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Dissenting Opinion

United States Supreme Court

88 U.S. 652

United States  v.  Boecker

ERROR to the Circuit Court for the District of Maryland.

The United States sued Henry Boecker, principal, and C. Schorr and F. Altevoght, his sureties, in a distiller's bond. The bond was in the penal sum of $6000, and conditioned that, whereas the said Henry 'is now, or intends, on and after the 4th day of May, 1869, to be a distiller within the second collection district of the State of Maryland, to wit, at the corner of Hudson Street and East Avenue, situate in the town of Canton, county of Baltimore, and State aforesaid; now, if the said Henry shall in all respects faithfully comply with all the provisions of law in relation to the duties of distillers,' &c., 'then this obligation to be void, otherwise it shall remain in full force.'

It was proved upon the trial that Boecker was largely indebted to the United States 'for taxes assessed against him in respect to his business of distilling, carried on by him at his distillery at the corner of Hudson, and Third Streets, in the town of Canton, for the months of May, June, July, August, September, October, November, and December, in the year 1869, and that the said taxes remained unpaid.' It was further proved 'that no distillery at any other place was carried on by said Boecker, and that there was not anydistillery at the corner of Husdon Street and East Avenue,' and that the latter place was about four squares from the former.

The defendants Schorr and Altevoght thereupon prayed the court to instruct the jury that if they 'shall find from that there was not any distillery at the corner of Hudson Boecker at the corner of Hudson Street and East Avenue,' 'they would find their verdict for the defendants, although they may find that said Boecker carried on a distillery at some other place at Canton, and for his operations at which place he became indebted in this suit.'

This instruction was given. The United States excepted. The jury found for the defendants, and judgment being entered accordingly, the case was brought here.

The bond was taken under the act of July 20th, 1868. [1] Its provisions bearing upon the subject are as follows:

'SECTION 1. Every proprietor or possessor of a still, distillery, or distilling apparatus, and every person in any manner interested in the use of any such still, distillery, or distilling apparatus, shall be jointly and severally liable for the taxes imposed by law on the distilled spirits produced therefrom, and the tax shall be a first lien on the spirits distilled, the distillery used for distilling the same, the stills, vessels, fixtures, and the tools therein, on the lot or tract of and whereon the said distillery is situated, together with any building thereon, from the time said spirits are distilled until the said tax shall be paid.

'SECTION 6. Every person engaged, or intending to be engaged, in the business of a distiller or rectifier, shall give notice in writing, subscribed by him, to the assessor of the district within which said business is to be carrier on, stating his name and place of residence, and, if a company or firm, the name and place of residence of each member thereof, and the place where such business is to be carried on, and whether of distilling or rectifying; and, if such business be carried on in a city, the residence and place of business shall be indicated by the name of the street and the number of the building.'

In the case of a rectifier the notice must state 'the precise location of the premises where such business is to be carried on,' and that the 'establishment is not within six hundred feet of the premises of any distillery,' &c. In case of change in the location, &c., of a distillery, notice in writing is required to be given to the assessor or his assistant within twenty-four hours. Every notice required by this section shall be 'in such form, and shall contain such additional particulars, as the Commissioner of Internal Revenue shall from time to time prescribe. . . . Any person failing or refusing to give such notice shall pay a penalty of $1000, and, on conviction, shall be fined not less than $100 nor more than $2000, and any person giving a false or fraudulent notice shall, on conviction, in addition to such penalty or fine, be imprisoned not less than six months nor more than two years.'

Section seven prescribes the bond to be given. It is to have two sureties, and one of the conditions required is that the distiller

'will not suffer the lot or tract of land on which the distillery stands, or any part thereof, or any of the distilling apparatus, to be incumbered by mortgage, judgment, or other lien during the time in which he shall carry on said business.'

Section eight enacts that the bond is not to be approved unless the distiller is the owner in fee, unincumbered, of the lot or tract of land on which the distillery is situated, or unless he files with the assessor the written consent of the owner of the fee and of any incumbrance, that the premises may be used for the purpose of distilling spirits, subject to the provisions of law, and stipulating that the lien of the United States for taxes and penalties shall have priority over such incumbrance, and that, in case of forfeiture of the premises, the title shall vest in the United States, discharged from such incumbrance, whatever it may be.

Section twelve forbids the use of any still, boiler, or other vessel for the purpose of distilling 'within six hundred feet of any premises authorized to be used for rectifying,' and declares that the offender against this, or either of the other prohibitions contained in this section, 'shall, or conviction, be fined $1000, and imprisoned for not less than six months nor more than two years, in the discretion of the court.'

Mr. S. F. Field, for the United States, the plaintiff in error, argued that the locality where the distillery was intended to be placed, described in the bond, was immaterial, and that the sureties were liable for the defaults of their principal occurring where the distillery was situated, in all respects as if it had been located at the place named in the bond.

Messrs. E. O. Hinkley and J. V. L. Fintlay, for the sureties, cited numerous authorities to show that sureties were bound for nothing whatever but that for which they agreed to be bound, and that courts favored them in the construction of their engagements. He argued accordingly that here they were not liable for the taxes.

Mr. Justice SWAYNE, having stated the case, delivered the opinion of the court, as follows:


^1  Ch. 186, 15 Stat. at Large, 125.

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).