United States v. Bennett (82 U.S. 660)

ERROR to the Circuit Court for the Southern District of Ohio; the case being thus:

By the acts of July 1st, 1862, and July 13th, 1866 it was made lawful to transport distilled spirits without payment of taxes, from a bonded warehouse owned by the distiller to any general bonded warehouse used under the internal revenue laws, upon giving a 'transportation bond,' and complying with certain regulations prescribed. One duty of the party transporting, was the production to the collector where his distillery is, of a certificate of the collector to whose district the spirits were to be removed, that they were duly received and stored in the warehouse or district to which they were shipped. And, by an act of March 2d, 1867, it is enacted:

'That in case any bond, under which any distilled spirits shall have been withdrawn from a bonded warehouse, is forfeited by failure to furnish or produce, at the proper time, the evidence required by law or regulation, that the articles named in the bond were duly received and actually stored in the warehouse or district to which they were shipped, or by other breach of the obligation, the obligors in the bond shall pay the total amount of duties upon the articles removed under the bond, together with 50 per centum upon that amount.'

These acts being in force, Bennett & Carpenter gave their bond, dated August 19th, 1867, conditioned that they would within thirty days from the date thereof, transport fifty barrels of distilled spirits from their bonded warehouse at Greenville, Ohio, directly to the bonded warehouse owned by Church Howe at Boston, Massachusetts, and deliver them to the collector of internal revenue of that district; and that they should, within fifteen days, produce to the collector of internal revenue of the fourth district of Ohio the certificate of such collector that the spirits had been duly delivered and placed in the warehouse designated, according to law.

This bond being in existence and in the possession of the United States, Congress, on the 11th of January, 1868, passed an act entitled 'An act to prevent frauds in the collection of the tax on distilled spirits.' It read thus:

'Be it enacted that from and after the passage of this act, no distilled spirits shall be withdrawn or removed from any warehouse for the purpose of transportation, redistillation, rectification, change of package, exportation, or for any other purpose whatever, until the full tax on such spirits shall have been duly paid to the collector of the proper district. And all acts, and parts of acts, inconsistent with the provisions of this act, are hereby repealed.'

On the 17th of April, 1869,-that is to say, about fifteen months after the passage of the last above quoted act,-the United States brought an action of debt on the bond which, as already mentioned, Bennett & Carpenter had given on the 19th of August, 1867.

The breaches assigned were that Bennett & Carpenter did remove the spirits from their warehouse at Greenville, but did not transport them, or, within thirty days from the date of their obligation, complete the transportation of the same to the bonded warehouse of Church Howe at Boston, and deliver the same to the collector of internal revenue thereat; and that they did not within fifteen days thereafter produce to the collector of the fourth district of Ohio the certificate of such collector, showing that the spirits had been duly delivered and placed in the warehouse of Church Howe, according to law.

The defendants interposed no traverse of the breaches alleged, but pleaded that after they had failed to comply with the conditions of their bond, to wit, on the 1st day of January, 1868, the assessor of the fourth district of Ohio assessed Bennett p Carpenter for their non-compliance the full taxes imposed by law on the said spirits, and that they paid to the said collector all the taxes thus assessed. They further pleaded that though they had not paid the penalty assessed against them, the said Bennett & Carpenter, on the said 1st day of January, for failure to comply with the conditions of their bond, yet that before it became payable under the assessment, the law providing for such penalty was wholly repealed, without any saving clause. To this plea the plaintiffs demurred, and the court gave judgment for the defendants. To that judgment the United States took this writ of error.

The plea admitted, of course, the execution of the bond, the breach of its conditions, and the non-payment of the penalty assessed against Bennett & Carpenter for the breach. It relied only upon the averment that the statute under which the bond was given was repealed before the penalty became payable. Whether it was repealed, or not, was of course a question of law, and was the only question in the case.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the plaintiff in error; Mr. H. L. Burnett, with whom was Mr. J. D. Cox, contra.

Mr. Justice STRONG, having stated the case, delivered the opinion of the court.