that, I think, is the idea, — that whatever is medicinal, recommended as such, — it may be good for something, or it may not,— but if it is of ]that kind of stuff that is got up to make folks think it will cure then),. — rthat comes under paragraph 99; but if it is for a drink, for use- as a beverage and not for cure, then it will come under 313; and’ I so. decide this case.. The decision of the board of United States general appraisers is affirmed.