United States v. Giller

• Decision Date: 05 April 1892
• Citation: 54 F. 656
• Parties: UNITED STATES v. GILLER.
• Court: U.S. District Court — Western District of Missouri

54 F. 656

UNITED STATES v. GILLER.

United States Circuit Court, W.D. Missouri, Saint Joseph Division.

April 5, 1892

Hall &amp Pike, for defendant.

G. A Neal, U.S. Atty.

Statement by PHILIPS, District Judge:

This case was submitted to the court, without the intervention of a jury, on the following agreed statement of facts Defendant, at all times mentioned in the information, was an officer of the Bavarian Benevolent Society, a benevolent association duly incorporated under the laws of the state of Missouri. That among the objects of said society is the cultivation of social intercourse and friendship among Bavarian immigrants, and their descendants, resident in the vicinity of St. Joseph, Mo., and to provide for destitute members of the society. It is a custom of said society, in the warm season of the year, to assemble at picnics in the fields and groves in the neighborhood of St. Joseph, which picnics, to secure good order and harmony, and to promote the enjoyment of said members and their families, are conducted under the management of the officers of said association. That on such occasions refreshments are served, consisting of meats, bread, cake, and beer, which are purchased and taken to the ground by the officers of said association, and distributed to the members and families as demanded. That on entering the grounds the members can obtain as many tickets as they desire from the proper officer of the said society paying five cents each, and each ticket entitles the holder to any one article of refreshment provided by the society, or to participate in any one exercise or game of amusement which may also be provided. On one day in July last, said association had a picnic, of the description hereinbefore set forth, at Villa Rosa addition, St. Joseph, at which it furnished refreshments of the kind above stated, including beer, and which was distributed to the members in the manner above described. At said picnic, defendant was present, and participated in doing whatever was done in behalf of said society. Afterwards, on the 22d day of July, 1891, defendant was accused by some officer of the government with violating the law on the occasion described, and was notified to call at the internal revenue office, and take out a license, and warned that if he did not he would be arrested, and, supposing that it was required of him by law, he paid said collector an internal revenue tax for said society for a year beginning July 1, 1891, and shows to the court herewith the receipt given by the collector of the government to said society for said tax.

Hall & Pike, for defendant,

Cited Seim v. State, 55 Md. 566; Com. v. Ewig, 145 Mass. 119, 13 N.E. 365; Barden v. Montana Club (Mont.) 25 P. 1042; Graff v. Evans, 8 Q.B.Div. 373; Tennessee Club v. Dwyer, 11 Lea, 452; Com. v. Smith, 102 Mass. 144; Com. v. Pomphret, 137 Mass. 564; Piedmont Club v. Com., (Va.) 12 S.E. 963; U.S. v. Howell, 20 F. 718.

G. A. Neal, U.S. Atty.,

Contra: U.S. v. Wittig, 2 Low. 466; People v. Andrews, 115 N.Y. 427, 22 N.E. 358; People v. Soule, 74 Mich. 250, 41 N.W. 908; Martin v. State, 59 Ala. 34; Chesapeake Club v. State, 63 Md. 446; State v. Essex Club, (N.J. Sup.) 20 Atl.Rep. 769; State v. Easton, etc., Club, (Md.) Id. 783; State v. Neis, (N.C.) 13 S.E. 225; State v. Bacon Club, 44 Mo.App. 86; 32 Cent.Law J. 98, 382.

PHILIPS, District Judge, (after stating the facts.)

The statute defines a 'retail dealer in malt liquors' as follows: 'Every person who sells, or offers for sale, malt liquors, in less quantities than five gallons at one time, but who does not deal in spirituous liquors, shall be regarded as a retail dealer in malt liquors.' 1 Sup.Rev.St. (2d Ed.)p. 229, Sec. 18.

The only exceptions, exempting a party making a sale from the license tax, as a retailer, are specified in section 4, same volume, amending section 3244, Rev. St., as follows: Where the liquors have been received by the vendor as security for or in payment of a debt, or as executor, administrator, or other fiduciary, or where they have been levied upon by an officer under order or process of any court or magistrate, and where such spirits are sold by such person in one parcel only, or at public auction in parcels not less than twenty wine gallons, or in the case of a sale made by a retiring partner, or the representatives of a deceased partner, to the incoming, remaining, or surviving partner or partners of the firm, or, in case of a retail liquor dealer, or a retail dealer in malt liquors selling out his entire stock in one parcel, or in parcels embracing not less than his entire stock of distilled spirits.

While not as specifically stated as it should have been, it is quite inferable from the whole of the agreed statement that the beer in question was bought by the corporation and taken by it onto the ground, through its officers. The property in it, therefore, was in the corporation, and belonged to its assets. The corporation might, as far as the United States is concerned, give this property to whom it pleased. The United States could only interfere for the purpose of exacting a license fee, or visiting with punishment for failure to obtain such license when the corporation, or any one for it sells the liquor without license. The corporation did not give this beer away, even to its constituency. How, then, did they obtain it? Its officers or agents, after buying the beer, took it upon the picnic grounds. It is true it was taken there for the sole use of its constituent members, but it was not parceled out among them ad libitum, as the common property of all. Such of its...