UNITED STATES V.

9, CASKs

UNITED iSll"ATEs

OF DISTILLED SPIRITS.

191

ex fe!.

ATroRNEY v. 9

OASKS& PACK..'

AGES OF DISTILLED

'SAME'll. ,64 CMKS

&

PACKA'GESOF DISTILLEDZ:;PIR!TS.

(.mBtrWt Court.lD. D. ,lI[i880Wl'l.

Nos; 3,499, 8,500;

D. April 9. 1892.)

1.

INTBRNALRBVBNt1E--:VIOLATIO;N',OlI' laWS-DISTILLED SPIRITS":"'WARUlIOUSU STAMPS AND IN8P11JOTIONlI"ARK. .. . . . '

.

Under Rev.St. 5 8289, declaring a forfeiture of any cask or package oontaining of found without baving thereon "eallb mark jlnd !ltlinip required 'by IlLW, >l such a' package is forfeited when found bearing adistilllery warehouse stamp ,and an inspectton mark, neither 'of which have any, datejJ,'orsection 3287 requires: ,each stamp to bear the date of tlIere., ceipt' of 'the 1'lackage into' and the promulgated by the ·commiss!.otler of internai,revenuerequlX'e the inspection brand to show the'dateo! inspectlQD·. ' . i . Itthe dates 'have been removed through accidental causes, their absence is no gl'O:Qnlll)ffor;fei,ture, statute ,does not in tertns conWn any exceptioIls, this nile... not be negatived by the information; it 1& matter of defense to be set'up' by the claimant. '. " ,. , ' '" . 1)Ilder Rev. St. 5,3451>,a person cannot buy a package containing distilled sflirits, already stamped alld branded, and take out the COntents and put in otherdlstilled SPiri,ts ola lower'proof,witlout rende.ri,ng the prope,rty /lu,bject to forfeiture,althoUgh the other spirits have paid the tax; and this result follows irrespective ('f any intertt.to defraud any private person. But no forfeiture would take place It the proof was reduced by natU1!$1 causes. or by, the additioll of water.
. . . .

2. S...HU--jNPORMATION.

8.

SA:UE-'OXANGING CoNTENTS, OJ!' PAOKAGB.

At taw. Information for the forfeiture, of certain casks and packagell of distilled liquors. Demurrer overruled. GeorgeD.Reynoltk, U. S. Atty. Hcrugh & Hough, for,claimants. " THAYER, District Judge; (orally.) In: this case (No. 3,500) the first paragraph ,of the second article of the information charges that the packages and barrels referred to in the preceding article were found in casks or containing more than five gallons without having thereon each mark and stamp required' by the internal revenue laws of the United States;Dor did aoyof said casks and packages in which said spirits were foundand::oontained then have thereon .the United States internal revenue distillery warehouse stamp, containing the date of the receipt into the distillery warehouse,nQl'the United States internal revenue inspection mark, containing the date of the inspection thereof by the United States gauger at the time .. of the original inspection,-contrary to the stututesof the United States, etc. Ifthere.is'Rlly uncertainty in the language employed, the article must most strongly 'against the pleader. I think the second arbe ticle is uncertain, and therefore construe it most favorably for the defendantand most· .the pleader. I hold the substance Of the charge to be this: ·That the packages and barrels do not bear the marks and stamps required by law, in that the warehouse stamps

192

r.

J'EDERAL

voL., 51.

are without date, and that the inspection marks are also without date. The 'question ,tj) be. de.tarm·med is whether the fact that the.warehQuse stamps and the inspection stamps are without date renders the property liable to forfeiture under section 3289, which declares a forfeiture when any cask, :Qr.IJ&ckagecoD:w.ibing more than fi ve gallonsis·found; without having thereon "each mark and stamp required by law." It is the opinion of th\r court that a distillery warehouse stamp which does not bear any date is not such a stamp as is required by law; it also holds that. an .inspection mark that is without date is not such a stamp as isie4uitefl' by law. .Section 3287 requires the distlUery warehouse stalllpto. coumin-Pirst,·tbesignature of.the collector;Beixmd, the signastorek;eeper gauger;t4ird, number of. pl.'Oof gallons; fourth,the name of the di$tiller; fifth, the date of the receipt of the pack. 'ahd', Bixth, the numher of stamp. The age into. the regulations prom:ulgated by. tbe comrpissionerof internal revenue fur. ther require that the inspection brand or mark shall sbow:':-Pirst, the 8econd, the serial number of the distillery serial num.ber of the w/l-rehousestamp;l;\nd,thlifd"the date ofinspection... ltcannot be said that warehouse stamp or an inspection mark, whicll·fa.Us to show any of the facts that the law requires it to disclose is nevertheless such a stamp as isrequired"by law. If the court declares that a warehouse stamp is a stamp required by law although it does not contain any date, then, on the sp.,me principle, it might say that it was such a stamp as the law requires, though it does not beartbe signature of the collector, or the signature of the storekeeper or gauger, or if it failed to show the serial number., In the oose' referred tv by counsel (Three Packages oj Distilled Spirits, 14 Fed. Rep. 569) the question was Whether the packages of spirits were subject to forfeiture ,be'cause the proof of the liquor was below what was indicated by the ,marks 'upon the barrels, it appearing that the proof had been reduced, not by putting in other spirits, but by the addition of water.' It was ,held in that OOfle that they were not. But that was an entirely different case from this. ·The stamps and inspection marks were in due fotm. The fault was simply'in the proof, which had fallen off somewhat after inspection. But here the information sh6wsthat the stamps orr the packages (that is,the distillery warehouse stamp ·anq inspeotion mark) were not such marks as the law plainly requires. The first paragraph of the second article of the information, in my jUdgment, is good and sufficient. The second paragraph oithe second article of the information charges that the claimant bad purchased and received certain packages of liquor, statll'ped, branded, and marked so as to show that the contents thereof were distilled spirits of a certain proof, which had before then been duly inspected by ali officer of the internal revenue; and that he afterwards, a'nd before the seizure orsucll casks and' ,packages, sold them, the packages when sold containing something else than the contents that were in·the packages wIlen they:were stamped; branded, and marked, to wit, other distilled spirits of a different and lower proof and quality, with intent to defraUd, etc. The plain import of the language is that the

a

UNITED STATES V.

9

CASKS & PACKAGES

DISTILLED SPIRITS.

193

claimant received packages of spirits that were stamped, branded, and marked so as to indicate that they had spirits of one proof and quality, and that before he sold them he had put into the packages other distilled spirits of a lower proof and inferior quality. If that is the fact, the packages and contents are subject to forfeiture under section 3455, irrespective of the question whether that section has reference to frauds upon private individuals. Without any consideration of that question the third count of the information states a good cause of forfeiture uuder section 3455. A person cannot buy a package that contains distilled spirits, already stamped and branded, and remove the contents, and put in other distilled spirits, although the other spirits may have paid the tax,-withoutrendering the property snbject to forfeiture. The third article of the information, as I construe it, alleges that the claimant has done that particular act. To avoid any misconception, I will say that if the fact is that the other distilled spirits referred to in the third articleas having been in the packages when sold were the same spirits that were in the barrels when the inspection took place, and the proof had been reduced by natural causes, or by the addition of water, then I should hold that a forfeiture was not incurred. Congress was legislating for the protection of the revenue, and to prevent the commission of acts that would render it easy to perpetrate fraudson the revenue, when it enacted section 3455. A forfeiture is incurred under the fourth clause of that section when an act is done that is declared to be penal by the first or second paragraphs of that section. I think it is clear that the forfeiture declared by section 3455 (the fourth paragraph) is for doing an act made penal by the first and second clauses. By the first paragraph a penalty is imposed-First, for selling, giving away, purchasing, or receiving an empty package, barrel, etc., bearing a government brand or stamp. in-· dicating that the contents have been inspected, or that the revenue laws have been complied with; and, second, for giving away, selling, purchasing, or receiving packages thus branded or stamped, which contain different contents than they had in them when branded or inspected. By the second paragraph of the same section the penalty is imposed on one who makes, manuJactures, or produces any box, barrel, etc., and stamps or brands the same with a government stamp, or who so stamps or brands a box or package which some one else has made. The purpose is evident, to prevent persons from making, dealing in, or even handling, a class of articles so branded or stamped that they can be used in fraud of the government as receptacles to disseminate articles on which the government levies a tax; and, second, to prevent them from putting into such receptacles a product which has not paid the tax. It follows that the demurrer is not tenable as to either article of the information.
Mr. Reynolds. As a matter of keeping the record straight, if your honor will allow me, with Mr. Hough's consent, as you refer to the articles as numbered, will you please let me mark on the paragraphs' Paragraph 1;' 'Paragraph 2, '-let it be corrected in that way. (It was done as requested. ) v.51F.no.5-13

FEDERA.L REPORTER,

vo1.5V'

L:Mr.flIuugh; ldid ni:>t lleaT the !first i,part of the' decision. Did I und8J.ilitanp :tbe courttcHo1ethitt the 'spirits, became forfeited if the date Hpdlrrrtlle;distillery wartlhl'luse stamp,arld"the date of the inspection mark were aocidentally rubb6,d' bec8imeobliterated by;.lapse oUime? .' 'l'he, Cm.t1't.'lintended ·tohave referiredto that. ",The court does not hMddhd, <if::the date on adistillerywl1rebollse· stamp is wanting for any 'ao(jdental cause,as<by unintentionally rubbed out, or by havingi!l:ie'en; <:>bIHevated' by.Iapseoftirile; that that would render the patlkage1fbJfeitable; butitlisillotthe'.duty of the government in pleading,wnegative factsoftlnat If the claimant contends that dates have been obliterated by accidental'qauses, it is his ,business to. 8, bring thall,Jfiorward"eitJjer 1z?y pl or the fact may be proven under a generahdeaiia1: ,Tbestl1tute doesnotf eentaiil anyexceptio118. It dues n9t-snyntHat'ifa package: is Jouhd withijut having upon, iMhe requisite etanipi,l.b1'Qnds, 'e'l:c",''itbeoomes 'forfeited unles8' the brand or stamp bas' beeil'rpclnovoo through accident:or mistake. If thesfutute contained pl1ovi#!ion., it wOl'lldj'pe the duty of the pleader to negative the exbutr as it dOe8"DOt, the pleading conforms to the statute, and "Hamar1£' hilS. been :removed'through accidental causes, ' :That is defensive matter, to be th"wadti"a,ntag.e of by 'plea Gt;by'8 gell:ei'aldeniaI. The government is nOf"bGnUad:,to negative .tb1br, existence of; BUeha fact.
-:,:';;' .)' t:;'.) : "i ;

""

;t " I.:

I" : · I

:

;.

. " Thellitnllrupt contrlictAla"t:Omaki weekly1dbliveries hf oleomargoarine or fat in " DeltvetiEls of wel'a made weekly for 10 weeks, tbe,s,l,lort and notic(! being given that dam'ages thehlfor'would be'claim:ed.' At toe' etld''Of lO'weeks further acceptance was df claim agoainst bankrupt, that tbawe"lWy, th,e oontracted,!or waS.no waiver of dam. ages;ail);ll'ovided by'tlie cSbDtract, 'for noiJ.llelivery of the residue; that the r6scil!-' sion ,of tbe '(lQntnict at: !\ii;\eLllnd ,91 Wiweeks'.wasjustitl,aQle, and was no release or waiver of a'!crued for th¢ vreviousshon deliverie,s, but that no datnage!l'cd12'!d be'claimed for the nondelivery of theainounts due after the A theclailJl wail:ordered on theaboYe ba,llis·.
i

WAIVlCR

,ell'

·Olr';CI,AIIII-Stl6R'l'. DELIVERY UNDER CON'rRAQT-REPJ\IO;lt DAIIIA(lES7"A BAR DAMAGES·

. , .',:

",

,In Bll,.hkr.u:Vllcy.

allow.ecl.. ,ini ". '

claim. :Claim reduced and

The claim was founded on a contract made by the bankrupt to deliver fbtin,specifiedquantities ' weekly. He made delivedes.of ,lesslamouniaweekly for 10 'weeks,c<:>mplaintbeing;made a'nrlnotice thatdarri$ges would ,be claimed :therefor. At toe end of that time further/acceptance: Vi'IULnl{used. Mr.,Nottman, of counsel for the claimant, caused this entry to be made upon the record: