United States v. Merck & Co.

CONCURRING OPINION.

Barber, Judge:

The record in this case is barren of parol testimony as to the methods employed in the production of the merchandise. The letters patent which were offered in evidence, however, clearly tend to show that “lanolin,” when first introduced into commerce, was obtained by separating wool grease from the waste matter and dirt in which it was found by means of both chemical and mechanical processes. Anhydrous wool grease was one product of these processes. Further treatment and purification resulted in the taking up by the wool grease of a certain amount of water, the final product being a new article said to be g, perfectly white, neutral, colorless unguent without odor, to which the name “lanolin” was given by the inventor of the process. It manifestly took this name in commerce.

The definitions of “lanolin” in the dictionaries, as appears, are broad enough in most, if not all instances, to cover both the anhydrous and the hydrous products, but as stated by the board—■ •

The dictionary definitions cited by the Government, which simply define lanolin as being a compound of cholestrin and fatty matter derived from sheep’s wool without *178mentioning the intervening product, adeps lanae anhydrous, do not make against or minimize the effect of their separate definition as two distinct substances in the authorities above quoted.

The real question is, in what sense is it to be held that Congress used the word “lanolin” in paragraph 44, having in mind that it clearly provided therein for three classes of merchandise, (1) wool grease, crude and not refined or improved in value or condition; (2) refined or improved in value or condition, and not specially provided for; (3) lanolin.

It must be presumed that Congress had in mind that there were such three classes of the commodity. The authorities, in conjunction with the patent, show that the hydrous wool grease is “lanolin,” and that before it is obtained the less refined anhydrous product appears. It seems entirely reasonable to believe that Congress intended that the anhydrous product should come within the second classification provided for in the paragraph. In other words, force and application must be given the apparent intent of Congress. This is accomplished by the assessment of the anhydrous wool grease, which really is wool grease that has been refined or improved in value or condition., under class 2 of the paragraph and of the hydrous product as “lanolin” under class 3.

In Koechl & Co. v. United States (3 Ct. Cust. Appls., 316; T. D. 32619), decided in 1912, the subject of wool grease was considered. There was then no separate tariff provision for “lanolin.” Paragraph 290 of the act of 1909, then under review, contained a provision for wool grease of two kinds only, one the crude article and the other that which had been refined or improved in condition or value. Both anhydrous adeps lanse and the hydrous article were referred to by Smith, Judge, in writing the opinion. The merchandise had been classified as a medicinal preparation and was claimed to be dutiable under the provision for refined wool grease. The various decisions on the subject were reviewed, and the names, uses, and manner of production of the different kinds of wool greases discussed.

It was held that both the anhydrous and the hydrous products were dutiable as wool grease refined or improved in value or condition, there then being no provision for “lanolin.”

Now, in the act of 1913 Congress took just the action which would be expected if it desired to impose the highest duty upon the most refined product by declaring that “Tanolin,” the article which is the most refined, shall take the highest rate of duty.

I would therefore base the judgment of affirmance upon the ground that whether or not “lanolin” as defined in the dictionaries includes both the anhydrous and the hydrous wool greases, Congress, in view of the whole history of the subject, manifestly intended it to apply to the hydrous product.