While the Act of July 28, 1868, 15 Stat. 125, was in force, A.,
the owner of two distilleries, applied to the Commissioner of
Internal Revenue for Tice meters for them, and deposited the price
with the collector of the proper district to be paid to the
manufacturer. The latter delivered them and received the money. In
one distillery the meters were not used, and in the other they
never worked properly. A. sued the United States for the money so
paid.
Held that he was not entitled to recover.
The facts are stated in the opinion of the Court.
MR. JUSTICE SWAYNE delivered the opinion of the Court.
This is an appeal from the Court of Claims. The case is spread
over a large surface in the record, but a very condensed statement
to the facts will be sufficient for the purposes of this
opinion.
In the years 1868 and 1869, appellants were distillers, and had
two distilleries in Pittsburgh, Pa. The distilleries were
designated as 1 and 4. In October, 1868, the appellants made
application, in due form, to the Commissioner of Internal Revenue
for Tice meters for distillery No. 1, and at the same time
deposited with the collector of the district in which the
distilleries were situated the sum of $2,050, the price of the
meters, to be paid over to the manufacturer when the meters were
delivered to them. The meters were delivered, and the money was
paid accordingly.
These meters were never used, the distillery having ceased to
run long before anyone went to make the attachment necessary to
utilize them.
In March, 1869, the appellants made a like application for such
meters for distillery No. 4, and deposited with the collector
$2,100 to pay for them. They were delivered to the distillers in
July, 1869, and the $2,100 was thereupon paid to the manufacturer.
These meters never worked properly.
Page 102 U. S. 270
There is no proof that they were tested before they were shipped
from the manufactory, nor that any officer of the Internal Revenue
Bureau was detailed to attach them, or to test them after their
attachment, or that their indications were ever in any wise
regarded by the storekeeper in making his daily reports, or by the
assessor in making his monthly computation of the products of the
distilleries.
By the Act of July 20, 1868, c. 186, 15 Stat. 125, the
Commissioner, for the prevention and detection of fraud by
distillers of spirits, was
"authorized to adopt and prescribe for use such hydrometers,
saccharometers, weighing and gauging instruments, or other means
for ascertaining the quantity, gravity, and producing capacity of
any mash, wort, or beer used, or to be used, in the production of
spirits, and the strength and quantity of spirits subject to
tax"
as he might deem proper.
Under these provisions, orders, regulations, and instructions,
covering the subject of the meters in every aspect, were issued by
the Commissioner. They compelled the distillers to buy and pay for
Tice meters, as was done in the case in hand, and left them no
choice to do otherwise. One of those regulations was as
follows:
"Under the provisions of the law, the distiller is required to
furnish and attach meters at his own expense, and also to furnish
all pipes, materials, labor, and facilities necessary to complete
such attachment. The first duty of a distiller is, of course, to
procure a meter. The manufacturer is not required to furnish the
meters on credit, and ought not to be expected to do so. When he
ships a meter to a distiller in accordance with the application,
the manufacturer is entitled to the pay for it. The law does not
require the manufacturer to attach it, but, on the contrary,
requires the distiller to attach at his own expense."
Another specified that "the expenses and transportation and
attachment of meters, and of changes required to be made in the
distillery, are to be paid by the distiller," and "distillers must
furnish all lumber and other materials necessary for the attachment
of the meter, and such workmen and assistants as may be required."
By a circular of June 8, 1871, the Commissioner announced
substantially that the meters were a failure, and from that time
they ceased to be used.
Page 102 U. S. 271
By the Act of June 6, 1872, sec. 12, c. 315, 17 Stat. 239, all
the provisions of the act of 1868 touching meters were repealed and
the use of meters was thereupon abandoned by law. Upon the passage
of this act, the Commissioner issued a circular advising distillers
that "all meters attached to distilleries may be detached," and
"that the meters being the property of the distillers, they will be
permitted to dispose of them as they may desire."
By this suit, the appellants seek to recover from the United
States the aggregate of the $2,050 and $2,100 paid by them for the
Tice meters as before mentioned.
The appellants insist that there was an implied warranty by the
United States that the meters they thus bought would be effectual
for the purposes they were designed to accomplish, and that there
being a clear breach of this warranty, the United States are liable
accordingly.
To this there are two answers:
1. The meters were solely for the benefit of the United States.
The appellants had no interest in their working well. If they had
any interest in the result, it was in the other direction.
The sole object of the meters was to prevent or expose frauds by
the distillers. If the meters were effectual for these purposes, so
much the better for the government. If they were a failure, so much
the worse. If the distillers were honest, the success of the meters
was to them wholly immaterial. If dishonest, the failure would have
helped to make their frauds lucrative, while efficiency might have
cut off their fraudulent profits and subjected them to exposure and
punishment. The distillers did not pay out a dollar more because
the meters were a failure, nor would they have paid a dollar less
if the tests thus provided had fully answered the expectations of
the government.
In either event, the pecuniary result to the distillers, if
honest in their business, must have been exactly the same.
The essence of their complaint is that the government found the
means lawfully provided to detect their frauds, if they committed
any, unavailing, and therefore used none. Their argument implies
that, if those means had been effectual and
Page 102 U. S. 272
had been used, they would have been satisfied and their claim
could not have arisen.
Both the proposition and the argument seem to us to involve a
palpable solecism. There is nothing in the facts of which any
contract relation, express or implied, between them and the
government, can be predicated.
2. Regulations established pursuant to law made it obligatory
upon the distillers to procure the meters if they continued to
carry on the business. They were required to buy and pay, and did
so. The government neither paid nor agreed to pay anything. The
purchase of the meters was an incident and burden of the business.
The right to engage in the business was not unqualified. It could
only be done when authorized by the government in the mode
prescribed. No one was compelled to procure that authorization, but
whoever elected to do so took it necessarily
cum onere,
and hence has no right to complain of any condition imposed and
assented to, or of anything resulting from it. Certainly no
consequence such as that here in question can constitute a cause of
action against the United States, any more than would any other
expenditure or any other loss arising from the business.
Nor can there be any valid demand against the United States upon
the ground of money paid and expended for their benefit. The meters
were bought and paid for by the appellants. They chose to give the
order and pay the money rather than give up the business. The
meters were delivered to them by the manufacturer. They owned them,
and still own them. The United States never asserted any claim to
them. After their use was finally dispensed with by the government,
the distillers had the right, as they still have, to dispose of
them according to their discretion. Upon the passage of the act of
1872, a circular from the Commissioner notified them
accordingly.
Nor is there any foundation for a claim against the United
States for money had and received. It is true, their officer
received the price of the meters from the appellants, but it was
for the manufacturer, and not for the government, and it was paid
over, accordingly, upon the delivery of the meters. The officer was
a mere conduit for passing the money from one
Page 102 U. S. 273
party to the other. The regulation which prescribed the
arrangement was intended to secure certainty and promptitude of
payment to the manufacturer, and corresponding promptitude on his
part in the delivery of the meters when ordered.
Not a dollar of the funds in question is, or ever was, in the
national treasury.
We concur in the views expressed by the Court of Claims.
Judgment affirmed.