down in the street with a fit. The object of that law was to protect human life, and an effort to preserve it was not allowed to be punished because literally within its terms. What was the object of the law under consideration? To secure the payment of the tax on the spirits,. is the answer and only answer that can be given. What was the tendency and effect of a removal, though with a fraudulent intent, to the bonded warehouse? Was it not to secure the payment of the tax by placing the spirits in the hands of the officers of the government,. officers specially charged with the duty of receiving that tax? The object of the law is accomplished by such a removal, just as much as it would be had not the intent to defraud existed, and yet the majority of the court hold that such removal forfeits the spirits. The principle, if carried out, would compel them to hold that the surgeon of Bologna ought to have been punished.

The minority of the court thought that § 14 was not intended to apply to distilled spirits at all, but only to meet the cases of removal or concealment of goods subject to tax with an intent to defraud, for which no special provision had been made. The reasoning upon which this opinion is based is forcible, yet it is to be remembered that in revenue laws it is a very common thing to find an act punished in different forms, or rather that a particular act, when committed, may be of such a character that it will fall under more than one statute denouncing penalties against violations of such laws. In such case it may be punished under either, but not both. It is usual in informations and indictments, to have counts under all the statutes.

Bona fide Purchaser.-This case settles the doctrine as to all such purchasers of any article forfeited for a violation of the internal revenue laws. When the decree of condemnation is made, it reverts to the period when the act was committed which creates the forfeiture, and all titles, whether arising from purchase or otherwise, give way to the title of the United States from that time, and the title of the government begins then. Of course this does not include the case of a forfeiture which is in the alternative, and the government is at liberty to proceed for the forfeiture, or for the alternative value. This modification of the doctrine, it will be recollected, arose under a statute where in the same statute the privilege was given to the government to proceed either for the goods themselves or for their value. It is a very grave question whether, when the government is

1 1 Blackstone, Sharswood's ed. p. 69 [61].

? Henderson's Distilled Spirits, 14 Wall. 56-58; 2 Bond, 305; 21 Int. Rev. Rec. 165. 3 Caldwell v. United States, 8 How. 366.

at liberty to proceed under several different statutes, for distinct acts, or the same act, and some of these statutes give the right to forfeit the goods and others do not, if the same doctrine does not apply. The purchaser in good faith could certainly with as much reason say, "I could not know that the government would proceed for a forfeiture; it had not exercised the right by seizing the goods, as it might have done, when I purchased; so far as I knew, it might never proceed for the forfeiture."

Burden of Proof. The cases noticed heretofore on this subject were under § 45, for spirits found elsewhere than in a bonded warehouse, removed without payment of the tax, and it provided that in such cases, the burden of proof should be on the claimant to show that all the requirements of law had been complied with. This part of that statute is now found in § 3333 of the Revised Statutes, and is modified. It places the burden of proof on the claimant when the spirits are found in any other place than a distillery, distillery warehouse, or other warehouse provided by law, in the place of business of a rectifier or wholesale liquor dealer, or in transit from these places; and even if found in these lawful places, under the following circumstances: (a) when they have not been sent in conformity to law; (b) when the entries required by law have not been made as to the spirits by the owner, storekeeper, wholesale dealer or rectifier, at the time and in the manner required by law; (e) when the owner or person in control of them, has omitted to do any act required to be done, or done any act prohibited—if found under these circumstances, the claimant has the burden of proof to show that no fraud has been committed, and that the law has been fully complied with.

Section 3327.-This applies to a removal of spirits in packages of more than ten gallons, at any other time than between sunrise and sunset, either from the distillery, or from a rectifier's, wholesale dealer's, or other place where they may be stored. The offense is punished by fine of $100 for each cask removed, which applies to every person engaged in the removal, and in addition the spirits so removed are forfeited, together with the vessel containing them, and any horse, cart, boat, or other conveyance used in the removal.

Still set up without Permit.-No still is to be set up without the permission of the collector first obtained, under penalty of a fine of $500, and forfeiture of the distilling apparatus.1

Still Unregistered.-The failure to register any still in the possession, custody or control of any person, subjects such person to a

1 R. S. U. S. § 3265.

penalty of $100 to $1,000, and imprisonment from one month to one year. In addition, it subjects to forfeiture the distilling apparatus, and all personal property in the possession, custody, or control of such person, which are found in the building, or in any yard or inclosure connected with the building in which the still is set up.1

No Sign. This applies to distillers, rectifiers, and wholesale. liquor dealers. It subjects not only the dealer or distiller to a fine, but also every person who works in the establishment, or who knowingly receives or carries away any distilled spirits from any establishment without a sign such as is required by the statute, and any person who carries any grain, molasses, or raw material to a distillery without such sign. The distiller or dealer is not only subject to a fine, but the other persons dealing with him are liable to both fine and imprisonment. In addition a forfeiture is incurred, of all horses, carts, drays, wagons, or vehicles, used in conveying the spirits from any of these places, or in conveying the raw material to the distillery.2

Stamp on Spirits.—All distilled spirits found in any cask or package containing five gallons or more, without any one of the stamps or marks required by law, is subject to forfeiture. This includes all the stamps and marks from the time the spirits leave the cistern, and if they lack any one of these they are forfeited. After the tax is paid on spirits, they must be removed from the distillery premises, or they are liable to forfeiture.1

False Entries in Distiller's Books.-The offense here is (a) making a false entry, or omitting to make entries required by $$ 3303 and 3304, with intent to defraud, or to conceal from the revenue officers any fact required to be entered, or to mislead them; (b) the canceling, obliterating, or destroying either of the books, or the entries therein, with intent to defraud, or permitting the same to be done; (c) the omission or refusal to provide either of these books, or the failure to produce them when required by any revenue officer. No-tice that in class (a) or (b) of the acts punished, the intent is material, while in the acts in class (c) the intent is not material.5

The original of this act is found in § 25 of the act of 1867, and § 19 of the act of 1868. The punishment is fine and imprisonment, and in addition, it forfeits the distillery, distilling apparatus, the lot or tract of land on which it stands, and all personal property on the premises used in the business. The term personal property, does not

1 R. S. U. S. § 3258.

R. S. U. S. § 3239.

5 R. S. U. S. § 3305.

2 R. S. U. S. § 3279.

4

R. S. U. S. § 3288.

include distilled spirits on the premises; it is only personal property used in the business that is forfeited.1 Under § 25 of the act of 1867, distilled spirits made by the distiller were included in the forfeiture for the offenses named in this section of the Revised Statutes. But the intent under that was not material; now in the Revised Statutes, distilled spirits are not included in the articles forfeited. While that statute was in force, it was held that the forfeiture would not affect a bona fide purchaser without knowledge of the offense. The case was reversed, it is true, but not on that question. The object of the revision may have been to protect purchasers, by excluding distilled spirits from the article subject to forfeiture, the offenses being of that character that it would be impossible for purchasers to have knowledge of them. If no purchaser could obtain a good title to distilled spirits until he had examined the books of the manufacturer, to ascertain whether he had complied with the law as to the entries in his books, it would amount practically to a prohibition of the traffic. The object of the government is not to prohibit, but to encourage the manufacture, and to obtain the tax on the article produced.

The distiller is not excused from keeping books, although no form has been prescribed, and under § 19 of the act of 1868 it has been held that the fraudulent intent in the failure or omission to keep the books required must be shown affirmatively. It will be noticed that in the Revised Statutes the offense of omitting or refusing to provide books, or to produce them, is complete, without reference to the intent.

Stamps not removed when Package emptied.-It is made the duty of every person who empties or draws off any distilled spirits, or causes it to be done, to efface and obliterate all marks, brands, and stamps on the package. A failure to perform this duty subjects the party to fine and imprisonment, and forfeits the package. All persons and transportation companies transporting such packages, or having them in possession with intent to transport, are liable to a fine of $300 for every package, and, in addition, every cart, dray, wagon, boat, railroad car, or other vehicle used in the transportation of such packages is subject to forfeiture. The destruction or obliteration is to be made at the time of emptying the package, the object being to prevent fraud

1 United States v. Forty-eight hundred Gallons of Spirits, 4 Ben. 471; s. P. United States v. Spirits, 1 Ben. 471.

14 U. S. Stat. 483.

3 United States v. One Hundred Barrels of Spirits, 2 Abb. C. C. 305.

4 United States v. Thirty-five Barrels of High Wines, 2 Biss. 88.

on the revenue by the use of the same stamps or packages a second time without payment of the tax on the spirits placed in the vessel. The intent of the person failing to comply with the statute is not material; the prohibition is absolute against emptying the packages without obliteration. Where packages are emptied by the employees of a rectifier or wholesale dealer, who fail to destroy the stamps, the rectifier or wholesale dealer is liable to the punishment. He is the person who causes the act to be done, and it is his duty to see that the stamps are destroyed. In the case cited the rectifying was done by two employees of the firm, at a house several blocks from the regular place of business of the firm; these employees did all the work of emptying, the defendants rarely being present. One of the employees stole the stamps from the packages and returned them to the distillery without the knowledge of the defendants. I do not understand from this case that the person who actually empties the package is not equally liable with the person who employs him.

§ 175. Forfeitures relating to Special Tax, to Brewers, Manufacturers of Tobacco, Snuff, and Cigars, and Articles in Schedule A-§ 3242.-Persons engaging in any occupation requiring the payment of a special tax, are liable to be punished by fine and imprisonment if the business is carried on without the payment of the tax. Rectifiers, wholesale and retail liquor dealers, and manufacturers of stills, also forfeit all distilled spirits and wines, all apparatus intended to be used in their business wherever found, and all personal property found in the establishment, or in any building, room, yard, or inclosure connected therewith, and used with or constituting a part of the premises. This section is a part of 8 44 of the act of 1868. Originally it included distillers, but as they do not pay a special tax, they are now left out. The intent of the person is not material to constitute this offense, or to incur the forfeiture. The payment of this tax is an essential before commencing business, and it must be repeated on the first day of May of each year. The penalty is imposed and the forfeiture incurred for a failure to do a specific act named in the statute. In case of seizure of the property subject to forfeiture, or indictment of the person carrying on the business, the burden of proof is on the claimant, or person indicted, to show that the tax has been paid. A brewer selling at a place other than his manufactory is liable

1 United States v. Adler & Furst, 15 Am. Law Reg. 45; s. c. 22 Int. Rev. Rec. 316.

2 R. S. U. S. § 3242. See 18 U. S. Stat. pp. 310, 311, §§ 16, 18.

3 United Statas v. Rectifying Establishment, 11 Int. Rev. Rec. 46.

4 United States v. Devlin, 6 Blatch. C. C. 71.