28 F. Cas. 313 | U.S. Circuit Court for the District of Louisiana | 1874
The libel alleges that on the 18th of April, 1874, the whisky, being the property and in the possession of Otto H. Karstendicke, was seized by the collector of internal revenue, and its forfeiture is claimed on these grounds: (1) Because Karstendicke, being engaged in the business of a rectifier, did, on the 5th of January, 1S74, fill for shipment, sale and delivery, on his rectifying premises, a large number of barrels with rectified spirits, and willfully omitted to procure and cause a United States gauger to gauge and inspect the same, and place thereon the stamps required by law; (2) Because, being on the 5th of January, 1874, a rectifier of distilled spirits, he did, on that day and at other times, empty, for the purpose of rectifying the same, the contents of a large number of casks containing distilled spirits, and neglected to file with the collector of internal revenue any notice or statement, giving the number of said casks, the serial number of the same, the number of gallons in each cask, the kind of stamps on the same, and the particular name of said spirits as known to the trade, by whom and in what district said spirits were produced, and by whom and when they were inspected.
The first count of the information is based on the 96th section of the act of July 20, 1868 (15 Stat. 164; Rev. St. § 3456). This section provides that if any distiller, rectifier, etc., shall knowingly or willfully omit, neglect, or refuse to do, or cause to be done, any of the things required by law in carrying on or conducting his business, or shall .do any thing by this act prohibited, if there-be no specific penalty or punishment imposed by any other section of this act, for the neglecting, omitting or refusing to do, or for the-doing or causing to be done the things required or prohibited, he shall pay a penalty of one thousand dollars; and if the person so offending be a distiller, rectifier, etc., all distilled spirits owned by him, or in which he has any interest as owner, or if he be a manufacturer of tobacco or cigars, all tobacco or cigars found in his manufactory, shall be forfeited to the United States.
The exceptions raise these questions: (1) Whether the spirits or liquors, which the law-forfeits for a failure to comply with its provisions, are those owned by the distiller at the time of the commission of the offense, or at the time of its discovery, or at some other time, say the 'time of seizure. (2> Whether the failure by the rectifier to cause-the liquors to be gauged and stamped, as required by the 25th section of the act of July 20, 1868, is punishable under the 57th section, of the act, or whether it is one of those cases where no specific penalty or punishment is imposed, and is therefore punishable under the 96th section.
1. I think the fair construction of the 96th section is that the spirits or liquor owned by the distiller at the time of the discovery of the offense are what the law forfeits. Any other construction would render the penalty so difficult of application as to render it harmless. If the offense is discovered some time-after its commission, it would be impossible,, in most cases, to know what liquors and spirits the distiller had at that time, and his stock on hand at the date of the commission, of the offense may have been sold, shipped, and consumed before the discovery of the offense. It cannot be fairly held that the spirits or liquors owned at the time of the-seizure can be forfeited, for that would put it in the power of the revenue officers to-postpone seizure until the distiller should have a larger quantity of spirits on hand, and thus put it in their power to determine the amount of the penalty. I conclude, therefore, that the spirits owned by the distiller at the time of the discovery of his offense,, and these only, are subject to forfeiture under the 96th section. The counts of the information do not inform us when the offense-was discovered, or whether the property seized was owned by the claimant at the time-of the discovery. It is therefore defective,, in that it does not show whether the property seized was owned by the distiller at the-date of the discovery of his offense, or was subsequently acquired. It does not appear from the information that the property seized is liable to forfeiture.
2. The 96th section of the act of July 20, 1868,. only inflicts a penalty where there is no specific penalty imposed by any other section for the act or omission. The 25th section of (he act provides, that whenever any
Exceptions sustained.