Decision of Judge Humphrys, District Court for Southern District of Illinois.

That there is a product called whisky and also a product imitation whisky the law itself clearly contemplates, and section 3244, in defining what is meant by the business of rectifying, denominates the maker of imitation whisky and other imitation liquors as a rectifier. . . .

The convincing weight of testimony in this subject, given by such men as Professors Frear of Pennsylvania, Scovill of Kentucky, Tolman and Adams of Washington, D. C, Shepherd of South Dakota, Jenkins of Connecticut, Fischer of Wisconsin, and many other State Analysts and chemists of repute, is to the effect that neutral spirits reduced by water to potable strength from which most of the fusel oil has been removed, is not a like substance with whisky. . . .

The record also shows that diluted spirits treated with artificial coloring matter and essences are not sold to the trade as such, but are always presented under such labels, terms, and descriptions as import age and maturity, and which the consumer identifies with the genuine product whisky.

The fact that this practice had, to some extent, prevailed for many years does not show in the complainants any right which the court should protect. It shows rather that the Commissioner of Internal Revenue has been tardy in promulgating a regulation which he had legal power to enforce, even before Congress gave emphasis to the subject by the enactment of the Food and Drugs Act.

* As a result of the testimony taken by Solicitor-General Bowers on the following questions, he came to the following conclusions:

I

What was the article called whisky as known (1) to the manufacturers, (2) to the trade, and (3) to the consumers at and prior to the date of the passage of the Pure Food Law?

My opinion upon, and answer to, this question is':

1. The article called whisky as known to the manufacturers at and prior to the date of the passage of the Pure Food Law was:

(a) What is often spoken of as "straight whisky," made from grain.

(b) Also, what is often spoken of as "rectified whisky," made from grain, when not a mere neutral spirit, as described in section (d), below, of the answers to this question 1.

(c) Also, a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is often known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whisky given below in answer to question II.

(d) Also, neutral spirit - being a distillate from grain, which lacks a substantial amount of by-products (other than alcohol) derived by distillation from grain and giving distinctive flavor and properties - when, but only when, colored and flavored and sold by the manufacturer to a retailer; but the purchasing retailer in such case seldom knew that in fact he was getting neutral spirit, colored and flavored.

Such neutral spirit made from grain was not known to the manufacturer as whisky in the dealings of distillers with rectifiers; and I do not consider that it is proved to have been known as whisky in the dealings of distillers or rectifiers with wholesalers. A neutral spirit made from molasses, potatoes, or any other substance than grain, has not been known to manufacturers as whisky, except in very rare cases.

2. The article called whisky as known to the trade at and prior to the date of the passage of the Pure Food Law was:

(a) What is often spoken of as "straight whisky," made from grain.

(b) Also, what is often spoken of as "rectified whisky," if conforming to the description of whisky given below in answer to question II.

(c) Also, a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is often known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky, and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whisky given below in answer to question II.

(d) Also, neutral spirit - being a distillate from grain, which lacks a substantial amount of by-products (other than alcohol), derived by distillation from grain and giving distinctive flavor and properties - when colored and flavored; except that neutral spirit was not known to retail dealers as whisky, because such retailers seldom were aware that the article which they were buying or selling was in fact neutral spirit.

A neutral spirit made from molasses, potatoes, or other substance than grain has not been known to the trade as whisky.

3. The article called whisky as known to the consumers at and prior to the date of the passage of the Pure Food Law was:

(a) What is often spoken of as "straight whisky," made from grain.

(b) Also, what is often spoken of as "rectified whisky," if conforming to the description of whisky given below in answer to question II.

(c) Also, a mixture of straight whiskies, or of rectified whiskies, or of straight whisky and rectified whisky, or of straight whisky and what is often known as neutral spirit (made from grain), or of rectified whisky and such neutral spirit (made from grain), or of straight whisky, rectified whisky, and such neutral spirit (made from grain), if in the particular case the mixture satisfied the description of whisky given below in answer to question II.

A neutral spirit derived by distillation from anything else than grain has not been known to the consumer as whisky, whether or not it was colored or flavored or both colored and flavored; and a neutral spirit derived by distillation from grain, but lacking a substantial amount of by-products (other than alcohol) which are derived by distillation from grain and give distinctive flavor and properties, has not been known to the consumer as whisky, whether or not it was colored or flavored or both colored and flavored.