Merck & Co. v. United States

177 F. 482, 1910 U.S. App. LEXIS 5316

• Court: District Court, S.D. New York
• Decided: January 21, 1910
• Docket: No. 5,462
• Status: Published

Opinion

MARTIN, District Judge.

The merchandise in question is iehthyol sodium, a medicinal preparation. It was assessed for duty at 25 per cent, ad valorem under paragraph 68. The importers claim that it is on the free list under paragraph 626 (Act July 24, 1897, c. 11, §. 2. 30 [U. S. Comp. St. 3901, p. 1685]). The Board of Appraisers sustained the collector, and the importers now appeal to the court for review.

'1'lie word ‘'ichthyol” appears on the free list in paragraph 626 with other items of merchandise. There is no amplification or limitation, simply the word “ichthyol.” Ichthyol is a crude oil obtained from the distillation of the bituminous rock containing fossil fish, and found in the Tyrol Mountains of Rurope; and, as I understand it, technically speaking, the word covers and includes that and nothing else. Ichthyol salts are the salts of ichtliyol-sulphonic acid, obtained by the treatment of the raw ichthyol distillate with sulphonic acid and subsequently neutralized with sodium or ammonium carbonate. If prepared with carbonate of sodium, it becomes ichthyol sodium; if with carbonate of ammonia, it is ichthyol ammonium. Precipitating egg albumen with ichthyol, and prolonged washing of the precipitate until the ichthyol odor and taste are removed, makes a product known as ichthyol albuminate, and there are other combinations resulting in other ichthyol products.

From the chemist’s point of view, any of the preparations, aside from the distillation of the bituminous shale of the Tyrol, is a medicinal preparation of the component material of ichthyol. Ichthyol ammonium is just as much a medicinal preparation as ichthyol sodium and ichthyol albuminate, and there is no logic in legislating that one shall be free and the others pay a duty of 25 per cent. Any chemist may import ichthyol — the distillation of the bituminous shale of the Tyrol — free, and then prepare ichthyol ammonium, sodium, albuminate, or other compounds of ichthyol.

The question is: Did Congress intend, by the unlimited use of the word “ichthyol” in paragraph 626, to include any medicinal preparation of the compounds of ichthyol, and thus limit the scope of paragraph 68, which provides that medicinal preparations not specifically provided for shall be assessed 25 per cent, ad valorem? If one compound of ichthyol is free, why not the others? The only answer is that ichthyol ammonium, although a compound and a medicinal preparation, is by usage in the trade designated as ichthyol. and therefore ichthyol ammonium should be admitted free, while the other compounds of ichthyol must pay a duty.

The evidence shows that the trade designation includes ichthyol ammonium, and this evidence is confirmed by authorities on pharmaceutical chemistry. This appeal, however, does not call for a decision of the court as to whether or not ichthyol ammonium is on the free list. It onfy involves ichthyol sodium.

I think the most reasonable construction of the statute is that ichthyol sodium was not intended to be included in the word “ichthyol,” without some descriptive words, like “all compounds of ichthyol” or “the different products of ichthyol,” and therefore it was correctly assessed under paragraph 68 at 25 per cent, ad valorem, and the decision of the Board of General Appraisers is affirmed.