Ludloff v. United States/Opinion of the Court

This is an information filed by the United States in the district court for the district of Maryland, against a quantity of domestic cigars, to obtain their condemnation as forfeited to the United States. The information alleges, as a cause of forfeiture, that the cigars were found in the possession of two persons by the name of Ludloff, doing business as Ludloff Bros., who had manufactured them, and who had unlawfully removed certain cigars, by them manufactured at their manufactory in the city of Baltimore, without the proper stamps donating the tax thereon, contrary to section 3400 of the Revised Statutes. Ludloff Bros. put in a claim and plea, denying forfeiture, and the issue was tried before a jury, who found a verdict for the United States. Thereupon a judgment of condemnation of the cigars seized was rendered, which was affirmed by the circuit court, and is now brought here for review by a writ of error taken by the claimants.

The material facts of the case, as they appear by the bill of exceptions, are these:

Prior to the seizure of the cigars, and before May 1, 1878, the claimants carried on the manufacture of cigars in the rear part of a small room on the first floor of the building known as No. 60 West Fayette street, in the city of Baltimore, and at the same time and place were also engaged in doing the business of dealers in tobacco; that is to say, selling imported and domestic cigars, partly manufactured by themselves, and partly purchased from others, and also selling pipes, smoking material, chewing tobaccoo, snuff, etc., they having first paid to the United States the special tax as dealers in tobacco, and also the special tax as manufacturers of cigars. In the course of said business they sold to their customers cigars so manufactured by them in the rear part of said room, in quantities less than 25, but out of stamped boxes, which boxes were duly branded, marked, and stamped, and then deposited in a show-case before said sale was made. No cigars were sold by them upon which the tax had not been paid.

On the twenty-first of March, 1870, the commissioner of internal revenue had issued a circular (No. 181) in the following terms:

'The portions of the law regulating the manufacture and sale     of cigars, without declaring in specific language that the      two kinds of business, to-wit, manufacturing cigars and      selling manufactured tobacco and cigars at retail, shall not      be carried on in the same place at the same time, impose such      restrictions, make such requirements, and declare such      forfeitures and penalties, as renders it impracticable for      these two kinds of business to be carried on together, as      above stated. See sections 3387, 3392, 3397, of the Revised     Statutes of the United States; also, Special 85, revised, and      Form 36 1/2. Under as lenient a construction of these several     sections of the law as their language and the purpose for      which they were enacted, to-wit, the protection of the      revenue, will admit, it is held that a cigar factory, or the      place where cigars can be made for sale, must be at least an      entire room, separated by walls and partitions from all other      parts of the building, and that the factory or place of manufacture      designated and described in form 36 1/2 cannot be used, nor      can any portion thereof, even though marked off or separated      from the remainder by a railing, counter, bench, screen, or      curtain, be used as a store where the manufacturer can sell      his cigars otherwise than in legal boxes, properly branded,      labeled, and stamped. When a cigar manufacturer has a store     in a room adjoining his factory, a door and windows may be      allowed between the factory and store; and, if necessary for      light or ventilation, the upper portion of the partition      between the factory and store may be of glass or wire-cloth. Collectors and all other revenue officers are enjoined to see     that these instructions are strictly enforced on and after      May 1, 1878.'

This order was disregarded by the claimants, because in June, 1878, the said district court had decided that the business of manufacturing and selling cigars at retail, by the same person, at the place of manufacture, as well as selling at said place manufactured tobacco, pipes, and other smoking material, was not prohibited by law. Thereupon, in August, 1878, the cigars in suit were seized as forfeited, and were found, when seized, in boxes not stamped, in the rear part of the room before described. Such rear part had been designated as the factory or place of manufacture where the claimants proposed to carry on their business in manner and form as prescribed by the commissioner of internal revenue, as follows:

'(36 1/2.)

'UNITED STATES INTERNAL REVENUE.

'Cigar Manufacturers' Statement.

'To be rendered to the collector or deputy collector in     duplicate, without previous demand therefor, by every      manufacturer of cigars before commencing or continuing      business. Act of July 20, 1868, § 82, as modified by section     1, act of December 24, 1872; section 3387, Rev. St.

'Ludloff Bros., of Baltimore, in the sixth division of the     third district of the state of Maryland, at No. 60 West      Fayette street, propose to manufacture cigars; and so much of      the building or parts of the building, stories, apartments, room or rooms, as      hereinafter described, is to be used exclusively and solely      for manufacturing cigars, and is to be known as my      manufactory, or place where cigars are made, to-wit, in the      room adjoining the store in the rear, on the first floor of      premises No. 60 West Fayette street.

'There are employed in the premises above described, or I     propose to employ, five persons in making cigars; which      cigars are manufactured for or to be sold and delivered to      _____, residing at No. ___, in the ___, and by occupation a      _____.

[Signed] 'LUDLOFF BROS.

'I, William Ludloff, do swear that the above is, to the best     of my knowledge and belief, a true and correct statement of      the place, street, number, and the exact premises where the      business of manufacturing cigars is, or is to be, carried on      by Ludloff Bros., and all the other matter stated herein is      true and correct.

[Signed] 'WILLIAM LUDLOFF.

'Sworn before me this twenty-fifth day of May, 1878.

[Signed] 'R. G. KING, Deputy Collector.

'NOTE. The blank space in this form after the words 'to wit'     is to be filled with a precise and accurate description of      the premises. If the manufactory comprises anything less than     the entire building, then the description must specify what      portion of the building,-whether the first, second, or third      story of the same,-and what room or rooms therein. The same     premises or room cannot be used for carrying on the business      of a cigar manufacturer and a dealer in cigars. In any     building, room, or apartment of any building designated in      this statement as the manufactory or place of manufacture, no      cigars can be sold except such as are there manufactured, and      are in original and full packages.'

At the time of said seizure, the wire partition having been previously removed by the claimants, there was no division or separation between the said rear part of the room, designated as the factory as aforesaid, and the front part of the room, where the business of selling cigars, etc., was carried on by the claimants, except a wooden counter extending part of the way across the room, and from three to three and half feet high, upon which said wire part of the partition had rested.

The court instructed the jury that if at the time of the seizure the cigars were found in possession of the claimants, and they were carrying on the business of manufacturing cigars and selling the same by retail, such retail sales being in quantity less than 25, and not sold in stamped boxes, and that said manufacture and said retail sales were carried on in a room in which there was no separation except a wooden bar about three feet high, extending, partly across the said room, the jury should find for the United States, although they might find that the claimants made cigars only behind said wooden bar and sold at retail out of stamped boxes. The court also instructed the jury that such retail selling, under such circumstances, to persons who took the cigars away, constituted a removal by the claimants of cigars from their manufactory without the proper stamps on the boxes denoting the tax thereon. The court refused to instruct the jury that the business of manufacturing cigars and selling the same in less quantities than by the box, at the place of manufacture, is not prohibited by law, provided the manufacturer has a license as a dealer in tobacco, when he sells products other than his own manufacture. These instructions and refusal were excepted to by the claimants.

The substance of the instruction of the court was that if the claimants had sold cigars manufactured by themselves in quantities less than 25, and not in boxes duly stamped, from the show-case in the part of the room in front of the bar, they had incurred the forfeiture in question, although the cigars were made by them in the rear part of the same room behind the bar, and were sold at retail out of stamped boxes. It is to be understood from the bill of exceptions, in connection with the instructions and the verdict, that the claimants, after having had the rear part of the room, namely, the part designated in their 'statement' as their manufactory, separated from the front part or store part of the same room by a wire partition, so as to substantially make two rooms, and to make the factory an entire room and a separate room, in accordance with the instructions of said circular, had, at the time of the sales at retail complained of as a ground of forfeiture, removed the wire partition, so that the factory was not then a separate room in the sense of said circular, but the manufacturing was carried on in the same room in which the show-case was and in which the sales at retail took place. This being so, we are of opinion that the instructions were correct; that the requirements of the circular were within the power of the commissioner to prescribe, and not repugnant to any statutory provisions; that the retail sales in question were in violation of law; and that the forfeiture enforced was incurred.

The claimants contend that section 3236 of the Revised Statutes provides that whenever more than one of the pursuits or occupations thereinafter described are carried on in the same place by the same person at the same time, except as thereinafter provided, the tax shall be paid for each according to the rates severally prescribed; that, by subdivision 8 of section 3244, a dealer in tobacco pays a special tax of five dollars, and can sell manufactured tobacco, snuff, and cigars, and by subdivision 10 of the same section, a manufacturer of cigars pays a special tax of $10; that the claimants had paid both of these special taxes; that subdivision 8 of section 3244 provides that no manufacturer of tobacco, snuff, or cigars shall be required to pay a special tax as dealer in manufactured tobacco and cigars for selling his own products at the place of manufacture; that section 3392, forbidding the sale of cigars in any other form than in new boxes containing at least 25 cigars, provides that nothing in that section shall be construed as preventing the sale of cigars at retail by retail dealers who have paid the special tax as such, from boxes packed, stamped, and branded in the manner prescribed by law; and that, under these enactments, no cause of forfeiture existed.

But we are of the opinion that there is nothing in these provisions which authorizes a manufacturer of cigars to sell at the place of manufacture, from and out of boxes, cigars there made by him, even though he has paid a special tax as a dealer in tobacco. The provision in section 3236 refers only to pursuits or occupations which can be carried on in the same place by the same person at the same time consistently with other requirements of law on the subject of the special pursuit or occupation. It has no reference to the grant of any authority to carry on two occupations at the same time and place by the same person, but concerns only the obtaining of a tax for each of two occupations when they are lawfully carried on.

The provision in section 3244 has no other effect than not to require that a manufacturer of tobacco, snuff, or cigars, who sells his own products at the place of manufacture in such manner as is consistent with other provisions of law as to the manner of the sale of such products, shall pay a special tax as a dealer in manufactured tobacco and cigars. It has relation solely to the exaction of a tax and not to the conferring of authority to sell.

The provision cited from section 3392 has no relation to cigars sold as those in the present case were sold, by the manufacturers, at the place of manufacture. The cigars sold were not in their hands as retail dealers, but as manufacturers, because the requirements of law as to the removal of the cigars from the manufactory had not been observed, and the cigars were still in the manufactory.

We perceive nothing in sections 3387, 3388, or 3390 which affects the foregoing views.

Section 3392 requires that all cigars shall be packed and sold in new boxes containing at least 25. Section 3397 forbids for removal of cigars from any manufactory or place where cigars are made, without being packed in boxes as required, or without the proper stamp thereon denoting the tax. Section 3400 provides that if a manufacturer of cigars removes or sells any cigars without the proper stamps denoting the tax thereon, he shall forfeit to the United States all cigars found in his possession or in his manufactory. Under these provisions the removal of the cigars in this case, from the place where they were manufactured, by selling them at retail, not in stamped boxes, was ground for the forfeiture of the cigars seized.

The regulations prescribed by the commissioner by the circular referred to were within his authority, under section 3396, to prescribe such regulations for the inspection of cigars and the collection of the tax thereon as he may deem most effective for the prevention of frauds in the payment of such tax. Thacher's Distilled Spirits, 103 U.S. 679.

The proposition asserted in the instruction asked for by the claimants, and which the court refused to give, is understood to be, that, as the claimants sold at their shop, as dealers in tobacco who had paid the special tax, articles not of their own manufacture, in addition to cigars which they made in the same room, the sale of the last-named cigars were not prohibited by law. If this proposition has any other meaning than the propositions before considered, it must be held to be entirely without support in law or in reason.

Although the record shows that the claimants were, as dealers in tobacco, engaged at their shop in the business of selling cigars which they purchased, as well as cigars which they made, there is nothing in the case which raises any other questions than those above considered.

The judgment of the circuit court is affirmed.