Western Express Co. v. United States

• Decision Date: 20 October 1905
• Docket Number: 2,204.
• Citation: 141 F. 28
• Parties: WESTERN EXPRESS CO. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

141 F. 28

WESTERN EXPRESS CO. v. UNITED STATES.

No. 2,204.

United States Court of Appeals, Eighth Circuit.

October 20, 1905

Alfred H. Bright (Ball, Watson & Maclay, on the brief), for plaintiff in error.

B. D Townsend, Asst. U.S. Atty., and Patrick H. Rourke, U.S. Atty.

Before SANBORN, Circuit Judge, and PHILLIPS and CARLAND, District judges.

PHILLIPS District Judge.

This is an action by the defendant in error, the United States against the plaintiff in error, the Western Express Company to recover special taxes assessed against the defendant as a wholesale and retail dealer in liquors. There are a large number of counts in the petition for assessments made against the express company for selling malt liquors at each of 26 stations on the line of the Minneapolis, St. Paul & Sault Ste. Marie Railway Company in North Dakota. North Dakota is a prohibition state. On a trial to a jury, at the conclusion of the evidence, the respective counsel requested a peremptory instruction to the jury. Thereupon, on consideration, the court directed a verdict in favor of the plaintiff. By this action both parties conceded that there was in fact no case for the decision of the jury; and in legal effect submitted the whole case to the decision of the court. 'When pursuant to such requests, the court accepts these waivers, and by its peremptory instruction determines the questions of fact and of law in favor of one of the parties, both parties are estopped from assailing or reviewing its finding upon disputed issues of fact, and are limited in the appellate court to a review of the two questions, was there any substantial evidence to sustain the court's finding of facts; and was there any error in its declaration or application of the law? United States v. Bishop, 125 F. 183, 60 C.C.A. 125.

The controlling question, therefore, for decision is whether or not there was any evidence in the case to support the finding. If there was, the verdict must stand. The action being based upon assessments made by the proper revenue officers of the government, the law presumes that these officers proceeded regularly; that on due inquiry they ascertained the existence of the essential facts subjecting the defendant to such tax. In this respect such officers act in a quasi judicial capacity, and their action stands as prima facie correct until this presumption, by countervailing proof, is met and overthrown by the party assessed. The government was not required in the first instance to go further in the proofs than to submit the assessment list. 18 Int.Rev.Dec. 164 (Circuit Court, N.D., New York); Delaware Railway Company v. Prettyman et al., Fed. Cas. No. 3,767 (Circuit Court, D. Delaware); United States v. Rindskopf, 105 U.S. 418-422, 26 L.Ed. 1131. When, therefore, the government presented the assessment list, which is conceded to have been regular in form, and rested, it had made out a prima facie case. Without more, it was entitled to a verdict. It then devolved upon the defendant below to rebut the case made by a preponderance of evidence. There was not only some evidence in the case to support the verdict, but when all the evidence which supervened is examined, it discloses many cumulative facts and circumstances, which, within the range of reasonable inference, tended to support the verdict.

The essential question on trial was whether or not, within the purview of section 3244, Rev. St. (U.S. Comp. St. 1901, p. 2098), the express company was engaged in the business of a dealer in liquors, as a retail or wholesale dealer. The fifth paragraph of said section declares that:

'Every person who sells or offers for sale malt liquors in quantities of five gallons or less at one time, but who does not deal in spirituous liquors, shall be regarded as a retail dealer in malt liquors. Every person who sells or offers for sale malt liquors in larger quantities than five gallons at one time, but who does not deal in spirituous liquors, shall be regarded as a wholesale dealer in malt liquors.'

Much of the unusually forceful discussion by counsel touching the relation between consignor and common carrier, when the relation of vendor and vendee begins and ends, and where, in such relation, the real title to the property remains and when it passes, is more or less academic. The actual ownership of the property is not essential to fix upon the trafficker the quality of a dealer in liquors under this statute. The statute attaches to him the office...