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United States Supreme Court

77 U.S. 395

United States  v.  Hodson

In error to the Circuit Court of the District of Wisconsin, the case being thus:

The Internal Revenue Act of June 30, 1864, [1] makes it obligatory on persons meaning to be distillers to take out a license, and makes the business of distilling without a license an offence punishable by fine and imprisonment. And the 53d section of the statute enacts.

'That any person required by law to be licensed as a distiller SHALL, in addition to what is required by other provisions of law, make an application therefor to the assessor of the district, and before the same is issued, the person so applying shall give bond to the United States in such sum as shall be required by the collector, with one or more sureties to be approved by said collector, 'conditioned'--

in effect—

'(1.) That if he shall use any additional still he will report the fact to the assessor.

'(2.) That he will from day to day enter in a book to be kept for that purpose the number of gallons that may be distilled, and the quantity of grain he may use; and that the book shall be open at all times to the inspection of the assessor.

'(3.) That he will render to the assessor, on certain days of each month, an exact account in writing of the number of gallons distilled, of the number placed in warehouse, and of the number sold or removed for consumption and sale, and also of the quantities of grain used for the fractional part of a month next preceding the report, and the proof thereof, which report is to be verified by affidavit.

'(4.) That he will not sell, or permit to be removed for consumption and sale, any spirits distilled under his license until they have been inspected, gauged, proved, and entered upon his books, as aforesaid.

'(5.) That he will, at the time of rendering his account to the collector, pay the duty imposed by law upon such spirits.'

'And the said bond,' the act proceeds, 'may be renewed or changed from time to time in regard to the amount and sureties thereof, according to the discretion of the collector.'

The statute, which is entitled 'An Act to Provide Ways and Means for the Support of the Government and for other Purposes,' is a statute of 182 sections, many very long, and contains a great variety of provisions on a great variety of subjects; some being matters enjoined, and some matters forbidden; some enforced by penalties, fine, and imprisonment; and some not so made operative. The statute, however, obviously not contemplating that the bond shall be conditioned for the performance of any duties but those for which it says that it shall be.

In section 57th, separated both as to place and by intervening topics from that one (the 53d), which sets out in what the bond of the distiller is to be conditioned, it is enacted

'That . . . every person who shall use any still, boiler, or other vessel as aforesaid, . . . shall from day to day make true and exact entry, in a book to be kept for that purpose, the number of gallons of spirits distilled, and also the number of gallons placed in warehouse, and also the number sold and removed for consumption and sale, and the proof thereof.'

But it is not enacted that the distiller's doing this shall be incorporated among the conditions of the bond which the 53d section declares that he shall give.

With this statute in force, the United States took from one William Hodson, a distiller, to whom license had been granted, a bond precedent to the grant of license. The bond was not conditioned in the way that the already quoted 53d section prescribes, nor conditioned for the doing of specific things at all. The language of the condition was thus:

'That whereas the said William Hodson has made application to the collector of internal revenue for the second collection district of the State of Wisconsin for a license as a distiller at Turtleville. Now, therefore, if the said William Hodson shall truly and faithfully conform to all the provisions of an act entitled 'An act to provide internal revenue,' approved June 30, 1864, AND such other acts as are now or may hereafter be in this behalf enacted, then the above obligation to be void and of no effect, otherwise it shall abide and remain in full force and virtue.'

The United States sued for the penalty of the bond, and assigned various breaches, and among them this as part of a first one, 'that the defendant Hudson did manufacture a large quantity of distilled spirits, to wit, 100,000 gallons, and did not from day to day make a true entry in a book kept for that purpose of the number of gallons by him distilled, and also of the number of gallons by him placed in warehouse, and of the number of gallons by him sold and removed for consumption and sale, and the proof thereof.'

Several other breaches were assigned, which were not denied to be breaches of acts for the performance of which the statute requires the bond to be conditioned.

The defendants traversed each of the breaches, including of course the part of the first above given one.

Upon the trial the United States offered in evidence the bond and proof of the several breaches. The defendants objected to the evidence on the ground that the conditions were not required by, and were not in conformity with, the statutes of the United States. The court sustained the objection. And the correctness of this ruling was the matter now here for review.

Mr. Bristow, Solicitor-General, and Mr. C. H. Hill, Assistant Attorney-General, for the United States:

1. It nowhere appears that the bond in question was exacted or extorted by the collector in the particular form in which it was given. Accordingly, the rule that a bond taken by a public officer colore officii, who has illegally exerted his authority, and thereby compelled the obligor to enter into an obligation not required by law is void, has no application here.

The condition of the bond embraces two separate and distinct matters, which make it divisible into two parts. The latter part, we admit, does not come within the requirements of the act directing the bond to be taken. Yet, even as a statutory bond, it is not to be regarded as ineffectual on that account. For if a bond taken under a statute contain, in addition to the condition prescribed by the statute, a condition not required by it, such condition may be void; but unless the statute provides that the bond shall be void if it contain any other condition than that required, the bond will be valid and binding for the performance of the legitimate condition. [2] So where part of the condition of a bond taken under a statute is prescribed by the statute, and part is not, if the condition be divisible, a recovery may be had for breach of the former. [3] The several parts of such a condition are as much independent of and unaffected by each other as if the obligors had become bound thereto severally by separate instruments. [4]

2. That part of the condition which requires the principal obligor to 'truly and faithfully conform to all the provisions' of the act of 1864, ex vi termini includes the various duties enumerated in the section describing the particulars in which the bond shall be conditioned; and the instrument, being thus in substantial though not in literal compliance with the statute, is good as a statutory bond. Now in such bonds, where there is a substantial compliance with the law the want of a rigid conformity with its letter is not a fatal objection to the bond. [5] And when the substance of a bond is prescribed by statute, if the bond be so drawn as to in clude all the obligations imposed by the statute, and to allow every defence given by law, it will be valid, though variant from the form prescribed. [6]

It is true, the phraseology of the condition of this bond, viz., to 'conform to all the provisions' of the act, may, in its generality, include more than the statute required to be inserted in the condition. But the bond being given with reference to the statute, must be construed by the statute, [7] so that the unnecessarily comprehensive language of the condition will be restrained in its operation to what may be lawfully included therein. Accordingly, no breaches are properly assignable thereunder for anything not within the requirements of the statute. [8]

The case of Ohio v. Findley, [9] which arose under a law of that State, passed in 1831, prescribing the duties of county treasurers, is in point. One section of that act required 'that each county treasurer, previous to entering on the duties of his office, shall give bond . . . conditioned for the paying over, according to law, all moneys which shall come into his hands for State, county, township, or other purposes.' Subsequent sections prescribed various other duties to be performed by the county treasurer. The court held that a bond given by a county treasurer under that act conditioned that he should 'faithfully and impartially discharge all the duties of his said office agreeably to law,' is a good statutory bond for so much as is prescribed by the statute and comprehended in the condition, even though it may be void for the residue.

But if the bond is not good as a statutory bond, yet having been voluntarily given, and being neither prohibited by the statute nor against the policy of the law, it is valid as a common law obligation.

Story, J., giving an opinion of the court, fully admits, and indeed asserts this doctrine in United States v. Tingey. [10]

In Bank of Brighton v. Smith, [11] it is said by Bigelow, C. J.:


^1  13 Stat. at Large, 242.

^2  Anderson v. Foster, 2 Bailey, 500; Walker v. Chapman, 22 Alabama, 116; United States v. Brown, Gilpin, 155.

^3  The Ordinary v. Executors of Smith, 2 Green, 479; United States v. Bradley, 10 Peters, 343.

^4  Harrison v. Seymour, 1 Law Rep., C. P. 518.

^5  Central Bank v. Kendrick, Dudley, 66; Gardener v. Woodyear, 1 Ohio, 170; Yale v. Flanders, 4 Wisconsin, 96; Nunn v. Goodlett, 5 English, 89.

^6  Rhodes v. Vaughan, 2 Hawks, 167; Cobb v. Commonwealth, 3 Monroe, 391.

^7  Baker v. Morrison, 4 Louisiana Annual, 373.

^8  Hall v. Cushing, 9 Pickering, 395.

^9  10 Ohio, 51.

^10  5 Peters, 115; and see United States v. Linn, 15 Id. 290.

^11  5 Allen, 415.

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).