1. Distilled spirits, owned by and found upon the premises of a
rectifier or wholesale liquor dealer, cannot be seized as forfeited
to the United States under sec. 96 of the "Act imposing taxes on
distilled spirits," &c., approved July 20, 1868, 15 Stat. 164,
because such rectifier or wholesale liquor dealer has knowingly and
willfully neglected, omitted, or refused to cause packages of
distilled spirits containing more than twenty gallons each, filled
for shipment or sale on his premises, to be gauged, inspected, and
stamped in accordance with the provisions of sec. 25 of the same
act.
2. The rules and regulations which the Commissioner of Internal
Revenue is authorized by sec. 2 of that act,
id., 125, to
prescribe, may aid in carrying the law into execution, but they
cannot change its positive provisions.
April 18, 1874, the property in controversy in this suit, said
to be owned by one Karstendiek, was seized, as forfeited to the
United States by the collector of internal revenue for the First
Collection District of Louisiana, and it was at once libeled by the
United States attorney for Louisiana, who, on the twenty-seventh
day of March, 1875, filed an amended libel setting out the causes
of seizure and forfeiture in these words,
viz.:
"For that the said Karstendiek, at the time and place of seizure
of said property as aforesaid, being, and for more than six months
prior thereto having been, a rectifier of distilled spirits, and as
such having paid the special tax required by the statute of the
United States, and being then and there on said premises engaged in
and carrying on the business of rectifier as aforesaid for and
during the time and period aforesaid, did, on the fifth day of
January, 1874, and at divers other times and dates during the
period of six months aforesaid, the precise times and dates whereof
are to the said attorney unknown, fill for shipment, sale, and
delivery, on his said rectifying premises, a large number of casks,
barrels, and packages with distilled spirits, the precise number
whereof being to the said attorney unknown, each and every which
said casks and packages, so filled as aforesaid, then and there did
contain, respectively, more than twenty gallons of distilled
spirits, and did then and there, as to each and all of said casks
and packages aforesaid, willfully and knowingly omit, neglect, and
refuse to procure and cause, as by the statute of the said United
States he was then and there to do, in carrying on and conducting
his said business of rectifier as aforesaid,
Page 95 U. S. 572
a United States gauger to then and there gauge and inspect the
said casks and packages and to place thereon the stamps required by
law, contrary to the form of the statute of the United States in
such case made and provided, by reason whereof, and by force of the
statutes of the United States in such case made and provided, all
the said distilled spirits hereinbefore enumerated and described,
found and seized at the time and place aforesaid, and so owned by
the said Karstendiek aforesaid, at the time and under the
circumstances aforesaid, became forfeited to the United
States."
"For that the said Karstendiek, at the time and place of seizure
of said property as aforesaid, being and for more than six months
prior thereto having been a wholesale liquor dealer as aforesaid
for and during the time and period aforesaid, did on the fifth day
of January, 1874, and at divers other times and dates during the
period of six months aforesaid, the precise times and dates whereof
are to the said attorney unknown, fill for shipment, sale, and
delivery, on his said premises, a large number of casks, barrels,
and packages with distilled spirits, the precise number whereof
being to the said attorney unknown, each and every which said casks
and packages, so filled as aforesaid, then and there did contain,
respectively, more than twenty gallons of distilled spirits, and
did then and there, as to each and all of said casks and packages
aforesaid, willfully and knowingly omit, neglect, and refuse to
procure and cause, as by the statute of the said United States he
was then and there to do, in carrying on and conducting his said
business of wholesale liquor dealer as aforesaid, a United States
gauger then and there to gauge and inspect the said casks and
packages and to place thereon the stamps required by law, contrary
to the form of the statute of the United States in such case made
and provided, by reason whereof, and by force of the statutes of
the United States in such case made and provided, all the said
distilled spirits hereinbefore enumerated and described, found and
seized at the time and place aforesaid and so owned by the said
Karstendiek aforesaid at the time and under the circumstances
aforesaid, became forfeited to the United States."
Twenty-five barrels of the whiskey seized were never the
property of Karstendiek, but were claimed by and found to belong of
other parties. All the claimants demurred to the information upon
the ground that neither count set forth or alleged any facts
warranting the seizure or forfeiture of the liquors.
Page 95 U. S. 573
The demurrer was sustained and the information dismissed. The
case was then brought here.
MR. CHIEF JUSTICE WAITE delivered the opinion of the Court.
This case presents the question whether property owned by and
found upon the premises of a rectifier or wholesale liquor dealer
can be seized as forfeited to the United States under sec. 96 of
the "Act imposing taxes on distilled spirits," &c., passed July
20, 1868, 15 Stat. 164, because such rectifier or wholesale liquor
dealer has knowingly and willfully neglected, omitted, or refused
to cause packages of distilled spirits contain more than twenty
gallons each, filled for shipment or sale on his premises, to be
gauged, inspected, and stamped in accordance with the provisions of
sec. 25 of the same act.
Sect. 25 provides that whenever any cask or package of rectified
spirits shall be filled for shipment, sale, or delivery on the
premises of any rectifier who shall have paid the special tax
required by law, it shall be the duty of a United States gauger to
gauge and inspect the same and place thereon an engraved stamp of a
particular kind, and whenever any cask or package of distilled
spirits shall be filled for the same purpose on the premises of any
wholesale liquor dealer, it shall be the duty of the United States
gauger to gauge, inspect, and stamp the same in a like manner.
Sect. 96 provides
"That if any . . . rectifier or wholesale liquor dealer . . .
shall knowingly and willfully omit, neglect, or refuse to do, or
cause to be done, any of the things required by law to be done in
the carrying on or conducting of his business, or shall do any
thing by this act prohibited, if there be no specific penalty or
punishment imposed by any other section for the neglecting,
omitting, or refusing to do, or for the doing or causing to be done
the thing required or prohibited, he shall pay a penalty of $1,000,
and . . . all distilled spirits or liquors owned by him, or in
which he has any interest as owner, . . . shall be forfeited to the
United States."
Sect. 57 provides that
"All distilled spirits found, after thirty days from the time
this act takes effect, in any cask or package
Page 95 U. S. 574
containing five gallons or more, without having thereon each
mark and stamp required therefor by this act, shall be forfeited to
the United States."
Sec. 25 does not specifically impose the duty upon the rectifier
or wholesale dealer of causing or procuring the filled casks to be
gauged, inspected, or stamped. It is made the duty of the gauger to
do the gauging, inspecting, and stamping, but not, in terms of the
dealer, to cause it to be done. If there were nothing more, it
would be clear that any omission of the rectifier or dealer to act
in the matter would not be a cause of forfeiture. Sec. 96 was,
however, undoubtedly intended to impose upon rectifiers and
wholesale liquor dealers the duty of doing, or causing to be done,
everything pertaining to their respective occupations which was
necessary in order to enable others acting under the law to do what
was required of them. If they failed in this and there was no other
penalty provided for the neglect, they were subjected to the
provisions of that section. If, however, by any other section a
specific duty was imposed on them which, if performed, would enable
the other parties to act in the proper manner and a penalty was
prescribed for the omission to perform such duty, they were not to
be proceeded against under sec. 96. It was not intended by Congress
in that section to add to the already-existing penalties for an
offense, but to provide for omitted cases only. The object
evidently was to so contrive the machinery of the law that when one
part was set in motion the rest must follow.
If, then, it is found that by some other section of the act a
penalty is imposed upon the rectifier or wholesale dealer as a
consequence of the failure of the gauger to stamp the casks filled
on his premises for shipment, sale, or delivery, it may fairly be
presumed that this was the penalty he was to suffer for neglecting
to procure the stamping to be done, for the gauging and inspecting,
under the law, are only preliminary to the stamping. The only
neglect he could be charged with under sec. 96 would be a failure
to make known at the proper office that there were on his premises
packages requiring the action of the gauger under sec. 25. Now,
sec. 57 provides, that if packages of distilled spirits are found
on his premises containing five gallons or more each which do not
have upon
Page 95 U. S. 575
them each mark or stamp required by the law, they shall be
forfeited. This, then, is a specific penalty provided for the
failure or procure or cause the stamping to be done on packages of
five gallons and upward, and it follows the packages wherever
found. The unstamped packages in this case contained each twenty
gallons or more.
It has been contended, however, that this special provision of
sec. 57 applies only to distilled spirits on hand when the act of
1868 was passed. Such seems to have been the opinion of Judge
Ballard, of the Kentucky District, as reported in the case of
United States v. Thirty-seven Barrels of Apple Brandy, 11
Int.Rev.Rec. 136; but since that time, in 1871, Judge Lowell, of
the Massachusetts District, has decided the other way.
United
States v. Ninety-five Barrels of Distilled Spirits, 14
id. 6. Judge Knowles, of the Rhode Island District,
afterwards followed this ruling of Judge Lowell.
United States
v. Thirty-four Barrels Distilled Spirits, 13
id. 188.
Other able district judges have decided that sec. 96 did apply to
this class of omissions, but it nowhere appears from their opinions
that their attention was called to the provision of sec. 57.
United States v. One Rectifying Establishment, 11
id. 45, decided in 1869 in the Northern District of
Mississippi, and
United States v. One Hundred and Thirty-three
Casks Distilled Spirits, id., 191, decided not long after in
the California District. The circuit judge in this case has decided
in accordance with the opinions of Judges Lowell and Knowles, and
held that sec. 57 did apply. The rulings of two commissioners of
internal revenue are to the same effect, one dated Sept. 10, 1869,
10
id. 97, and the other, May 13, 1871, 13
id.
170, and it seems to us that this is the proper construction of the
law. It is true that the clause referred to is found in a section
of the statute which relates especially to spirits on hand when the
law was passed, but it is general in its terms, and broad enough to
cover the case. As was well said by Judge Lowell in the case
against ninety-five barrels of distilled spirits,
"To limit the meaning will not only require us to read 'act' as
if it were 'section,' but to disregard 'each,' because there is but
one particular stamp required by this section, and this would
naturally be mentioned 'as the stamp required by the section,' or
some such expression.
Page 95 U. S. 576
And again, as is also said by the same judge,"
"It is proper and usual that the goods which are not stamped
should be forfeited, and it is so provided in respect to cigars and
tobacco, by secs. 70 and 90, but there is no provision for
forfeiting unstamped spirits unless it be the one in question."
The rules and regulation which the Commissioner of Internal
Revenue is authorized by sec. 2 to prescribe cannot have the effect
of bringing the case under the operation of the penalty provided in
sec. 96 if it was already covered by sec. 57. The regulations of
the department cannot have the effect of amending the law. They may
aid in carrying the law as it exists into execution, but they
cannot change its positive provisions.
Decree affirmed.
