62 W. Va. 442 | W. Va. | 1907
The Hannis Distilling Company in January, 1906, presented to the county court of Berkeley county a petition praying correction of an assessment against it for 1905 of 30,000 barrels of whiskey, situated on April first of that year in its' bonded warehouse at Martinsburg, at $240,000. It is alleged in said petition that of this property 6,312 barrels belonged to petitioner on April 1, 1905;. that the balance thereof belonged to owners unknown to the company or its agents, and was not held by it under any mortgage or pledge or in any representative or fiduciary capacity; that the same was merely kept by it in storage for and at the risk of the owners, subject to withdrawal at any time, the title thereto being in the latter and represented by negotiable warehouse receipts, mere delivery of which transfers- title to the whiskey described therein; that, in fact it does not have the care and custody thereof; that such care and custody is in the United States government through its storekeeper, with a lien for the internal revenue taxes thereon; that the petitioner has no property of the owners of said whiskey out of which it could be reimbursed should it pay the tax so assessed. The petitioner admits that it made no return for taxation of said 6,312 barrels belonging to it on April
We find printed in the record along with the petition, but without apparent identification, Avhat purports to be an amended or supplemental return by the petitioner of its personal property for the year 1905, addressed to the assessor and sworn to on the same day the petition was presented, returning said 6,312 barrels of whiskey for taxation, containing the representation that the company’s ownership thereof on April 1, 1905, was unknown to the agent who made the original report for assessment, but had since been ascertained from the records of the company in Philadelphia. This report does not purport to be made bv the agent therein referred to, but by counsel for the petitioner, whose place of business the record shows is not in Philadelphia but in the city of New York, and who in the language of his oath says that ‘‘the foregoing is'to the best of my knowledge and judgment true in all respects.” Is it not possible that the better knowledge and judgment of the officers of this company, whose duty it was to make proper return of its property for taxation, would have disclosed either that it still owned or had purchased in the- open market a larger portion or all of said whiskey, or the names of the persons to whom it belonged.
The case was heard in the county court January 9, 1906, upon the petition and the evidence of the assessor and the general manager of the petitioner, and the petition dismissed. Upon an appeal to the circuit court, the judgment of-the county court was affirmed.
On the assumption that it was proven in the trial before the county court that 23,688 barrels of the whiskey assessed were not the property of petitioner, the ingenious argument is here made — based on the provisions of the federal statutes relating to bonded warehouses, the legal rights and liabilities of warehouse men and holders of its receipts and the construction placed by counsel upon the statutes of this state respecting
Such bonded warehouse is not in the exclusive control of the federal officer, any more than the distillery itself; for sections 3273, 3274 and 3275 provides: ■ “The store-keeper assigned to any distillery warehouse shall also have charge of the distillery connected therewith. * * * Every distillery warehouse shall be in the joint custody of the storekeeper and the proprieter thereof. * * * No fence or Avail of a height greater than five feet shall be erected or maintained around the premises of any distiller, so as to prevent easy and immediate access to such distillery. And every distiller shall furnish to the collector of the district as many keys of the gates and doors of the distillery as majr be required by the collector, from time to time, for any revenue officer or other person who may be authorized to make survey or inspection of the premises, or of the contents thereof; and said distillery shall be kept always accessible to any officer or other per
The title to personal property is always presumed to be with the possession. 2 Schoul. Per. Prop, sections 2, 3, 4. This authority says that the person out of possession of personal estate must usually bring an action and establish his own rights by proof. The federal control, and joint custody of the store-keeper and the proprietor of the distillery warehouse, are not competent to destroy this legal presumption of ownership by the distillery of the whiskey in its bonded warehouse, which under the law is devoted exclusively to whiskey of its own manufacture. As between it and the state authorities who would subject the property in its possession to taxation, if the distillery denies its ownership and asserts title in another for whom it pretends to hold the same as warehouseman, it should be required to establish its disclaimer of ownership by the same character of proof required in a contest between it and a claimant of the property. In this case the petitioner represents not that it has parted with the possession, but that it has parted with title and holds possession as warehouseman for the alleged holders of its warehouse receipts. This is a question of fact which should be established by competent evidence of the same dignity required in any otherjegal proceeding. This proceeding has passed the incipient stage of the return by petitioner of its property for assessment, where the report of its proper returning officer might be accepted by the assessor as sufficient. The petitioner is contesting an assessment of its property already made in a lawful manner. It applies to the state for relief therefrom. The burden is upon it to make out its case by legal and sufficient proof, or it will not be entitled to the relief asked. How has it sought to do this?
What effect shall be given to the evidence of the general manager of the petitioner? When applied to by the assessor, this general manager could give him no satisfaction. He had pretended to make a return of petitioner’s property for taxation for the year 1905, but he omitted to include any of the whiskey in bond; and the petitioner’s counsel, not its general manager, excuses the latter’s omission on the ground that, at the time of making said return, he did not know of the ownership by his company of the whiskey thus omitted. It was the duty of the petitioner to give the assessor proper information. The testimony of the general manager before the county court was of little more consequence than his
“No. 9405. Martinsburg, West Virginia. United States Bonded Warehouse. Hannisville Distillery. Internal Revenue Warehouse Certificate. The Hannis Distilling Company hereby acknowledged to have received on the — day of —, 190 — , from-bbls. Hannisville Pure Rye Whiskey, which were deposited in our bonded warehouse on the— day of —, 190 — , and will deliver the same upon presentation of permit, payment of storage and other charges, and the surrender of this certificate, which is transferable by delivery. It is expressly agreed that the Hannis Distilling Co. are not liable for injury to or destruction of said merchandise unless by gross neglect of the said Hannis Distilling Company or their agents. Lot No. —. S. N. —. Hannis 'Distilling Companjn.
a. Cancelled.
b. Notice: When whiskey is ordered to be tax paid warehouse certificate must be presented at our Philadelphia office at same time to have number of bbls. can-celled. We will ship at low valuation • unless otherwise ordered.
c. Storage from date at eight cents per barrel and four cents per half barrel a month. Bills rendered January 1st and July 1st and when whiskey is withdrawn or transferred.”
This in substance is all the evidence offered by the petitioner. In our opinion it is insufficient to establish its-claim. Not a single officer or agent of this company produced any original record of the sale and transfer of the-particular whiskey involved in this controversy. The general manager was not called upon to produce the orders received from the Philadelphia office for this particular whiskey; nor does he pretend to state for whom, according to these
Affirmed.