(after stating the facts as above). The palm oil, as a matter of fact, colors the oleomargarine in resemblance to butter. It was employed for that purpose. But for its effect as coloring matter it would not have been employed at all. As a business proposition, therefore, the palm oil was solely employed for the purpose of coloring; so that, were palm oil a substance foreign in its nature to the substances that enter into oleomargarine, its employment under the circumstances found would unquestionably constitute the artificial coloration contemplated by the statute fixing the tax at 10 cents per pound.
Now, is the admixture of palm oil with oleomargarine for the sole purpose ( from a business point of view) of coloring the oleomargarine in the resemblance of butter any the less artificial coloration within the meaning of the law, because, incidentally, palm oil is not a substance ■foreign to oleomargarine, or because palm oil, in the proportions used, has a function that affects, in a very slight degree, the quality of oleomargarine. Upon the authority of Cliff v. United States, 195 U. S. 159, 25 Sup. Ct. 1, 49 L. Ed. 139, T. D. 839, decided October, 1904, I feel mysel f hound to answer in the negative. The precise question decided in the Cliff Case may not be the'precise question involved in this case, but the court in that case, as I interpret it, discloses the rule of law to be applied to cases arising under this statute, and that rule is. that where the substance employed to color the oleomargarine serves substantially that purpose only, it is artificial coloration within the meaning of the statute.
Under the findings in this case I can not help holding that the only substantial service o.f the palm oil is to color the product. Except for its coloring effect it was not intended as an ingredient, and, except to an extent so slight that it would not have been utilized had no other purpose been in mind, it is not in reality an ingredient. Indeed, the, whole distinction between a substance employed in fact as an artifice and a substance employed in fact as a functional part of the oleomargarine, is clearly brought out, it seems to me in the case before me, and brought out in a way that under Cliff v. United States makes the use of palm oil an artifice only within the meaning of the statute.
"For other oases see same topic & § numbek in Doc. & Am. Digs. 1907 to date, & Rep’r Indexes