SANTOS & JAHRLING, PLAINTIFF AND APPELLEE, VS. THE INSULAR COLLECTOR OF CUSTOMS, DEFENDANT AND APPELLANT.

An appeal by the Insular Collector of Customs from a judgment of the Court of
First Instance of Manila, setting aside the appellant’s classification of
Vino Quina Fer (wine of quinine and iron) and Syrup Quina Fer
(sirup of quinine and iron) under paragraph 78 (a) of the Philippine
Tariff Law of 1909, and admitting; the articles free of duty under paragraph 320
of the same law.

Paragraph 78 (a) reads: “Proprietary and patent medicinal mixtures
and compounds; Chinese and similar medicines: (a) Without alcohol, or containing
not to exceed fourteen per centum of alcohol, fifty per centum ad
valorem.”

The term “proprietary” is defined in section 5 of the above-mentioned law as
follows: “The term ‘proprietary as applied to medicinal remedies, wherever used
in this Act, shall be held to mean a ‘preparation the manufacture or sale of
which is restricted, through patent of the drug or combination of drugs,
copyright of the label or name, or any other manner, or a preparation
concerning which the producer or manufacturer claims a private formula.’ “

Paragraph 320 reads: “Cinchona bark, sulphate and bisulphate of quinine,
alkaloids and salts of cinchona bark, in whatever form.”

A chemical analysis showed that the wine contained 13.9 per cent alcohol and
approximately 0.049 per cent quinine, and that the sirup contained 6 per cent
alcohol and 0.016 per cent quinine. Both contained iron, but in amounts not
stated. According to the circulars of the manufacturer the beneficial effects
from both preparations result from the combination of iron and cinchona, the
wine preparation being for those patients for whom it is more palatable than the
sirup. This literature of the manufacturer further narrates that the medicinal
properties of iron and cinchona combined had long been known, but that until
success had crowned the experiments of Monsieur Laroche, the originator of these
preparations, no combination had been evolved which could be administered
without unpleasant effects to the patient. The preparation is sold under a
distinctive manufacturers’ label, and the process of manufacture is claimed to
be a secret. The chief claim made for it is that it is a tonic; and that such is
its use was the testimony of Doctor Newberne. Although the cinchona is dissolved
and combined with the iron in both preparations, it is insisted, for the
importers, that the general words “in whatever form” used in paragraph 320 of
the Tariff Act are sufficiently comprehensive to include both of these
preparations.

The tariff cannot be applied to an imported article by seizing upon one of
its constituent elements and claiming that the classification of that particular
element is the classification of the article. Few, indeed, are the articles
subject to the tariff which are irreducible and indivisible. It has never been
the practice to analyze an article seeking entry under a tariff act and give to
each of its constituents that classification which it would have if imported
alone, let alone classifying the aggregate under the name of one of its parts.
In the present case, cinchona is a common element to both preparations. So also,
but in a much larger quantity, is alcohol.

Why should the mixture be called cinchona rather than alcohol? It is
apparent, however, that neither designation is correct. The question to be
determined is, What is the article as a whole? This is well illustrated in the
case of Meyer vs. Arthur (91 U. S., 570; 23 L. ed., 455.) In that case
the importers asked that certain articles known as white lead, nitrate of lead,
oxide of zinc, and dry and orange mineral be classified as “all metals not
herein otherwise provided for, and all manufactures of metals of which either of
them is the component part of chief value * * *.” A chemical analysis of each of
these preparations disclosed that by far the greater percentage of each
consisted of one or another minerals.

The court said: “When the Act speaks of ‘manufactures of metals,’ it
obviously refers to manufactured articles in which metals form a component part.
When we speak of manufactures of wood, of leather, or of iron, we refer to
articles that have those substances respectively for their component parts, and
not to articles in which they have lost their form entirely, and have become the
chemical ingredients of new forms * * *. The truth is that, in the nature of
things, a metal and its oxide or sulphate are totally distinct and unlike. Any
substance subjected to a chemical change by uniting with another substance loses
its identity; it becomes a different mineral species. The basis of common clay
is the metal aluminium, and the basis of lime is the metal calcium. But no one
would think of calling clay and lime metals; nor, if artificially made, would he
call them manufactures of metals. They have lost all their metallic qualities.
In just the same manner, iron ceases to be iron when it becomes rust, which is
oxide of iron; or when it becomes copperas, which is sulphate of iron. None
would think of calling blue vitriol copper. So white lead, nitrate of lead,
oxide of zinc, and dry or orange mineral are not metals; they have no metallic
qualities. In the poverty of language, they have no distinct names, it is true,
as lime and clay and vitriol have; but each is designated by a scientific
periphrasis, in which the name of the metal which forms one of its chemical
elements is used. This use of the name has probably been one cause of the
confusion which has arisen on the subject.”

For the defendant it is insisted that both of the preparations in question
should be classified as proprietary medicines under the definition of that term
in section 5, supra. Both are put up in bottles bearing labels designed with
considerable care, and have stamped thereon the facsimile signature of Monsieur
Laroche, all of which conforms with the practice adopted in more recent times by
the manufacturers of many proprietary and patent medicines which have gained a
reputation, in order to prevent imitations being sold to the public. All of
these precautions certainly tend to restrict the sale of the article to that
prepared by the manufacturers themselves. But, aside from this, it seems clear
that the preparation falls within the italicized words of section 5, as the
manufacturer of the preparations under consideration expressly claims that the
process of manufacture is a secret.

A case analogous to the one at bar was that of Ferguson vs. Arthur
(117 U. S., 482; 29 L. ed., 979). Calcined magnesia was a well-known medicinal
preparation, a formula therefor being contained in all the dispensatories. The
question was whether “Henry’s Calcined Magnesia” should be classified as a
proprietary medicine or as “magnesia, calcined.” That “Henry’s Calcined
Magnesia” was universally known by that name and had a character of its own,
distinctive from the ordinary article, although used for the same purpose; that
it had been prepared by the same family for one hundred years and sold on the
market at more than double the price of the American preparation of the highest
repute; that it had a peculiar reputation on account of the nicety with which it
was prepared; that each bottle bore a trade-mark and was accompanied with
literature warning the public against imitations, and claiming that the calcined
magnesia prepared by them “will be found to be perfectly deprived of carbonic
acid, free from taste, smell, or other disagreeable property, and without
roughness or grittiness to the touch or the palate;” were facts held sufficient
to justify its being called a proprietary medicine.

The preparation now in question is not a mere refinement of the commercial
article known as cinchona bark or any of its derivatives. Its only claim for
classification with such drugs is the fact that it contains a small percentage
thereof. Precautions against imitations and the same claims of special process
in preparation are made for it as were made for “Henry’s Calcined Magnesia.”

In Arthur vs. Stephani (96 U. S., 125; 24 L. ed., 771), where the
question was whether chocolates put up in confectionery form should pay duty as
confectionery or as chocolate, eo nomine, it was held that the latter
classification should prevail, after stating the following rule for the
construction of tariff acts: The case “presents the question whether the
articles are dutiable under general terms which may embrace them, or under that
specific language which can be applied to nothing else. That the latter is the
rule by which the duty is fixed is too well settled to require argument.”

In Robertson vs. Salomon (130 U. S., 412; 32 L, ed., 995), the
Collector of Customs classified “white beans” as “vegetables” under the general
category of “articles of food.” The importers insisted that they should be
admitted free as seeds, “not otherwise specified.” In holding that white beans
should be classified as “foods” the court disapproved of an instruction to the
jury below to the effect that “the commercial designation of the article, or
what the article is called in trade and commerce * * * has nothing to do with
the question.”

The Supreme Court said: “We think the court erred in this instruction. The
commercial designation, as we have frequently decided, is the first and most
important designation to be ascertained in settling the meaning and application
of the tariff laws. (Citing several cases.) But if the commercial designation
fails to give an article its proper place in the classifications of the law,
then resort must necessarily be had to the common designation.”

In the present case, even on the assumption that the general phrase “in
whatever form” in paragraph 320 is sufficiently comprehensive to include the
medicinal preparations in question, it seems clear that the specific language of
paragraph 78 (a) is also applicable, and must therefore govern under the rule of
Arthur vs. Stephani, supra. Again, these preparations would undoubtedly be
termed proprietary medicines by “the trade” and patent medicines or nostrums by
the public generally.

At the trial, a letter from the Collector of Customs to the Director of
Science asking for an analysis of the articles in question, and the latter’s
reply, in which it is stated that the .articles should be classified under
paragraph 320, was admitted in evidence over the objection of the defendant.
This was manifestly error.

“Clearly it is not the province of the expert to act as judge or jury. Hence,
all questions calling for his opinions should be so framed as not to call upon
him to determine controverted questions of fact, or to pass upon the
preponderance of testimony. Thus, it would obviously be improper to ask the
witness to state his opinion upon all the testimony in the case as to any given
question, if the truth or part of such evidence were in dispute. When the
question is so framed as to call upon the expert to determine on which side the
evidence preponderates or to reconcile conflicting statements, he is in effect
asked to decide the merits of the case which is a duty wholly beyond his
province. Whatever liberality may be allowed in calling for the opinions of
experts or other witnesses, they must not usurp the province of the court
and jury by drawing those conclusions of law or fact upon which the
decision of the case depends.” (Jones on Evidence, sec. 372.)

For the reasons above stated, the judgment appealed from is reversed, and the
articles in question are held to be dutiable under paragraph 78 (a) of
the Tariff Act of 1909.

Let judgment be entered accordingly. No costs will be allowed in either
instance.

Arellano, C. J., Moreland and Araullo, JJ., concur.