Kercheval v. Allen

• Decision Date: 04 January 1915
• Docket Number: 3724.
• Citation: 220 F. 262
• Parties: KERCHEVAL v. ALLEN et al.
• Court: U.S. Court of Appeals — Eighth Circuit

220 F. 262

KERCHEVAL v. ALLEN et al.

No. 3724.

United States Court of Appeals, Eighth Circuit.

January 4, 1915

[Copyrighted Material Omitted]

William R. Orthwein, P. H. Cullen, Thomas T. Fauntleroy, and Shepard Barclay, all of St. Louis, Mo., for plaintiff in error.

Homer Hall, Asst. U.S. Atty., of St. Louis, Mo. (Charles A. Houts U.S. Atty., of St. Louis, Mo., on the brief), for defendants in error.

Before CARLAND, Circuit Judge, and T. C. MUNGER and YOUMANS District judges.

T. C. MUNGER, District Judge.

The plaintiff in error, hereinafter referred to as plaintiff, sued the five defendants in error, hereinafter referred to as defendants, alleging that they were officers or agents in the internal revenue service of the United States, and as a first cause of action that on February 14, 1911, they attempted to break and enter his dwelling house without warrant or authority, causing an injury to a door. The second cause of action alleged that on February 17, 1911, the defendants unlawfully entered into his dwelling house, and publicly searched the house and premises, and unlawfully emptied three partially filled tubs of oleomargarine into a fourth, and defaced and destroyed the canceled United States internal revenue stamps thereon, for which acts he prayed the recovery of damages.

The defendant Allen, who was the collector of United States internal revenue for that district, filed an answer containing a general denial of the plaintiff's charges, while the answers of the other defendants, in addition to a denial of any trespass, justified their entry as officers of the internal revenue service of the United States, and as possessed of a warrant from a United States commissioner, authorizing them to make the entry and search. The evidence showed that plaintiff for some years had been a dealer in oleomargarine in St. Louis, Mo., and carried on the business in the basement of a one-story dwelling house, in which he and his family resided. Three of the defendants made an endeavor to get in the door on the date stated in the first count, and four of them entered the house at the date stated in the second count, and made an investigation and search of the portion where the oleomargarine was kept and handled.

There was a trial and verdict for the defendants. Of the errors relied on by plaintiff, the first relates to the validity of a search warrant. The plaintiff himself offered in evidence the search warrant, issued by a United States commissioner at St. Louis, directed to defendant Allen as collector, and to any and all deputy collectors of internal revenue for that district, which contained the following recitals and commands:

'Whereas, complaint has this day been made before me upon oath of John T. Richardson, deputy collector of internal revenue, First district of Missouri, charging and alleging that he has good reason to believe and does verily believe that one Charles Kercheval, in the Eastern division of the Eastern judicial district of Missouri, in a certain one-story and basement dwelling house, known as No. 4832 Leduc street, in the city of St. Louis, state of Missouri, and in a brick stable in the rear of said dwelling house, unlawfully carries on the business of a manufacturer of colored oleomargarine without having first paid the special tax therefor as required by law, by mixing coloring matter with white or uncolored oleomargarine and thereby making a produce to resemble butter in a shade of yellow for sale, thereby defrauding the United States out of its revenue, said Charles Kercheval has in his possession in said premises certain white or uncolored oleomargarine, and certain colored oleomargarine which has been unlawfully colored in the manner aforesaid by the said Charles Kercheval, and that said colored oleomargarine is being concealed by the said Charles Kercheval; and

'Whereas, said J. T. Richardson has upon oath stated such facts as lead me to believe and find that there is probable cause for believing that the said Charles Kercheval is unlawfully carrying on said business of manufacturing colored oleomargarine without having first paid the special tax therefor as required by law:

'Now, therefore, this is to command and authorize you and any of your deputies to enter and search the said premises known as No. 4832 Leduc street, and the brick stable in the rear thereof, in the city of St. Louis, state of Missouri, and to take possession of and secure all of the colored oleomargarine in said premises which has been unlawfully manufactured as hereinbefore described, all white or uncolored oleomargarine in said premises, all coloring matter used in coloring white or uncolored oleomargarine, all oleomargarine tubs, all papers, route cards, lists, and bills, and all other documents in said premises relating to the manufacture, purchase, sale, or delivery of white or uncolored oleomargarine, colored oleomargarine, and coloring matter, and to hold and dispose of the same according to and as directed by law.'

The application for the search warrant was also offered in evidence. Section 3462, Revised Statutes of the United States, providing for the issuance of search warrants, is as follows:

'the several judges of the Circuit and District Courts of the United States, and commissioners of the Circuit Courts, may, within their respective jurisdictions, issue a search warrant, authorizing any internal revenue officer to search any premises within the same, if such officer makes oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being committed upon or by the use of the said premises.'

A further provision in section 3177 of the Revised Statutes, relating to the duty of officers of the United States internal revenue, is as follows:

'any collector, deputy collector, or inspector may enter, in the daytime, any building or place where any articles or objects subject to tax are made, produced, or kept, within his district, so far as it may be necessary, for the purpose of examining said articles or objects. And any owner of such building or place, or person having the agency or superintendence of the same, who refuses to admit such officer, or to suffer him to examine such article or articles, shall, for every such refusal, forfeit five hundred dollars. And when such premises are open at night, such officers may enter them while so open, in the performance of their official duties.'

These provisions of the Internal Revenue Act are general in their nature, are suitable for the collection of internal revenue taxes subsequently imposed by Congress, and, as they are repugnant to no provisions of the Oleomargarine Act, are applicable to the collection of the special taxes imposed by that act. United States v. Barnes, 222 U.S. 513-519, 32 Sup.Ct. 117, 56 L.Ed. 291.

The plaintiff requested instructions declaring the search warrant to be void, and to furnish no justification for entry by any of the defendants into the plaintiff's dwelling house, or for a search therein; but the court denied the request, and told the jury that the warrant was legal...