# United States v. Forty-Three Gallons of Whisky/Opinion of the Court

* Court Documents
* Case Syllabus
* Opinion of the Court
United States Supreme Court
108 U.S. 491
United States v. Forty-Three Gallons of Whisky
When the case went back to the district court for trial, and the demurrer was overruled, the claimant Lariviere filed an answer to the libel containing inconsistent defenses. He first denied that he ever introduced into the ceded territory the liquors as charged, and he claimed the property, except the liquors, as his; and as to those he disclaimed ownership. But, although denying their introduction, he averred that the acts charged against him were done under the authority of the war department, and that the liquors were not introduced for the purpose of sale or in the violation of any law or treaty. He subsequently amended this answer by adding an averment to the effect that the territory ceded under the treaty mentioned, lay within the limits of a collection district under the United States internalrevenue laws; that persons resident within it and within the county of Polk, and at the village of Crookston, engaged in the business of retailing spirituous liquors, had been assessed and required to pay taxes upon their business, and were thereby licensed to carry on that business and sell spirituous liquors in that county; and that he also had been thus assessed, taxed, and licensed as a retail dealer, and that his license had never been revoked nor the tax paid for the same returned. The other claimant, Guerin, averred that the property seized, except the liquors, had been transferred to him as collateral security for a debt, and denied every traversable allegation in the information save the seizure by the Indian agent. On the trial evidence was introduced by the government tending to show that Lariviere introduced the liquors mentioned with the intent to sell them to Indians under the charge of the United States Indian agents, and also to show the circumstances of the seizure. Against the objection of the government Lariviere gave evidence of all the circumstances touching the assessment and collection of the internal-revenue tax from him and other sellers of liquor by retail in the county of Polk. The court charged the jury that while the mere introduction of spirituous liquors in the ceded territory was prima facie evidence of an unlawful purpose, this evidence was neutralized by proof that the claimant held at the time a receipt of the collector of internal revenue for the special tax required to be paid by a retail liquor dealer, and hence that the burden of proof was shifted on the government to show that the liquors were introduced with the intent to sell them to the Indians. It also charged that 'the uncontroverted facts found for the defense were a license to Lariviere to take liquor to Crookston, and gave him the right to do so, and that, for so doing, he was subject to no penalty under the national law.' To this charge an exception was taken. There was a verdict for the claimant and judgment was entered thereon that the libel be dismissed. The case was then taken to the circuit court and the judgment of the district court was there affirmed. To review that judgment the case is brought here.
The only question for our consideration, as thus seen, is whether Lariviere's payment of the special internal-revenue tax for selling liquors in the collection district embraced by the ceded territory exempted him from the penalties of the act of 1864. We are clear that it did not. Congress never intended to interfere with the operation of the treaty, or to sanction the sale of liquors in any ceded territory, where an express stipulation provides that they shall not be sold. The evils resulting from the use of spirituous liquors are so many and so appalling that the government has, from an early period of our history, abored to prevent their introduction among the Indians. In order more effectually to secure this result, laws prescribing severe penalties have been enacted, and authority has been vested in the Indian agents to arrest traffickers in the prohibited article, and to seize and confiscate their property found with it. It would require very clear expressions in any general legislation to authorize the inference that congress proposed to depart from its long-established policy in regard to a matter of such vital importance to the peace and to the material and moral well-being of these wards of the nation. There is also another consideration. The laws of congress are always to be construed so as to conform to the provisions of a treaty, if it be possible to do so without violence to their language. This rule operates with special force where a conflict would lead to the abrogation of a stipulation in a treaty making a valuable cession to the United States.
The unauthorized introduction of liquors into the ceded territory constitutes the offense, although if they were not sold or given away no injurious consequences would follow; but once allow their indiscriminate or general introduction and the law would be evaded without possibility of detection. The introduction is, therefore, forbidden, unless permitted by the order of the war department or of some officer authorized by it. The establishment of the collection district, embracing bracing the ceded territory, while providing for the collection of taxes on certain kinds of business, did not authorize, nor was it intended to authorize, business which was otherwise specifically forbidden. The License Tax Cases, 5 Wall. 462, do not conflict with , but rather support, this view. They merely decide that the licenses of the United States for selling liquors and dealing in lotteries exempted the party from the penalties of the revenue law to which he would otherwise be subjected. They gave no exemption from state laws or the taxes they imposed for the business carried on. They conferred no authority by themselves to carry on any business within a state. They were in the nature of taxes on the business which the state permitted. The court, speaking by Chief Justice CHASE, said that if the licenses were to be regarded as giving authority to carry on the branches of business which they licensed, it might be difficult, if not impossible, to reconcile the granting of them with the constitution. 'But,' he added, 'it is not necessary to regard these laws as giving such authority. So far as they relate to trade within state limits, they give none and can give none. They simply express the purpose of the government not to interfere by penal proceedings with the trade nominally licensed, if the required taxes are paid. The power to tax is not questioned, nor the power to impose penalties for nonpayment of taxes. The granting of a license, therefore, must be regarded as nothing more than a mere form of imposing a tax, and implying nothing except that the licensee shall be subject to no penalties under national law if he pays it.' Though these cases are cited by the defendant, they affirm the doctrine that the licenses under the then existing law, being designed merely to secure the payment of taxes to the United States, did not interfere with other legitimate regulations of business, nor sanction it where otherwise prohibited.
The case of The Cherokee Tobacco, 11 Wall. 616, cannot be treated as authority against the conclusion we have reached. The decision only disposed of that case, as three of the judges of the court did not sit in it, and two dissented from the judgment pronounced by the other four.
It follows from the views expressed that the judgment of the court below must be reversed and a new trial had; and it is so ordered.

## Notes

This work is in the public domain in the United States because it is a work of the United States federal government (see 17 U.S.C. 105).
Public domainPublic domainfalsefalse