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    FINK v. U S, 170 U.S. 584 (1898)

    U.S. Supreme Court

    FINK v. U S, 170 U.S. 584 (1898)

    170 U.S. 584

    No. 120.

    May 23, 1898

    Albert Comstock, for appellant.

    Asst. Atty. Gen. Hoyt, for the United States.

    Mr. Justice WHITE delivered the opinion of the court.

    This record presents for consideration certain questions of law certified to this court by the court of appeals for the Second circuit. The certificate and questions therein stated are as follows:

    There can be no doubt that the article in question, from some points of consideration, might be classified under either of the paragraphs of the statute referred to in the certificate. Thus, within the purview of paragraph 74, it is obviously a medicinal preparation, in the preparation of which alcohol is used. It is also equally clear that it is likewise, chemically speaking, a salt, and hence within the reach of paragraph 76. It would then follow that if either of the paragraphs stood alone in the statute, disembarrassed of the provisions found in the other, the preparation might properly come under the head of either. Being reached, then, in some of its aspects, by some of the provisions found in both paragraphs, the question is, which, if either, of the two is so dominant in its con- [170 U.S. 584, 587]   trol of the article in question as to exclude the operation thereon of the other? The rule is that this, if possible, is to be determined by ascertaining whether one of the two paragraphs is more definite in its application to the article in question than is the other. Isaac v. Jonas, 148 U.S. 648 , 13 Sup. Ct. 677; Bogle v. Magone, 152 U.S. 623 , 14 Sup. Ct. 718. Being a medicinal preparation, made as such, ands olely used as a medicine, the language of paragraph 74 clearly more definitely applies to it than does the generic provision of 'chemical compounds and salts' found in paragraph 76. Magone v. Heller, 150 U.S. 70 , 14 Sup. Ct. 18; Robertson v. Salomon, 130 U.S. 412 , 9 Sup. Ct. 559. The fact that the certificate states that 'muriate of cocaine is a medicinal preparation, and is known as such by the physician, the chemist, the druggist, and in commerce, and was so known, definitely, generally, and uniformly, at and prior to the enactment of the tariff law of 1890,' becomes a factor, adding cogency to the demonstration that the article falls with more definite certainty under the classification of a medicinal preparation than it does under that of a chemical salt. Dejonge v. Magone, 159 U.S. 562 , 16 Sup. Ct. 119; Berbecker v. Robertson, 152 U.S. 373 , 14 Sup. Ct. 590; Robertson v. Salomon, 130 U.S. 412 , 9 Sup. Ct. 559. And the force of this view is not weakened by the statement in the certificate that the term "salts' or 'chemical salts' is a generic term, and includes a commercial class of articles known by chemists and by pharmacists and druggists, at the date of the passage of the tariff act, as covering, among others, muriate of cocaine.' In reason, the result of the certified facts is simply this: that muriate of cocaine is, in its narrow aspect, a medicinal preparation; in its wider, a chemical salt; and, hence, that 'chemical salt' is a generic term designating all articles of that character, and hence, embracing muriate of cocaine, as the genus, must, as a matter of course, contain within itself the species which are embodied in it. In its ultimate analysis, therefore, the question asked is only this: Is the genus, chemical salt, more comprehensive than the species, muriate of cocaine? Thus understood, it becomes, of course, necessary to answer the first question in the affirmative, and the second in the negative; and it is so ordered.

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