ing natural gas in paying quantities, and become oil-yielding wells. Said corporation, having no facilities for handling the oil so produced by its wells, sold and delivered said oil at said wells to persons and corporations engaged in the oil business, and the income and royalties derived from the sale of said oil was carried into and constitutes a part of the gross receipts of said corporation during said two years. "(13) The greater part of the surface of the territory so purchased for natural gas purposes is tillable, and said corporation leased the same to farm tenants for tillage, and the rents and income so derived was also carried into and constitutes a part of the gross receipts of said corporation during said two years. "(14) During and prior to the said two years, said corporation invested its surplus earnings in United States government bonds, and the interest and income accruing and paid on said bonds was also carried into and constitutes a part of the gross receipts of said corporation for and during the said two years. "(15) During said two years said corporation sold and disposed of junk and sundry machinery and materials of which it had no further use, and the sums derived from that source was also carried into and constitutes a part of the gross receipts of said corporation for said two years. "(15) The gross receipts of said corporation from all of said sources for the year ending June 30, 1899, were as follows: From sale of natural gas ... From oil sold at wells, as aforesaid. Rents and income from lands, as aforesaid Interest on United States bonds Sale of junk and sundry items $269,552 43 25,071 71 11,600 20 1,288 03 $309,607 38 "(16) The gross receipts of said corporation from all of said sources for the year ending June 30, 1900, were as follows: From sale of natural gas From oil sold at wells, as aforesaid Rents and income from lands, as aforesaid Sale of junk, &c., as aforesaid "(17) $285,074 77 32,998 99 2,152 84 8,467 68 3,526 40 $332,220 68 Said corporation had no income or receipts from any source except as above set forth. "(18) Said corporation has refused, and still does refuse, to make any return of the amount of its gross receipts for and during said two years to the collector of the district in which said corporation is located and has its place of business. "(19) The United States of America, plaintiff herein, has made demand upon said defendant corporation for the sum of four hundred and eighty dollars and forty-seven cents ($480.47), together with a penalty of five per cent. (5%) thereon, and interest thereon at the rate of one per cent. (1%) per month on the sum of one hundred and thirty-six dollars and thirty-nine cents ($136.39) and three hundred and forty-four dollars and eight cents ($344.08), and on said penalty from July 1, 1899, and July 1, 1900, respectively, but said defendant corporation has refused, and still does refuse, to pay the said sum, penalty, and interest, or any part thereof. "Stipulation. "It is hereby stipulated and agreed that the above cause shall be submitted to the court, without the intervention of a jury, upon the pleadings and the foregoing agreed statement of facts." The question before the court is whether the Northwestern Ohio Natural Gas Company was, during the years named, engaged in a business which made it subject to the tax levied by section 27 of the act. I have no difficulty in coming to the conclusion that, on the statement made, the defendant is not liable. In the first place, I am clearly of the opinion that the defendant is not a company engaged in a kind of business which makes it subject to the statute; and, in the second place, even if it was, the tax could only be levied on so much of its income as is derived from the business of transporting gas and oil by means of a pipe line. It appears that the defendant is engaged, primarily, in the business of supplying natural gas to consumers in the city of Toledo. The price which it receives for the gas thus furnished is payment for the gas. Incidentally, it is necessary for the company to obtain a supply of gas by drilling wells in the neighboring country, and to transport that gas to the place of consumption. To thus transport the gas by means of pipes does not constitute the company a transporting company, nor is it thereby engaged in the business of transporting oil or gas by means of pipe lines. Such transportation is, in the most definite sense, merely incidental. It is not, in any respect, to be distinguished from the business of transporting gas in which a manufactured gas company is engaged; such company having a plant within the limits of a city, and conducting the gas which it thus manufactures through the streets of the city to the places where its customers consume it. I think it would be an absolute denial of justice to come to any other conclusion. The purpose of the law was not to reach any such case. It might as well be said that if the gas company produced $1,000,000 worth of gas at a well, and conveyed it 100 feet to a point where it was all consumed, it would, under this law, be taxed on the $750,000 excess which the value of the gas represented above the $250,000 named in the law. We are not compelled to rely wholly upon the soundness of this position as a mere statement of general principles, for, so far as I am advised, the courts have never held, in any case, the contrary view. In the case of Carothers' Appeal, 118 Pa. 485, 12 Atl. 318, the court says, speaking of a natural gas company: "The situation is precisely the same as in the case of illuminating gas, which is manufactured, stored, and conveyed by pipe lines to the places of consumption. The business is that of making and supplying gas for light, and transportation to the consumer is incidental. The same is also true of water companies. They produce, store, and supply to consumers water. Transportation by means of pipes is the means of delivery, and is a mere incident to the business." So, also, the Supreme Court of the United States, in the case of Spreckels Sugar Refining Company v. McClain, 192 U. S. 397, 24 Sup. Ct. 376, 48 L. Ed. 496, says: "We are of opinion that, upon the point last stated, there was error. The gross annual receipts, upon which, in excess of a certain amount, the tax was imposed, were, under the statute, only receipts in the business of refining sugar, not receipts from independent sources. But clearly neither interest paid to plaintiff on its deposits in bank, nor dividends received by it from investment in the stocks of other companies, were receipts in the business of refining sugar." So that the most that could be said is that, under this section 27, the receipts upon which the tax could be levied would be such sum in ex cess of $250,000 per year which the company received for the business of transporting gas. In this case it is agreed that the reward for that part of the business of the defendant company does not exceed onefifteenth of its total receipts; so that, in any event, there would be no right to recover. Judgment, therefore, may be entered for the defendant. MOXIE NERVE FOOD CO. OF NEW ENGLAND v. HOLLAND. (Circuit Court, D. Rhode Island. December 12, 1905.) TRADE-MARKS AND TRADE-NAMES-SUIT FOR INFRINGEMENT-PRELIMINARY IN JUNCTION. Statements made on the labels and wrappers of a preparation as to its medical value and the cures it has effected are so largely of matters of opinion rather than statements of fact that, although apparently extravagant, they will not justify a court of equity in refusing a preliminary injunction against an imitator, who is clearly infringing the proprietary rights of the maker. In Equity. On complainant's motion for a preliminary injunction, and on defendant's motion to dismiss bill for want of equity. Roberts & Mitchell, for complainant. Charles A. Wilson and George H. Huddy, Jr., for defendant. BROWN, District Judge. The complainant has sufficiently proved the unlawful substitution of "Modox" for "Moxie," and is entitled to a preliminary injunction, unless guilty of such fraudulent misrepresentation to the public as to disentitle it to the assistance of a court of equity under the principles set forth in Worden v. California Fig Syrup Co., 187 U. S. 516, 23 Sup. Ct. 161, 47 L. Ed. 282. The defendant charges fraud in various particulars, only two of which require attention: (1) Statements as to the ingredients of Moxie; and (2) statements as to its curative powers. Evidence is offered tending to show that Moxie is not prepared as it purports to be, from a "simple sugar cane like plant grown near the equator." The force of the affidavit of George P. Walker to this point is considerably weakened, however, by the stenographic report of his testimony in Moxie Nerve Food Co. v. Chase, and the inconsistency requires explanation which has not been furnished. The chemical analysis seems to account for all but 1.6 per cent. of the contents of a Moxie bottle as nonmedicinal ingredients such as are used in ordinary root beer. As to the possible efficacy of this small quantity of unidentified residuum, there is a conflict of testimony between physicians of the allopathic and homeopathic schools, and the complainant is entitled to the benefit of any doubt upon this point. The existence of a "sugar cane like plant" and of Lieutenant Moxie seem to have been in issue in Moxie Co. v. Baumbach (C. C.) 32 Fed. 205, and to have been decided in favor of the complainant. The defendant has produced affidavits of a large number of physicians of high reputation, to the effect that the claims of curative ef ficiency made upon the Moxie labels and wrappers are absurd, untrue, and, in short, obvious quackery. It is said that the use of the words. "Nerve Food" is fraudulent, because there is no such thing as a nerve food; that the claim that it "has recovered brain and nervous exhaustion, also paralysis, softening of the brain, locomotor ataxia, and insanity, when caused by nervous exhaustion" is false and absurd, because paralysis and locomotor ataxia are incurable diseases never caused by nervous exhaustion. A similar opinion is given concerning other statements made upon the wrappers and labels. My attention, however, has been called to no case of authority in which it has been held that representations as to the power of a medicine or preparation to effect cures were fraudulent misrepresentations of fact requiring a dismissal of the bill for want of equity. Proof that testimonials as to particular cures were wholly fictitious would, of course, amount to proof of a fraudulent representation of fact, and would be sufficient to debar a complainant from relief; but to say of a person who took medicine that he was cured or benefited thereby seems to be regarded as more in the nature of an expression of opinion than of a representation of fact. In School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 105, 106, 23 Sup. Ct. 33, 37, 47 L. Ed. 90, the Supreme Court said: "As the effectiveness of almost any particular method of treatment of disease is, to a more or less extent, a fruitful source of difference of opinion, even though the great majority may be of one way of thinking, the efficacy of any special method is certainly not a matter for the decision of the Postmaster General within these statutes relative to fraud. Unless the question may be reduced to one of fact as distinguished from mere opinion, we think these statutes cannot be invoked for the purpose of stopping the delivery of mail matter." Though, by section 3929 of the Revised Statutes [U. S. Comp. St. 1901, p. 2686], the Postmaster General was given power to issue a fraud order, so-called, upon evidence satisfactory to him that a person was conducting a scheme of fraud by the use of the mails, it was held that this did not cover the cases of false opinions, but only cases "of actual fraud in fact, in regard to which opinion formed no basis.” Counsel for the defendant contend that a court of equity should not attempt to determine the merit of a secret or quack medicine, but should dismiss the bill as ipso facto fraudulent. Fowle v. Spear, Cox's TradeMark Cases, 67, 7 Pa. Law J. 176. There is force in the argument that extravagant claims, statements of marvelous recoveries, and secrecy and mystery as to ingredients, are such badges of fraud as to warrant a court of equity in refusing to extend a presumption of good faith to a complainant making such claims, and in refusing relief. See opinion of Mr. Justice Shiras in Kohler Mfg. Co. v. Beeshore, 59 Fed. 572, 8 C. C. A. 215, and cases cited. Unfortunately for the defendant's contention, the case of Fowle v. Spear, supra, seems to be disapproved in the later opinion of Mr. Justice Shiras in Worden v. California Fig Syrup Co., 187 U. S. 516, 527, 23 Sup. Ct. 161, 47 L. Ed. 282. The affidavits of many of the physicians are to the effect that it is a conclusion of common sense that the claims made for Moxie, the statements of its origin, and power to cure serious diseases, together with the advice of its free use as a beverage by women and all classes of persons, bear on their face the stamp of absurdity, falsehood, and deception. The attitude of the learned doctors towards the complainant's preparation is substantially that of the learned judge in Fowle v. Spear. It would be, perhaps, consistent with the reasoning in School of Magnetic Healing v. McAnnulty, 187 U. S. 94, 107, 23 Sup. Ct. 33, 47 L. Ed. 90, to hold that statements concerning the efficacy of a secret medicine are to such an extent mere matters of opinion or prediction that it is not practically possible to determine as a fact that the claims are so far unfounded as to justify a court in finding false pretences. If, however, in respect to ordinary sales, courts of law base the rule of caveat emptor upon the common sense view that, in disposing of their wares, men will not adhere to the truth, and that a vendor's opinion concerning the merit of goods is as a practical matter presumptively unreliable, is it not somewhat inconsistent for a court of equity to act upon a presumption that a patent medicine vendor tells the truth upon his labels and wrappers? In Deweese v. Reinhard, 165 U. S. 386, 390, 17 Sup. Ct. 340, 341, 41 L. Ed. 757, it was said: "The right, whatever it may be and from what source derived, must be not only one not protected by legal title, but in and of itself appealing to the conscience of a chancellor. A court of equity acts only when and as conscience commands, and if the conduct of the plaintiff be offensive to the dictates of natural justice, then, whatever may be the rights he possesses and whatever use he may make of them in a court of law, he will be held remediless in a court of equity." The appeal to the conscience of a chancellor by one who claims that he has a secret compound which can do what no medicine recognized by the medical profession is able to do, is much weakened by the incredulity of the chancellor as to the truth of the statement. In such cases the ap-. peal often fails to awaken the conscience, and the conscience to command action. See Kohler Mfg. Co. v. Beeshore, 59 Fed. 572, 8 C. C. A. 215. The statements upon the label or wrapper of a patent medicine bottle do not prove themselves, and are not competent to prove the efficacy of its contents. Notoriety, general use, and commercial value can more readily be attributed to enormous sums expended in advertising than to actual merit. Would it not be reasonable for a court of equity to hold that a complainant seeking to protect his proprietary rights as the owner of a patent medicine should produce legal evidence that it is in fact what it purports to be? Assuming that the efficiency of medicine is a matter of opinion, the only evidence legally admissible to support claims of this character is the testimony of experts whose qualifications to testify are made to appear to the satisfaction of the court. In this case the complainant has introduced a very large number of affidavits of laymen, who say that they have had various diseases which have been cured by Moxie. It would seem that this evidence is legally inadmissible upon the issue of the curative efficiency of a medicine. The only competent legal evidence to prove this is the testimony of experts giving their opinion. See Commonwealth v. Jacobson, 183 Mass. 242, 66 N. E. 719, 67 L. R. A. 935, |