The daily Gate City. [volume] (Keokuk, Iowa) 1855-1916, 1910-11-10
H.. Mcpherson Rules on. Demurrer,
which Practically Settles Case
Brought by Revenue Collect
or Against Dealer.
ASSESSED FOR PAYING
~. Brother Borrowed From Anoth.,
and When he Paid it Back
Uncle Sam Assessed Him
500.

n,o oninion of Judge Smith Nc
,,orscn in the case Of Frank Ewers
rs IL O. Weaver, as collector OF IN
,..n,, revenue, has been received by
No IDENTITY clerk of the circuit court
saro The defendants demurrer on
,he General grounds that no appeal
.as taken to the commissioner of Ia
formal Revenue from the action OF
.ho collector of this district was ov-
arrr,ed The action was one brought
Nv the plaintiff, who is Keokuk re-
t.,er in meats, to recover 500 paid
~ tho internal revenue collector I'M
der protest.
Judge says: ;.
@The plaintiff is a retail dealer in
meals and similar products in Keokuk
Iowa, His brother, A. P. J. Ewers'
10 likewise a retail meat dealer in the
came CITY Both we're licensed retail
dealers for the sale of oleomargarine,
and had paid the tax required by
law for the first six months OF the
wear 1910. The plaintiff had made a
nurchase of Swift and Company, deal.
orc in oleomargarine, for shipment
of that product, but before the arrlv-
al Of the product, plaintiffs supply
was exhausted, and he borrowed from
his brother, package OF oleomar-
parine In few days plaintiffs ship
ment having arrived, he replac"d
with his brother the precise amount
narrowed. The collector OF internal
revenue maintained that by the re-
turn Of the like product on account
of said borrowing, he had become a
wholesale dealer, except the plalnti1I
could have made no sale Tor few
DAYS pending the arrival of his mer-
chandise. But he had the right to en-
gage in retailing every day, because
he had paid his license fee therefor
The transaction was a mere friendly
and brotherly act. The one being
short and the Aother long as to the
nroduct in kind, the one kindly loan
ed to the other a package which was
restored in kind and brand, manufac'
ured by the same concern. am un'
able to see how this can be constru
ed into sale.
Another proposition is that the sta
tute allowing this assessment ana INC
recovery of this money is In the nd
ture Of a penal action and the rlgh
of the government must clearly raj
within the statute before the rlgn
can be given to make levy ant
seizure. Such right can not be placed
in the statute by construction, unless
fully warranted by the statute.
1T would have been futile to have
carried a perfunctory appeal to thu
commissioner Of internal revenue, be
cause his decision was forestalled b.
his ruling and why should the plain
tiff have been driven through the ldl'
form of such perfunctory appeal whel
the result was known in advance an
such result hostile to the plaintiff.
This ruling practically disposes o
this case unless the government
should plead and be able to show tina
there was an actual sale for money o
oeomagarine which was delivered b
Frank Ewers to A. P. ]. Ewers. I'M
would be shown if possible in a
amended pleading, which would sui
ject him to the tax of 500.
Touching on the merits OF the cas-
Judge Mcpherson says.
THE general proposition Is, dl
either plaintiff or his brother make
sale? The holding Of this court
that it was mere borrowing or trad
and not a sale. sale means TO
money An exchange of property
a mere barter or trade. The yer
purpose of money is to have mediur
of exchange so that borrowing or trae
Ing or bartering can be dispense
with. In this case the government
was not deprived of cent of it's rev
enue to which it was entitled. Bot
plaintiff and his brother made tn
same sales at retail that they woul
have made but for the transaction"
All Rumbach left yesterday on
4. I'M E0fg