law of Indiana, which was claimed to be
in conflict with the Federal Constitution.
The decision of the state court having been
in favor of the act, the auditor brought the

case here.

are not embraced in the words "anything else," as used in U. S. Rev. Stat. § 3455, U. S. Comp. Stat. 1901, p. 2279, providing for a seizure, forfeiture, and penalty for selling packages which contain, at the time of sale, anything else than the contents when the same were lawfully stamped by a revenue officer, even where there is no intent to defraud, and for a much heavier penalty where there is such fraudulent intent.

[No. 24.]

Mr. Justice Brown, delivering the opinion of the court, cited the following cases: Tyler v. Registration Ct. Judges, 179 U. S. 405, 45 L. ed. 252, 21 Sup. Ct. Rep. 206; Clark v. Kansas City, 176 U. S. 114, 44 L. ed. 392, 20 Sup. Ct. Rep. 284; Turpin v. Lemon, 187 U. S. 51, 47 L. ed. 70, 23 Sup. [198] Ct. Rep. 20; *Lampasas v. Bell, 180 U. S. 276, 45 L. ed. 527, 21 Sup. Ct. Rep. 368; (Argued December 16, 1907. Decided JanLudeling v. Chaffe, 143 U. S. 301, 36 L. ed. 313, 12 Sup. Ct. Rep. 439; Giles v. Little, 134 U. S. 645, 33 L. ed. 1062, 10 Sup. Ct. Rep. 623, and said:

case.

"These authorities control the present It is evident that the auditor had no personal interest in the litigation. He had certain duties as a public officer to perform. The performance of those duties was of no personal benefit to him. Their nonperform ance was equally so. He neither gained nor lost anything by invoking the advice of the supreme court as to the proper action he should take. He was testing the constitutionality of the law purely in the interest of third persons, viz., the taxpayers; and in this particular the case is analogous to that of Caffrey v. Oklahoma, 177 U. S. 346, 44 L. ed. 799, 20 Sup. Ct. Rep. 664. We think the interest of an appellant in this court should be a personal, and not an official, interest, and that the defendant, having sought the advice of the courts of his own state in his official capacity, should be content to abide by their decision."

These decisions control this case and compel a dismissal of the writ of error, and it is so ordered.

UNITED STATES

V.

A. GRAF DISTILLING COMPANY.

(See S. C. Reporter's ed. 198–208.)
Internal revenue-forfeiture-grounds.
1. The sale of a barrel of whisky to which
has been added, after such barrel has been
properly stamped by a revenue officer, burnt
sugar, or caramel, as coloring matter, does
not authorize the seizure and forfeiture to
the United States provided for by U. S.
Rev. Stat. § 3455, Ú. S. Comp. Stat. 1901,
p. 2279, when a barrel or other package con-
tains anything else at the time of sale than
the contents which were therein when law-
fully stamped.

Internal revenue-forfeiture-grounds.
2. Substances which are not in themselves
taxable under the laws of the United States

uary 27, 1908).

N A CERTIFICATE from the United

O`States of Appeals for

the Eighth Circuit, presenting questions as
to whether the addition of burnt sugar, or
caramel, before sale, to a barrel of whisky
which has been stamped by a revenue officer,
authorizes a seizure and forfeiture, and
whether the phrase "anything else," as used
in the statute providing for such seizure
and forfeiture, includes substances that are
Both questions
not in themselves taxable.
answered in the negative.

Statement by Mr. Justice Peckham:
This case comes here on a certificate from

the United States circuit court of appeals
for the eighth circuit. The proceeding was
commenced in the district court of the
United States for the eastern district of
Missouri, January 4, 1905, by the United
States district attorney for that district,
who filed therein an amended information,
praying for a decree of forfeiture, condem-
nation, and sale of three barrels of whisky,
which had theretofore been seized by the
collector of internal revenue and were still
in his possession and custody.

The sole ground for the seizure and forfeiture averred in the information is contained in the following paragraph thereof, as certified by the circuit court of appeals:

"That prior to the times of said seizure of said barrels and packages, they, and each of them, had been purchased and received by A. Graf & Company, they then being stamped, branded, and marked so as to show that the contents thereof were distilled spirits of a certain proof, which had before then been duly inspected by an officer of the revenue, to wit, a United States gauger. That afterwards, and before said seizure, said barrels and packages, and each of them, and the contents therein then contained, were sold to divers persons, each of the barrels and packages at the time of the sales last aforesaid containing things else than the contents which were therein when said barrels and packages were so lawfully

Assistant Attorney General Cooley argued the cause and filed a brief for the United States:

When the language of the statute is clear and unambiguous it admits of no construction.

Endlich, Interpretation of Statutes, § 4; United States v. Palmer, 3 Wheat. 610, 630, 4 L. ed. 471, 477; The Samuel E. Spring, 27 Fed. 764.

The statute, being a revenue law, should not be strictly construed.

United States v. Stowell, 133 U. S. 1, 12, 33 L. ed. 555, 558, 10 Sup. Ct. Rep. 244; 18 Ops. Atty. Gen. 246, 248; United States v. Hodson, 10 Wall. 395, 406, 19 L. ed. 937, 939; United States v. 100 Barrels Spirits, 1 Dill. 49, 57, Fed. Cas. No. 15,948. The government's view accords with judicial construction of revenue laws.

United States v. 2 Bay Mules, 36 Fed. 84; United States v. Goodrich Transp. Co. 8 Biss. 224, Fed. Cas. No. 15,228; United States v. Ulrici, 3 Dill. 532, Fed. Cas. No. 16,594; Dobbins's Distillery v. United States, 96 U. S. 395, 401, 24 L. ed. 637, 638; United States v. Bayaud, 21 Blatchf. 287, 16 Fed. 384; United States v. Dobbs, Fed. Cas. No. 14,972; United States v. 50 Barrels of Whiskey, Fed. Cas. No. 15,091; United

The ground of the decision of the district court was that the purpose of § 3455 of the Revised Statutes is to prevent the disposition of packages stamped, branded, or marked, when empty, or when containing a taxable substance other than the contents which were therein when they were so law fully stamped, branded, or marked by an officer of the revenue; and that burnt sugar, or caramel, not being taxable, is not within the meaning of the phrase "anything else," | States ex rel. United States Attorney v. 9 as contained in the section referred to.

29

C. C. A. 220, 30 U. S. App. 240, 66 Fed. I what is the proper construction of the lan984; United States v. 1 Package of Dis-guage of the statute when it speaks of selltilled Spirits, 88 Fed. 856.

The language of the statute should be given a reasonable construction, having in view the objects intended to be accomplished by Congress at the time of the enactment of the clause containing such language. United States v. Kirby, 7 Wall. 482, 19 L. ed. 278; Felton v. United States, 96 U. S. 699, 24 L. ed. 875; Church of the Holy Trinity v. United States, 143 U. S. 457, 36 L. ed. 226, 12 Sup. Ct. Rep. 511; Carlisle v. United States, 16 Wall. 147, 21 L. ed. 426; Heydenfeldt v. Daney Gold & S. Min. Co. 93 U. S. 634, 23 L. ed. 995; Re Chapman, 166 U. S. 661, 41 L. ed. 1154, 17 Sup. Ct. Rep. 677; Potter v. Hall, 189 U. S. 292, 47 L. ed. 817, 23 Sup. Ct. Rep. 545; Hawaii v. Mankichi, 190 U. S. 197, 47 L. ed. 1016, 23 Sup. Ct. Rep. 787; United States v. 20 Boxes of Corn Whisky, 67 C. C. A. 214, 133 Fed. 910; The Enterprise, 1 Paine, 32, Fed. Cas. No. 4,499.

ing a barrel and its contents after it has been properly stamped, and which, at the time of sale, contained anything else than the contents which were therein when the barrel was stamped by the revenue officer. Does the addition, after such stamping, of burnt sugar, or caramel, placed in the barrel for the sole purpose of coloring the contents (in this case whisky), and without intent to defraud the revenue or any person, render the seller liable to the penalty provided by the statute, and the barrel and its contents liable to forfeiture? This coloring matter was not itself taxable. There is no charge that it is unhealthy, and it is plain that its use defrauds no one, within the legal meaning of that term. The statute is not a health law, nor is its purpose to prevent the coloring of whisky before its sale to the consumer. The matter which was added to the contents of the barrel, after it was stamped and branded, did not The purpose is evident to prevent per- increase or decrease the amount of the tax sons from marking, dealing in, or even hand- otherwise payable on the spirits so colored. ling, a class of articles so branded or The government, however, contends that stamped that they can be used in fraud of it is wholly immaterial whether the colorthe government as receptacles to dissemi-ing matter added is not itself taxable; it is, nate articles on which the government levies a tax.

United States ex rel. United States Attorney v. 9 Casks & Packages of Distilled Spirits, supra.

Mr. Justice Peckham, after making the foregoing statement, delivered the opinion

of the court:

within the terms of the statute, something "else than the contents which were" in the barrel when it was lawfully stamped by the officer of the revenue; and, if the person who adds the coloring matter subsequently sells the barrel and contents, such act subjects them to forfeiture, and renders the person making the sale subject to the penalty named in the first part of the section. The counsel for the government insists that there is no room for construction other than

Other phases of this controversy have
appeared in the courts below and are re-
ported in 125 Fed. 52, and 63 C. C. A. 263,
129 Fed. 329. After the reversal of the
judgment of forfeiture and the granting of
a new trial by the circuit court of appeals,
as disclosed by those reports, the informa
tion was amended by making the allegations
contained in the foregoing statement, and
the original averment as to placing other
[204]*distilled spirits of a different quality in the
barrels after being stamped is not before us.
We are here called upon to determine
were therein when said articles had been so, section, with intent to defraud the revenue,
lawfully stamped, branded, or marked by or to defraud any person, shall be liable to
an officer of the revenue, he shall be liable a fine of not less than one thousand nor
to a penalty of not less than fifty nor more more than five thousand dollars, or to im-
than five hundred dollars. And every per-prisonment for not less than six months nor
son who makes, manufactures, or produces
any box, barrel, bag, vessel, package, wrap-
per, cover, or envelope, stamped, branded,
or marked, as above described, or stamps,
brands, or marks the same, as hereinbefore
recited, shall be liable to penalty as before
provided in this section. And every person
who violates the foregoing provisions of this

such as the plain language of the statute
calls for; and it is contended that to hold
otherwise destroys the statute and opens
the door to fraud which is not easy to de-
tect, and which the statute was intended to
prevent. In a very careful review of the
various provisions of the internal revenue
statute, counsel for the government has[205]
called attention to many acts which are for-
bidden and which would seem to be inno-
cent, but which were, nevertheless, thought

or

more than five years, or to both, at the dis-
cretion of the court. And all articles sold,
given, purchased, received, made, manufac-
tured, produced, branded, stamped,
marked in violation of the provisions of this
section, and all their contents, shall be for-
feited to the United States.

to be of such a character as to open the, although not in exact and literal obedience
door for fraud upon the revenue, and hence to the wording of the law.
it is argued that this addition of coloring
matter was an act which, although it might
seem to be innocent in itself, yet neverthe-
less comes within the plain prohibition of
this section, and effect must be given to that
prohibition, because it may tend to pre-
vent some subsequent fraud, however harsh
or unreasonable the provision might other-
wise seem to be. We must first, however,
be satisfied that this alleged total, absolute,
and unconditional prohibition was the real
intention of Congress, to be gathered from
the language of the section when read in
connection with the language of the whole
There is no doubt that many of
its provisions are harsh beyond anything
known heretofore in our history (United
States v. Ulrici, 3 Dill. 532, 539, Fed. Cas.
No. 16,594), and yet we cannot persuade
ourselves that the act proved in this case

statute.

comes within the law.

The section is one of many dealing with the subject of collecting a revenue from the taxation of the articles therein mentioned and in the manner therein provided. The aim of the whole statute is to make all of the taxable articles actually pay the tax, and to that end it prohibits those acts which might possibly lead to an evasion of the payment of the tax due upon any taxable article. When, therefore, in the course of the many provisions for collecting the tax and for preventing any evasion of its due payment the statute prohibits the putting of anything else in the barrel or package, etc., after it has been branded or stamped, it seems to us the natural meaning of the language limits the addition to anything of a taxable nature, and does not include an article which is not taxable, is wholly harmless, and added for a purpose not illegal or in itself improper.

We do not think that the opportunities for perpetrating a fraud upon the revenue are in any way extended by reason of the addition in question. A liquor dealer having a properly stamped barrel in his possession might violate the law and empty the contents of the barrel without destroying the stamps, and might then dispose of the barrel, so stamped, to an illicit distiller, who might then endeavor to perpetrate a fraud upon the revenue by filling the barrel with nontax-paid spirits, but we do not see that the prior addition, as mentioned, of coloring matter to the contents of the barrel, would aid him in his attempt, nor would the absence of such matter tend in any degree to its prevention or detection. It is not the coloring matter which was added to the contents of the barrel before they were emptied that would, in such case, aid the attempted fraud, for such coloring matter would probably have been emptied with the other contents of the barrel. The opportunities for fraud commenced at the time the liquor dealer emptied the contents of the barrel without destroying the stamp, and that opportunity was not in the slightest degree affected by the addition, and the attempted fraud of the distiller is not made more easy of accomplishment because of such addition. We cannot see, therefore, that any reasonable purpose could be attributed to Congress in prohibiting an addition, such as is charged in this case, and we cannot construe the section on the mistaken theory that, though the act was *real-[207] ly innocent, yet it might aid in the evasion of payment of some portion of a tax, and hence must be regarded as prohibited.

The statute in question, although there has been no intent to defraud, makes a person violating it liable to the lighter penalty, while, if the intent to defraud be alleged, the article is still liable to forfeiture and the person may be fined a much larger sum and also imprisoned. On this ground it is contended the statute is intended to meet just such a case as the one before us, where there was no intent to defraud and where there was no addition of anything which was itself taxable, but where, nevertheless, something else had been added after the stamping and branding, which was not a part of the contents of the barrel when it was so stamped. It is therefore urged that, as the section provides for a forfeiture of the article and a fine upon the person guilty of the addition, even when no intent to defraud is alleged or proved, it emasculates the section to hold that the addition must

We concur, of course, in the rule which has been upheld in this court, that a stat ute like this one, for the raising of a revenue, even when accompanied by provisions [206]of a very highly penal nature, is still to be construed as a whole and in a fair and reasonable manner, and not strictly in favor of a defendant. United States v. Stowell, 133 U. S. 1, 33 L. ed. 555, 10 Sup. Ct. Rep. 244. Construed under this rule, we are unable to conclude that the section applies to this case. The language used, when considered in connection with the whole statute, is not so plain as to preclude the application of those general rules of construction of statutes which frequently interpret language in accordance with what seems to be the real meaning of the legislature, be something which is itself taxable. We

do not think so. When there has been an
addition of anything that was taxable, the
statute applies, although there was no in
tention to defraud; while, if there were

such intention, a much heavier penalty is
imposed. The two portions of the section
are distinct, and each may be enforced, how
ever harsh the first may appear to be,
when imposed in a case where the action
was really without any intention to de
fraud the revenue or any person.

It has been held under other sections of
this act, son ewhat similar, that the addi-

tion in favor of shippers of oil in tank cars and against shippers of oil in barrels which may be practised by the initial carrier, merely because such connecting carrier has participated in the adoption of a joint through rate for barrel shipments which is, in itself, reasonable, although, by the act of February 4, 1887 (24 Stat. at L. 379, chap. 104, U. S. Comp. Stat. 1901, p. 3159), § 8, a carrier which "shall do, cause to be done, or permit to be done, any act, matter, or thing in this act prohibited or declared to be unlawful," shall be liable to the full amount of the damages sustained by one injured thereby.

[No. 27.]

uary 27, 1908.

IN ERROR to the United States Circuit

IN

tion of water to the contents of a barrel or package is no ground of forfeiture. We do not say that the language is exactly the same, but only that it is somewhat similar. Argued October 18, 21, 1907. Decided JanUnited States v. 32 Barrels of Distilled Spirits, 5 Fed. 188; 3 Packages of Distilled Spirits, 14 Fed. 569; United States v. Bardenheier, 49 Fed. 846, 848; United States ex rel. United States Attorney v. 9 Casks & Packages of Distilled Spirits, 51 Fed. 191. Reference is made to them in the opinion in this case in 125 Fed. supra. [208] *We think the reasonable construction of this statute requires that the questions submitted should be answered in the negative.

It will be so certified.

PENN REFINING COMPANY, Limited,
Plff. in Err.,

pany.

V.

(See S. C. Reporter's ed. 208-225.)

Court of Appeals for the Third Circuit to review a judgment reversing a judgment of the Circuit Court for the Western District of Pennsylvania, in favor of plaintiff, in an action against interstate carriers to recover the amount of money reparation directed by the Interstate Commerce Commission. Affirmed.

See same case below, 70 C. C. A. 23, 137 Fed. 343.

Statement by Mr. Justice Peckham:

The plaintiff in error, who was plaintiff below, seeks to review a judgment of the WESTERN NEW YORK & PENNSYLVA- circuit court of appeals for the third cirNIA RAILROAD COMPANY and Samuel cuit (70 C. C. A. 23, 137 Fed. 343), reG. De Coursey, Receiver thereof, Western versing absolutely and without allowing a New York & Pennsylvania Railway Com-writ of venire facias de novo, the judgment pany, and Lehigh Valley Railroad Com- of the circuit court of the United States for the western district *of Pennsylvania in[209] favor of the plaintiff company for $8,579, with interest from May 15, 1894; in all, $12,706.92. This sum was made up of the charge of 14 cents for the weight of the barrel in which oil was transported to Perth Amboy from the Pennsylvania oil fields, from September 3, 1888, the time when such charge commenced, to May 15, 1894, the time when the hearing on the claims was had before the Interstate Commerce Commission.

Carriers discriminating rates.

1. Carriers cannot be charged with dis-
criminating against shippers of oil in bar-
rels from the Pennsylvania oil fields to
Perth Amboy, New Jersey, because they
charge for the barrel package without mak
ing a corresponding charge upon ship-
ments in tank cars owned by those shippers
who can afford to build and furnish them,
the carriers having none of their own, where
the transportation by tank cars is more re-
munerative to the carriers than the trans-
portation by barrels, and the barrel ship
pers have made no demand for tank cars,
and cannot use them economically for ship-
ments to Perth Amboy, on account of the
lack of facilities for unloading at that
point.
Connecting

rates.

carriers - discriminating

2. A connecting carrier which takes the cars as they are delivered to it by the initial carrier is not liable for a discrimina

The proceeding resulting in the petition herein to the circuit court was originally commenced before the Interstate Commerce Commission, and thereafter conducted pursuant to §§ 13 to 16 of the act creating the Commission (24 Stat. at L. 379, 384, chap. 104), as amended by the act of 1889 (25 Stat. at L. 855, 859, chap. 382, U. S. Comp. Stat. 1901, p. 3165), to obtain relief from certain alleged illegal practices of the railroad companies in the way of overcharges for the transportation of oil for the com