Infamous offense. -- Retailing liquor without a license, being punishable by imprisonment for a longer period than one year, is an infamous offense, under sections 5539, 5541, and 5542, R. S., and must be prosecuted upon presentment or indictment by the grand jury, and not on information. U. S. v. Johannesen, (1888) 35 Fed. Rep. 411. But see U. S. r. Strickland, (1885) 25 Fed. Rep. 469, as to the sufficiency of an affidavit to support an information, which, it was said, should substantially conform to the language of the statute, and is insufficient when it states that the prisoner “sold tobacco without paying the special tax." An indictment in the language of the statute, charging the defendant with carrying on the business of a retail liquor dealer without payment of a special tax, is sufficient, notwithstanding that section 18 of the Act of Feb. 8, 1875, infra, describes the offense with more particularity by defining a retail liquor dealer. An indictment in the exact language of the statute is not sufficient where the statute does not contain all the elements of the offense, but where the statute sets forth every ingredient of the offense, an indictment in its very words is sufficient though that offense be more fully defined in some other section. Ledbetter v. U. S., (1898) 170 U. S. 610. See also U. S. v. Page, (1873) 2 Sawy. (U. S.) 353, in which case a similar indictment for carrying on the business of a wholesale liquor dealer, without license, was held sufficient. U. S. v. Howard, (1871) 1 Sawy. (U. S.) 507. As to place. - An indictment alleging that the offense was committed in a certain county and district of Iowa, "and within the jurisdiction of this court," is not fatal upon a motion in arrest of judgment. The indictment should state, not only the county, but the township, city, or other municipality within which the crime is alleged to have been committed, and in the absence of such averments might be open to special demurrer, but is sufficient on motion in arrest of judgment. Ledbetter v. U. S., (1898) 170 U. S. 613. As to time. - An indictment alleging that the offense of retailing liquor was committed "on the day of April, A. D. 1896," is not fatal upon a motion in arrest of judgment. It is not necessary to prove that the offense was committed on the day alleged (if alleged), unless a particular day be made material by the statute creating the offense. Ordinarily, proof of any day before the finding of the indictment, and within the statute of limitations, will be sufficient. Such an indictment might be open to special demurrer for insufficiency as to the allegation of time, but upon motion in arrest of judgment the court considered it sufficient. Ledbetter v. U. S., (1898) 170 U. S. 612. A receipt for the payment of taxes has no retroactive effect, and is no defense to an indictment for retailing without license. . The statute makes the offending party liable to fine and imprisonment in addition to the payment of the tax, so that the payment of the tax is no release from the fine and imprisonment. U. S. v. Angell, (1881) 11 Fed. Rep. 34. Having liquors on hand at the time a license expires gives no right to sell such surplus without further license. U. S. v. Angell, (1881) 11 Fed. Rep. 34. Intent to defraud the United States out of the tax or some part of it, is no part of the offense of carrying on the business of rectifying spirits without having paid the special tax. Only two things are necessary to be averred and proved- the carrying on the business, and that the special tax was not paid as required by law. U. S. v. Rectifying Establishment, (1870) 27 Fed. Cas. No. 16,131. See U. S. r. White, (1890) 42 Fed. Rep. 138. "The statute makes the act of selling, and not the good or bad intent of the seller, that which constitutes a retail dealer." U. S. v. Giller, (1892) 54 Fed. Rep. 656. Acquittal estoppel to collect tax. - A verdict of acquittal, upon the trial of a criminal action, on the question whether the defendant did carry on the business of wholesale dealer in malt liquor, is not an estoppel to an action brought by the government against the same person to recover the amount of the special tax alleged to be due from him as such wholesale dealer. U. S. v. Schneider, (1888) 35 Fed. Rep. 107. The forfeiture provisions of this section are applicable to distillers and rectifiers only. The court said that section 44 of the Act of July 20, 1868, from which this section and section 3281, R. S., were taken, did not indicate an intention to inflict upon a wholesale liquor dealer a forfeiture of his whole stock for an omission to pay a special tax, and the words "such person "had not reference to all the classes of persons previously mentioned. Two Thousand Bottles of Liquors, (1871) 5 Ben. (U. S.) 265. Sec. 3243. [Payment of special tax not to authorize violation of State laws, nor prohibit State taxation.] The payment of any tax imposed by the internalrevenue laws for carrying on any trade or business shall not be held to exempt any person from any penalty or punishment provided by the laws of any State for carrying on the same within such State, or in any manner to authorize the commencement or continuance of such trade or business contrary to the laws of such State or in places prohibited by municipal law; nor shall the payment of any such tax be held to prohibit any State from placing a duty or tax on the same trade or business, for State or other purposes. [R. S.] Act of July 13, 1866, ch. 184, 14 Stat. L 122; Act of July 20, 1868, ch. 186, 15 Stat. L. 151. See note to E. S. sec. 3232 supra, p. 605. State and federal revenue systems are entirely independent of each other, and the federal statutes make it plain that by taxing an occupation it is by no means meant to authorize such occupation contrary to local laws. It only intends to tax the occupation if it is in fact carried on, but does not authorize it to be carried on." In re Comingore, (1899) 96 Fed. Rep. 561. See also License Tax Cases, (1866) 5 Wall. (U. S.) 462; Pervear r. Commonwealth, (1866) 5 Wall. (U. S.) 475; McGuire r. Com., (1865) 3 Wall. (U. S.) 387; Austin v. State, (1898) 101 Tenn. 563; Com. v. Crane, (1893) 158 Mass. 218; Com. v. Sheckels, (1883) 78 Va. 36. This section was adopted to make it clear that Congress had no purpose to restrict the power of the state over the manufacture and sale of particular articles. When taxes are imposed by statute for national purposes, their imposition does not give authority to those who pay them to engage in the manufacture or sale of such articles in any state which lawfully forbids such manufacture or sale, or to disregard any regulations which a state might lawfully prescribe in reference to that article. Plumley v. Massachusetts, (1894) 155 U. S. 461. See also Austin v. Tennessee, (1900) 179 U. S. 363; Schollenberger . Pennsylvania, (1898) 171 U. S. 18. Interstate relations. One element only is withheld from the otherwise absolute right and power of the state to regulate or prohibit the sale of intoxicating liquors, and that relates to interstate relations. In re Jordan, (1892) 49 Fed. Rep. 238. The circumstance that the local law for Alaska and the national revenue law were both enacted by Congress is immaterial in view of the provision in the latter that the local law must prevail in determining whether a business for which a special tax is required may or may not be carried on in a given locality. Evidence of the payment of the special tax required by the general government is therefore clearly irrelevant on an indictment for retailing liquor in violation of the local law of Alaska. Endleman v. U. S., (C. C. A. 1898) 86 Fed. Rep. 456. See also U. S. v. Nelson, (1886) 29 Fed. Rep. 202. Sec. 3244. [Special taxes imposed on whom.] Special taxes are imposed as follows: [Brewers.] First. Brewers shall pay one hundred dollars. Every person who manufactures fermented liquors of any name or description for sale, from malt, wholly or in part, or from any substitute therefor, shall be deemed a brewer: Provided, That any person who manufactures less than five hundred barrels a year shall pay the sum of fifty dollars. [R. S.] Act of July 13, 1866, ch. 184, 14 Stat. L. 117; Act of July 14, 1870, ch. 255, 16 Stat. L. 256. Refunding fifty dollars. A brewer who has paid a tax of one hundred dollars as a brewer of five hundred barrels or more, is en titled to have fifty dollars refunded to him if he has not manufactured more than three hundred and fifty barrels, on showing that he has complied with the provisions of section 3426, infra. U. S. v. Kaufman, (1877) 96 U. S. 567. [Manufacturers of stills-drawback of tax on stills exported.] Second. Manufacturers of stills shall each pay fifty dollars, and twenty dollars for each still or worm for distilling made by him. Any person who manufactures any still or worm to be used in distilling shall be deemed a manufacturer of stills. Upon all stills manufactured for export, and actually exported, there shall be allowed a drawback, where the tax thereon has been paid, under such rules and regulations as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe. [R. S.] Act of July 20, 1868, ch. 186, 15 Stat. L. 151. That portion of the above section beginning "upon all stills," etc., was added by Act of March 1, 1879, ch. 125, 20 Stat. L. 342. Fraudulent claims of drawback, see R. S. sec. 3443, infra, p. 788. SEC. 18. [Manufacture of wooden stills by registered distillers for their own use.] That subsection second of section thirty-two hundred and forty-four shall not apply to distillers in registered distilleries who manufacture for their own use wooden stills, but each of said distillers shall give notice to the collector of the district in which his distillery is located of each still manufactured before the same is used. [21 Stat. L. 149.] This is from the Act of May 28. 1880, ch. 108, sec. 18, 21 Stat. L. 149. [Rectifiers.] Third. Rectifiers of distilled spirits shall pay two hundred dollars. Every person who rectifies, purifies, or refines distilled spirits or wines by any process other than by original and continuous distillation from mash, wort, or wash, through continuous closed vessels and pipes, until the manufacture thereof is complete, and every wholesale or retail liquor-dealer who has in his possession any still or leach-tub, or who keeps any other apparatus for the purpose of refining in any manner distilled spirits, and every person who, without rectifying, purifying, or refining distilled spirits, shall, by mixing such spirits, wine, or other liquor with any materials, manufacture any spurious, imitation, or compound liquors for sale, under the name of whisky, brandy, gin, rum, wine, spirits, cordials, or wine bitters, or any other name, shall be regarded as a rectifier, and as being engaged in the business of rectifying: Provided, That any person who rectifies, purifies, refines, or manufactures as aforesaid less than five hundred barrels a year, counting forty gallons of proof spirits to the barrel, shall pay one hundred dollars. And provided, That nothing in this section shall be held to prohibit the purifying or refining of spirits in the course of original and continuous distillation through any material which will not remain incorporated with such spirits when the manufacture thereof is complete: And provided further, That no officer shall collect any special tax for rectifying distilled spirits on any premises distant less than six hundred feet in a direct line from any distillery. And every officer who collects any special tax in violation of this proviso shall be liable to a penalty of five thousand dollars for each offense. [R. S.] Act of July 20, 1868, ch. 186, 15 Stat. L. 130, 150; Act of April 10, 1869, ch. 18, 16 Stat. L. 41, 42; Act of June 6, 1872, ch. 315, 17 Stat. L. 239, 244; Act of Dec. 24, 1872, ch. 13, 17 Stat. L. 401-403. The word "proviso" where it occurs in the last sentence of the section was substituted by Act of Feb. 18, 1875, ch. 80, 18 Stat. L. 319, for the word "section" appearing in the section as originally enacted. The words following the word "Provided," where it first appears in the section, down to and including the words And provided where they first occur, were added to the section as originally enacted, by Act of March 1, 1879, ch. 125, 20 Stat. L. 333. Rectifier or distiller. A rectifier may rectify, purify, or refine distilled spirits or wines by any process other than original and continuous process. He may use high wines and cologne spirits, and recover from any material, such as fruit that contains spirits by reason of its former use by rectifiers, and saloon washings which contain no fermented liquors or substances, any spirits which existed in that material, upon which tax had been paid, but he has no right to [Retail liquor dealers create spirits that is, to take fruits, or beer, or any other fermented substances and make spirits out of them. U. S. v. Marshall, (1876) 26 Fed. Cas. No. 15,726. Mixing water and blackberry juice with whiskey, whereby its proof is reduced and the color restored, was held to constitute a retail dealer, following that practice, a rectifier within the meaning of the statute. Michel v. Nunn, (1900) 101 Fed. Rep. 423. Mixing whiskey, sugar, and water, by a retail liquor dealer, and putting it in jugs and bottles, and keeping it in his stock in that form, and selling it, when wanted, as he sold other whiskies and wines in his stock, when called for, by measuring out whatever quantity the customer wanted, whether that was a drink or a small or large bottle, was held to constitute the dealer a rectifier within the meaning of the statute. Michel v. Nunn,. (1900) 101 Fed. Rep. 423. A mere addition of water to spirits, or the mixing of certain spirits of the same character, if they were under a certain age, would not be rectification. U. S. v. Thirty-Two Barrels of Distilled Spirits, (1880) 5 Fed. Rep. 188. wholesale liquor dealers.] Fourth. [Superseded.] wholesale dealers in malt liquors.] Fifth. [Retail dealers in malt liquors [Superseded.] Subdivisions fourth and fifth of R. S. sec. 3244 were superseded by the provisions of the Act of March 1, 1879, ch. 125, sec. 4, 20 Stat.. L. 333, given in the text following. The original subdivisions were as follows: "Fourth. Retail dealers in liquors shall pay twenty-five dollars. Every person who sells, or offers for sale foreign or domestic distilled spirits or wines, in less quantities than five wine gallons at the same time, shall be regarded as a retail dealer in liquors. Wholesale liquor-dealers shall pay one hundred dollars. Every person who sells or offers for sale foreign or domestic distilled spirits or wines, in quantities of not less than five wine gallons at the same time, shall be regarded as a wholesale liquor-dealer. But no distiller who has given the required bond, and who sells only distilled spirits of his own production at the place of manufacture, in the original packages to which the taxstamps are affixed, shall be required to pay the special tax of a wholesale liquor-dealer on account of such sales." Act of July 20, 1868, ch. 186, 15 Stat. L. 125, 150; Act of April 10, 1869, ch. 18, 16 Stat. L. 42; Act of June 6, 1872, ch. 315, 17 Stat. L. 239. "Fifth. Retail dealers in malt liquors shall pay twenty dollars. Every person who sells or offers for sale malt liquors in quantities of five gallons or less at one time, but who does not deal in spirituous liquors, shall be regarded as a retail dealer in malt liquors. Wholesale dealers in malt liquors shall pay fifty dollars. Every person who sells or offers for sale malt liquors in larger quantities than five gallons at one time, but who does not deal in spirituous liquors, shall be regarded as a wholesale dealer in malt liquors: Provided, That no brewer shall be required to pay a special tax as a wholesale dealer by reason of selling in the original stamped packages, whether at the place of manufacture or otherwise, malt liquors manufactured by him." Act of July 20, 1868, ch. 186, 15 Stat. L. 151; Act of April 10, 1869, ch. 18, 16 Stat. L. 42; Act of June 6, 1872, ch. 315, 17 Stat. L. 244, 245. For amendment to this subdivision, see infra, p. 616. SEC. 4. [Retail and wholesale liquor dealers—exceptions as to distillers and brewers.] That retail dealers in liquors shall pay twenty-five dollars. Every person who sells, or offers for sale, foreign or domestic distilled spirits wines, or malt liquors, otherwise than as hereinafter provided, in less quantities than five wine-gallons at the same time, shall be regarded as a retail dealer in liquors. Wholesale liquor-dealers shall each pay one hundred dollars. Every person who sells, or offers for sale, foreign or domestic distilled spirits, wines, or malt liquors, otherwise than as hereinafter provided, in quantities of not less than five wine-gallons at the same time, shall be regarded as a wholesale liquor-dealer. But no distiller who has given the required bond and who sells only distilled spirits of his own production at the place of manufacture in the original packages to which the tax-stamps are affixed, shall be required to pay the special tax of a wholesale liquordealer on account of such sales. Retail dealers in malt liquors shall pay twenty dollars. Every person who sells, or offers for sale, malt liquors in less quantities than five gallons at one time, but who does not deal in spirituous liquors, shall be regarded as a retail dealer in malt liquors. Wholesale dealers in malt liquors shall pay fifty dollars. Every person who sells, or offers for sale, malt liquors in quantities of not less than five gallons at one time, but who does not deal in spirituous liquors at wholesale, shall be regarded as a wholesale dealer in malt liquors. Provided, That no brewer shall be required to pay a special tax as a dealer by reason of selling in the original stamped packages whether at the place of manufacture or elsewhere, malt liquors manufactured by him, or purchased and procured by him in his own casks or vessels, under the provisions of section thirty-three hundred and forty-nine of the Revised Statutes; but the quantity of malt liquors so purchased shall be included in calculating the liability to brewer's special tax of both the brewer who manufactures and sells the same and the brewer who purchases the same: And it is hereby provided, That no further collection of special tax as retail dealers in malt liquors shall be made from brewers for selling malt liquors of their own manufacture in the original stamped eighth-barrell [sic] package: [Remainder of section expired.] [20 Stat. L. 333.1 * * * This is from section 4 of the Act of March 1, 1879, ch. 125, 20 Stat. L. 333, amending Act of Feb. 8, 1875, ch. 36, sec. 18, 18 Stat. L. 311, so as to read as above. The only change consisted in the addition of the words "at wholesale" following the words "in spirituous liquors," the omission of the word "wholesale" before "dealer" in the first proviso, and the addition of the latter part of the section, beginning with the words "or purchased and procured by him," etc. The provisions above set out supersede subdivisions fourth and fifth of R. S. sec. 3244 as originally enacted. These provisions are set out in the note immediately preceding. The provisions in the above section as to distillers would seem to be superseded by the provision in the following text. SEC. 62. [Distillers selling product not liable to special tax.] That no distiller who has given the required bond and who sells only distilled spirits of his own production at the place of manufacture, or at the place of storage in bond, in the original packages to which the tax-paid stamps are affixed, shall be required to pay the special tax of a wholesale liquor dealer on account of such sales: Provided, That he shall be required to keep the book prescribed by section thirty-three hundred and eighteen of the Revised Statutes of the United States, or so much as shall show the date when he sent out any spirits, the serial numbers of the packages containing same, the kind and quality of the spirits in wine gallons and taxable gallons, the serial numbers of the stamps on the packages, and the name and residence of the person to whom sent; and the provisions of section five of an Act entitled "An Act to amend the laws relating to internal revenue," approved March fifth [first] eighteen hundred and seventy-nine, as to transcripts, shall apply to such books. Any failure, by reason of refusal or willful neglect, to furnish the transcript by him shall subject the spir'ts owned or distilled by him to forfeiture. [28 Stat. L. 567.] This section 62 is from the Revenue Act of Aug. 27, 1894, ch. 349, 28 Stat. L. 567, and would seem to supersede the provisions as to distillers contained in the Act of March 1, 1879, ch. 125, sec. 4, 20 Stat. L. 333, given supra. The provisions of the Act of March 1, 1879, ch. 125, sec. 5, 20 Stat. L. 339, in relation to transcripts, are incorporated in the amendment of R. S. sec. 3318, given infra, p. 685. SEC. 4. [Sale of spirits, etc., by fiduciary.] That section thirty-two hundred and forty-four of the Revised Statutes be amended as follows, namely, by adding after the fifth clause of said section: "But no special tax shall be held to accrue on a sale of distilled spirits, wines, or malt liquors made by a person who is not otherwise a dealer in liquors, where such spirits, wines, or liquors have been received by the person so selling as security for or in payment of a debt, or as executor, administrator, or other fiduciary, or have been levied on by any officer, under order or process of any court or magistrate, and where such spirits. are sold by such person in one parcel only, or at public auction in parcels not less than twenty wine-gallons, nor shall such tax be held to accrue on a sale made by a retiring partner, or the representatives of a deceased partner to the incoming, remaining, or surviving partner or partners of a firm; nor shall the special tax of a wholesale liquor-dealer or wholesale dealer in malt liquors be held to apply to a retail dealer in liquors or a retail dealer in malt liquors, because of such retail dealer selling out his entire stock of liquors in one parcel, or in parcels embracing not less than his entire stock of distilled spirits, of wines, or of malt |