Felton v. United States

ERROR to the Circuit Court of the United States for the

District of Massachusetts.

The sixteenth section of the act of July 20, 1868, imposing taxes on distilled spirits (15 Stat. 131), provides, among other things, that the owner, agent, or superintendent of any distillery shall erect in a room or building, to be provided and used solely for that purpose, two or more receiving cisterns; each to be at least of sufficient capacity to hold all the spirits distilled during twenty-four hours, into which shall be conveyed all the spirits produced in the distillery; and that each cistern shall be connected with the outlet of the worm or condenser by suitable pipes or other apparatus, so as to prevent the abstraction of spirits while passing from the outlet of the worm or condenser back to the still or doubler. The ninety-sixth section provides (id. 164) that if any distiller shall 'knowingly and wilfully' omit, neglect, or refuse to do or cause to be done any thing required by law in conducting his business, or shall do any thing by that act prohibited, if there be no specific penalty or punishment imposed by any other section, he shall pay a penalty of $1,000; and all distilled spirits or liquors owned by him, or in which he has any interest as owner, shall be forfeited to the United States.

This action was brought, by the United States, against Felton & Stone, distillers of spirits, to recover the penalty of $1,000 prescribed by this act, upon the alleged ground that they 'knowingly and wilfully' omitted, neglected, and refused to construct and maintain pipes and other apparatus connecting the receiving cisterns in their distillery with the outlet of the worm and condenser, in such manner as to prevent the abstraction of spirits while passing from the outlet back to the still and doubler, contrary to the form of the statute in such case provided. The defendants pleaded not guilty in 'manner and form as alleged,' and denied every allegation of the declaration.

On the trial it appeared that, the still of the defendants having become worn and defective, a new one was made and placed in their distillery, which proved to be too large for the capacity of the low-wine receiver; and that on the 18th of June, 1872, the low wines in it began to overflow; that the defendants and their servants were ignorant of this want of capacity of the receiver until it was too late to remedy it for the distillation then taking place, and that there was no course left for them but to let the wines overflow and run to waste, or to catch them, and secure their benefit to the government and themselves by dumping them into the vats for redistillation. The receiver was a part of the apparatus by which the low wines were carried from the try-box back to the doubler.

The superintendent of the distillery, on the morning of the 18th of June, 1872, apprehensive of the overflow, called upon the assessor of the district, and asked permission to draw off from the receiver a portion of the low wines, and dump them into vats for redistillation; and failing to obtain such permission from him, induced him to telegraph to the commissioner of internal revenue to grant it for a few deys, until a new cistern could be built. The answer of the commissioner was a refusal to grant the permission, and a direction that the defendants must build new cisterns. After this dispatch was sent, and before the answer was received, the superintendent arrived at the distillery; and, finding that the wines had overflowed the receiver, he permitted a portion of the contents to be drawn off. This was effected by withdrawing a plug from a pipe in the side of the receiver, about nine inches from its top. About four hundred gallons of low wines were thus drawn off, and dumped into a vat, from which material for distillation was at the time being pumped for redistillation. The record states that this was done in good faith, for the purpose of saving the property for the defendants and the government. The evidence showed that the w nes were worthless, or next to worthless, except for redistillation, and were not marketable. Among other instructions to the jury, the court was requested to give the following: 'That if the inadequacy of the low-wine cistern was unknown to the defendants and their superintendent until too late to prevent the overflow, and that then the superintendent, in the exercise of his best judgment, acting in good faith, drew off the wines and dumped the same into the vats for redistillation, the defendants were not liable.'

The court refused to give this instruction; but charged the jury that the defendants must be held accountable for the acts of their superintendent in the management of the distillery, and, if they found that he had violated the law by designedly opening the low-wine receiver, and withdrawing the plug from the pipe, so that the spirits could be and were abstracted while passing from the outlet of the worm back to the still or doubler, they were authorized to find against the defendants. The jury found a verdict for the plaintiffs, and assessed their damages at the sum of $1,000; but they accompanied their verdict with a finding that there was only a technical violation of the law, and that there was clearly no intention to defraud the government thereby. Judgment having been entered upon the verdict, the case was brought here on writ of error.

Mr. Benjamin Dean for the plaintiffs in error.

Mr. Assistant-Attorney-General Smith, contra.

MR. JUSTICE FIELD, after stating the case, delivered the opinion of the court.