United States v. Powell,
81 U.S. 493 (1871)

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U.S. Supreme Court

United States v. Powell, 81 U.S. 14 Wall. 493 493 (1871)

United States v. Powell

81 U.S. (14 Wall.) 493


l. On a distiller's bond given under the 7th section of the Internal Revenue Act of July 20, 1868, 15 Stat. at Large 128, conditioned that the obligors "shall in all respects comply with all the provisions of law in relation to the duties and business of distillers," the condition is prospective as well as present, and embraces such provisions of law relating

Page 81 U. S. 494

to the duties and business of distillers as may be in force during the term for which the bond is given, whether enacted before or after its execution.

2. The "distillery warehouses," which distillers are required by the 15th section of the same act to provide, situated on their distillery premises, are "bonded warehouses," within the meaning of the joint resolution of Congress of March 29, 1869, which declares that the proprietors of all "internal revenue bonded warehouses" shall reimburse to the United States the expenses and salary of all storekeepers put by it in charge of them.

3. These expenses properly include per diem wages paid to storekeepers for taking charge of them on Sundays.

A statute of July 20, 1868, [Footnote 1] requires that every person intending to engage in the business of a distiller shall give a bond with sureties, conditioned that the principals in the bond

"Shall faithfully comply with all the provisions of law in relation to the duties and business of distillers."

The statute also enacts:

"SECTION 15. That every distiller shall provide at his own expense a warehouse, to be situated on and to constitute a part of his distillery premises, to be used only for the storage of distilled spirits of his own manufacture, . . . and such warehouse, when approved by the Commissioner of Internal Revenue, on report of the collector, is hereby declared to be a bonded warehouse of the United States, to be known as a distillery warehouse, and shall be under the direction and control of the collector of the district, and in charge of an internal revenue storekeeper assigned thereto by the Commissioner of Internal Revenue."

"SECTION 52. Every storekeeper shall have charge of the warehouse to which he may be assigned, under the direction of the collector controlling the same, which warehouse shall be in the joint custody of such storekeeper and the proprietor thereof and kept securely locked, and shall at no time be unlocked and opened or remain open unless in the presence of such storekeeper or other

Page 81 U. S. 495

person who may be designated to act for him as hereinafter provided. And no articles shall be received in or delivered from such warehouse except on an order or permit addressed to the storekeeper and signed by the collector having control of the warehouse."

With this statute in force, two persons, Powell and Hildebrand, on the 1st December, 1868, gave a bond, with two other persons as sureties, conditioned in the already-quoted language of the statute "faithfully to comply with all the provisions of law in relation to the business of distillers," and entered at once on the business of distilling. They constructed warehouses for the storage of spirits of their own manufacture, of which storekeepers assigned by the Commissioner of the Internal Revenue, and to whom the government paid $4 wages per diem, took charge, taking such charge during Sundays as well as during other days of the week.

Subsequently to the date of the bond above mentioned of 1 December, 1868 -- that is to say on the 29th of March, 1869 -- Congress passed a joint resolution [Footnote 2] thus:

"The proprietors of all internal revenue bonded warehouses shall reimburse the United States the expenses and salary of all storekeepers or other officers in charge of such warehouses."

Subsequently, again, to the date of this joint resolution -- that is to say on the 29th of April following -- the same distillers, with the former sureties, gave a second bond, conditioned in the same words as the first and in pursuance of the same statute with it -- constructing warehouses &c., as before, which were taken possession of by internal revenue storekeepers &c. -- all exactly as before.

The government, having paid all these storekeepers, demanded of the distillers reimbursement for payments made for their services after the 29th of March, 1869, when the joint resolution of Congress was passed, including reimbursement for services rendered on Sundays. The distillers denied their obligation to pay for services on any day, under either bond, because:

Page 81 U. S. 496

1st. The storekeepers had been selected, appointed, and put in charge by the government, and not by them.

2d. The storehouses were not "bonded warehouses" in contemplation of law, but were known as "distillery warehouses," being attached to their distillery and constituting part of their distillery premises.

They denied additionally their obligation to reimburse the government for payments made to men for working on Sundays.

The government hereupon sued both principal and sureties on both bonds, when the matters above stated were set up by way of plea, the sureties pleading in addition that they were sureties only, and as to the bond of December, 1868 (the bond first given) that at the date thereof, the government by law was bound to pay the storekeepers, and averring that the subsequently passed joint resolution of 29 March, 1869, if applicable to distillery warehouses at all, could not increase the responsibility of them, the said sureties.

The court below was of opinion that all these pleas, except that one which alleged that the distillery warehouses were not "bonded warehouses," were good, and charged the jury accordingly. From the judgment which followed, the United States brought the case here on error.

Page 81 U. S. 497

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