UNITED STATES 11. DAVIS.
(Di8trict Court, E. D. Missouri, E. D.
INTERNAL REVENUE-SPECIAL TAX-PARTNERSffiP-RIGHT OF SUCCESSOR.
Rev. St. U. S. § 3234. authorizes a partnership to carryon the business of retailing liquors and cigars upon the payment of but one special tax. Section 8241 provides that upon the death of one who has paid the 8pecial tax his legal representatives may continue the business in the same place, and in the same manner, without the payment of an additional tax, and also that the licensee may; upon removal from the place mentioned in the license, continue the business at the place to which he removed without paying an additional 'tax. Held, tbat a member of a firm who has acquired all the interests of the the other members in the firm assets, and succeeded to the business, may carry it on under a license issued to the firm, at a place other than the old place of business of the firm.
Information for Retailing Liquor and Tobacco without paying special tax. Thomas P. Bashaw, U. S. Dist. Atty.' A. J. Davis; in pro. per.
THAYER, J. The only question to be determined in this case is whether a member of a firm who has acquired all the interest of the other members of the firm in the firm assets, and has succeeded to its busilless,' is entitled to do business as a retailer of liquor and manufactured tobacco under a license or special tax receipt issued to the firm before· its dissolution, at any other place than the old place of business of the firm. In the case of U. S. v. Glab,99 Uo S. 225, it was held that a partner who had succeeded by purchase to the busIness of the firm might continue to do business for the unexpired term of the license, at the old stand; but it was not expressly determined whether such license could be lawfully transferred, so as to authorize a continuation of the same business by the remaining partners at some other place in the same city or town. Following sOPJ.e intimations given in that decision, the practice has been, as I am informed, to refuse to allow such transfers, although it is conceded that a: firm has the right, if no changes have taken place in its membership, to have its license transferred from one place to another, as its place of business is changed. I regard the limitation in the respect last noted, upon the right of a remaining partner of a firm who has succeeded to its business to have the firm license transferred, as unwarranted by anything contained in the decision above reterred to, or by the statute regulating the collection of special taxes. Sections 3232-3242 inclusive. l If the remaining member of a firm, in case of dissolution, can use the
1"8ec.3234. Any number of persons doing business in copartnership at anyone place Ihall be required to pay but one special tax." "Sec. 3241. When any person who has paid t,lJe special for any trade or business dies, his wife or child, or executors or administrators, or other legal representatives, :may occupy the house or premises, and in like manner carryon for the residue of the term for which the tax is paid the same trade or business as the deceased before carried on, in the same house, and upon the same premises, without the payment of any
,Ul'iITED STATES 11. DAVIS.
firm license at all, he shonld be permitted to use it in manner and form as the firm might have used it if no dissolution or change had taken place therein. In the case of U. S. v. Glab, the defendant had the firm business at the old stand, and his right to use the license at that place was the sale question involved in the decision. It is true that some allusion was made to possible difficulties that might arise in applying the law as therein construed, if the remaining partner should associate with him in business another person in place of the outgoing partner, or if a change should be made in the place of business; but I understand the allusion so made to possible difficulties that would occur in the event of a change in the place of business, to refer to difficulties that would be encountered in the eveht of a dissolution of the firm without any agreement between the partners as to the disposition of the firm assets, including therein its unexpired license. A firm might dissolve, and E::ach partiller thereafter assert the right to carryon the business at different places, under a license originally' issued to the firm. In that case, as a license ,only protects a business at one place, the collector would either be compelled to recognize the right of the partner who remained at the old plilCe of business to use the license, or to require each partner to take out a: new license. No such difficulty, however, is encountered when, by agree_ ment between the members of a firm, one or more of them retires, and the others are authorized to continue the business and u,se the old license. In all such cases where there is no controversy between the partners as to the right of the remaining member or members of the firm to use the firm license, and no new members are introduced into the firm to take ihe place of those who have retired, it is clear that the partner or partners who succeed to the business have the same right that the original firm had to transfer the license in case the place of business is changed to some other streetor number in the same town or city. As was remarked in the case of U. S. v. Glob, it is not the policy of -the government to require honest dealers to pay a special tax twice, and I may further remark that it is not the policy of the law to placeunnec,essary restrictions upoil the right of a dealer to change his business location. In the case under consideration, I understand that defendant had :acquired all. the interest of his copartner in the business formerly Con,dpcted by himself and William Dalton. He was therefore entitled to carryon the business in his own name as a retail dealer, until May 1, 1889, under the license issued to A. J. Davis and William Dalton, upon baving the same duly transferred to No. 2,601 Chouteau avenue, where he proposed to conduct the business after the dissolution of the firm; :and it was the duty of the collector to have transferred the license to that number, on a proper application therefor made by the defendant.
I,·' · '. ·
,additional tax. And when any person removes from the house or premises for which .any trade. or was taxed to. any other place, he may carryon the trade o,r busi. spec.lfied In the collector's regIster at the place to which he removes, without the :payment of any additional tax: prOVided; that all cases of 'death, change, or removal, aforesaid; with the'name of the SUOO6SS0r to any person deceased, or of the person making such change or removal, shall'be registered with the collector, under regula· .tions to be prescribed by the commissioner of internal revenue...
(Diltrlct (JO'Urt, 8. D.
E; D. 'January 17.1889.)
COURTS-FEDERAL JURISDICTION-CLAIMS :FOR FEES.
The act of22d February, 1875, (18 St. at Large. 333.)wblch requires that the accoun.ts of district attorneys. clerks. marshals, etc., shall be forwarded. "when approved. " "to the proper accounting officers of the treasury," does Dot make prese'ntation to such officers a condition precedent to a right of action.norls rejection of a claim by the accounting officers of the treasury such a determination of a "commission or department authorized to hear and det.ermine," in the meaning of the'act of March 8, 1887, (24 St. at Large, 505,) as will bar an' action in the proper courts.
While the general rule is otherwise; when a statute fS'silent as to compensation, if additional labor ill imposed upon a clerk. not in the line of the duties ordinarily appertaining to such an office. and if contemporaneous construction'of the statute by tbe attorney general, and' analogous prOVisions of ,otberstatutes subsequently passed. indicate an intention to 'pay for such serV- ' ices, the officer is entitled to compellsation.
" A clerk of lIocircuit or district court of tbe United States fs entitled to compensatjon for revising' tbe jury'box at the rate of five dollars per day for a period not exceeding three days for a term of the court. The clerk is entitled to charge 15 cents per folio for re.r.ording the namp-s. rllsidenr.es, etc., of ju' rorB, ()n a record which he is required to make by a rule of court.
DIEM-ATTEN,DANCE OF DErUTY.
8.,SAllE-SERVlCE AS JURY COMMISSIONER.
Where his deputy attends a 8ess'I'on of' the conrt. tbe. clerk is entitled to 1\ per dtemcompensation for such attendance, even 'though the clerk bas received a per diem for his personal attendance the same day at a session of the court at another place.
The proviso relative to compensation forattendance of court officers. in the act of August 4.1886. (24 St,at Large, 258,) was repealed by the'proviso cov,ering the salI\e Ilubject·matter in the act of March 8. lij87. (24 St. at Large. 541.) And since the, passage of the .latter act it is not necessary that J'Jusiness be transacted in court to entitle the clerk to his Pf/I' a,em; it ill sufficient if the court be opened for business by the judge. The offices' of clerk and commiSsioner are compatible, A person wbo holds two distinct compatible offices may re.cejve' the compensation of each, A clerk is given a diem,fee "for his attendance" at a session of the conrt;a commissioner is given' a Pf/I' dtemfee "for hearing and deciding, "-services clearly distinct. ' ,
SAME-SERVICE AS COMMISSIONER.
SAMlil-ATTACHMENTFOR CONTEMPT-DOCKET AND RECORI> FEES,
An attachment against II- defaulting witness or juror for contempt of c()urt is .an ipdependent suit, and a "cause" for which a docket fee is cbargeable under the fee-bilL The clerk is required to make a tinalrecord of the proceedings in such a case. " ,
8. SAME-WARRANT FOR TRANSPORTATION-DoCKET FEES, The clerk is entitled to a docket fee for a hearing by the court on appUca· 1.ion for a warrant for the transportation of a defendant to another district under the provisions of seclion 1014, Rev. St.
The. clerk, ,Ill entltle,d charge!. f?r fihng paper sent up by commlsslonllra after hearIng in ,crlmmal cases, and for tilmg each separate ac· count of,deputy-marahals, being the vouchers to accounts current of the marshal.