161 F. 906 | 2d Cir. | 1908
The sole question presented by this writ of error is whether bay rum manufactured in Porto Rico and imported from that island, in April, 1906, was liable to taxation as distilled spirits under the provisions of section 3 of the Foraker Act (Act April 12, 1890, c. 191, 31 Stat. 77), taken in connection with sections 3218, 3251, and 3254 of the United States Revised Statutes.
The Foraker act provides that “articles of merchandise of Porto Rican manufacture” coming into the United States and withdrawn for consumption or sale shall be subject to “a tax equal to the internal revenue tax imposed in the United States upon the like articles of merchandise of domestic manufacture.” It would seem that under this provision of the law the duty of the internal revenue collector was plain, namely, to ascertain what tax was imposed on domestic bay rum, and, if none were imposed, permit the Porto Rican bay rum to be withdrawn free of tax. Instead of doing so, the collector ascertained the constituent ingredients of the importation, found that alcohol predominated, and imposed a tax thereon as “distilled spirits.” It is conceded that bay rum is an old and well-known article of commerce used exclusively as a toilet preparation, wash, or cosmetic, and is never sold or used as a beverage. It is also conceded that there is no. internal revenue tax, eo nomine, upon bay rum of domestic manufacture. No fraud is charged or suggested regarding the importation in controversy; which was brought here to be used as bay rum has always been used — as a cosmetic or- toilet water.
The fact that the alcohol in the bay rum may be used for other purposes, if true, would not justify a construction of the law which is
Again, the segregating process involves redistillation, which would subject the product to the internal revenue tax, if not to forfeiture. If the law is to he strained to cover all articles from which alcohol may be obtained by distillation, it would be a hazardous undertaking to import molasses from Porto Rico — rum being a distilled spirit made from fermented molasses..
As is pointed out in the brief for defendant in error — “The remedy for fraudulently distilling alcohol from bay rum is the identical remedy for fraudulently distilling it from rye, corn, molasses or anything — ■ it is the criminal prosecution of the alleged distiller.” It is unnecessary to pursue the subject further, as it was discussed in all its aspects in the opinion delivered in the case of Newhall v. Jordan, 149 Fed. 586, which was approved and followed by the judge of the Circuit Court in the case at bar.
The judgment is affirmed.
