-il. FIFTY-NINE DEMIJOHNS AGUADIENTE, ETC.
FIFTy-NINE DEMI.TOHNS AGUADIENTE BARRELS OF CIGARETTES.
(District Court, S. D. Florida.
June 15, 1889.)
INTEItNAL REVENUE-CTGARETTES-FOlU'EfTURE SALE.
The term "tax." as used in the last clause of section 3369, Rev. St., is not intended to include Import duties, and cigarettes. when forfeited, may be sold Rnll delivered when they bring enough to pay the interrJal revenue tax, although they may not bring enough to pay that and the customs duties. (Syllabu8 by tlte Court.)
Seizure. In admiralty Condemnation of property for being fraudulently brought into the United States. L. J.V Bethel, U. S. Dist. Atty
LOCKE, J. This property has been condemned and forfeited for a fraudulent bringing into the United States, and the question now arise13 as to the disposal of a portion of it. It has been ordered sold, and the aguadiente has been already sold and delivered. but it appears from the report of the marshal that the cigarettes are packed in packages of 12 in a package, and are unstamped, that they have been offered for sale, and, us far as properly could be, before bemg properly packed and stamped, sold for two cents a package. This is more than enough to pay the internal revenue tax, but not enough to pay that and the import duties. The sixteenth section of the act of March 1, 1879, (20 St. at Large, p. 348,) provides that imported cigarettes shall be repacked, and stamped with both custom inspection a11(l Llternal revenue stamps, and such stahlps canceled, before being delivered for consumption. Whether such restrictions, intended for manufacturers and importers, should be considered as binding when found opposed to the enforcement of a judicial sale, it is not necessary to determine, as the reasons for complying, where it may be so easily done as in the present case, seem satisfactory and sufficient. The last clause of section 3'369, Rev. St., provides that, whenever forfeited cigars-':""and cigarettes come under the same provision-offered for sale "will hot bring a price equal to the tax due and payable thereon, such goods shall not be sold for consumption in the United States," and the commissioner of internal revenue is authorized to order the destruction of the same. Under this section the practice of the officers of the cllstoms of this district, whenever the amounts of cigarettes forfeited have been too small to require judicial action, has been to construe the term "tax" as relating both to the internal revenue tax and the import duties, and unless when offered for sale they w()uld bring enough to pay bothslich amounts, report the same for destruction. I have not been referred to, or have I been able to find, any judicial or department decision in support of this construction, but it has been followed so long in practice that it would seem to require careful examination before being changed. v.39.£<'.no.8-26
The property has been forfeited, and become the property of the United ,aJlji ap"llblic directed.by:section g3g, Rev;. St., is a more recent enactment prohibiting it. Do the provisions of Rev. St. § 3369, do so? . It is true the word "taxes," in its most extended sense, may include all cuntributions imposed by the government, of whatsoever kind or description. whether against person or property; but in its more confined sense it is used in contradistinction to duties and imposts. Section 8, art. 1, of the constitution, uses the term "tax" in this sense apparently, and provides that congress shall have power to lay and collect taxes, duties, impORts, and excises. In which sense has congress used the word in thil3connection,-in its more extended or its more restricted meaning? and what was the intention in prohibiting the sale, and authorizing the destruction, of thi" class of property?' The act of July 20, 1868, being an act imposing taxes on spirits and.,tobacco, invariably uses the term "tax" or "taxes"when referring to the internal. revenue; but whenever it speaks of the amounts to be collected by the customs department it denominates them "duties," or "import duties." In section 77, speaking collectively of the amounts to be collected on tobacco and snuff, the language is, they, "in addition to the import duties, shall paytbe tax prescribed. " The same language is used in regard to cigars in sec,tion g3. Section 87 provides that the commissioner of internal revenue shall cause to be prepared suitable stamps for the payment of the "tax" on cigars; and section 103, that when any tax is imposed the same shall be established by the regulations of the commissioner of internal revenue. In the act of June 6, 1872, "to reduce duties on imports and internal taxes," in the thirty-first section of which the provisions of law under consideration are found, every section, to the eleventh inclusive, where the subject treated of is imported goods and collections on them, in speaking of such, invariably uses the term "duty"or "duties," and from the twelfth section forward, where the provisions relate entirely to internal revenue, the word "tax" is used alone. In' a careful examination of the numerous instances in which the word. "tax" ifl used throughout the entire statutes of the United States, I hav.e failed to ·find one where it can. with any degree of satisfaction, b,e applied to duties on imports. history of the legislation of the country upQn revenue appears to show it to have· adopted the restricted use of .the term, and to have used it in no other sense. It seems unquestionable to me that it was ,so used in tp,e act f;rom which ·. seGtionwas taken, deliberately and intentionally; that the term was only intended to apply to the internal revenue, and the term ,"duty," or" import duty" to customsj and when both were intended ooth were used, as in, sections 77 and ga of the act of July, U168; and that, where the, word "tax", was used alone, as in section 336g,. it was not intended .to import duties; and there is therefore no prohibitiollagainst selliQg ()ig!irettes, where they bring .more. than enough. to pay the iJ;lternal revenue tax, notwithstanding they may not bring enough to pay the import duties. The customs laws are revenue laws,
BOWLES t1. WITTERS.
and proceedings for forfeiture must be strictly construed. Whatever questions of protection to manufacturers may incidentally arise are for political, and not judicial, consideration; Outside of the section referred to, I know of no special or general provision of law which would prevent the sale of any property forfeited for violation of the customs laws, regardless of the price it may bring. The aguadiente in this case did not bring as much as the duty would be on it, but I know of nothing that would permit a destruction instead of a sale. \Vhatever property brings, be it much or little, goes to increase the revenue to that extent, with no profit to those through whose fault or crime it has been forfeited. But the provisions regarding the repacking and stamping are direct, positive, easily complied with, and should be observed. The collector of internal revenue is custodian of the internal revenue stamps, and although it is provided that upon requisition they may be furnished to the officer without payment, that was undoubtedly intended to apply to property forfeited under the internal revenue law, where the entire proceeds were finally placed to the credit of that division of the treasury; but, where the proceeds are to be paid to the department of customs, it seems but proper that the amount due the internal revenue should be paid from the proceeds, and it is so directed. The marshal will therefore procure from the collector of internal revenue and the collector of customs the proper stamps; have such cigarettes properly repacked in packages of 10, 20, or 50, properly stamped, the stamps canceled, and the cigarettes delivered. in accordance with the terms of the sale, and bring the proceeds into the registry of the court.
July 25, 1889.)
(Oircuit Oour, D. Vermont.
DESCENT AND DISTRIBUTION-EFFECT OF PROBATE DECREE.
H. left a will, of which· defendant was executor andS. residuary· legatee. S. also made defendant her executor. and complainant, defendant's wife. her residuary legatee. Defendant administered on. both estates, and converted many of the assets, taking leases, deeds, mortgages, and assignments of property belonging to or purchased with funds of the estates in his own name, or as executor. Complainant petitioned the probate court to decree to defendant all the assets of H,'s estate, and to decroe to complainant all of the residuary estate of S., without finding the amount in defendant's hands under either will, and stating that she accepted the property without inventory, and exonerated defendant from all further .liability. The court decreed according to her prayer. Held, that the decre.e was conclusive on complainant, who could thereafter claim nothing except under the decree.
Defendant would thenceforth be liable for only such assets of the estate of S. as he had not converted and become chargeable with at the date 0.1 .the decree, including leases already executed, and mortgages assigned to him as executor.· . . .