part of said books, or any entry therein, or willfully fails to produce such books, or either of them, shall be fined not less than five hundred dollars, nor more than five thousand dollars, and imprisoned not less than six months, nor more than two years.

Act July 20, 1868, c. 186, § 19, 15 Stat. 133. Act June 6, 1872, c. 315, § 12, 17 Stat. 240. Notes of Decisions

Intent to defraud as necessary to render distiller liable.-The failure or omission to keep books showing the facts prescribed by the statute to render a distiller liable must be shown to be with intent to defraud. U. S. v. Thirty-Five Barrels of High Wines (D. C. 1869) Fed. Cas. No. 16,460.

Indictment.-An indictment against a distiller for making false entries in a book required to be kept by him by section 6083, ante, held sufficient. Wood v. U. S. (1913) 204 Fed. 55, 122 C. C. A. 369.

Forfeiture. This statute attaches the offense to the distillery, and the real and personal property connected with it.

Dobbin's Distillery v. U. S. (1877) 96 U. S. 395, 400, 24 L. Ed. 637.

The provision for forfeiture will not be construed to include interests of innocent third persons. U. S. v. Stowell (1890) 10 Sup. Ct. 244, 133 U. S. 1, 33 L. Ed. 555.

In a proceeding in rem for the forfeiture of distillery property for violation of section 6083, ante, the government is required to prove such violation by a preponderance of the evidence only. Grain Distillery No. 8 of Eastern Distillery Co. v. U. S. (1913) 204 Fed. 429, 122 C. C. A. 615.

The intention of congress must be manifest and unmistakable to justify the courts in construing a law imposing a forfeiture as extending to property which, before seizure, had been sold to an innocent purchaser. U. S. v. One Hundred Barrels of Spirits (C. C. 1870) Fed. Cas. No. 15,948.

Under Act July 20, 1868, § 19, no proof was required of the actual complicity of the owner of the property to be forfeited in the fraud or other thing which causes the forfeiture. U. S. v. Distillery at Spring Valley (C. C. 1873) Fed. Cas. No. 14,963.

A distillery is subjected to forfeiture by the omission to make such entries in the distiller's books as the law requires, or by the making of false entries. U. S. v. Distillery at Petersburg (C. C. 1876) Fed. Cas. No. 14,961.

A decree of condemnation under forfeiture for violation of sections 7 and 19 of the act July 20, 1868, (15 Stat. 127, 132), relates back to the time when the acts were committed which incurred the forfeiture. Heidritter v. Elizabeth Oil Cloth Co. (C. C. 1881) 6 Fed. 138, judgment affirmed (1884) 5 Sup. Ct. 135, 112 U. S. 294, 28 L. Ed. 729.

A mechanic's lien cannot be enforced

in a state court, where the premises have been seized by the United States marshal under forfeiture proceedings of property used as a distillery before the claim has been filed. Id.

Premises occupied and used as a distillery are liable to forfeiture for the violation of sections 7 and 19 of the act of July 20, 1868 (15 Stat. 127, 132), in relation to distiller's bonds and books of account, without regard to the culpability of the owner of the property. Id.

In the absence of any express declaration that the forfeiture shall be instantaneous upon the commission of the forbidden acts, the forfeiture relates only to the time of seizure. U. S. v. Three Hundred and Ninety-Six Barrels of Distilled Spirits (D. C. 1866) Fed. Cas. No. 16,503.

A failure to produce the books after an order duly served, where unexplained, will entitle the United States to a forfeiture. U. S. v. Four Hundred and Sixty-Nine Barrels of Spirits (D. C. 1869) Fed. Cas. No. 15,148; Same v. Distillery at Petersburg (C. C. 1876) Fed. Cas. No. 14,961.

Distilled spirits found on the premises on which the business of distilling is carried on, being the product of such business, are not "personal property used in the business," within the meaning of the statute. U. S. v. FortyEight Hundred Gallons of Spirits (D. C. 1871) Fed. Cas. No. 15,153.

After an officer and stockholder of a corporation engaged in distilling is convicted for a violation of the internal revenue law, an action cannot be maintained to enforce the forfeiture of the corporation's property for the same offense, even though the forfeiture is resisted only by the other stockholders. U. S. v. One Distillery (D. C. 1890) 43 Fed. 846, following Same v. McKee (C. C. 1877) Fed. Cas. No. 15,688, and judgment affirmed (1899) 19 Sup. Ct. 624, 174 U. S. 149, 43 L. Ed. 929.

Evidence.-See U. S. v. Furlong (D. C. 1869) Fed. Cas. No. 15,178.

Under former law.-Distilled spirits, purchased in good faith, while in a bonded warehouse of the United States, upon which the purchaser paid the taxes, cannot be afterwards seized and condemned as forfeited for the failure of the distiller to keep proper books and to make proper reports. Acts July 13, 1866, and March 2, 1867. U. S. v. One Hundred Barrels of Spirits (C. C. 1870) Fed. Cas. No. 15,948.

The forfeiture of spirits, etc., provid

ed for by Act March 2, 1867, § 25, is also imposed as a penalty for violation of Act July 13, 1866, § 31, in the neglect on the part of a distiller to make entry and return as required by that section. U. S. v. Eighteen Barrels High Wines (C. C. 1871) Fed. Cas. No. 15,033.

Act June 30, 1864, § 68, confers no authority for the seizure of a distillery, and the lot on which it is situated, or for subjecting such real estate to forfeiture. U. S. v. One Barrel of Whisky (D. C. 1866) Fed. Cas. No. 15,921; U. S. v. Three Hundred and Ninety-Six Barrels of Distilled Spirits

(D. C. 1866) Fed. Cas. No. 16,503. But see U. S. v. Forty-Six Casks of California Grape Brandy (D. C. 1867) Fed. Cas. No. 15,135.

A refusal or neglect to comply with any of the requirements of Act June 30, 1864, § 57, works a forfeiture under section 68. U. S. v. Three Hundred and Ninety-Six Barrels Distilled Spirits (D. C. 1866) Fed. Cas. No. 16,502.

Cited without definite application, U. S. v. One Distillery (1899) 19 Sup. Ct. 624, 174 U. S. 149, 43 L. Ed. 929; Taney v. Penn Nat. Bank of Reading (1914) 34 Sup. Ct. 288, 289, 232 U. S. 174, 58 L. Ed. 558.

§ 6086. (R. S. § 3306.) Using false weights or measures in ascertaining materials; penalty; using unregistered materials; penalty.

Every person who knowingly uses any false weights or measures in ascertaining, weighing, or measuring the quantities of grain, meal, or vegetable materials, molasses, beer, or other substances to be used for distillation, shall be fined not less than five hundred dollars. nor more than five thousand dollars, and imprisoned not less than one year nor more than three years. Any person who uses any molasses, beer, or other substance, whether fermented on the premises. or elsewhere, for the purpose of producing spirits, before an account of the same is registered in the proper book provided for that purpose, shall forfeit and pay the sum of one thousand dollars for each offense so committed.

Act July 20, 1868, c. 186, § 40, 15 Stat. 141. Cited without definite application,

(1914) 34 Sup. Ct. 288, 289, 232 U. Taney v. Penn Nat. Bank of Reading S. 174, 58 L. Ed. 558.

§ 6087. (R. S. § 3307.) Distillers' returns of production to collector.

On the first day of each month, or within five days thereafter, every distiller shall render to the collector of the district an account in duplicate, taken from his books, stating the quantity and kind of materials used for the production of spirits each day, and the number of wine-gallons and of proof-gallons of spirits produced and placed in warehouse. And the distiller or the principal manager of the distillery shall make and subscribe the following oath, to be attached to said return: "I, distiller (or principal manager, as the case may be) of the distillery at do solemnly swear that, since the date of the last return of the business of said distillery, dated day of day of both inclusive, there was produced in said distillery, and withdrawn and placed in warehouse, the number of wine-gallons and proof-gallons of spirits; and there were actually mashed and used in said distillery, and consumed in the production of spirits therein, the several quantities of grain, sugar, molasses, and other materials respectively hereinbefore. specified, and no more." One of the said duplicate returns shall be transmitted by the collector to the Commissioner of Internal Revenue.

to

Act July 20, 1868, c. 186, § 19, 15 Stat. 133. Act June 6, 1872, c. 315, § 12, 17 Stat. 240. Act Dec. 24, 1872, c. 13, § 6, 17 Stat. 403.

Notes of

What distiller must return.-The distiller must return not merely the amount of his product, but the kind and quantity of the materials used by

Decisions

him, and the assessor must test the accuracy of the return. Stevenson v. Beggs (1872) 17 Wall. 182, 188, 21 L. Ed. 624.

Returns as public records.-The returns are not public records. In re Comingore (D. C. 1899) 96 Fed. 552, 556, affirmed Boske V. Comingore (1900) 20 Sup. Ct. 701, 177 U. S. 459, 44 L. Ed. 846.

False return.-The government claiming that a distiller must have used more material and manufactured more spirits than returned is bound to prove that such was necessarily the fact. U. S. v. Furlong (D. C. 1869) Fed. Cas. No. 15,178.

To sustain the theory that a given amount of material will produce a certain quantity of spirits, it must be shown that this is a necessary and unavoidable inference from the facts proved. Id.

See, also, § 5901, and notes thereunder.

month, which is balanced by a corresponding deficiency in the next month. Chicago Distilling Co. v. Stone (1891) 11 Sup. Ct. 862, 140 U. S. 647, 35 L. Ed. 532.

Assessment of penalty.-Under this section and section 6089, post, the penalty is not to be assessed against an apparent excess above the daily average in one month, when that is balanced by a corresponding deficiency in the succeeding month, and this is not altered by the expression in section 5995, ante, and section 6093, post, by which a survey is taken to ascertain the producing capacity for "a day of 24 hours"; that expression being used to represent, with greater certainty, the exact period of duration for which the average capacity of production was to be ascertained; and nothing but "average" was intended, as is manifest from the fact that no distillery, under ordinary conditions, has any spirit-producing capacity in 24 hours. Chicago Distilling Co. v. Stone (1891) 11 Sup. St. 862, 865, 140 U. S. 647, 35 L. Ed. 532.

Assessment of tax.-Under this section and R. S. § 3309, post, § 6089, providing that, "if the commissioner finds that the distiller has used any grain in excess of the capacity of his distillery as estimated according to law, he shall make an assessment against the distiller at the rate of ninety cents for every proof gallon that should have been produced from the grain so used in excess," it was held that the tax is not to be assessed against an apparent excess above the daily average in one § 6088. (R. S. § 3308.) Distillers' returns of the number of barrels distilled.

Cited without definite application, Hartman v. Bean (1878) 99 U. S. 393, 394, 25 L. Ed. 455; Taney v. Penn Nat. Bank of Reading (1914) 34 Sup. Ct. 288, 289, 232 U. S. 174, 58 L. Ed. 558; U. S. v. Lamson (C. C. 1908) 165 Fed. 80.

Every distiller shall make a return of the number of barrels of spirits distilled by him, counting forty gallons of proof-spirits to the barrel, whenever such return is demanded by the collector of the district.

Act July 20, 1868, c. 186, § 59, 15 Stat. 151. Act June 6, 1872, c. 315, § 13, 17 Stat. 244.

Cited without definite application, Taney v. Penn Nat. Bank of Reading (1914) 34 Sup. Ct. 288, 289, 232 U. S.

174, 58 L. Ed. 558; U. S. v. Lamson (C. C. 1908) 165 Fed. 80.

§ 6089. (R. S. § 3309, as amended, Act March 3, 1875, c. 131, § 12.) Monthly examination of distiller's return, etc.

On the receipt of the distiller's return in each month, the Commissioner of Internal Revenue shall inquire and determine whether the distiller has accounted for all the grain or molasses used, and all the spirits produced by him in the preceding month. If he is satisfied that the distiller has reported all the spirits produced by him, and the quantity so reported is found to be less than eighty per centum of the producing-capacity of the distillery as estimated according to law, he shall make an assessment for such deficiency at the rate of [ninety] cents for every proof-gallon. In determining the quantity of grain used, fifty-six pounds shall be accounted as a bushel; and if the Commissioner finds that the distiller has used. any grain or molasses in excess of the capacity of his distillery as estimated according to law, he shall make an assessment against the distiller at the rate of [ninety] cents for every proof-gallon of spirits that should have been produced from the grain or molasses so used in excess, which assessment shall be made whether the quantity of spirits reported is equal to or exceeds eighty per centum of the producing-capacity of the distillery. If the Commissioner finds that

the distiller has not accounted for all the spirits produced by him, he shall, from all the evidence he can obtain, determine what quantity of spirits was actually produced by such distiller, and an assessment shall be made for the difference between the quantity reported and the quantity shown to have been actually produced, at the rate of ninety cents for every proof-gallon: Provided, That the actual product shall be assumed to be in no case less than eighty per centum of the producing-capacity of the distillery as estimated according to law. All assessments made under this section shall be a lien on all distilled spirits on the distillery premises, the distillery used for distilling the same, the stills, vessels, fixtures, and tools therein, the tract of land whereon the said distillery is located, and any building thereon, from the time such assessment is made until the same shall have been paid.

Act July 20, 1868, c. 186, § 20, 15 Stat. 133. Act April 10, 1869, c. 18, § 1, 16 Stat. 42. Act June 6, 1872, c. 315, § 13, 17 Stat. 243. Act March 3, 1875, c. 131, § 12, 18 Stat. 419.

This section, as enacted in the Revised Statutes, was amended by striking out, after the words "at the rate of," wherever they occur, the word "seventy," and inserting in place thereof the word "ninety," as set forth here, by Act March 3, 1875, c. 131, § 12, cited above.

The word "ninety" of this section, inclosed in brackets, was superseded by the increase of the tax to $1.10 a gallon by Act Aug. 27, 1894, c. 349, § 48, ante, § 5986.

The assessments made under the provisions of this section were required to be made at the rate of tax imposed by Act Aug. 27, 1894, c. 349, by section 60 of said act, post, § 6090.

Provisions authorizing the remission and refunding of the assessments made by this section were made by Act March 1, 1879, c. 125, § 6, as amended by Act May 28, 1880, c. 108, § 8, post, § 6091.

The Commissioner of Internal Revenue was required to exempt distillers of alcohol for denaturation from the provisions of this section by a provision of the Underwood Tariff Act of Oct. 3, 1913, c. 16, § IV, N, subsec. 2, post, § 6137.

Use as material of wine removed to bonded premises subject to this section is provided for by Act Sept. 8, 1916, c. 463, § 402(d), post, § 6114a.

See notes under § 6087, ante, and § 6092, post.

1. Practice prescribed by statute as similar to anti-trust law.-Section 6 of the anti-trust law of 1890 requires a like procedure to that prescribed in R. S. §§ 3309-3391 (this compilation, § 6089 et seq.). U. S. v. Addyston Pipe & Steel Co. (1898) 85 Fed. 271, 301, 29 C. C. A. 141, 46 L. R. A. 122, modified (1899) 20 Sup. Ct. 96, 175 U. S. 211, 44 L. Ed. 136.

2. Practice in determining as to accounting for grain.-Practice in determining under this section whether a distiller accounted for all grain used by him in a month. Weitzel v. Rabe

Decisions

(1880) 103 U. S. 340, 343, 26 L. Ed. 320.

3. Capacity or deficiency tax in general. A distiller is liable to a tax upon 80 per cent. of the producing capacity of the distillery, whether that quantity is produced or not. Act July 20, 1868, $ 20. Mason v. Peabody (C. C. 1871) Fed. Cas. No. 9,250; U. S. v. Nissley (C. C. 1871) Fed. Cas. No. 15,893; Daley v. U. S. (C. C. 1872) Fed. Cas. No. 3542; U. S. v. Bicket (D. C. 1872) Fed. Cas. No. 14,590. CONTRA, see U. S. v. Singer (C. C. 1870) Fed. Cas. No. 16,292.

The original section meant that in no case should the distiller be assessed for a less amount of spirits than 80 per cent. of the producing capacity of his distillery, and if the spirits actually produced exceeded this 80 per cent., he should also be assessed on the excess. U. S. v. Singer (1872) 82 U. S. (15 Wall.) 111, 21 L. Ed. 49, reversing (1870) Fed. Cas. No. 16,292.

It is lawful for the government to assess and collect, as for a deficiency, the taxes on the difference between the producing capacity as estimated by the assessor and the amount of spirits actually produced by the distillery, though the distiller has in good faith reported