business, put the distillery fully within the observation of the government and enable it to enforce compliance with the law.

According to this view of the law, the facts proved by the defendant amount to a perfect defence to an indictment framed on this one section, and he is entitled to be discharged.

REVENUE LAWS-HAVING POSSESSION OF CANCELED STAMPS.

UNITED STATES v. LOUP.

[1 McCrary, 168.]

In the United States Circuit Court, Eastern District of Missouri, 1880. The Offense of Having in Possession internal revenue stamps which had been previously used and canceled under section 3376,1 includes only the possession of whole stamps and not fragments of stamps though they may be capable of being used again.

TREAT, D. J. The question presented involves the construction of the United States statutes pertaining to internal revenue, and particularly section 3376. The defendant is charged in the indictment with having had in his possession internal revenue stamps that had been theretofore used and canceled. It appears from the arguments and statements of counsel, rather than otherwise, that the facts are that defendant did have in his possession parts or halves of several stamps which had theretofore been used, which could readily be placed on a package in such a position as to give them the appearance of a complete stamp; but no complete, unbroken or unmutilated stamp.

Under the stipulation of counsel this court is asked to determine whether, on such a statement of facts, the defendant can be found guilty of the offense charged under section 3376.

Reference has been made to many other sections of the statute, supposed to be in pari materia; and, on the other hand, the rules of construction as to criminal statutes have been invoked. Where a statute containing many provisions as to distinct subjects, each of which has its own peculiar requirements, is presented for interpretation, the requirements and penalties of one can not, in a criminal proceeding, be imported into another. Stamps, according to the law and regulations, are to be placed on packages of snuff in a prescribed manner, whereby the opening of the package will destroy the stamp. As to brewer stamps, the statute is very specific as to the mode of placing them on

carrying on the business of a distiller, without having paid a special

tax.

From the evidence it appeared that though defendant had not paid the tax, he had given due notice of his intention to distil spirits, given a proper bond, etc., and that in pursuance of this the tax had been assessed against him and returned to the collector in the monthly list for December- such list having been put in the latter's hands on the 20th of December, less than ten days prior to the commission of the offense charged.

Upon trial had defendant was convicted, whereupon he moved for a new trial and arrest of judgment.

BENEDICT, J. Upon consideration of the various provisions of the internal revenue law, I am of the opinion that the point raised on the evidence introduced in defence is well taken. The various provisions of the law in regard to special taxes, as set forth in sections 20, 28, and 73, as amended in the act of 1869, and elsewhere, and which seem to make no substantial difference, as regards the particular defence in question, between the business of distilling and other kinds of business subject to a special tax, must, when taken together, be considered to import, that a distiller is not in default for the mere non-payment of his special tax of one hundred dollars, until ten days after the receipt by the collector of the assessment list, in which the special tax is to be inserted, and that he can not be held to be guilty of the offense created in the twenty-third section, unless it appears that he carries on the business after he is in default for the non-payment of the tax. The words of the act are, without having paid the special tax, as required by law," and these words, 66 as required by law," must be considered to refer to the time and place of payment, as well as to the amount. Therefore, the distiller can not be said to carry on business without payment of the special tax, as required by law, so long as he has taken all necessary steps towards the ascertainment and payment of his special tax, and stands ready to pay it in the manner required by law, that is, within ten days after the assessor shall have returned to the collector the assessment list in which such tax is required to be inserted. This construction of the provisions of the act seems reasonable, and to be necessary to prevent infinite confusion and injustice in the collection of the taxes, as a consideration of the effect of similar provisions made applicable to various trades will show. Although it is true that, under this construction, a distiller may carry on his business a short time without having actually paid his special tax of one hundred dollars, as may persons in other kinds of business, yet he has given security for its payment when due, while the various other provisions in regard to his distillery, etc., all necessary to be complied with before commencing

upon him for that year, if he intended during that time to pay the tax when it should be assessed, although when the tax bill was presented him on the twenty-first of May he refused to pay it, having stopped business on the seventh.

The defendant was indicted under the seventy-third section of the act of 1864 as amended by that of July 13, 1866,1 for carrying on the trade or business of a peddler of the third class, without paying the special tax imposed on that business by the same statute. The evidence tended to show that the defendant had duly paid his tax for 1867, and that in April, 1868, he duly applied to the assessor of internal revenue of his district to pay the special tax for that fiscal year, beginning with May 1, 1868; that four or five days afterwards he sold out his business, and had not carried it on since. The taxes were usually assessed about the twentieth of May in each year, and the bills were sent in on the next day. The defendant's bill was sent him as usual, but he had neglected and refused to pay the tax, and was indicted in January, 1869.

LowELL, J., ruled that if the defendant had been guilty only of a neglect or refusal to pay his tax after he had ceased to carry on the business, he was not, for that alone, liable to indictment under the section cited. That the offense described in the law was the carrying on a trade or business without payment of a tax, and if the defendant, when he carried on the business before his tax was levied, had no intent to defraud the government, he could not be lawfully convicted. His application to be assessed was all that he could do, or was bound to do, until the bill was rendered. So that, while many defendants had been rightly convicted under this section who had never been assessed for a tax, because the failure to assess them arose out of their own wrong in not making application to the assessor, and, therefore, they could not be heard to object the want of assessment; yet this stringent penalty was not intended for delinquent tax-payers merely as such, if they had been guilty of no act or omission at the time they carried on their business. The government officers, in adopting what appeared to be a reasonable and perhaps necessary practice of giving credit for the tax for twenty days while their lists were preparing, did not thereby expose all tradesmen to indictment who took advantage of that credit.

The district-attorney declined to go to the jury on the question of intent, and the defendant was acquitted.

1 14 Stats. 113.

carrying on the business of a distiller, without having paid a special tax.

From the evidence it appeared that though defendant had not paid the tax, he had given due notice of his intention to distil spirits, given a proper bond, etc., and that in pursuance of this the tax had been assessed against him and returned to the collector in the monthly list for December-such list having been put in the latter's hands on the 20th of December, less than ten days prior to the commission of the offense charged.

Upon trial had defendant was convicted, whereupon he moved for a new trial and arrest of judgment.

BENEDICT, J. Upon consideration of the various provisions of the internal revenue law, I am of the opinion that the point raised on the evidence introduced in defence is well taken. The various provisions of the law in regard to special taxes, as set forth in sections 20, 28, and 73, as amended in the act of 1869, and elsewhere, and which seem to make no substantial difference, as regards the particular defence in question, between the business of distilling and other kinds of business subject to a special tax, must, when taken together, be considered to import, that a distiller is not in default for the mere non-payment of his special tax of one hundred dollars, until ten days after the receipt by the collector of the assessment list, in which the special tax is to be inserted, and that he can not be held to be guilty of the offense created in the twenty-third section, unless it appears that he carries on the business after he is in default for the non-payment of the tax. The words of the act are, without having paid the special tax, as required by law," and these words, "as required by law," must be considered to refer to the time and place of payment, as well as to the amount. Therefore, the distiller can not be said to carry on business without payment of the special tax, as required by law, so long as he has taken all necessary steps towards the ascertainment and payment of his special tax, and stands ready to pay it in the manner required by law, that is, within ten days after the assessor shall have returned to the collector the assessment list in which such tax is required to be inserted. This construction of the provisions of the act seems reasonable, and to be necessary to prevent infinite confusion and injustice in the collection of the taxes, as a consideration of the effect of similar provisions made applicable to various trades will show. Although it is true that, under this construction, a distiller may carry on his business a short time without having actually paid his special tax of one hundred dollars, as may persons in other kinds of business, yet he has given security for its payment when due, while the various other provisions in regard to his distillery, etc., all necessary to be complied with before commencing

exhaust;" "to deprive of the contents." If this ordinary signification "tɔ of the word used in the statute is adopted, the defendant can not be convicted unless the evidence shows that the cask was completely deprived of its contents - not a pint left. I am not disposed to adopt this strict literal construction, as there is another important rule in the construction of statutes which must be observed. We must consider the object and spirit of the statute, and try to ascertain, from the language of the whole and every part of the statute, what was the intent and purpose of the Legislature in making the statute. The intent of the Legislature may be found in the statute itself, and from other statutes in pari materia; and also by considering the probable effects and consequences that would result from a strict literal construction. When ascertained, this intent should be followed with reason and discretion, though such construction may seem contrary to the letter of the statute; for it is the intent which often gives meaning to words otherwise obscure and doubtful. The evident intent of the Legislature was to guard against frauds on the internal revenue by preventing the re-use of stamped casks which had once been emptied; and there was a great and manifest necessity to provide against frauds which could so easily be perpetrated. I am inclined to the opinion that when a retail dealer of distilled spirits draws off the contents of a cask as far as can be done from the faucet, and then removes it from the place where it had been used in his business, he should completely exhaust the cask if he so desires, and efface and obliterate the stamp. If the law allows a retail dealer to empty a cask as far as can conveniently be done by the ordinary method, and then remove it from the place where used in the course of his business, and not efface and obliterate the stamp, because it still contains a small quantity of distilled spirits of little value, then the penalty of the law can easily be evaded, and the purpose of the Legislature be frustrated.

I am also inclined to the opinion that the words "at time of emptying such cask" ought not to receive such a strict construction as to require the effacing and obliterating of the stamp to be done eo instanti that the cask is emptied; but the act ought to be done in a convenient time, considering the surrounding circnmstances affording evidence of reasonable excuse for delay.

If you should be satisfied from the evidence that the wife of the defendant, on the morning of the day when the cask was discovered, had emptied the cask as far as could be done by the faucet, and had removed it from the place where it had been used in the course of business, and had failed to efface and obliterate the stamp because she regarded the cask as still containing distilled spirits of value, which she desired to save, when she could procure the necessary assistance to