UNITED STATES V. JENKINSON.
903
The government is not entitled to interest onsullh unpaid duties. The amount of the recovery cannot exceed the amount clalmed in the pet.ition. Verdict for the plaintiff, $15,000. Motion for new trial overruled. October term, 1882.
UNITED STATES
v.
JENKINSON.
(District Oourt, W. D. Penns!/lvania. REVENUE LAWS-SALE OF MANUFAQTURED
1883.) TRADB.
Section 3363, Rev, 8t., provides,' inter alia, that II no manufactured tobacco shall be sold or offered for sale tinless put up in packages and stamped, as prellCl'ibed in this chapter, except at retail, by retail dealers, from 'lOOoden stamped all Provip.ed in this chapter!" Held, that a sale by a retail dealer, in the . course of hill·busincss, from a wooden package properly. stamped, of part of the tobacco to ,anOther retail dealer, who proposed to sell it again; is a retailing within the excepting clause. The vendor is not answerable for the acts of the purchaser. and need not concern himself as to his intentions.
At Law. Geo. a. Wil8on,. Asst. Dist. Atty., for the States. P. a. f{nox, for defendant. AOHESON, J. The defendant was arrested upon a issued by a United States commissioner for an alleged violation of 3363, Rev. St. There being no dispute as to the facts, by agreement between the government and d 3fendant the case has been heard before me as upon a writ of habeas corpus. The law under which the arrest has been made is as follows: "Section 3363. No manufactured tobacco shall be sold, or offered for sale, unless put up in packages and stamped as prescribed in this chapter, except at retail by retail dealeJ'sfJ'om wooden packages stamped a8provided in this chapter,' and every person who sells, or offers for sale, any snuff, or any kind of manufactured tobacco, not so put up in packages and stamped, shall be fined not less than $500 nor more than $5,000, and imprisoned not less than six months nor more than two years,"
The defendant is a retail dealer in manufactured tobacco, lawfully engaged in the business in Allegheny City. Gilbreath Stitt is a like retail dealer at Apollo, in Armstrong county, Pennsylvania. Stitt sent to the defendant an order for goods, including a small quantity-
904
FEDERAl. REPORTER.
four or five pounfts-of plug tobacco.. The latter was taken by the defendant from a wooden package stamped as provided by law, and shipped to Stitt with the other goods. This sale of the four or five pounds of plug tobacco constitutes the alleged violation of law for which the defendant has been arrested. The position of the government is that a sale of manufactured tobacco by one retail dealer to another to sell again, is not a retailing within the excepting clause of the statute. It does not appear, however, that the defendant knew it was Stitt's intention to sell this tobacco again. Perhaps that might be a reasonable conjecture, but it is not pretended that the defendant had any certain information on the subject. Indeed, it is not shown that Stitt resold any of the tobacco, or offered it for sale. The tobacco having be'Jn found by the deputy collector in Stitt's store, this crimi. nal information was made against the defendant. , It will be perceived that I am not called on to determine whether or not Stitt would incur the penalties of section 3363, if he should sell or offer to sell this tobacco. The question for solution is, has the defendant violated the law? It is conceded he is an authorized retail dealer in manufactured tobacco, and that the package from which be sold this particular lot was a wooden package lawfully stamped. Assuredly, a sale of four or five pounds of tobacco from a bulk package is retailing, according to the common understanding. Is it any the less a sale by retail on the part of the vendor because the pmchaser himself happens to be a dealer in tobacco? It seems to me, not. The retail dealer in manufactured tobacco is under no obligation to inform himself as to the purposes of a purchaser. If he haEl duly qualified himself to engage in the business and sell from packages lawfully stamped, he does all the lawexad8 of him. It would be an impertinence on his part to inquire into the intention of his customers. On that subject he need not concern himself. If they should undertake to make an unlawful disposition of the goods they purchase, they must answer for their own acts. This statute is highly penal, and, as was said in U. S. v. Veazie, 6 FED. REP. 867, it ought not to be extended by implication so as to include acts not plainly within its terms. Upon the admitted facts I am of opinion that the government has no case against the defendant, and he is therefore discharged.
OLEVELAND, 0., O. & I. BY.
CO.
V. U'OLUNG.
905
CLEVELAND,
C., C. & 1. Ry. CO.
f'.
MCCLUNG.-
(Cirouit OMVrt, S.D. Ohio, W. D.
March 16, 1888.)
L
CoLLECTOR OF ("'uBTOMB-RECEIPT OF FREIGHT ON BONDED MERCHANDISE-ACT OF JUNE 10,1880.
It is not the official duty of a collector of customs to receive the freights due to carriers for transportation of merchan,dise in bond, in pursuance of the act of June 10, 1880; but if the collector agrees to receive such freight in lieu of giving notice to the carrier, as required by the statute, before delivering the goods to consignees, he would be liable for any amount so received for the use of the carrier. I. SAME-WHEN LIABLE FOR ACTS OF DEPUTY. The receipt of such freights not being an official duty, a deputy could not render the collector liabll! for his acts by reason simply of his official relation to his superior. The collector would not be liable for freights by a deputy unleBB he had in some way authorized his deputy so to act, or unless he .had so acted as to estop him from denying that the deputy was, in the matter complained of, acting by his authority for him. ·· SAME.
If the colle«tor knew that his deputy was receiving the freight due· to the carrier, and permitted the carrier to receive the treight through his deputy in the belief that he was acting for him, or by his acts or declarations held out his deputy as his agent in the matter to receive the freight due to the carrie·r, in lieu of the notice required by the statute, he would be liable to the carrier for any amount so paid to the deputy. &. COLLECTOR OF CUSTOMS-FREIGHT ON BONDED MEROHANDISE-WHEN NOT LIABLE FOR FAILURE TO GIVE NOTICE TO CARRIER.
The plaintiff, not having alleged that the freight is unpaid, but, <;In the contrary, having alleged payment of the freight for his use and sued for its recov. ery, the· carrier cannot recover damages by reason of the failure of·the collector to give notice before delivering the merchandise to the consignees.
At Law. Stallo Kittredge and Ramsey Matthews, for plaintiff. Olulnning Richards, U. S. Atty., and Henry Hooper, Asst. U. S. Atty., for defendant. BAXTER, J., (charging jury.) The act of congress of June 10, 1880, entitled "An aot to amend the statutes in relation to immediate transportation of dutiable goods, and for other purposes," authorizes and _provides for the transportation of suoh goods from the ports into whioh they are first brought to the several oities mentioned in the aot, where the duties levied by law are to be asoertained and paid. It authorizes the delivery of suoh merohandise for transportation to some oarrier designated by the seoretary of the trelLsury. The same is to be. transported in fastened oars, vessels, or vehioles.· under the «Reported by J. C. Harper, Esq.· of the Cincinnati bar. Affirmed. See '7 Sup. Ct. Rep. 262.