ror" in this connection, we might have overlooked this defect. We, however, reach a satisfactory conclusion without regard thereto.

The decision of the Circuit Court rested the case on the 10 per cent. ad valorem duty under section 6. That court, however, expressed no opinion itself on the topic, but merely followed the Circuit Court for the Second Circuit in Boericke & Runyon Company v. United States, 126 Fed. 1018. This it clearly was justified in doing, whether or not it fully approved that decision. On the other hand, being a decision only of the Circuit Court, it does not stand as an authority binding us. The facts in reference to the nature of the importation were correctly and sufficiently stated by the Board of General Appraisers as follows:

"Upon the evidence taken it appears that 15 kilograms of alcohol, valued at marks 37.50, was placed in the kegs containing certain belladonna leaves and stalks cut up and 12 kilograms of alcohol valued at marks 30 in the kegs containing aconite leaves and stalks cut up, and that these values were included in the general value on the consular invoice; that the merchandise consists of green belladonna leaves and stalks and green aconite leaves and stalks imported for the purpose of maceration in alcohol and for the purpose of making tinctures and extracts; that the alcohol in which the leaves were first immersed was continued in use in the maceration in this country while it incidentally served as a preservation in the importation of said leaves by which the amount of alcohol so used lessened the quantity of alcohol required for complete maceration."

It was agreed at our bar that the alcohol during the process of importation absorbed sufficient from the leaves and stalks described to poison it, and to prevent any profitable attempt to extract the poison from it, or to thus reduce it to its normal condition. Nevertheless the opinion of the learned judge of the Second circuit in the case cited, at page 1019 of 126 Fed., described the alcohol as a "mere vehicle" of no more importance than the cask in which packed. The opinion said. alternatively that the importation consisted of the leaves and stalks and the alcohol "as the factors in a loose and temporary association for the purpose, as aforesaid, of maintaining the stalks and leaves in their natural condition, and fit to subserve their intended use." Apparently these observations express a condition differing from the facts as they appear before us; because, if the alcohol had been a "mere vehicle," if it formed with the leaves and stalks only a "loose and temporary association," it would have come into the country as alcohol or spirits, subject to a duty of at least $2.25 a proof gallon according to paragraph 289 of the act in question, with possibly an additional ad valorem duty on account of the leaves and stalks which were in the package with it. Of this there is no suggestion in any discussion concerning this importation brought to our attention. More over, that in the case before us the alcohol was not a "mere vehicle" is evident from the use to which it was finally put. Unlike any ordi nary vehicle, whether cask, carton, wrapper, or whatever it may be, or any ordinary preservative, there was usually no attempt to separate it from the leaves and stalks, but further alcohol was generally added to it for the purpose of completing the whole into a tincture. The whole process is described in substance and without question as follows: When the package is made up at the place of shipment, the leaves are chopped into fine pieces, and the alcohol commingled with

them. After importation the leaves are further manipulated in the way of maceration, and further alcohol added for the purpose of further extracting the virtue from them, until, as the result of the further maceration and the further addition of alcohol, the tincture, the attaining of which was the purpose for which the importation was made, is extracted, ready for the market or for use.

It is true that the testimony also shows that the tincture is not the only form in which the result of the importation is put on the market. Another result is a tablet as to which the alcohol is a hindrance, but it is admitted that the major portion is used in the tincture form. All this constitutes a process of either a chemical union or an atomic association, continuing from the beginning at the place of exportation until the tincture is complete, ready for the market. The fact that in some part the tablet takes the place of the tincture does not change the nature of the process which we have described; and its nature must be determined from all the uses to which the product resulting therefrom can be applied.

The topic of compounds with spirits, including alcohol, first came into the tariff statutes in Act July 28, 1866, c. 298, 14 Stat. 328. There it appears as follows:

"On all compounds or preparations of which distilled spirits is a component part of chief value, there shall be levied a duty not less than that imposed upon distilled spirits."

This is repeated in Act March 3, 1883, c. 121, § 6, Schedule H, 22 Stat. 505. It also appears substantially in the act of 1897. It has no application here, because the alcohol in this importation was both by weight and measure a minor quantity. This word "compound," however, quite early came under consideration. In Treasury Decisions 3,672, of July 27, 1878, a small percentage of alcohol mixed with cherry juice for the purpose of preventing fermentation was held not to establish the cherry juice as being an alcoholic compound. In that case "fruit juice" was specifically classified, so that, notwithstanding the addition of the alcohol, it was ruled that it still held that classification. The same rule might apply here if there had been a special classification of compounds of belladonna or aconite.

On April 27, 1883, by Treasury Decision 5,682 a more important ruling was made. The importation was therein described as an infusion. It was said that it was not a recognized medical preparation, but beyond that nothing was explained in reference to it except only that distilled spirits were the component part of chief value. It was held to be a compound within the classification of "compounds or preparations," etc. The mere fact that the importation could not be classified specifically seemed to be sufficient to justify classifying it generally as a compound. This decision is cited in Adams' Tariff (2d Ed. 1890) 67, where the importation is described as an alcoholic infusion. The word "infusion," as applied here, according to Webster's Dictionarythat is, as used in pharmacy-is the "act or process of steeping or soaking any substance in water in order to extract its virtue.” In addition to this, it covers the extract obtained by infusion. Whatever the meaning of the word "infusion," this decision was plainly rested on the broad meaning of the word "compound," because it did not investi

gate either the precise nature of the importation or the use to which it was put. It classified it as a "compound" simply because it was not known as a medical preparation. This is, therefore, an early, broad, contemporaneous interpretation of the word "compound" which agrees. entirely with its popular use, the broad use of the word.

Of course, the word "compound," under some circumstances, has a limited application. Pharmacists ordinarily apply it to a mere mixing of different substances, especially when comminuted with the mortar and pestle. Chemists sometimes, though not ordinarily, use it when two substances are chemically united so as to make a new substance; but, according to the lexicographers, and according to well-known understanding, it covers any "union or mixture of elements, ingredients or parts." Webster's International Dictionary (1904), the word "compound." In view of the fact that, except as applicable to certain specific medical preparations where it has a special narrow use, the word "compound" has no particular commercial limitation, there is no reason why it should not be interpreted here in its broadest sense, according to its natural meaning as commonly understood. There is all the more reason for this because any limitation on the expression under discussion, wherever found in the customs statutes in connection with spirits, would open an opportunity for evading or avoiding the purpose of the revenue laws, both the internal revenue laws and the customs laws, contrary to the evident general intention to levy a high duty, at least for once, on all spirits whether of domestic or foreign production. Moreover, in no other way can the word "compound," when linked with "preparation," have any appreciable effect.

Independently of the infusion into the alcohol of the virtues of the belladonna and the aconite partly accomplished on arrival at the port of importation, even without which the commingling of the two elements might well be called a "union or mixture" according to lexicographers, yet in every sense the result of the infusion constitutes clearly a compound in, as we have explained from the lexicographers, the broad definition of the word. Therefore we have the following decisive elements: First, the broad definition of the word "compound," which, as applied here, is not limited by any trade usage or technical adaptation; second, we have in the mere commingling of two elements of the spirits on the one hand and the leaves and stalks of belladonna and aconite finely cut on the other hand, independently of infusion, a "compound" if it were necessary to leave the case there; third, we have an infusion which is of such a character that it does not result in a chemical change, and leaves the alcohol still alcohol, although in a deteriorated condition; fourth, whatever may be said about the mere assembling of the different elements, this infusion, under the circumstances established, marks the existences of a compound; and, fifth, as this infusion commences to be operative from the time the elements are assembled in the country of exportation, and this continues during the voyage, with assistance after arrival of further added alcohol, until, for at least certain purposes, a "tincture" in the strict sense of the word results, it seems to us clear that we have an importation of a compound of such a character and such a continuous history that it relates back to its beginnings at the time of shipment.

Therefore, in any view, it is clearly within that part of paragraph 2 under discussion which covers "alcoholic compounds not specially provided for in this act."

In order that we may not be misunderstood, we will state again that we comprehend thoroughly the facts that the whole product is not completed in the form of a tincture, and that the first use of the alcohol is mainly for the purpose of holding in a sound condition the leaves and stalks of the belladonna and aconite. Nevertheless, we cannot perceive anything in the statute which justifies us in holding here that the primary purpose of using the alcohol as a mere preservative determines the classification, although in some cases it would. On the other hand, the fact is that the importation is an infusion to a greater or less degree, and therefore it is covered by the peremptory terms of paragraph 2, although under some other paragraphs the purpose of the importation, and not the mere fact of the nature of the article imported, might more or less determine the classification.

The judgment of the Circuit Court is reversed, and the case is remanded to that court, with directions to render a judgment in favor of the United States.

STIMSON MILL CO. et al. v. MORAN CO. et al.

CHESLEY TOWBOAT CO. v. SAME.

(Circuit Court of Appeals, Ninth Circuit. January 3, 1910.)

No. 1,691.

TOWAGE (§ 15*)-INJURY TO TOW-COLLISION WITH DRY DOCK-LIABILITY OF TUG.

Findings of the trial court as to the circumstances under which a collision took place between a steamship and a floating dry dock to which she was being towed by two tugs, and that one of the tugs, the master of which was found to be in charge, was solely in fault, based on conflicting evidence, held sustained by the evidence and affirmed.

[Ed. Note. For other cases, see Towage, Cent. Dig. § 36; Dec. Dig. § 15.*]

Appeal from the District Court of the United States for the Northern Division of the Western District of Washington.

Suit in admiralty by the Moran Company against the Chesley Towboat Company, which by petition brought in the Stimson Mill Company as owner of the tug Tillicum, and the Crosby Tugboat Company as owner of the tug Harold C. From the decree, the Chesley Towboat Company and the Stimson Mill Company appeal. Affirmed.

Libel against the Chesley Towboat Company for injuries sustained by the steamship Olympia and by the wharf and dry dock of libelant as the result of a collision alleged to have occurred through the negligence of the Chesley Towboat Company, respondent, and through want of sufficient power in the tugs Tillicum, and Harold C., employed by the said respondent to perform towage service for the libelant.

The libelant alleges that it owned a dry dock and a certain wharf in Puget Sound; that about January 14, 1907, the libelant made a contract with the Northwestern Steamship Company to repair the steamship Olympia at its dry For other cases see same topic & § NUMBER in Dec. & Am. Digs. 1907 to date, & Rep'r Indexes

dock and shipbuilding plant in Seattle; that it became and was necessary to tow the Olympia from where she was moored in the harbor of Seattle to the shipbuilding plant of the libelant, and that the libelant employed the respondent, the Chesley Towboat Company, to tow the Olympia to libelant's shipyard, and that the tug Tillicum took the steamship Olympia in tow and attempted to bring her to the shipyard, and by reason of the two tugs employed being of insufficient power, and negligently and carelessly steered and handled, the tugs lost control of the Olympia, and, in consequence of the negligence and · carelessness and want of sufficient power, the Olympia was carried by the wind and tide against the floating dry dock and wharf of the libelant; that, as a result of the collision with the floating dry dock, it was broken and damaged, and the wharf was damaged; that the Olympia was greatly damaged, and that in consequence of the collision libelant was obliged to expend various sums for repairs and materials.

The Chesley Towboat Company filed its petition, alleging, in substance, that at the special request of the Moran Company, libelant, petitioner engaged the tugs Tillicum and Harold C. to tow the Olympia from where the said steamship was then moored to the shipyard of libelant, and thereafter, in the performance of the towage service, the steamship came into collision with the dry dock and wharf and was injured; that the towage service was performed exclusively by the said tugs, operated, managed, and controlled by the officers and crew thereof, and that the collision was not caused or contributed to by any fault on the part of petitioner. Petitioner then set forth that the Moran Company had filed a libel against the petitioner, and pleaded that whatever damage, if any, had been sustained by the steamship and by libelant and its dry dock and wharf, if not caused by the sole negligence and fault of libelant itself, was because of the fault and negligence of the officers and crew of the tugs contributing thereto. Petitioner prayed that process might issue against the tugs Tillicum and Harold C., pursuant to the usual practice in admiralty. Process was accordingly issued.

The Harold C. and Crosby Tugboat Company answered, setting forth that the Harold C. was employed by the Chesley Towboat Company to aid some other and powerful tug in the work of moving the Olympia; that the Harold C. was under the control and direction of said tug, the Tillicum, so under the control of the Chesley Towboat Company, and acted under the direction of such other tug. All carelessness was denied. For further answer, it was set up that the Harold C. was a small boat, and her engines and equipment of such character as to render her unfit for moving large ships, and that when the Chesley Towboat Company sought the services of the Harold C. said company knew of the equipment and size of the Harold C, but that the Chesley Towboat Company requested the Crosby Tugboat Company to aid a larger and better equipped tug in towing the Olympia to the dock of the Moran Company, and that the Chesley Towboat Company was informed by the officers of the Crosby Tugboat Company that the Harold C. would not assume any responsibility whatsoever in moving the Olympia, but would render such aid as it reasonably might to a more powerful tug; that the tug Tillicum, accompanied by the Harold C., went to the place where the Olympia was moored, and the Tillicum went alongside of the Olympia, and attached herself thereto, and that her officers and crew took sole charge of the towage of the Olympia and directed the Harold C. and her officers and crew as to such services as the tug would render while moving the Olympia to the dock of the Moran Company; that, if any collision occurred, it was wholly without the fault of the Harold C., and that there was no negligence on the part of said tug or her officers and crew, for which she was liable. For further answer, it was set up that neither of the tugs was responsible for the injury to the Olympia or to the dry dock, and that there was no negligence on the part of either of said tugs, but that the injury was brought about because of the improper construction of the Moran dock, in that its apron, which was sunken and out of sight, extended out from the dock to a much greater distance than it should, and that the collision and damage to the Olympia and dry dock were caused wholly by the steamer coming in contact with such sunken apron, concerning which the tug having charge of the moving of the steamer had no knowledge