Baltimore Talking Bd. Co., Inc. v. Miles

Decision Date09 February 1922
Docket Number1908.
Citation280 F. 658
PartiesBALTIMORE TALKING BOARD CO., Inc., v. MILES, Internal Revenue Collector.
CourtU.S. Court of Appeals — Fourth Circuit

Allan H. Fisher and Washington Bowie, Jr., both of Baltimore, Md (Fisher & Fisher, of Baltimore, Md., on the brief), for plaintiff in error.

George W. Lindsay, Asst. U.S. Atty., of Baltimore, Md. (Robert R Carman, U.S. atty., of Baltimore, Md., Carl A. Mapes Solicitor of Internal Revenue, and J. G. korner, Jr., Sp Atty., Bureau of Internal Revenue, both of Washington, D.C., on the brief), for defendant in error.

Before KNAPP, WOODS, and WADDILL, Circuit Judges.

WOODS Circuit Judge.

Joshua W. Miles, collector of internal revenue, collected from Baltimore Talking Board Company $202.81, 10 per cent. of its gross sales of Ouija boards. In this action to recover the amount as illegally exacted the District Court, trying the case by consent without a jury, held the plaintiff's Ouija boards to be 'games' within the meaning of the following federal revenue statute, and found for the defendant:

Revenue Act 1918, tit. IX, Sec. 900, subd. 5: 'Tennis rackets, nets, racket covers and presses, skates, snow-shoes, skis, toboggans, canoe paddles and cushions, polo mallets, baseball bats, gloves, masks, protectors, shoes and uniforms, football helmets, harness and goals, basket-ball goals and uniforms, golf bags and clubs, lacrosse sticks, balls of all kinds, including baseballs, footballs, tennis, golf, lacrosse, billard and pool balls, fishing rods and reels, billiard and pool tables, chess and checker boards and pieces, dice, games and parts of games (except playing cards and children's toys and games), and all similar articles commonly and commercially known as sporting goods, 10 per centum. ' Comp. St. Ann. Supp. 1919, Sec. 6309 4/5a5.

Evidently the word 'games,' used in the statute, does not mean the games themselves, but the instrumentalities used in playing them. The following testimony of the secretary of the plaintiff corporation is the only description found in the record of the Ouija boards and their purposes and uses: 'The witness further testified that the plaintiff made three different sizes; the tiniest one was called the 'wee' Ouija board. This board retails at 10 cents; its size is about 5x8 inches. The next size board retails from 50 cents to $1. It is sold to the dealer, and the dealer makes his own price, which varies between the amounts above. The size of that board is approximately 8x12 inches. The largest size Ouija board is 14x22 inches. The plaintiff made very few of that type of board. The witness further testified that the Ouija board is made entirely of cardboard and paper, and that there is nothing mysterious about it. He testified that the board contains the letters of the alphabet, the 10 numerals, and the words 'Yes' and 'No'; also that the little planchette is made of wood.'

He further testified that sales were made chiefly to 5 and 10 cent stores, a few to department stores, but none to sporting goods stores; that plaintiff made no Ouija boards of wood and had no connection with William Fuld.

The defendant introduced without objection a patent granted William Fuld, June 19, 1915, for a Ouija board, which says:

'The object of the invention is to produce a game with which two or more persons can amuse themselves by asking questions and having them answered by the device used and operated by the touch of the hand, so that the answers are designated by the letters of the alphabet.'

The defendant also introduced 'certain envelopes, boxes, and boards,' with the directions printed on the box or envelope setting out the well-known method of operating the board.

In its broadest sense a game is defined:

'A play or sport for amusement.'

In its restricted and more generally applied sense it is:

'A contest for success or superiority in a trial of chance, skill, or endurance, or of any two or all three of these combined. ' Century Dictionary.

The definition of 'Ouija' in the supplement to the New Century Dictionary is as follows:

'Formed as a trade-mark name, from F. oui, yes, and G. ja, yes. The name thus implies a thing that will answer 'yes' in any language. A good description of a well-managed planchette. A form of planchette, consisting of a board marked with the letters of the alphabet and the ten numerals and of the planchette proper, which (under the hand of the operator) moves over the board and touches certain letters and numerals and thus 'answers' questions.'

The Popular Science Monthly, January, 1904, gives this description:

'The next higher grade of motor automotism, involving considerable subconscious action of the intelligence, is found in the various alphabet-using forms of amateur mediumship, such as table tipping, the 'Ouija board,' and certain other devices for making our muscles leaky and liable to escape from control.'

It seems safe to say psychologists recognize the Ouija board as a real means of expression of automotism. The court knows in a general way that the Ouija board is seriously used by some persons in the belief that it affords mysterious spirit communication; by others as a means of personal observation of the control of muscular or nervous action by the subconscious or unconscious mind. But the court cannot pretend to be ignorant that it is very largely sold with the expectation that it is to be used merely as a means of social amusement or play, and is actually so used. It is true that automotism is the basis of this use, but phenomena of psychical as well as of physical nature may be the basis of amusement and games. In Gould v. Gould, 245 U.S. 151, 38 Sup.Ct. 53, 62 L.Ed. 211, the court says:

'In the interpretation of statutes levying taxes it is the established rule not to extend their provisions, by implication, beyond the clear import of the language used, or to enlarge their operations so as to embrace matters not specifically pointed out. In case of doubt they are construed most strongly against the Government, and in favor of the citizen. ' Am. Net & Twine Co. v. Worthington, 141 U.S. 468, 12 Sup.Ct. 55, 35 L.Ed. 821; Benziger v. United States, 192 U.S. 38, 55, 24 Sup.Ct. 189, 48 L.Ed. 331; United States v. Isham, 17 Wall. 496, 504, 21 L.Ed. 728.

But the doubt as to the meaning of the statute must be one which remains after all recognized rules for ascertaining its meaning have been tried. As to the analogous rule requiring strict construction of statutes exempting property from taxation the Supreme Court has said:

'Its proper office is to help to solve
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  • Aronson v. White
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    ...ingenuity. They are designed for use in games of contest, while a jigsaw puzzle is not. We recognize that in Baltimore Talking Board Co. v. Miles (C.C.A.) 280 F. 658, 661, the Ouija Board Case, involving section 900 (5) of the Revenue Act of 1918 (40 Stat. 1122), which is substantially the ......
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    ...it is consistent with the conclusion reached here. See White v. Aronson, 302 U.S. 16, 58 S. Ct. 95, 82 L.Ed. 20; Baltimore Talking Board Co. v. Miles, 4 Cir., 280 F. 658; Samuel Winslow Skate Mfg. Co. v. United States, Ct.Cl., 50 F.2d 299; Mills Novelty Co. v. United States, Ct.Cl., 50 F.2d......
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    • U.S. Supreme Court
    • November 8, 1937
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