in which the original was made, and until it is so made and a copy left with the distiller, any assessment made upon any new estimate of the capacity of the distillery, is illegal.1 The law fixes the rate per gallon, the survey fixes the capacity, and it is the duty of the distiller to pay the tax on at least eighty per cent. of this capacity. The law thus fixes the rate and amount, and if more is demanded it is without authority of the law. In this case the commissioner directed the assessor to make another survey, stating in his letter that no new measurements were necessary and consequently that no expense was to be allowed or incurred, and that a new estimate was obtained of the producing capacity, founded on the prior survey and measurements. This is not sufficient. There must be a new survey just like

the original survey.

Rectifier.-A person who purifies or refines distilled spirits or wines by any process other than original or continuous distillation, from mash, wort, or wash, through continuous closed vessels and pipes, until the manufacture thereof is complete; a wholesale or retail dealer who has a still, leash tub or other apparatus for the purpose of refining distilled spirits, or who by mixing distilled spirits, wine or other liquor with any materials, manufactures, simulates or compounds liquors under any name, is a rectifier. This business is not to be carried on within six hundred feet of any distillery. This definition does not include distillers who purify their own spirits while on their passage to the receiving cisterns. The department requires the apparatus to be so arranged as that the spirit will pass through the purifying process in its passage from the beer still to the receiving cistern, and its passage must be through vessels and pipes so closed as to preclude access to the spirit in the course of its passage.*

The rectifier is required, before commencing business, to pay his special tax and to file a notice with the collector similar to that of the distiller, showing the place of business and other details, and to put on his building a similar sign showing that he is a rectifier or spirits." Whenever required by the collector, he is to make a return of the quantity of spirits purchased and their proof, and of the number of barrels rectified.

1 United States v. King, 4 Ben. 476.

1876.

United States v. Ferrary et al. 22 Int. Rev. Rec. 394, Sup. Ct. of U. S. Oct. Term,

3 R. S. U. S. § 3244, par. 3, p. 626.

4 21 Int. Rev. Rec. 234, 235, Commissioner Pratt to Geo. W. Kidd & Co., of N. Y., rectifiers, who claimed that this mode of rectifying was injurious to their business and not intended by Congress.

5 R. S. U. S. § 3289.

6 R. S. U. S. § 3779.

When the rectifier wishes to empty any package purchased by him, he sends a notice of his intention to the collector, describing the package. The tax-paid stamp is so manufactured now, that the portion containing the serial number of the cask, the number of proof gallons, the amount of the tax, the number of the distillery, the person paying the tax, date of payment, and the person to whom it was delivered when removed from the warehouse, can be torn off, and this is sent to the collector. On receipt of this notice a gauger is detailed by the collector, to examine and regauge the spirits. It is the gauger's duty to see packages emptied and the stamps destroyed, and to certify the fact on the face of the rectifier's notice.

An account is opened with each rectifier by the collector, in which he is credited with the total proof gallons of spirits so emptied and charged, with total proof gallons indicated by rectified stamps placed on spirits gauged in his establishment. The collector is not allowed to issue rectifier's stamps for a number of gallons in excess of the number reported as emptied by the rectifier and gauger as above indicated.1 The ruling of the department as to the gauger, has been modified. He is not now required to state that he saw the packages emptied, but he may cut out the portion of the stamp described above and attach it to his return.2

Rectifiers and Wholesale Liquor Dealers.-They are required to keep books in which they record all liquors received, the time when, the name of the person or firm from whom, and the place where they were received, and if in original packages, a description of all their revenue marks and stamps; and before sending out any package a similar entry is made, giving the name and place of residence of the person to whom sent, and a like description of the package. These books are to be preserved for two years, and to be at all times open to the inspection of the revenue officers. A failure to keep these books and make the entries, subjects the party to heavy penalties.

5

They are not to purchase in quantities over twenty gallons, except from an authorized rectifier, wholesale dealer or distiller, but this does not apply to judicial and auction sales. When the rectifier sells any package of five gallons or over, it must be gauged and inspected by the gauger, who is to place on it a gauger's stamp for rectified spirits,

121 Int. Rev. Rec. 405, Report of Commissioner Pratt, Dec. 1875. See this report for an accurate description of the surveillance over the manufacture and sale of spirits, and the means of committing frauds in the payment of tax thereon.

222 Int. Rev. Rec. 84, 85, instruction of Commissioner Pratt.

3 R. S. U. S. § 3318.

4A Quantity of Distilled Spirits, 3 Ben. 552.

5 R. S. U. S. § 3319.

signed by the collector and gauger. This stamp is engraved, and shows the date when it is affixed, and the number of proof gallons in the package.1 And so when the wholesale dealer sells any package of five gallons or more, it is to be gauged, and the gauger places on it a similar stamp signed by the same persons, called the wholesale liquor dealer's stamp.2

An examination of this system will convince any one of the truth of Commissioner Pratt's statement, that no fraud can be committed on the revenue derived from the tax on distilled spirits without the connivance of the officers of the revenue service. A complete record is made of every package of spirits, and is in the hands of the officers of the government-indeed original packages have on them in the marks, cuts and stamp, a history of their manufacture, and the books kept will show when and to whom it was sold, and if emptied for rectifying, when it was done and by whom. No prince of Europe can trace his pedigree as easily as one can trace the pedigree of a package of distilled spirits of American manufacture.

§ 169. Brewers.-A brewer is defined to be a person who makes fermented liquors of any name or description for sale, wholly or in part, from malt or from any substitute therefor-it includes every possible kind of malt liquor. Weiss beer, under the act of 1867, which exempted "root beer and other small beer," was included in this class by the commissioner, but the exemption is not re-enacted in the Revised Statutes.1

There are certain conditions to be complied with in the case of the brewer as well as the distiller, but they are not so numerous.

1. He must pay his special tax, and the evidence of it must be posted in his place of business.*

2. He must give notice to the collector of his intention to commence business. The notice must contain a description of the premises on which the brewery is situated; the names of the firm, their places of residence, and their title to the premises, and the name of the owner when not owned by them.

3. At the time of filing the notice with the collector, and on each succeeding first day of May, he is to give a bond, with sureties approved by the collector in a penalty double the amount of the tax, which, in the opinion of the collector, the brewer will be liable to

'R. S. U. S. § 3320.

R. S. U. S. § 3321. See 22 Int. Rev. Rec. 301, as to the mode in which remnants in packages of less than five gallons may be mixed in one package.

3

R. S. U. S. § 3244; United States v. Dooley, 21 Int. Rev. Rec. 115.

421 Int. Rev. Rec. 17, ruling of commissioner.

pay during any one month. The condition of this bond is: (a) to pay the tax on all beer, lager beer, ale, porter or other fermented liquors made by him before the same are sold or removed for consumption or sale, except as hereinafter provided; (b) that he will keep or cause to be kept, a book in the manner and for the purposes hereinafter specified; (c) that he will, without fraud or evasion, in all respects faithfully comply with all the provisions of the law as to the manufacture and sale of malt liquors.1

These are the conditions which precede the right to engage in the occupation of a brewer, or to continue the occupation after the first day of May in any year.

Books and Returns.-He is required to keep a book in which he is to enter from day to day: (a) the kind of malt liquors and the estimated quantity thereof in barrels, which is produced; (b) the actual quantity sold or 'removed for consumption or sale; (c) in a separate book he is to enter from day to day all materials purchased by him for the purpose of producing such fermented liquors, including grain and malt. These entries, on or before the tenth of each month, are to be verified by the oath of the person who made them. The oath is to be written in the book at the end of the entries, in the form prescribed by the statute."

On the first of every month, or before the tenth day, he is to make a return in duplicate, taken from the entries in his books, showing the estimated quantity in barrels of malt liquors brewed, and the actual quantity sold or removed for consumption or sale during the preceding month. The return is made to the collector and verified by oath.3

The rate of tax is one dollar per barrel of not more than thirtyone gallons, and at the same rate for fractions of a barrel, whether one-half, one-third, one-fourth, one-sixth or one-eighth of a barrel, and when the fraction is less than either of those named, it is to be reckoned as of the next higher fraction.*

The tax is paid by stamps obtained from the collector of the district, before removal from the place of manufacture, and no removal is to be made without the permit of the collector. These permits are to be preserved by the brewer.5 The stamp to be affixed by the brewer denotes the amount of tax on the liquor contained in the receptacle, whether hogshead, barrel or keg; it is to be placed upon the

1 R. S. U. S. §§ 3335, 3336.

3 R. S. U. S. § 3338.

R. S. U. S. §§ 3341, 3342.

2 R. S. U. S. §§ 3337, 3338.

4 R. S. U. S. § 3339.

spigot hole or tap, in such a way that the stamp will be destroyed upon the withdrawal of the liquor, or on the introduction of the faucet or other instrument. There is to be but one spigot hole or tap in each vessel. The stamp is to be canceled by writing the name of the person or firm by whom the liquor is made, or the initials thereof, and the date of cancellation, on the stamp.1

In addition to these requirements, before the vessel containing fermented or malt liquor is sold or removed from the brewery or place of manufacture, it is to be branded by the brewer. with the name of the manufacturer and the place of manufacture. The only exception is where one brewer purchases from another malt liquor ready for sale, and places it in his own vessels. The purchaser then affixes the stamps and brands the vessels with his own name. This may be done under regulations of the commissioner, after notice to the collector.2

The brewer, in substance, makes the assessment of the tax on his own manufacture, and pays the tax to the collector. If the brewer fails to pay the tax on malt liquors manufactured, the commissioner has authority to make an assessment for all liquor which has not paid the tax by stamps, as required by law. The monthly returns made. by the brewer furnish the information from which the commissioner can ascertain whether the brewer has produced from the quantity of grain used, the quantity that by good management could have been produced. This deficiency would afford sufficient evidence to justify him in making an assessment on that quantity, as not having paid the tax by stamps as required by law. The rule adopted by the department, was to allow two and a half bushels of grain to a barrel of thirty-one gallons. If the product returned by the brewer as placed upon the market, did not equal the quantity which the returns show ought to have been made, the brewer was assessed for the deficiency.* The power to make this assessment for the deficiency shown by the return of material, is taken away by an act of Congress, construing § 3337 of the Revised Statutes. The act provides that "nothing in this section shall be so construed as to authorize an assessment upon the quantity of materials used in producing or purchased for the purpose of producing fermented or malt liquors, nor shall the quantity of materials so used or purchased, be evidence for the purpose of

118 Stat. U. S. 484; amending R. S. §3342.

3 R. S. U. S. § 3182.

2 R. S. U. S. §3349.

4 21 Int. Rev. Rec. 394, correspondence of Commissioner Pratt with the American Brewers' Association, Dec. 1875.