De Witt v. Skinner

• Decision Date: 01 May 1916
• Docket Number: 4313.
• Citation: De Witt v. Skinner, 232 F. 443 (8th Cir. 1916)
• Parties: DE WITT v. SKINNER, Collector of Internal Revenue.
• Court: U.S. Court of Appeals — Eighth Circuit

232 F. 443

DE WITT v. SKINNER, Collector of Internal Revenue.

No. 4313.

United States Court of Appeals, Eighth Circuit.

May 1, 1916

Thomas Ward, Jr., of Denver, Colo., for plaintiff in error.

John A Gordon, Asst. U.S. Atty., of Denver, Colo. (Harry B. Tedrow of Denver, Colo., on the brief), for defendant in error.

Before HOOK and CARLAND, Circuit Judges, and AMIDON, District Judge.

HOOK Circuit Judge.

De Witt sued the collector of internal revenue to recover taxes penalties and interest assessed against him as a manufacturer of adulterated butter and against his product, and paid under protest after an unsuccessful application to the Commissioner of Internal Revenue for their abatement. A trial to a jury resulted in a verdict and judgment for the defendant, and De Witt, the plaintiff, prosecuted this writ of error.

The act of Congress applicable to the case provides:

'That 'adulterated butter' is hereby defined to mean a grade of butter produced by mixing, reworking, rechurning in milk or cream, refining, or in any way producing a uniform, purified, or improved product from different lots or parcels of melted or unmelted butter or butter fat, in which any acid, alkali, chemical, or any substance whatever is introduced or used for the purpose or with the effect of deodorizing or removing therefrom rancidity. ' Act May 9, 1902, § 4, 32 Stat. 194.

The plaintiff conducted a creamery and butter factory at Denver, Colo. The surplus butter made by him in the summer months when cream was plentiful was put up in 200-pound cubes, carefully packed, and put in cold storage at a low temperature until fall or winter, when the supply of cream lessened and the demand for butter increased. The surplus in storage was then taken out, reworked, and put upon the market. In the process of reworking the cubes were cut into small pieces and put in a tempering vat, where they were left until they became plastic. The vat was in two compartments, one for the pieces cut from the exterior of the cubes to a depth of two or three inches and the other for the inner portions. The vat contained about 200 gallons of hydrant water raised to an appropriate temperature, into which was introduced a small quantity of lime water. When in a workable condition the pieces were removed from the vat, separately rechurned, and washed in clear water, salted, and molded into small forms for the market. The controversy was over the condition of the exterior portions of the large cubes of butter taken from the cold storage warehouse and the purpose and effect of the use of lime water. The plaintiff contended that the parts in question were sweet in fact and in odor, and that the lime water was added to the water in the tempering vat to counteract its tendency to become stagnant, and also as a preservative, like salt, to prevent the butter from deteriorating after being put upon the market. The defendant contended that the butter particles had an offensive odor and were rancid, and that within the definition of the statute the lime, an alkali, was 'used for the purpose or with the effect of deodorizing or removing therefrom rancidity.'

...