# Henderson's Distilled Spirits

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## Dissenting Opinion

    Johnson Field
United States Supreme Court
81 U.S. 44
Henderson's Distilled Spirits
ERROR to the Circuit Court for the Eastern District of Missouri; the case being thus:
On the 13th July, 1866, Congress passed an act to provide internal revenue, laying and levying taxes on many hundred products of the country. The act is a long act, having seventy-one sections, and covering seventy-five large and closely-printed pages of the statute-book. The first thirteen sections, which cover fifty-three of these pages, relate to the levying and collecting of taxes on a great variety of things, but not of a tax on spirits. Section 14th thus proceeds:
'That in case any goods or commodities for or in respect whereof any tax is or shall be imposed, or any materials, utensils, or vessels, proper or intended to be made use of, for or in the making of such goods or commodities, shall be removed, or shall be deposited, or concealed in any place with intent to defraud the United States of such tax, or any part thereof, all such goods and commodities, and all such materials, utensils, and vessels, respectively, shall be forfeited; and in every such case, and in every case, where any goods or commodities shall be forfeited under this act, or any other act of Congress relating to the internal revenue, all and singular the casks, vessels, cases, or other packages whatsoever containing, or which shall have contained, such goods or commodities respectively, and every vessel, boat, cart, carriage, or other conveyance whatsoever, and all horses or other animals, and all things used in the removal or for the deposit or concealment thereof, respectively, shall be forfeited; and every person who shall remove, deposit, or conceal, or be concerned in removing, depositing or concealing any goods or commodities for or in respect whereof any tax is or shall be imposed, with intent to defraud the United States of such tax or any part thereof, shall be liable to a fine or penalty of not exceeding $500.'
The sections from the 21st to the 45th relate to distilled spirits. The 28th section provides:
'That general bonded warehouses for the storage of spirits or other merchandise allowed by law to be placed in bond, may be established.'
And the 45th section enacts:
'That any person who shall remove any distilled spirits from the place where the same are distilled, otherwise than into a bonded warehouse, as provided by law, shall be liable to a fine of double the amount of the tax imposed thereon, or to imprisonment for not less than three months. All distilled spirits so removed, and all distilled spirits found elsewhere than in a bonded warehouse, not having been removed from such warehouse according to law, and the tax imposed by law on the same not having been paid, shall be forfeited to the United States, or may, immediately upon discovery, be seized, and after assessment of the tax thereon, may be sold by the collector for the tax and expenses of seizure and sale. And proceedings upon such seizure shall be according to existing provisions of law in relation to distraint, and in conformity with any regulations which shall be made by the Commissioner of Internal Revenue. And the burden of proof shall be upon the claimant of said spirits to show that the requirements of law in regard to the same have been complied with. And any person who shall aid or abet in the removal of distilled spirits from any distillery otherwise than to a bonded warehouse, as provided by law, or shall aid in the concealment of such spirits so removed, shall be liable, on conviction thereof, to a fine of not less than $200, or more than $1000, or to imprisonment for not less than three nor more than twelve months. And any person who shall remove, or shall aid or abet in the removal of any distilled spirits from any bonded warehouse, other than is allowed by law, shall be liable to a fine of not more than $1000, or to imprisonment for not less than three nor more than twelve months.'
Section 54th provides a fine of $100 and imprisonment not exceeding a year of any one who shall sell, remove, &c., any fermented liquor, on which no stamp or a fraudulent one has been affixed.
The act took effect generally from the 1st of August, 1866; but so far as it changed existing laws relative to distilled and fermented spirits, only from the 1st of September.
The 29th section enacts:
'That there shall be appointed by the Secretary of the Treasury an inspector for every distillery established according to law, who shall take an oath faithfully to perform his duties; and who shall take an account of all the meal and vegetable productions or other substances to be used for the purpose of producing spirits, when put into the mash-tub or otherwise used; and shall inspect, gauge, and prove all the spirits distilled, under such rules and regulations as may be prescribed by the Commissioner of Internal Revenue; and shall take charge of the bonded warehouse established for the distillery in conformity to law; and such warehouse shall be in the joint custody of such inspector and the owner thereof, his agent or superintendent; and when any spirits shall be placed in such warehouse, an entry therefor, in such form as shall be prescribed by regulations, shall immediately be made and signed by the owner of said spirits, and shall have indorsed thereon a certificate of the inspector that the spirits mentioned have been duly inspected and received in said warehouse, and such entry and certificate shall be filed with the collector of the district; and said inspector shall not engage in any other business while employed as an inspector.'
With this act in force, the attorney of the United States for the Eastern District of Missouri, filed an information in the District Court there, on the 7th of September, 1868, to enforce a forfeiture of one hundred barrels of distilled spirits. The fourth count of the information was founded on the first of the above two quoted sections; that is to say, upon the 14th section of the statute, and was as follows:
'That the said one hundred barrels of spirits were manufactured at some place within the United States, to the said attorney unknown, and between the 1st day of September, A.D. 1866, and the date of the said seizure, by some person or persons to the said attorney unknown, and were then and there goods and commodities on which a tax was then and there imposed by the provisions of law, and the same were removed from the place where distilled with intent to defraud the United States of such tax, the same being then and there unpaid, contrary to the form of the statutes of the United States in such case made and provided.'
One Henderson, of New Orleans, appeared to the monition issued on the information and claimed the spirits as owner. And he filed an answer, putting in issue the material matters alleged in the information, and further alleged that the said spirits 'were purchased by him while the same were in a bonded warehouse, and that he, the claimant, paid the tax imposed thereon by law before he removed the same from said bonded warehouse.' In answer to the count, the claimant denied that the 'spirits were removed from the place where distilled with intent to defraud the United States of any tax being then and there imposed as alleged.'
An agreement was filed in the District Court waiving a jury trial, and the case was heard by the judge upon the following facts, agreed to by the parties according to a stipulation filed before the trial:'1st. That Henderson purchased the spirits while in a bonded warehouse of the United States, at New Orleans, after the same had been placed therein by the owners of the distillery at which the same were made, and that he, Henderson, paid to the United States collector the taxes due on the spirits and removed them from the warehouse, according to law, without knowledge on his part at any time before seizure, of any fraud on the part of the distiller, either actual or alleged; that Henderson was a purchaser, innocent and bon a fide, and paid, himself, the tax on the spirits.
'2d. That he shipped the same to St. Louis, and that they were in his constructive possession at the time of seizure.
'3d. That they were manufactured and distilled at a distillery in the first collection district of Louisiana, in May and June, 1868, carried on in the name of Nimrod Johnson, by the use and means of certain boilers, stills, and other vessels of which Johnson was superintendent and owner.
'4th. That the fourth article in the information was true, but that Henderson subsequently to removal from the distillery and before removal from the bonded warehouse, and before seizure, paid the tax on said spirits, and was a bon a fide and innocent purchaser thereof.
'5th. That he was not a purchaser from the United States, and the United States at no time sold said spirits.'
The District Court gave judgment for the claimant and the Circuit Court affirmed the judgment, that court holding that as the overt act alleged, namely, the removal, was rightful, 'it was difficult to see how it could have been made to defraud the United States of the tax, and that a mere intent to defraud, formed or existing in the mind of the distiller, which intention had never been executed, or attempted to be, was not made a ground of forfeiture.'
The case was now here on error.
Mr. B. H. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States, plaintiffs in error:
1. If these spirits were liable to forfeiture under any count of the information, the forfeiture attached at the moment of the commission of the offence, and can be enforced against the offending property in the hands of an innocent purchaser.
2. The case agreed on admits the truth of the allegations in the fourth count, namely, that the spirits were removed from the distillery 'with intent to defraud the United States of said tax, the same being then and there unpaid.' It then comes by plain words within the 14th section of the statute.
The fallacy of the reasoning of the Circuit Court was it assuming it to be impossible that one step in an attempt to defraud the government of the tax due upon those spirits could be their removal to a bonded warehouse. But it is notorious that spirits have often been removed to United States bonded warehouses from distilleries in accordance with conspiracies between distillers and warehousemen in order to defraud the government, by having the spirits secretly drawn off from the barrels; and under agreements with the revenue officers to have them released upon worthless security without payment of the tax.
Mr. J. A. Garfield, contra:
In Bennet v. Hunter, this court gave its construction of the 4th section of the act of July 7th, 1862, a highly penal statute, in which it is provided, 'that the title of, in, and to every piece or parcel of land upon which said tax has not been paid as above provided shall thereupon become forfeited to the United States.' In construing this statute, the Chief Justice, delivering the opinion of the court, said:
'It must be remembered that the primary object in the act was undoubtedly revenue, . . . and it seems unreasonable to give to an act considered as a revenue measure a construction which would defeat the right of the owner to pay the amount assessed, and relieve his land from the lien.'
Speaking of the claim set up by the plaintiffs in that case, that forfeiture worked eo instanti on the failure of the owner to pay the tax within the required time, the Chief Justice said:

## Notes

* ↑ 14 Stat. at Large, 98-173.
* ↑ Section 1
* ↑ Robert v. Witherhead, 12 Modern, 92; Wilkins v. Despard, 5 Term, 112; United States v. Grundy, 3 Cranch, 338; United States v. 1960 Bags of Coffee, 8 Id. 398; Wood v. The United States, 16 Peters, 342; Caldwell v. The United States, 8 Howard, 366.
* ↑ 9 Wallace, 326.
* ↑ 12 Stat. at Large, 294.
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).
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