CROSS
District Judge.
These
actions have been brought to recover sums of money paid by
the plaintiffs to the defendants, as successive collectors of
internal revenue for the district of New Jersey, for stamps
affixed by the plaintiffs to certain articles manufactured by
them, which articles were claimed by the United States to be
subject to stamp taxes provided for by section 20 and
Schedule B of the act of Congress of June 13, 1898 (30 Stat
456, 462, c. 448 (U.S. Comp. St. 1901, pp. 2297, 2306))
entitled, 'An act to provide ways and means to meet war
expenditures and for other purposes.'
There
are in all 16 different suits, of which five are brought
against Rutan, late collector, and are designated on the
record as C, D, E, G, and H; five against Herold, collector,
designated as C, D, E, G, and H; and six others against
Herold, collector, designated as B2, C2, D2, E2, G2, and H2.
Each designated class, as for instance class C, C, and C2,
comprises the same group of articles, and the three actions
embrace different periods of time during which stamps were
imposed upon the articles comprised in such group. The other
suits, designated B and B, were originally instituted by the
plaintiffs in this court, one against Rutan, collector, and
the other against Herold, collector, upon which final
judgments have been entered. The remaining sixteen cases
designated as above have been tried together before the court
pursuant to stipulation without a jury, upon the same
evidence so far as applicable. I find the facts from the
evidence to be as follows:
(1) That the plaintiff, Johnson & Johnson, Incorporated, is a
manufacturer of surgical supplies at New Brunswick, N.J., and
has been for a number of years past, and between July 1
1898, when the war
revenue act went into effect, and July 1, 1901, they
manufactured and sold the different articles enumerated in
the declarations.
(2) Between July 1, 1898, and March 1, 1899, the defendant
William D. Rutan was collector of internal revenue for the
Fifth district of New Jersey, and from the 1st day of March,
1899, until the 1st day of July, 1901, the defendant Herman
C. H. Herold was collector in said district.
(3) That between the 1st day of July, 1898, and the 1st day
of July, 1901, the plaintiff purchased large quantities of
internal revenue stamps from the said defendants; purchases
made between July 1, 1898, and March 1, 1899, being made from
the defendant William D. Rutan, and during the balance of
said period from the defendant Herman C. H. Herold. A part of
the stamps purchased during the whole period were affixed on
the articles mentioned in said declarations and canceled,
such stamps being so affixed and canceled under rulings of
the said defendants and the Commissioner of Internal Revenue
of the United States that such articles were subject to a tax
under the provisions of the act referred to, and the sums so
paid for said internal revenue stamps by the plaintiff to the
defendants were paid under protest and on threat of distress
and confiscation in case of refusal, and not voluntarily. For
the sums thus paid claims were duly presented by the
plaintiff and disallowed.
(4) On June 29, 1900, the plaintiff began twelve suits on
claims theretofore presented and disallowed; six suits,
designated B, C, D, E, G, and H, against the defendant Rutan
for the amount of internal revenue stamps so affixed and
canceled during the period from July 1, 1898, to March 1,
1899, and six suits designated B1, C1, D1, E1, G1, and H1,
against the defendant Herman C. H. Herold, to recover the
amount paid for internal revenue stamps so affixed and
canceled during the period from March 1, 1899, to January 1,
1900. Suits B against the defendant Rutan and B1 against the
defendant Herold have been heard and determined by this
court; final judgment having been entered therein on the 12th
day of June, 1903.
(5) That on the 27th day of December, 1901, plaintiff began
six suits against the defendant Herman C. H. Herold, on
claims presented and disallowed between July and December,
1901, designated suits B2, C2, D2, E2, G2, and H2, to recover
the amount of internal revenue stamps so affixed and canceled
during the period from January 1, 1900, to July 1, 1901.
(6) There are three suits in each class, for example, C
Rutan, C1 Herold, and C2 Herold, concerning the same class of
articles stamped during different periods during which the
said act was in force. The remaining sixteen suits,
designated as above, have been tried together before the
court, pursuant to a stipulation in writing, without a jury.
(7) In the actions above mentioned heretofore litigated and
determined between the parties hereto, this court entered
final judgment that the plaintiff was entitled to recover the
amount paid by the plaintiff to the defendants under the
identical circumstances under which payment was made herein
and as part of the same transaction for stamps affixed and
canceled upon certain plasters which, in every
respect, were identical with the plasters involved in the
action now before the court, designated Class B, which
actions determined the following questions:
(a) That the payments were not voluntary.
(b) That the plaintiff has not and does not claim to have any
exclusive right or title to the making or preparing the
plasters.
That the plasters are not prepared, uttered, vended, or
exposed for sale under any letters patent or trade-mark, or
held out or recommended to the public by the plaintiff as
proprietary medicines or medicinal proprietary articles or
preparations or as remedies or specifics for any disease,
diseases, or affection whatever affecting the human or animal
body, or put up in style or manner similar to that of patent,
trade-mark, or proprietary medicines in general, or
advertised on the package or otherwise as remedies or
specifics for any ailment or as having any special claim to
merit or to any peculiar advantage in mode of preparation,
quality, use, or effect.
(c) That the use of plaintiff's trade-mark as it is used
on said plasters did not render them liable to taxation.
(d) That the amount paid as taxes on said articles should be
returned to the plaintiff.
(8) That the following articles, to wit, all the articles in
class C, and all the articles in class D, and the capsicum,
strengthening, porous, belladonna, and belladonna and
capsicum plasters in class E, and the belladonna plaster in
class H, not designated 'Johnson's' each and all
present no question not actually litigated and determined in
the aforesaid actions between the parties hereto.
(9) That the plaintiff has withdrawn the claims for the taxes
paid on the following articles in class E: Dr. Scott's
electric plasters; Phoenix plasters; Dr. McLean's
plasters; hop plasters; Collin's voltaic plasters;
cuticura plasters; kidney plasters (under buyer's name);
zonas corn leaf; camphenol; zonweiss; baby powder; Wood's
penetrating plaster; Red Cross toothache plaster; Red Cross
kidney plaster; canthos plaster; Red Cross cough plasters;
first aid to wheelmen.
(10) The following articles are each and all purely
mechanical in their purpose and operation and are not
medicinal articles or preparations: Finger hats; Dr.
Don's corn plasters; Dr. Don's bunion plasters.
(11) The plasters in class E to which the word
'dental' is applied are identical with the other
plasters of the same name, except that they are cut in small
pieces and in convenient form for the use of dentists. The
word 'dental' does not describe or indicate any
disease or affection.
(12) That 'Papoid Powder' and 'Papoid
Tablets' in class G are the simple drug papain, the
purified juice of the carica papaya (alone and with an
excipient, which is purely mechanical and not medicinal,
respectively), and are uncompounded drugs.
(13) That the claims on the articles in class G named
'Papoid and Nux Vomica' and 'Papoid and Boracic
Acid' have been withdrawn by the plaintiff.
(14) That with the exception of the articles mentioned in
findings 5 and 9 as withdrawn, in finding 6 as mechanical and
not medicinal, and the 'Rheumatic Plaster' in class
E, and that 'Belladonna Plaster' in class H, which
bears the word 'Johnson's,' and the papain
preparations in class G, all the articles involved in these
actions are in fact:
(a) Not plasters wherein the person making or preparing the
same has or claims to have any private formula, secret or
occult art for the making or preparing the same, or has or
claims to have an exclusive right or title to the making or
preparing the same. On the contrary, they are manufactured
and prepared according to formulas taken from the United
States or National Dispensatory or the British Pharmacoepia,
all well-known publications of accepted authority, and are
standard medical preparations recognized and constantly
prescribed by the medical profession, the merits of which are
discussed in medical text-books and journals and are the same
plasters made according to the same formulas as prepared and
sold under the same names by other manufacturers in
competition with the plaintiff.
(b) They are not prepared, uttered, vended, or exposed for
sale under any letters patent or trade-mark, or held out or
recommended to the public by the plaintiff as proprietary
medicines or medicinal proprietary articles or preparations,
or as remedies or specifics for any disease, diseases, or
affection whatever affecting the human or animal body, or put
up in style or manner similar to that of patent,
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