United States v. Powell (81 U.S. 493)

ERROR to the Circuit Court for the Middle District of Tennessee; the case being this:

A statute of July 20th, 1868, requires that every person intending to engage in the business of a distiller shall give a bond with sureties, conditioned that the principals in the bond

'Shall faithfully comply with all the provisions of law in relation to the duties and business of distillers.'

The statute also enacts:

'SECTION 15. That every distiller shall provide at his own expense a warehouse, to be situated on and to constitute a part of his distillery premises, to be used only for the storage of distilled spirits of his own manufacture,. . . and such warehouse, when approved by the Commissioner of Internal Revenue, on report of the collector, is hereby declared to be a bonded warehouse of the United States, to be known as a distillery warehouse, and shall be under the direction and control of the collector of the district, and in charge of an internal revenue storekeeper assigned thereto by the Commissioner of Internal Revenue.'

'SECTION 52. Every storekeeper shall have charge of the warehouse to which he may be assigned, under the direction of the collector controlling the same, which warehouse shall be in the joint custody of such storekeeper and the proprietor thereof and kept securely locked, and shall at no time be unlocked and opened or remain open unless in the presence of such storekeeper or other person who may be designated to act for him as hereinafter provided. And no articles shall be received in or delivered from such warehouse except on an order or permit addressed to the storekeeper and signed by the collector having control of the warehouse.'

With this statute in force, two persons, Powell and Hildebrand, on the 1st December, 1868, gave a bond, with two other persons as sureties, conditioned in the already-quoted language of the statute 'faithfully to comply with all the provisions of law in relation to the business of distillers,' and entered at once on the business of distilling. They constructed warehouses for the storage of spirits of their own manufacture; of which storekeepers assigned by the Commissioner of the Internal Revenue, and to whom the government paid $4 wages per diem, took charge; taking such charge during Sundays as well as during other days of the week.

Subsequently to the date of the bond above mentioned, of 1st December, 1868; that is to say, on the 29th of March, 1869, Congress passed a joint resolution, thus:

'The proprietors of all internal revenue bonded warehouses shall reimburse the United States the expenses and salary of all storekeepers or other officers in charge of such warehouses.'

Subsequently, again, to the date of this joint resolution, that is to say, on the 29th of April following, the same distillers, with the former sureties, gave a second bond, conditioned in the same words as the first and in pursuance of the same statute with it-constructing warehouses, &c., as before, which were taken possession of by internal revenue storekeepers, &c.-all exactly as before.

The government having paid all these storekeepers, demanded of the distillers reimbursement for payments made for their services after the 29th of March, 1869, when the joint resolution of Congress was passed, including reimbursement for services rendered on Sundays. The distillers denied their obligation to pay for services on any day, under either bond, because:1st. The storekeepers had been selected, appointed, and put in charge by the government and not by them.

2d. The storehouses were not 'bonded warehouses,' in contemplation of law, but were known as 'distillery warehouses,' being attached to their distillery and constituting part of their distillery premises.

They denied, additionally, their obligation to reimburse the government for payments made to men for working on Sundays.

The government hereupon sued both principal and sureties on both bonds, when the matters above stated were set up by way of plea; the sureties pleading in addition that they were sureties only, and as to the bond of December, 1868 (the bond first given), that at the date thereof the government by law was bound to pay the storekeepers, and averring that the subsequently-passed joint resolution of 29th of March, 1869, if applicable to distillery warehouses at all, could not increase the responsibility of them, the said sureties.

The court below was of opinion that all these pleas, except that one which alleged that the distillery warehouses were not 'bonded warehouses,' were good, and charged the jury accordingly. From the judgment which followed, the United States brought the case here on error.

Mr. G. H. Williams, Attorney-General, and Mr. C. H. Hill, Assistant Attorney-General, for the plaintiff in error:

1. The condition that the principals 'shall faithfully comply with all the provisions of law in relation to the duties and business of distillers,' is to be understood as embracing such provisions of law as may be in force during the period for which the bond is given, whether enacted before or after the execution of the bond. There is nothing in the language employed that restrains the condition to statutes in force when the bond is executed; the only limitation seems to be that the provisions of law, with which the principals are faithfully to comply, must relate to the duties and business of distillers. The undertaking is prospective and contemplates a continuing liability for the observance of the requirements of all provisions of that character which are or may be passed. In King v. Nichols, an action upon a sheriff's bond, in Ohio, under a statute requiring sheriffs to give bond, with sureties, 'conditioned for the faithful discharge of their respective duties,' it was held that this language was broad enough to embrace any duty that may have existed at the date of the bond, or that might have been imposed upon the officer by law during the term for which it was given.

2. That the condition of the second bond applies to provisions of law concerning the duties and business of distillers enacted subsequently to the date of that act, but prior to the execution of the bond, can admit of no doubt.

3. The joint resolution of March 29th, 1869, requiring proprietors of all internal revenue bonded warehouses to reimburse the United States the expenses and salary of all storekeepers in charge of such warehouses, clearly extends to distillers. The latter were bound to provide distillery warehouses in carrying on their business as distillers, and these warehouses are by the internal revenue laws declared to be 'bonded warehouses.'

From the nature of the duties of storekeepers for distillery warehouses, as prescribed by the act of July 20th, 1868-duties which embrace among other things the custody of the warehouse-the duties must be continuous throughout the entire term, Sundays included, as long as the storekeeper remains in office. Sunday is indeed obviously the say when his vigilance may be most required.

No counsel appeared for the defendants in error.

Mr. Justice CLIFFORD delivered the opinion of the court.