New York imported wines and liquors at the port of New Orleans, which they caused to be stored in a warehouse, and, when sales were made in New York by the New York office direct to the trade at any place in the United States, deliveries of such goods were made to purchasers thereof on orders from the New York office to the warehouse people in New Orleans, with whom the imported goods were temporarily stored. They never had any place of business in New Orleans nor any agent there authorized to sell, or offer to sell, their goods. Such facts were held not to authorize the collection of a second tax as carrying on the business in New Orleans. De Bary v. Souer, (C. C. A. 1900) 101 Fed. Rep. 425.

Commission merchants were held to be wholesale liquor dealers when they, as the agents of certain foreign principals, purchased from time to time for shipment to their principals, and either charged the costs and their commissions upon their books to the account of the foreign correspondents, or drew upon them for the full amount of the purchase price, together with the costs incurred and their commission or profit in the transaction. Quinn v. Dimond, (C. C. A. 1896) 72 Fed. Rep. 993.

Retail dealers. On an indictment for carrying on the business of retail liquor dealer without having paid the special tax, the court charged the jury: "If parties dealing in liquor, who have paid the special tax, receive orders for whiskey at their place of business, and fill the orders so that the sale is consummated at their place of business,-so consummated that the property in the liquor passes to the purchaser, this is no violation of the law, although they may sell and may send the liquor to parties residing at a distance. If, however, they receive orders from persons at a distance, and in consequence of such orders they send out whiskey in barrels, and, going through the country, they draw from the barrels, and deliver in small quantities, - say a pint, quart, or gallon, to parties who pay them on receipt of the liquor, this is a violation of the law; the property in the whiskey in the barrels remains in the sellers until it is delivered to the purchaser. The sale is consummated upon the delivery of the whiskey, and it is not protected by the tax paid for sales at the distillery." U. S. v. Durham, (1888) 33 Fed. Rep. 834. See also U. S. v. Cline, (1885) 26 Fed. Rep. 515.

Testimony of the defendant that he kept a book in which he entered the names of all persons who employed him to procure beer or liquor for them, and that if any one wished to employ his services to procure a bottle of beer, he required him to make a payment, and on delivery to pay a further sum as remuneration for his trouble in going to another state and getting the beer, and other evidence further showing that when a number of orders had been received the defendant would procure the liquor and then deliver it when called for, does not sustain the claim of the defendant that he was acting merely as an express agency and that he was in fact merely an agent for the parties who gave him

orders for the beer or liquor, when the evidence failed to show that he bought specific quantities of beer or liquor to correspond with specific orders previously given to him, but, on the contrary, it seemed that he bought the beer by the case and delivered it to customers by the bottle. U. S. v. Allen, (1889) 38 Fed. Rep. 736.

If the defendant purchased liquor in his own name and had the same billed to him in his own name, and dealt it out from time to time as called for, he was a retail dealer notwithstanding the money for the purchase of the liquor was advanced to him by various persons, and he procured and dealt out the same without profit to himself. U. S. v. Angell, (1881) 11 Fed. Rep. 34.

"When a person has procured spirituous liquor with the intent to sell it out again in small quantities to any one who may apply for it, or, having it on hand, determines to sell it out to any one who may apply for it, he must pay the special tax. If he does not, his attempt to carry out his intent is a violation of the law, for he is engaged in the business of retail liquor dealer without having paid the special tax." U. S. v. Rennecke, (1886) 28 Fed. Rep. 847.

An officer of a benevolent association duly incorporated was held guilty of the offense of selling malt liquors without the payment of a license tax where it appeared that it was the custom of the society to assemble the members and their families at picnics, and that on entering the grounds the members obtained as many tickets as desired from the proper officer, paying five cents each, and each ticket entitled the holder to any one article of refreshment provided by the society, which included beer. U. S. v. Giller, (1892) 54 Fed. Rep. 656. See also U. S. v. Wittig, (1876) 2 Lowell (U. S.) 466.

Janitor of a club. A club, formed for the purpose of social amusement, owned certain spirituous liquors, and kept them for the use of the members of the club, who were entitled to use them on paying the janitor the value thereof, which went into the treasury of the club. The janitor was held to be a retail dealer. U. S. v. Woods, (1878) 28 Fed. Cas. No. 16,759.

A club organized for the purpose of social enjoyment is liable for the payment of the special tax as a retail dealer in liquors when it sells drink to its members when they order and receive this kind of refreshment, and pay for it. U. S. v. Alexis Club, (1899) 98 Fed. Rep. 725.

An association, formed for the purpose of providing the members with liquor and beer to drink as they wanted it, was held to be a partnership engaged in the business of retailing liquor, in which all the members were partners and liable for carrying on the business without paying special tax, and the fact that none but members of the association were allowed to partake of the liquor, and that it was done without any attempt to make a profit, made no difference. U. S. v. Roliger, (1882) 27 Fed. Cas. No. 16,190a. But see Com. v. Smith, (1869) 102 Mass. 144.

A physician, who has not paid the special tax, cannot keep on hand a supply of spirit,

uous liquor, and sell it out to his patients, even if he does this in the way of prescription. U. S. r. Smith, (1891) 45 Fed. Rep. 115. That he did not know that he could not lawfully sell spirituous liquor to his patients, even in the way of a prescription, without paying the special tax, is no defense to an indictment against a physician for carrying on the business of retailing liquor without license. U. S. r. Smith, (1891) 45 Fed. Rep. 115. "An apothecary who bona fide uses spirituous liquor exclusively in the preparation or making up of medicines need not pay the special tax." See section 3246, infra. U. S. c. Calhoun, (1889) 39 Fed. Rep. 604. See U. S. r. White, (1890) 42 Fed. Rep. 138.

A clerk or hired servant, acting not for himself but as the employee of another, cannot be convicted for carrying on the business of retailing spirituous liquors without license. U. S. r. Logan, (1867) 26 Fed. Cas. No. 15,624.

An officer of the army in charge of a post exchange, in which beer and light wines are sold, is not a retail dealer in liquors within the meaning of the statute. Dugan v. U. S., (1899) 34 Ct. Cl. 464.

Proof of selling to one person is, at least, prima facie evidence of criminality, but the real offense consists in carrying on the business of a retail dealer in liquors, and if only a single sale were proven it might be a good defense to show that such sale was exceptional, accidental, or made under such circumstances as to indicate that it was not the business of the vendor. Ledbetter v. U. S., (1898) 170 U. S. 610, citing U. S. v. Rennecke, (1886) 28 Fed. Rep. 847; U. S. v. Jackson, (1875) 1 Hughes (U. S.) 531.

Although but one act of selling has been proved, if the sale was under such circumstances as indicated that the defendants had the liquor on hand to be sold to any who applied for it, then they may be said to have been engaged in the business. On the other hand, if they permitted a neighbor or friend to have a part of the supply of whiskey which they had on hand for their own use, and did this in a spirit of accommodation, they could not be said to be engaged in the business, even if they received money for this accommodation. U. S. v. Rennecke, (1886) 28 Fed. Rep. 847.

A single transaction, in respect to a lot of spirits taken for debt, affords no ground to infer that it was in prosecution of a business requiring the payment of a license as a wholesale liquor dealer. U. S. r. Feigelstock, (1877) 14 Blatchf. (U. S.) 321. See also Rahter. Lancaster First Nat. Bank, (1880) 92 Pa. St. 393.

A few instances of selling liquor in small quantity by persons having no bar-rooms, and none of the usual appliances of retail liquor dealers, with no intention apparent of defrauding the national revenue, do not constitute a carrying on the business of retail liquor dealing. U. S. r. Jackson, (1875) 1 Hughes (U. S.) 531. See also U. S. r. Logan, (1867) 26 Fed. Cas. No. 15,624; U. S. v. Bonham. (1887) 31 Fed. Rep. 808; U. S. r. Angell, (1881) 11 Fed. Rep. 34.

The fact that there was no bar-room, nor the usual appliances of retail liquor dealers.

need not influence the jury in determining the question whether the defendants were engaged in the business. U. S. c. Rennecke, (1886) 28 Fed. Rep. 847. See also U. S. v. Harbison, (1871) 26 Fed. Cas. No. 15,300.

It is for the jury to decide how many sales, and what preparation and appointments of a bar-room are necessary, in each case, to constitute the offense of carrying on the business of retailing liquor. U. S. v. Jackson, (1875) 1 Hughes, (U. S.) 531.

Shipments of liquor by express, C. O. D., render the shipper liable to pay a special tax as a retail liquor dealer at the point of delivery. U. S. v. Shriver, (1885) 23 Fed. Rep. 134.

"Diggs' Appetizer." - Charging the jury, the court said: "If as a matter of fact such preparation contains a large per cent., say as much as thirty per cent., as indicated by the evidence in this case, of alcohol, and the other ingredients of such bottle consist of nothing more than sugar and water, combined with some other substance like an herb, or the like, which other substance is inoffensive and possessing no curative quality or character, and that such preparation, although sold by the bottle, was sold by the vender as a beverage, or with knowledge of the fact that those purchasing it are buying it merely as a beverage, and because of the spirituous liquor contained in it, to realize its intoxicating or exhilarating influence as a beverage, such facts would constitute a sale of distilled spirits within the meaning of the statute." U. S. v. Bray, (1902) 113 Fed. Rep. 1009. See also U. S. v. Starnes, (1889) 37 Fed. Rep. 665, as to "Burton's Bitters."

as

"Lemon Ginger" and "Empire Tonic Bitters," which are preparations put up, advertised, and sold by the manufacturers medicinal preparations, and contain about one-third by weight of dilute alcohol, and in which it appears that the quantity of alcohol is not greater than is necessary to extract the virtues of the medicinal herbs employed and hold the same in solution, and is less than that contained in some ordinary tinetures, must be classed as medicinal preparations, and those who sell them are not retail liquor dealers within the meaning of the statute. U. S. v. Stubblefield, (1889) 40 Fed. Rep. 454.

"Reed's Gilt Edge Tonic."-On an information against a boarding-house keeper for selling a beverage without license at a bar to all persons who called for it, the court charged the jury that "if the article sold was a medicine and contained spirits simply to preserve its medicinal qualities, and was sold and taken as a medicine in good faith, the defendant should be acquitted. But if the jury found from the evidence that the article was a compound containing such a quantity of spirits as to be intoxicating, and was sold by the defendant as a beverage, he knowing its intoxicating quality, and was drank by persons not as a medicine, but as a beverage, because of its intoxicating and stilating qualities, then, no matter by what name it was known or called, the defendant was guilty as charged." U. S. v. Cota, (1883) 17 Fed. Rep. 734.