upon him by statute, which can aJso regulate, his fees for the particular service required. When section 5541 authorized the district court for the Southern district to order the sentences to be executed in any penitentiary within the state of New York, the statute implied that the district court had the power to direct an officer to execute the order, and the only officer whom it could direct was the marshal for its own district. The fee bill expressly authorizes the payment of mileage for the services incident to such transportation, unless the case is within the terms of the exception. This exce'ption refers to cases which arise under section 5546, as amended by the act of July 12, 1876, and which, in substance, authorizes the attorney general, when there is no suitable or available penitentiary within a district, to designate the penitentiaries outside of the district in which criminals sentenced by the courts of the United States shall be confined. The services now in question were performed in the execution of which were ordered under the provisions of section 5541, and not of section 5546. The judg. ment of the circuit court is reversed, with the costs of this court, and the cause is remanded to that court, with instructions to enter a new judgment, with costs of that court, for the complainant, in conformity with this opinion.
UNITED STATES v. ONE HUNDRED AND THIRTY-TWO PACKAGES OF SPIRITUOUS LIQUORS et al. (District Court, E. D. MissoUri, E. D.
REMOVING LIQUORS UNDER FALSE BRANDS-REV.
February 12. 1895.)
ST. 3449. A compounder or rectifier of liquors, who labels his products as those of a well-known distiller and rectifier, and attempts to place them on the market under such brands, removing them for that purpose from his warehouse to another place, does not thereby subject his liquors to forfeiture and himself to fine, under Rev. St. § 3449, which provides that, whenever any person ships or removes any liquors under any other than the proper name or brand, known to the trade as designating the kind lind quality of the contents of the package, he shall forfeit the liquors. and be subject to fine.
William H. Clopton, U. S. Atty. Chester H. Krum, for claimants. PRIEST, District Judge. This is a proceeding to condemn 132 packages of various kinds of spirituous liquors and wines, under the provisions of section 3449, Rev. St. U. So The general averment of the information is that the Western Distilling Company did "unlawfully transport and remove, and cause to be transported and removed, said packages of spirituous liquors and wines from the building numbered 201 North Main street, in said city [St. LOUis], to the building numbered 407 South Main street, in said city, under the names and brands other than the proper names and brands known to the trade as designating the kind and quality of the contents of said packages containing the same; that is to say, fifteen of said
UNITED STATES V.
PACKAGES OF SPIRITUOUS LIQUORS.
packages were wrongfully and unlawfully marked and branded as containing 'J. & F. Martel.Cognac,' that being a name and brand known to the trade as designating a certain kind and quality of spirituous liquors and brandy, when in fact none of said packages contained any J. & F. Martel Cognac, but contained a spurious imitation therof." The information then alleges that 39 of said packages were marked "Booth & Company, London Superior Old 'I.'om Gin"; whereas none of them contained any of that make of gin, but a spurious imitation thereof. These are sufficient to illustrate the theor:r of the information, the cha.rge with respect to the other of the 132 packages being of the same tenor. The evidence tends to prove that the packages proceeded against are bottles of liquor put up in cases, and in that form sold and shipped to the retail dealers. It appears that J. & F. Martel Cognac is a foreign brandy, made by J. & F. Martel, and is among dealers regarded as a superior quality of brandy. The like observation may be made of Booth & Co.'s London Superior Old Tom Gin. Th.e evidence shows that the liquors proceeded against bore the imitation brands or labels of "J. & F. Martel Cognac," and "Booth & Company, London Old Tom Gin," respectively, and were inferior in quality of excellence to that of the foreign makers, and were compounded at the rectifying house of the Western Distilling Compan.y, at 201 North Main street, and, after being cased, were drayed from there to the depot of the St. Louis Drayage Company, for the purpose of being shipped thence to purchasers. 'fhe naked question presented in this case is whether when a compounder or rectifier labels his product as that of a well-known distiller or rectifier, and attempts to place them under such brands upon the market, he subjects his liquors to forfeiture, and himself to fine, under the provisions of section 3449, Rev. St. U. S. The government urges an affirmative answer to this proposition, and justifies this insistence by reference to the very comprehensive language of the section. The section reads as follows:
"Whenever any person ships, transports, or removes any spirituous or fermented liquors or wines, under any other than the proper name or brand known to the trade as designating the kind and quallty of the contents of the easks or packages containing the same, or causes such act to be done, he shall forfeit said liquors or Wines, and casks or packages, and be subject to pay a fine of five hundred dollars."
As this section stands in the Revised Statutes, it is difficult to understand what it means by the terms "proper name or brand known to the trade as designating the kind and quality of the contents of the casks or packages containing the same." It seems to me that if we are to construe this law without reference to its history or the relation to the text of which it formed a part when first enacted, and the signification it then had, we must exclude tw.o ideas which its literal reading might suggest, viz. that of protecting trade-marks or undue advantage in trade, and a credulous and indulging public from the imposition of a bad imitation of good liquor. And we are impelled to this conclusion by those sound .rules of construction which direct us to consider the object aimed at
by the legislature and the jurisdiction of the legislative body. Congress had no authority to legislate upon the subject of trade-marks, 01.' make regulations for the suppression of unfair advantages in trade, or to protect the public against the imposition of a base quality of merchandise. These subjects are not germane to internal revenue tax· alion on liquors; and it is highly improbable that any such thought occurred in connection with the formulation of a set of rules and regulations for imposing and collecting this tax. Congress aimed to derive a revenue from distilled or fermented spirits, and so sur· round this industry with penal regulations as to insure, as far as possible, the collection of the tax upon all liquors so produced. It had no other object in view. It is not pretended here that the liquors proceeded against have, in any manner or to any extent, escaped any tax to which they are subject, or that by this practice they could do so. If these packages are forfeited to the government, it will not be because it sustained any loss or has in any wise been defrauded, but solely because they are counterfeits of the brands of other manufacturers,-because of a personal fraud upon other makers, whom the government has in no wise undertaken to protect or could legitimately engage to secure. Such a construction is inadmissible. The words "proper name or brand known to the trade as designating the kind and quality," etc., must mean something else than a trade-mark or make of a certain distiller. We find a very appropriate signification for them in the internal revenue law, and in the regulations and usages of the officers in the administration of that law. In the manual issued by the commissioner, and ap1890), the gauger, in proved by the secretary of the treasury marking, branding, and stamping casks or packages of distilled spirits, is directed (page 123) to "mark or brand with a die, stencil, or branding iron on the head of the cask, in letters not less than one inch in length, the particular name of the spirits known to the trade, which mark or brand will be varied to suit whatever kind is contained in the package, as "High wines," "Rye," and "Bourbon," or "Copper distilled," "Whiskies," as the case may be. These are the classifications which are referred to in the section we have under consideration. "Kind" does not refer to the maker, or "quality" to the excellence of his goods. 'l'hese statutes are born to outlive the most extended life of any distiller, and the standard of excellency of a product of any distiller is too varying and indefinite a standard for the measurement of punishment and forfeiture. "Kind," in the statute, means a well·known classification of spirituous and fermented liquors, and "quality" may be a synonym or refer to the standard of proof. A statute dealing with this same subject, and which we are not entitled to ignore, gives the negative to the contention on the part off the government. By the act of 1863 (15 Stat. 151, § 59), compounders of liquors were required to pay a special tax of $25, and were defined to be a "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,
m any other name, shall be regarded as a compounder of liquors."
Thus, it appears that the very vice for which the government seeks here to condemn these liquors is authorized and licensed by it Such an absurd construction cannot obtain. By the act of 1879 (20 Stat. 327) compounders are made rectifiers, and taxed as such. A like argument may be drawn from section 3328, Rev. St. U. S. But the true construction of section 3449 is made more apparent when we refer to its relation at the time it came into existence. We will there discover its design and the mischief it was intended to avert. Section 3449 first appeared as a proviso to section 29 of the act of ]86(; (14 Stat. 155,156); and whatever signification it then bore it must still retain, because no other meaning has been imparted to it by subsequent enactment. Bowen v. Railroad Co., 118 541, 24 S. W. 436. The general rule of interpretation is that a proviso must be construed with reference to the subject-matter of the section of which it forms a part, unless there is a manifest legislative intention that it should limit the operation of other sections of the act. Callaway v. Harding, 23 Grat 542-547; Dollar Sav. Bank v. U. S., 19 Wall. 227. The office of a proviso is to restrain, modify, or interpret tlie enacting clause. Wayman v. Southard, 10 Wheat. 30; Pearce v. Bank, 33 Ala. 693-702; Spring v. Collector, 78 Ill. 101-105. Where a proviso is meaningless with respect to the enacting clause, or was not intended to restrain, modify, or interpret it, some courts have altogether rejected it as a nullity. Mullins v. Treasurer, 5 Q. B. Div. 170. Ihmsen v. Navigation Co., 32 Pa. St. 153. We must approach the consideration of section 29 of the act of 1866 with these canons of construction in mind. Section 29 provides, that each distillery shall have its individual inspector, and requires him to take an account of all the substances used for the production of spirits, and to inspect all the spirits distilled, and to take charge of the bonded warehouse established for the distillery, to take joint custody with the owner of the warehouse, and to· take from the owner, when the spirits are placed in the warehouse, a subscribed entry therefor, in such form as may be prescri1;>ed, and to indorse up(m the same his certificate, and transmit these to the collector of the district. The other provisions relate to his fees and the appointment of his deputy. There are two provisos to this section, the second or last of which is the one we are considering. The first punishes, by fine, the removal of any of the materials used in making spirits or the distilled product, in the absence of the in· spector or his assistant, and without the permission of the collector. Then follows the proviso against the removal or shipment under a name other than that generally known to the trade as designating the kind of spirits. Construed with reference to its context and as having a similar though broader operation than the first proviso, it must apply to some removal from the distillery or warehouse under an improper or misleading title. It would be an offense under this statute to remove whisky from a distillery to the warehouse in casks under the name of brandy or the reverse, for by this means there would be opportunities for defrauding the government. Without llttempting to define with precision the operative scope of this pro·
viso, or to determine whether, in view of the subsequent: .action of congress, it is any longer in force, we must hold that it only operates under some such circumstances as we have indicated. It is sufficient in this case to say that it cannot be tortured in its meaning so as to apply to the facts which are shown in this case. The peremptory instruction asked by the claimant must be given, and a judgment in accordance therewith entered.
SMITH v. RHEINSTROM et (Clrcult Court of Appeals, SIxth Circuit.
CuSTOMS DUTIES-CHERRY JUICE.
February 5, 1895.,
A preparation of cherry juIce, made by subjecting the natural juice to heat in a vacuum, to elimInate the watery parts, and adding 17 per cent. of alcohol, such preparation being thIcker, darker, heavier, and stronger than the natural juice, is a different article from the cherry juice known In trade and commerce at the time of the passage of the tariff act of October 1, 1890, and subjected by sect.lon I, par. 339, of that.act to a duty of 60 cents per gallon; and such article Is dutiable, as an alcohollc compound, under section I, par. 8, at $2 per gallon 8:nd 25 per cent. ad valorem. 60 Fed. 599, reversed.
Appeal from the Circuit Court of the United States for the Western Division of the Southern District of Ohio. This was an application by the surveyor of customs, acting as collector at the port of Cincinnati, to review a. decision of the board of general appraisers reversing the decision of the surveyor relative to the duties upon certain merchandise imported by Rheinstrom Bros. The circuit court sustained the decision of the board of general appraisers. 60 Fed. 599. The surveyor appeals.
Rhelnstrom Bros. Imported Into the UnIted States from Germany, In 1892. 14 casks of an article invoiced to them as cherry juice, and so entered at the port of Cincinnati. It was assessed by the surveyor under Schedule A. f 1. par. 8, ot the act of October I, 1890, as an alcoholic compound not specially provided for, at two dollars a. gallon and 25 per cent. ad valorem.
Against this action the importers duly protested and appealed to the board of general appraisers. Their contention was that the article in question was cherry juice contaIning not more than 18 per cent. of alcohol, and, as such. dutiable UDder SChedule H, par. 339, of said act, at 60 cents a gallon; or that, If It did not come under that specific description, then It most resembled in material, quality, texture, or the use to which it might be applied the enumerated article cherry jUice, and was consequently chargeable with the same rate of duty as cherry juice. In accordance with the provisions or section 5 of that act. The board or general appraisers adopted the first alternative suggested by the importers, and reversed the act of the surveyor holding that the article in question was cherry juice containing not more than 18 per cent. of alcohol. From this decision an appeal was taken to the circliit court, where the action of the board of appraisers was sustained. The paragraphs and· sections of the act of October I, 1890 (26 Stat. 567 et seq.), involved in thIs controversy, are as follows: Section I, par. 8: "Alcoholic compounds not specially provIded tor in this act, $2.00 per gallon and twenty-five per cent. ad valorem." Section I, par. 339: "Cherry juIce and prune juice, or prune wine, and other fruit juices not specIally provided for In this act, containing not more than eighteen per cent. of alcohol, siXty cents per gallon. It contaIning more than eighteen per cent. of alcohol,.