Bergdoll v. Pollock,
95 U.S. 337 (1877)

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U.S. Supreme Court

Bergdoll v. Pollock, 95 U.S. 337 (1877)

Bergdoll v. Pollock

95 U.S. 337


1. A manufacturer of fermented liquors, from whom taxes had been collected under a second assessment, was, in order to recover them, required by the Act of July 13, 1866, 14 Stat. 111, Rev.Stat., sec. 3225, to show that his return did not contain any understatements, and he should therefore prove that it agreed with the quantity of liquor actually drawn from the fermenting vessels.

2. For that purpose, although not, under all circumstances, necessarily conclusive for or against the government, his books, if kept as the law requires, ought to be the best evidence, and until it is shown that they cannot be produced or do not contain the desired information, resort cannot be had to the recollection or knowledge of witnesses as to circumstances bearing upon the ultimate fact in issue.

3. Quaere does the act entitled "An Act to define the tax on fermented or malt liquors," approved May 13, 1876, 19 Stat. 53, change any rule of evidence theretofore established.

On the 22d of January, 1874, the Commissioner of Internal Revenue, acting under the authority of sec. 2 of "An Act for the reduction of officers and expenses of the internal revenue," approved Dec. 24, 1872, 17 Stat. 402, Rev.Stat. 3182, assessed a tax of $1,350 on Bergdoll & Psotta, the plaintiffs, for "one thousand three hundred and fifty barrels of beer sold and removed, & c., without proper stamps, to Oct. 1, 1873." This assessment having been duly certified to the collector, the tax was paid upon compulsion and under protest. An appeal was then made to the commissioner, under the act of 1864, sec. 44, 13 Stat. 239, as amended in 1866, 14 Stat. 111, Rev.Stat., sec. 3226, to refund the amount paid, which being denied, this action was brought against Pollock, the collector, to recover back the money.

Upon the trial, the plaintiffs offered to prove by witnesses on the stand that, from the date at which the internal revenue act of 1866 went into effect, until the assessment complained of was made,

"no beer was sold or removed from their brewery for consumption or sale except in barrels or parts of barrels, which were all duly stamped with an internal revenue stamp, . . . as required by the act of Congress;"

that they

"had made their monthly returns to the collector regularly until and

Page 95 U. S. 338

including the month of December, 1873; that there was no understatement or undervaluation in either of said returns of the quantity of beer brewed, or of beer sold or removed from their brewery for consumption or sale, and that neither of the returns was false or fraudulent."

This testimony was excluded by the court, and exceptions taken. Judgment having been rendered against the plaintiffs, they sued out this writ of error.

The errors relied upon are: 1. that the assessment is insufficient in law, because too indefinite and uncertain; and, 2. that the testimony offered was improperly rejected.

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