T H E J O U R N A L OF I N D U S T R I A L A N D E N G I N E E R I N G C H E M I S T R Y . merce in chemicals. I n comparison with the same period of 1907, there is a slight lessening of imports and a more marked increase in exports. The foregoing are the figures showing the German commerce in chemical products, colors, and pharmaceutical preparations for the first six months of the respective years, in metric tons of 2,205 pounds.
OFFICIAL RE.GULATI0N.S AND RULINGS. Under date of Nov. 12th the Board of Food and Drug Inspection has issued notices of Judgment Xo. 2 2 , Misbranding of Eggs; KO. 23, Adulteration and Misbranding of Vinegar (Distilled vinegar artificially colored) ; and No. 24, Adulteration and Misbranding of Molasses (Admixture of glucose). Under date of Oct. 30th the Board of Food and Drug Inspection has issued Food Inspection Decision No. 97, “Soaked Curd” Cheese, which states in effect that cheese made b y soaking the curd at one stage of the process in cold water should be labeled “Soaked Curd Cheese.” Suit to enjoin the collector and the internal-revenue gaugers from marking rectified spirits “imitation whisky.”Decision of Judge Humphrey denying applicaton for preliminary injunction and sustaining the Government.
TREASURY DEPARTMENT, COMMISSIONER OF INTERNAL REVENUE, Washingtolz, D. C., October 9 , 1908. The appended decision in the case of Woolner & Co., et al. v . Percival G. Rennick, collector, et al. in the United States Circuit Court, Southern District of Illinois, is published for the information of all concerned. JOHN G. CAPERS,Commissioner. OFFICE
OF
CIRCUIT COURT OF THE UNITEDSTATES, SOUTHERNDISTRICT OF ILLINOIS. NORTHERNDIVISION. Woolner 6 Co., et al. v. Percival G. Rennick, Collec:or, et al. BILL FOR INJUNCTION,
HUMPHREY, J.: The present application is for a preliminary injunction restraining certain officers and agents of the Internal Revenue Department from marking as “imitation whisky” potable distilled spirits from grain, of approximately IOO proof, which have been rectified so as to remove most of the fusel oil and aldehydes. The complainants are engaged in the business of rectifying distilled spirits and the defendants are acting under printed regulation promulgated May 5 , 1908, b y the Commissioner of Internal Revenue, as follows: 4. Alcohol, commercial alcohol or high wines which have been manipulated b y the aid of artificial flavors, colors or extracts, or otherwise, so as to resemble some particular kind of potable spirits, will be marked with the name of such spirits preceded b y the word “imitation,” as, for example, “imitation whisky.” The contention of complainants is: First. That the regulation of May 5, 1908, is in violation of section 3449 of the Revised Statutes; that the product in question has, for a long time, been known to the trade as whisky; that the complainants as owners of same would be prohibited b y Section 34.49 from shipping i t under a n y other name than whisky, “ t h a t being the name known to
59
the trade,” and therefore the Commissioner has no power to require a mark or brand which does not conform to the trade name. Second. That the regulation is unreasonable and therefore illegal. Third. That the injunction should issue under the rule known as balance of convenience. Section 3449 is not in point. That section was passed b y Congress to prevent frauds on the revenue and to assist revenue officers in discovering such frauds. It has no reference whatever to marks or brands placed upon packages by Government officers. The authorities are numerous and clear upon this question. The argument on behalf of complainants that the new regulation is unreasonable, and therefore void, raises the real question in the case. Powers requiring judgment and discretion when conferred by law upon executive officers must be exercised with reason. When found to be clearly reasonable, the courts will not interfere with officers acting under discretionary powers. When found to be clearly unreasonable such action will be held void. That there is a product called whisky, and also a product called imitatiolz whisky the law itself clearly contemplates, and Section 3244, in defining what is meant b y the business of rectifying, denominates the maker of imitation whisky and other imitation liquors as a rectifier, and in passing upon the question whether the regulation of May 5, 1908, is reasonable or unreasonable i t is necessary to determine the fact whether the Commissioner in that regulation has correctly defined an imitation whisky. That counsel have regarded this as the crucial question in the case, is evidenced by the fact that both parties have presented to the court numerous affidavits upon the subject. Complainants present 69 of such affidavits and the defendants a lesser number. These affidavits are from rectifiers and distillers, members of the wholesale and retail liquor trade and scientists and chemists of high rank. They do not agree. Indeed, i t may be said that some of them present diametrically opposite views more or less elaborately stated. I n brief, the affidavits for complainants tend to support the proposition that a distilled spirit from grain reduced b y water to potable strength from which most of the fusel oil has been removed b y rectification is whisky and that all distilled spirits from grain are “like substances,” without reference to differences in their percentage of alcohol or of secondary products present therein. The affidavits presented for defendants tend to support the view that whisky is a product made by the proper distilling of a fermented mash of grain with such care and a t such low temperature as to retain the congeneric ingredients of the grain, aged under a normal temperature for not less than four years in charred oak casks. Thus broadly in statement do the chemists disagree. They are more or less persuasive to the court according to the soundness of scientific reasoning given in support of their statements. The convincing weight of testimony on this subject, given by such men as Professors Frear of Pennsylvania, Scovill of Kentucky, Tolman and Adams of Washington, D. C., Shepard of South Dakota, Jenkins of Maine, Fischer of Wisconsin, and many other State analysts and chemists of repute, is to the effect that the neutral spirits reduced by
60
T H E J O U R N A L OF I N D U S T R I A L A N D E N G I N E E R I N G C H E M I S T R Y
water to potable strength, from which most of the’fusel oil has been removed, is not a like substance with whisky. Among the various reasons given for this conclusion are the following: Whisky can be made from sound grain only, while neutral spirits can be made from moldy, heated, er unsound grain, or from various other substances, as fruits or vegetables. Whisky is made a t a lower temperature, say I j o to 155 degrees, so as to retain in the distillate the congeneric properties of the grain, the oil, the flavor, the higher alcohols and aldehydes, the esters, acids, and salts, which, when modified by further treatment, gives to whisky its desirable, potable character, a character which alcohol never possesses. Neutral spirits are made a t a very high temperature for the very purpose of carrying off, so far as possible to do so, every property of the distillate, except alcohol and water. Whisky is aged and matured for not less than four years in charred oak barrels. Neutral spirits require no aging, but may pass immediately into consumption. The maturing of the product in charred barrels modifies and corrects its raw, biting taste. The action of the congeneric properties of the grain so retained in the liquor on each other and the action of the charred wood on all by the lapse of years results in a flavor, an aroma, a color, a blending of nherent constituents resulting in a beverage agreeable to the sight, to the smell, and to the taste. I n neutral spirits the name signifies the character. There is neither taste, smell, nor color, and no amount of aging in charred or uncharred barrels will change it without the addition of foreign matter. The time required for maturing whisky resulting in a loss of perhaps 30 percent. in quantity by evaporation and absorption adds greatly to the expense of making i t over neutral spirits which require no maturing and suffer no loss of quantity thereby. The record also shows that diluted spirits treated with artificial coloring matter and essences are not sold to the trade as such, but are always presented under such labels, terms, and descriptions as impart age and maturity, and which the consum5r identifies with the genuine product whisky. The regulation is in all respects reasonable and is therefore legal. The fact that this practice had, to some extent, prevailed for many years does not show in the complainants any right which the court should protect. It shows rather that the Commissioner of Internal Revenue has been tardy in promulgating a regulation which he had legal power to enforce, even before Congress gave emphasis to the subject by the enactment of the food and drugs act. The preliminary injunction will be denied. NoTE.-United States Attorney Northcott writes to the Commissioner as follows: I notice that some of the newspapers construe the decision of Judge Humphrey in the case of Woolner Distilling Company as a criticism upon your Department. In a conversation with Judge Humphrey, he authorizes me to say that no criticism on your Department was intended by the decision, but, on the contrary, the Department was sustained on every proposition.
(T. D. 1427) Mavking Spirits. Application for an injunction Pertdente lite to enjoin the collector of internal revenue from carrying out Circular 723 of May 5, 1908, issued in conformity with the direction of the President to the Secretary of Agriculture for the enforcement of the pure-food act with reference to the marking and branding of the products of distilleries as “alcohol” instead of spirits.-Decision of the United States circuit court, northern district of California, denying motion for injunction.
(T.D. 29312-G. A. 6821) Cutch. “Cutch made from the mangrove tree which is so treated chemically in the processes of manufacture, or after manufacture, as to reduce the coloring properties thereof and make i t suitable for use in tanning leather, is known in trade and commerce as cutch and is entitled to classification as such under paragraph 542, tariff act of 1897.” This decision is interesting, aside from the points involved, for the opinions expressed in regard to the testimony of chemical experts and the setting aside of the expert testimony in favor of that of “practical” men.-ED.
(T. D. 29330) Drawback
(T.D.
ON
jZavoring extracts.
29331) Drawback on maple sirup.
(T. D. 29339) NO. 19886.-COAL-TAR PREPARATIONTOLUIDIN M.-Protest 310767 of Geisenheimer & Co. (New York). Opinion by Chamberlain, G. A. The merchandise consisted of toluidin M, held dutiable under paragraph 15, tariff act of 1897, relating to coal-tar preparations. The only question was whether it was a coal-tar product not a color or dye and not medicinal, as claimed by the importers. Protest sustained.
(T.D. 29339) NO. 19913.-ALIZARIN RUBINOLE R.POWDER. Protest 3 I 8047 of Farbenfabriken of Elberfeld Company (New York). Opinion by Chamberlain, G. A. So-called alizarin rubinole R powder, classified as a coaltar color under paragraph 415, tariff act of 1897, was claimed to be free of duty under paragraph 469 as a dye derived from alizarin or anthracene. (T. D. 29339) No. I9944.-A”ATTO BUTTERCOLOR.Protest 302283 of Minnesota Creamery Supply Company (St. Paul). So-called “annatto butter color,” classified as an unenumerated manufactured article under Section 6, tariff act of 1897, was claimed to be free of duty under paragraph 475, relating to “annatto, roucou, rocoa, or Orleans, and all extracts of.” Protest overruled.
