It may be conceded that the express company as a public carrier, in the usual course of business, had a right, without liability to the Government for this tax, to carry beer for breweries at St. Paul and Minneapolis to their consignees within the State of North Dakota. In such a legitimate transaction the mere manner and time of delivery to the consignee and the payment therefor would not alter the office and liability of a carrier. But the evidence discloses a most unusual and extraordinary method and relation between the consignors and the carrier. The evidence was directed more particularly to such transactions had at one of the stations in North Dakota. But the case was tried on the practical concession that a like method of procedure obtained at all the other stations. The practice was after the following fashion: Persons in North Dakota desiring to obtain beer would go to the local agent of the express company and say they wanted so much beer of a given brew, when the agent would send in the order, generally in the name of a fictitious consignee, and sometimes in the name of a mere number-say 7 or 9. The agent, in instances, would send in the order not only to cover the quantity thus requested, but for an additional consignment. Sometimes he would send in an order without any such request from any known patron. The beer would be shipped to the agent, the price thereof charged by the shipper to the express company. The shipper knew not the local customer, and dealt not with him; but charged the sale price to and received payment from the express company. The beer, consisting of boxes and kegs, would be shipped in bulk, and when received by the agent would be stored in the company's warehouse. And while a preference would be given to those who had made to the agent a special request for a shipment, the excess would be delivered by the agent to any customer who applied to him for beer in such quantities as the buyer might desire. Thus would beer be sold by the agent to customers who had placed no previous orders with him. The agent would collect from the customer the sale price, plus the transportation charge, and in his returns to the express company would account for this money to it. The evidence further shows that the agent had with the consignor an understanding that as to any beer left over after the customers were supplied the same could be returned to it, and the money advanced therefor would be refunded. It is a noticeable fact, in this connection, that it does not appear that the consignor made any recompense to the express company for the cost of such carriage to and fro. Another remarkable fact is that, contrary to the ordinary method of dealing between express companies and consignees of articles carried, the agent took no receipts from parties to whom the beer was delivered, and kept no books showing such names.

And as further evidence of the fact that such agent in this traffic was plying the office of a dealer, like any other provident business man, he was thoughtful to be prepared to meet an expected large demand for supplies of beer from possible customers. For instance, on the second day of July, just two days before the Fourth of July, he sent in orders and received an unusually large consignment from the breweries, without special requests for all of it from known purchasers.

While the evidence does not show that the express company received any commissions as such on these shipments, it does show that it received each month a very large income thereon for the carriage charges. It enjoyed a monopoly of this business. Although there does not appear to have been any occasion or exigency for “hurry-up orders for shipment of these regular, frequent consignments, no shipments were made on ordinary freight trains, although the cost of the latter method of transportation was much less than the express charges.

Certainly the express company was not performing the office in these transactions of a mere commercial broker, who is exempt, under the internal-revenue laws, from the payment of such tax.

The difference between a factor or commission merchant and a broker is stated by all the books to be this: A factor may buy and sell in his own name, and he has the

goods in his possession; while a broker, as such, can not ordinarily buy or sell in his own name, and has no possession of the goods sold. Slack v. Tucker & Co. (23 Wall., 321-330).

The express agent has possession of the beer. He sold to customers who applied to him. He sold some of the beer on credit. If not paid for by the vendee the loss would presumably fall on the express company. The company got its compensation for its pains and risk in the augmented income to its business as a carrier. In this respect the situation was little, if any, different from that of a commission merchantan intermediary-who sells on commission, accounting to the manufacturer for the purchase money. Such a person is liable to the Government for the revenue tax as a dealer under the statute. Slack v. Tucker & Co. (supra); Quinn v. Dimond (72 Fed. Rep., 993; 19 C. C. A., 336).

If this express company would shield itself from liability for such tax as a dealer in liquor, which the law extends to the carrier engaged in the useful business of interstate commerce, it is only needful that it conduct the transportation of liquor from without into a prohibition State just as it should any other commodity, without making its agencies and storehouse in the prohibition State a covert for violators of the internal policy of the State.

It results that the judgment of the circuit court should be affirmed.

(T. D. 966.)

Stamps on packages of smoking tobacco.

Small packages of smoking tobacco having the stamp thereon partially concealed by the manufacturer's advertising wrappers need not be seized or interfered with.

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER OF INTERNAL REVENUE,

Washington, D. C., January 13, 1906.

SIR: This office has received your letter of the 9th instant, inclosing a package of smoking tobacco manufactured by factory No. which has the stamp so affixed thereon as to show only the portion at each end of the package, the manufacturer's advertising wrapper being placed around the package in such manner as to cover up the balance of the stamp, and you ask whether this is allowed under the regulations, and if not, whether special permission has been given by this office to the factory named to partially conceal the stamp by the outside wrapper.

In reply, you are advised that while the regulations (p. 30) require that strip and other small stamps affixed to packages of tobacco, etc., shall be affixed on the outside of such packages, I have deemed it proper in the interest of the trade, in connection with advertising matter on tin boxes containing brands of sliced plug, used for smoking purposes, to permit the stamp to pass over the tobacco underneath the lid, the ends only showing on the sides of the box. Small packages of other kinds of smoking tobacco, with the stamp partially concealed by the paper wrappers, would present similar conditions,

and the practice is now so generally followed by manufacturers 1 can not consistently object to it. Therefore such packages need not be seized or interfered with provided the stamp can be plainly seen at the ends. The outside wrapper, however, should not be pasted down onto the stamp, as it may be necessary for inspecting officers to assure themselves that the entire stamp is on the package, and that it is properly canceled.

Verification of foreign landing certificate or consignee's declaration by notary public.

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER OF INTERNAL REVENUE,

Washington, D. C., January 15, 1906.

To collectors of internal revenue and others concerned:

The question having been presented to this office as to whether the verification by a notary public of a foreign landing certificate, covering the exportation of oleomargarine, signed by the consignee only, would come within the provision of Circular No. 669, dated March 9, 1905, which requires that "the declaration of a consignee that the goods have been delivered requires verification by some officer or agent," attention is called to letter addressed to an exporter of oleomargarine under date of November 3, 1905, as follows:

This office is in receipt of your letter of the 31st ultimo, relative to Department Circular No. 105, and Internal Revenue No. 674 of October 14, 1905, in which you ask, “Will a landing certificate be acceptable if it is signed by the consignee only; and in this event will you require the acknowledgment of a notary public or consul ?” You desire to obviate the necessity for the verification by consuls or consular agents on foreign landing certificates covering oleomargarine exported free of tax, as the charges for such verification on these documents range from $2 to $3.50 each.

In reply, you are advised that Circular No. 669, dated March 9, 1905, of which circular of October 14 last is a supplement, states that the declaration of a consignee that the goods have been delivered requires verification by some officer or agent." It is held that the verification by a notary public who affixes thereto his seal or stamp of office, or a certificate that he is authorized to administer oaths, would constitute such notary public an officer within the meaning of that part of the circular of March 9, 1905, above quoted, and the landing certificate so verified would be acceptable.

However, foreign landing certificates signed by the consignee only, without verification, are not acceptable.

The above-quoted letter fully answers the question on this point. JOHN W. YERKES, Commissioner.

(T. D. 968.)

Alcoholic compounds-External remedies.

The ruling in Circular 673 holding that special tax is required to be paid for the manufacture and sale of certain alcoholic compounds labeled as medicines therein described does not apply to external remedies, such as liniments.

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER OF INTERNAL REVENUE,

Washington, D. C., January 19, 1906.

SIR: In reply to your letter of inquiry without date, you are hereby informed that the internal-revenue laws of the United States do not contain any provision as to the quantity of alcohol that may be used in the manufacture of medicines. * *

The ruling in Circular 673 has no application to external remedies, such as liniments, in the preparation of which alcohol is used. No special tax is required to be paid under these laws for the manufacture and sale of liniments. * * *

Respectfully,

Mr.

JOHN W. YERKES, Commissioner.

(T. D. 969.)

Sales of tobacco and cigars at public gatherings.

Ruling 952 of November 24, 1905, holding persons to be peddlers of tobacco who travel from one public gathering to another selling tobacco and cigars, does not apply to those who make such sales at booths or stands set up at these public gatherings.

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER OF INTERNAL REVENUE, Washington, D. C., January 24, 1906. SIR: Your letter of the 22d instant has been received, inquiring as to the effect of ruling 952 of November 24, 1905, in TREASURY DECISIONS of November 30, 1905, with reference to persons selling manufactured tobacco and cigars at public gatherings, such as farm vendues, fairs, bazaars, political meetings, etc.

That ruling applies only to persons traveling from one of these public gatherings to another and selling tobacco and cigars without having any particular place at which they make such sales. These persons are to be regarded as selling in the manner of peddlers, and, under the law, must be required to give bond and sell only original and full stamped packages.

The ruling does not apply to persons who put up booths or stands at any of these sales, and at these fixed places of business sell cigars and tobacco taken out of the stamped packages.

Mr. H. L. HERSHEY, Collector Ninth District, Lancaster, Pa.

(T. D. 970.)

Transfer of storekeepers, storekeeper-gaugers, and gaugers.

[Circular No. 13.-Int. Rev. No. 677.]

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER OF INTERNAL REVENUE,
Washington, D. C., January 29, 1906.

Regulations No. 7, revised April 15, 1901 (p. 50, pars. 3, 4, and 5), are hereby so far modified as to require the transfer of the officers mentioned therein at such times only as in the opinion of the collector or Commissioner of Internal Revenue shall promote the best interests of the service.

Collectors will be governed by the foregoing instructions in the transfer of gaugers and storekeeper-gaugers when assigned by the Commissioner in the separate capacity of gaugers and the assignment specifies no particular place or kind of duty.

Approved:

JOHN W. YERKES, Commissioner.

LESLIE M. SHAW, Secretary of the Treasury.

(T. D. 971.)

Mixed flour.

"Pancake" and " 'compound," etc., flours are taxable as mixed flour when wheat or wheat flour is the principal constituent in quantity of materials used.

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER OF INTERNAL REVENUE,

Washington, D. C., January 27, 1906.

SIR: This office is in receipt of your letter of the 24th instant, relative to the liability of certain persons and firms to special taxes as manufacturers of mixed flour and stamp tax on such goods, by reason of the manufacture of so-called "pancake" and "compound" flours. You submit several "dodgers" or printed sheets advertising such preparations, placed upon the market by, doing business in

as

There are five of these compounds produced by this manufacturer, advertised as -, upon all five of which, you state, the manufacturer paid tax as mixed flour, under act of June 13, 1898, and up to the time the amendatory act of March 2, 1901, became effective, after which time he, and all other manufacturers of such flour in discontinued paying special taxes and the stamp tax on such preparation. The relief of the manufacturers was evidently based by the