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. ' .' "'"Lemon'Ginger" and "E'mpireTonic:Bltters" are sold by the bottle as medIcInal
:, preDaration" iliond are belieVlldto . curati \16 , properties. They .consist. of ,about one-th,ird alcohOl, .and the reSIdue,of distilled water extractllfrom herbs, 'etc.;ahdWe quantity of alcohol· 11' biOt greater than is necessary to extract and re:, tain thehel'bs, and i$less than iSicon,tained in ures.. they are medici.nal preparations, and dealers in them are not ,'liqu'or dealers; wlthbl themeaning'of Rev. St. U. S. § 82!4, deflnlnga liquor dealer as oDe;w11o lieU. "distilled spirits orwIQell," though they areintoxioatingl if used lmmoderl!otely.· r," '
,rJqhdrlJ,i{vithout License. George J),.ReynOlrM, Dist. ,. ,, « Ellia, .for defendants. . , : In these to bel Aetermined is whether "Lemon Qingerj" by the Collins Bros. persons Drug Compwy, and" Empire Tonic Bitters," prepared by the Donell liquor dealers, within the meaning of o( the act of Fal;>rual!y8, 1875, amendatory of the internal :J,:evenue laws·. This,. of COllrse, .,involvesthe fllrtherqllestion whether referred· to are "dist-il1ed spirits or wines," as section the com St. U. S., df£inesa retail liquor dealer to be a person who 3244, sellsj"for.eign or domestic distilled spirits or wines in less quantities than five :gallons.!' From the testimony in the case, it appears that "Lemon patentedas,a ,11se(ul mec;iicina-lpreparation, and that about oqf30-t;1;J.ir4 part of the weight, consists of dilute alcohol. water and lemon juice, mixed with extracts from The and . The.percentage (jf alcohol by weight in the six comPOUPQ knQwn as "Empire Tonic Bitters 'I is a trifle less than one-third, and the residue of weight is made up of distilled water and extracts froIp ,medicinal barks, leaves, roots, ber.ries, etc. 'I.'he two compounds,!' ,Lemon Ginger" and "Empire Tonic Bitters," do not differ sufficientlyjp.·their composition Qr effects to justify any distinction between in whether they o:ught to be.classifiedas medicinal prepSI)8tigp!,!,qr;as distilled liquQr!!. It is obvious, that either. preparation to intoxication, if that is the sole test to contains , -from tlle testimony that both preparations are put be IIp, as medicinal preparations, and that each possesses, or at leal:it is,believedJo. poss.ess, ourative prop-erties, when used for certain disorders, and in the manner directed by the manufacturers. It further appears with respect to one of the preparations (and I presume that the same may be said of the other) that the quantity of alcohol employed is not greater than is necessary to ex-
·<UNITl1:D STATES t1. BAIB.. : ;
tract the virtues of the medicinal herbs employed, QIidhold the same' in solution, and that the quantity used is less than that contained in some ordinary tinctures. Thesecomptmnds, so far as the evidence discloses, are sold by the bottle by retail dealers, and are not sold over thecoun.. ter, like ordinary intoxicating beverages. On the facts stated I see no ground for dissenting from the ruling of the commissioner of internal revenue heretofore made, that these preparations, "Lemon Ginger" and "Empire Tonic Bitters," should be classed as medicin91 preparations, and hence that dealers in the same are not wholesale or retail liquor dealers, within the meaning of the law. The fact that men with a strong appetite for drink may occasionally buy one of these preparations, and by ail immoderate Use of the slltrie'becomedrunk, is not an adequate reason for classifying them 8S distilled spirits. It is sMe to assume thai alcohol enters into the' preparation of some 'other oompounds, that no one would think ofdassifying as distilled spirits; in stich quantity that! II; 'mafi might be made drunk by imbibing them too freely. The facti therefore, that. a mixture possesses SO much alcohol that persons may become intoxicated by drinking such a quantity as may be drunk without imperiling life, cannot be accepted as the sole test by which to determine if'the mixture should be·olassed as distilled 'spirits; and dealers therein 8.$ liquor dealers. If 'a preparation is not intended as sbaverage, but is put up ingood faithasa medical preparation,aIidisonly advertise4and sold as such,: and there are reas0nable groundll to believe' that it possesses curative qualities,and no more spirits are the preparation than are reasorrablyneoessary to extract and hold in solution the medicinal properties' of the various drugs employed, such preparationis'medicinal, and does not lose its character as such, although it: is into'Kicatit1gwhen used to excess. ,The defendants in·these CRSes will, diseh8rged.
UNITED
STATES fl.
B4IN.
(DI.miCt
E. D.
November 25, 1889.
8t1oftrrBe-REPBAIr-SBAlIIBN--DilsBRTJON-LAXB VBSSEILEI.
, ,',Rev. St.U.s. II 4596, proyilles certaiD, penalties for the de!lertion ot a !leamal1 has been lawfully engage4, Section. 5601 provides that all acts passeU after De: 'celnber 1; 11178, are 'to have full efteot as if passed after the' enactment of this !\Dd so far as th!i'Y .vary its pr?vWPlls. are to have ei!ect as subsequent statutes, and as repealIng any portiOn of the revision inconsistent therewitb, Act U; S. ,June 11,1874" (18 St. c. 260,) provide!! that none of provisions ?f act of JUD,e7.,1872, shall'applytp engagedln the coastWl86 trade, except the coasf;Wlse trade between the Atiantic and PlWific coasts,or in'the'lllke-going trade, tbllching:il.t fOFeigri pOl'tsor (j)ther.wise, .ete. Beld, tb$t tlJis re\>ealB 8l! muc}h of, Rev. ti,.. 53, iJlClll\ling 4596,88 .is composed of the JlrOviBlons of act .Tune 7,1872, 80 far 88 It applies to vesBela on.the Great Lakes. ' . ", ' ,. .' . ,. . ., I: ..
Inf<SrttJation for Desertion; against a Seamw Walker,U."S. Dist; Atty.'
w.