State v. G. H. Tichenor Antiseptic Co

• Decision Date: 04 March 1907
• Docket Number: 16,353
• Citation: 43 So. 277,118 La. 685
• Court: Louisiana Supreme Court
• Parties: STATE v. G. H. TICHENOR ANTISEPTIC CO

43 So. 277

118 La. 685

STATE v. G. H. TICHENOR ANTISEPTIC CO

No. 16,353

Supreme Court of Louisiana

March 4, 1907

Appeal from Civil District Court, Parish of Orleans; John St. Paul Judge.

Action by the state against the G. H. Tichenor Antiseptic Company. Judgment for defendant, and plaintiff appeals. Affirmed.

Gilbert Louis Dupre, Jr., and Edward Rightor, for appellant John Fitzpatrick, State Tax Collector.

Denegre & Blair, for appellee.

OPINION

MONROE J.

Statement.

The state demands that defendant, as a wholesale dealer, shall pay a license tax, and defendant resists the demand, on the ground that, as a manufacturer, it is exempted from such tax by article 229 of the Constitution. The article mentioned exempts from the license tax all "manufacturers, other than those of distilled or malt liquors, tobacco, cigars, and cotton seed oil," and it, of course, devolved upon defendant, claiming the benefit of such exemption, to show that it is a manufacturer of some product other than those which are excepted from the exemption. This we think it has done.

The president of the defendant company testifies that the company is engaged, exclusively, in the manufacture and sale of "Tichenor's Antiseptic"; that the Antiseptic is a chemical combination, and is, and has been, for 30 years, a distinct article of commerce, which is sold throughout the whole United States, in England, and Africa, and in all the countries of Central America; that the plant of the company consists of a square of ground and building thereon, with improved machinery and apparatus; and that it employs about 30 persons. Asked to describe, in a general way, how the article is produced, the witness replies:

"Why, certain drugs are taken, or, I should say, are subjected to treatment by alcohol and allowed to stand for a period of something more than two weeks, in order to extract the medicinal principles, and that combination is filtered, drawn off, and then additional chemicals are added to what we call the base, and, after the perfecting of a solution, it is again filtered and drawn off and put into bottles."

He is further interrogated, and responds (in the course of his examination) as follows:

"Q. Is the formula a secret? A. Yes, it is, sir. Q. Who is in possession of the formula? A. The Hibernia Bank & Trust Company. * * * Q. Your company does not know the secret of the combination? A. Not absolutely. We have all but one or two minor ingredients, and these we have not. Q. From whom did you purchase the right to make this Antiseptic? A. We purchased the contract between the Sherrouse Medicine Company and Dr. George H. Tichenor. Q. Is Dr. George H. Tichenor in your employ? A. Yes, sir. Q. And, from his head, he furnishes the secret ingredient? A. Yes, sir. Q. Have you any objection to stating some of the ingredients? A. Well, alcohol is one, oil of peppermint is another; but, to go further, I will say there are several ingredients that I do not care to publish. Q. Are there many ingredients used? A. Yes, at least six. Q. When the process is completed, state whether or not the original ingredients lose their identity? A. Entirely so. The various ingredients lose their identity. They are not the same in color, or odor, or taste, and it is the combination of these ingredients that makes up the Antiseptic proper. Q. So the resulting mixture has new qualities, not possessed by the original? A. Yes, sir; exactly. Q. It has a new form? A. Yes, sir. Q. A new shape? A. Yes, sir. Q. What is the result? A solid or liquid? A. A liquid. Q. What about the uses? A. There are many. Q. Different from the uses of the raw material? A. Yes, sir; very much. * * * Cross-Examination: Q. You say that Dr. Tichenor's Antiseptic, Mr. Parker, is made, or compounded, from several drugs? A. Yes, sir. Q. What are those drugs? A. If your honor please, I paid $ 50,000 for this formula. Am I compelled to answer this question? By the Court: The court does not think that he should be compelled to answer the question. * * * By Defendant's Counsel: Q. I understood you to say, in your direct examination, didn't I, that those ingredients were solids as well as liquids? A. Yes, sir. Q. And the resulting compound is -- A. We extract from the solids the active medicinal principles."

There is no other evidence in the record, save the charter of the defendant company, which throws no light upon the question here at issue, and the case is presented to this court by the appeal of the state from a judgment rejecting its demand.

Opinion.

Unless we reject the only testimony that has been adduced, as unworthy of belief or insufficient, the judgment appealed from must be affirmed, since, according to that testimony the defendant company, and its...