Thompson v. United States (142 U.S. 471)

STATEMENT BY MR. JUSTICE BROWN.

This was an action on a bond in the penal sum of $41,000, given by the defendant Thompson and his sureties for the exportation of certain distilled spirits. The bond was dated October 23, 1885, and after reciting a prior bond given on the 8th of April, 1885, by the same parties, conditioned for the delivery of certain distilled spirits therein named on board ship at the port of Newport News, Va., for exportation to Melbourne, Australia, and for the performance of certain other things therein named, and after further reciting that it was found desirable to deliver a portion of such spirits on board ship at the port of New York for exportation to Bremen, namely, 929 packages of Bourbon whisky, the marks and numbers of which were given, by certain railways to New York, from distillery warehouse No. 63 in the eighth district of the state of Kentucky, was conditioned 'that if the whole of the aforesaid merchandise shall be safely delivered to the collector of customs at the said port of New York within fifteen days from date hereof, and if the said John B. Thompson, principal, shall export or cause to be exported the said merchandise in accordance with the internal revenue laws, and the regulations of the treasury department made in pursuance thereof, immediately on the arrival of said merchandise at said port of New York, and shall within fifteen days thereafter, produce to the collector of internal revenue for the 8th district of the state of Kentucky the certificate of the collector of customs of the said port of New York showing that the said merchandise has been duly exported, and shall also produce within nine months thereafter his certificate that the said merchandise has been duly landed at the port of Bremen, or at some other port without the jurisdiction of the United States, or shall produce satisfactory proof of the loss thereof at sea without fault or neglect of the owner or shipper thereof, as required by law and regulations, then this obligation to be void,' etc.

The breach of the condition of the bond laid in the petition was that the defendants failed to deliver to the collector of customs at New York, within 15 days, or within any other time, 1,065 gallons of the said spirits, as appeared from a regauge made on October 27, 1885, the object of the suit being to recover the tax of 90 cents a gallon on the said deficiency, being $958.50, 50, with interest at the rate of 1 per cent. per month, and a penalty of 5 per cent.

The prior bond alluded to in the bond in suit was executed by the same parties April 8, 1885, and recited that Thompson, the principal, had made request to the collector of the eighth district of the state of Kentucky for the transportation of 1,085 packages of Bourbon whisky to the port of Newport News for exportation, and contained similar conditions to the bond in suit, except that it provided for exportation by the way of Newport News, within seven months from the date of such bond, to Melbourne, Australia. It appeared that the 929 packages covered by the bond in suit were part of the 1,085 packages covered by the prior bond. It also appeared that the deficiency of 1,065 gallons in the spirits represented the loss thereon by evaporation and leakage while the same were in warehouse, and previous to tranportation for export.

The answer, among other things, denied that the said 1,065 gallons were removed from the bonded warehouse, or that the collector ever demanded the tax of the defendants; and, further, that the bond in suit was given to meet the requirements of certain rules and regulations of the treasury department, and that at the time the prior bond was given, April 8th, the spirits on which it was sought to collect the tax were in the packages covered by such bond; that by the acceptance of said bond of April 8th the spirits referred to therein were free from any obligation for taxes, and were in due process of exportation on and after such date to Bremen, Germany, where they have arrived; and that the tax sued for was a deficiency tax upon the spirits covered by the bond of October 23, 1885, which were actually exported, and to allow the recovery of such tax would be to enforce an export duty on the spirits exported, as aforesaid, in violation of the prohibition of the constitution of the United States in that particular. The answer contained further averments not necessary to be noticed here. The government demurred to each paragraph of the answer, and the demurrer was sustained as to all such paragraphs except the first, upon which there was a trial, resulting in a judgment and verdict for the full amount claimed, namely, $1,023.61, with interest, etc. A writ of error was sued out from the circuit court, by which the judgment of the district court was affirmed. A writ of error was thereupon sued out from this court.

FIELD, J., dissenting.

''Phil. B. Thompson, Jr.'', for plaintiffs in error

Asst. Atty. Gen. Maury, for the United States.

Mr. Justice BROWN, after stating the facts in the foregoing language, delivered the opinion of the court.