l. On a distiller's bond given under the 7th section of the
Internal Revenue Act of July 20, 1868, 15 Stat. at Large 128,
conditioned that the obligors "shall in all respects comply with
all the provisions of law in relation to the duties and business of
distillers," the condition is prospective as well as present, and
embraces such provisions of law relating
Page 81 U. S. 494
to the duties and business of distillers as may be in force
during the term for which the bond is given, whether enacted before
or after its execution.
2. The "distillery warehouses," which distillers are required by
the 15th section of the same act to provide, situated on their
distillery premises, are "bonded warehouses," within the meaning of
the joint resolution of Congress of March 29, 1869, which declares
that the proprietors of all "internal revenue bonded warehouses"
shall reimburse to the United States the expenses and salary of all
storekeepers put by it in charge of them.
3. These expenses properly include
per diem wages paid
to storekeepers for taking charge of them on Sundays.
A statute of July 20, 1868, [
Footnote 1] requires that every person intending to engage
in the business of a distiller shall give a bond with sureties,
conditioned that the principals in the bond
"Shall faithfully comply with all the provisions of law in
relation to the duties and business of distillers."
The statute also enacts:
"SECTION 15. That every distiller shall provide at his own
expense a warehouse, to be situated on and to constitute a part of
his distillery premises, to be used only for the storage of
distilled spirits of his
own manufacture, . . . and such
warehouse, when approved by the Commissioner of Internal Revenue,
on report of the collector, is hereby declared to be
a bonded
warehouse of the United States, to be known as a distillery
warehouse, and shall be under the direction and control of the
collector of the district, and in charge of an internal revenue
storekeeper assigned thereto by the Commissioner of Internal
Revenue."
"SECTION 52. Every storekeeper shall have charge of the
warehouse to which he may be assigned, under the direction of the
collector controlling the same, which warehouse shall be in the
joint custody of such storekeeper and the proprietor thereof and
kept securely locked, and shall at no time be unlocked and
opened or remain open unless in the presence of such
storekeeper or other
Page 81 U. S. 495
person who may be designated to act for him as hereinafter
provided. And no articles shall be received in or delivered from
such warehouse except on an order or permit addressed to the
storekeeper and signed by the collector having control of the
warehouse."
With this statute in force, two persons, Powell and Hildebrand,
on the 1st December, 1868, gave a bond, with two other persons as
sureties, conditioned in the already-quoted language of the statute
"faithfully to comply with all the provisions of law in relation to
the business of distillers," and entered at once on the business of
distilling. They constructed warehouses for the storage of spirits
of their own manufacture, of which storekeepers assigned by the
Commissioner of the Internal Revenue, and to whom the government
paid $4 wages
per diem, took charge, taking such charge
during Sundays as well as during other days of the week.
Subsequently to the date of the bond above mentioned of 1
December, 1868 -- that is to say on the 29th of March, 1869 --
Congress passed a joint resolution [
Footnote 2] thus:
"The proprietors of all
internal revenue bonded
warehouses shall reimburse the United States the expenses and
salary of all storekeepers or other officers in charge of such
warehouses."
Subsequently, again, to the date of this joint resolution --
that is to say on the 29th of April following -- the same
distillers, with the former sureties, gave a second bond,
conditioned in the same words as the first and in pursuance of the
same statute with it -- constructing warehouses &c., as before,
which were taken possession of by internal revenue storekeepers
&c. -- all exactly as before.
The government, having paid all these storekeepers, demanded of
the distillers reimbursement for payments made for their services
after the 29th of March, 1869, when the joint resolution of
Congress was passed, including reimbursement for services rendered
on Sundays. The distillers denied their obligation to pay for
services on any day, under either bond, because:
Page 81 U. S. 496
1st. The storekeepers had been selected, appointed, and put in
charge by the government, and not by them.
2d. The storehouses were not "bonded warehouses" in
contemplation of law, but were known as "distillery warehouses,"
being attached to their distillery and constituting part of their
distillery premises.
They denied additionally their obligation to reimburse the
government for payments made to men for working on Sundays.
The government hereupon sued both principal and sureties on both
bonds, when the matters above stated were set up by way of plea,
the sureties pleading in addition that they were sureties only, and
as to the bond of December, 1868 (the bond first given) that at the
date thereof, the government by law was bound to pay the
storekeepers, and averring that the subsequently passed joint
resolution of 29 March, 1869, if applicable to distillery
warehouses at all, could not increase the responsibility of them,
the said sureties.
The court below was of opinion that all these pleas, except that
one which alleged that the distillery warehouses were not "bonded
warehouses," were good, and charged the jury accordingly. From the
judgment which followed, the United States brought the case here on
error.
Page 81 U. S. 497
MR. JUSTICE CLIFFORD delivered the opinion of the Court.
Persons intending to engage in the business of a distiller are
required to give notice in writing to the assessor of the
Page 81 U. S. 498
district, stating their names and places of residence and the
place or places where the business is to be carried on, and, before
proceeding with the business, they are required to make and execute
a bond in the form prescribed by the commissioner, with at least
two sureties to be approved by the assessor of the district,
conditioned that the principal shall faithfully comply with all the
provisions of law in relation to the duties and business of
distillers, and that he will pay all penalties incurred or fines
imposed on him for a violation of any of the said provisions.
[
Footnote 3]
Pursuant to that requirement, the two defendants first named in
the declaration made and executed the two bonds therein described,
conditioned in the very words of the seventh section of the act
containing the requirement, as appears by the record.
Distillers are also required by the fifteenth section of the act
to provide at their own expense a warehouse, situated on and to
constitute a part of their distillery premises, to be used only for
the storage of distilled spirits of their own manufacture, and the
provision is that such warehouse, when approved by the
commissioner, on report of the collector, shall be deemed to be a
bonded warehouse of the United States and be known as a distillery
warehouse, and that it shall be under the direction and control of
the collector of the district and in charge of an internal revenue
storekeeper assigned thereto by the commissioner.
Provision is also made by the joint resolution of the
twenty-ninth of March, 1869, that the proprietors of all internal
revenue bonded warehouses shall reimburse to the United States the
expenses and salary of all storekeepers or other officers in charge
of such warehouses, and that the same shall be paid into the
Treasury and accounted for like other public moneys. [
Footnote 4]
Most of the material facts are either admitted or not
controverted by the pleadings. It is conceded as follows:
(1) That the principal defendants engaged in the business of
a
Page 81 U. S. 499
distiller for the periods mentioned in the declaration.
(2) That they constructed warehouses for the storage of
distilled spirits of their own manufacture.
(3) That the warehouses were in charge of internal revenue
storekeepers assigned thereto by the commissioner.
(4) That the plaintiffs paid the
per diem wages of the
storekeepers, and that they demanded of the defendants to be
reimbursed the amount so paid for that service, and that the
defendants refused to pay as requested, and that the bonds
described in the declaration were duly executed.
Payment being refused, the plaintiffs brought an action of debt
to recover the amount. Service having been made the defendants
appeared and pleaded as follows:
(1) Performance.
(2) That they were not bound to pay the wages of the
storekeepers in charge of their distillery warehouse; that the
storekeeper was an officer appointed and selected by the
plaintiffs, and that he was placed by them in the distillery
warehouse of the defendants, and that they, the plaintiffs, were
bound to pay his
per diem wages.
(3) That the warehouse attached to their distillery is known as
a distillery warehouse and not as a bonded warehouse, as it
constitutes a part of their distillery premises, and that the
defendants are not bound to pay the wages of the storekeeper.
(4) That the plaintiffs have no right to be reimbursed for the
wages they paid to the storekeeper for service rendered or work
done on Sunday or the Lord's day.
(5) Superadded is also the separate plea of the sureties -- that
the plaintiffs at the time the first bond was executed, were bound
to pay the storekeeper in charge of the warehouse, and that the
subsequent act, even if applicable to distillery warehouses, cannot
change or alter their liability as sureties, nor can it increase
their responsibility.
1. Performance certainly is not proved as matter of fact, as it
is not pretended that the defendants have reimbursed the plaintiffs
for any part of the amount which the latter paid to the
storekeepers for their
per diem wages while they were in
charge of the defendants' distillery warehouses, which is all that
need be remarked in respect to that defense.
Page 81 U. S. 500
2. Undoubtedly the storekeeper is an officer appointed and
selected by the plaintiffs, but the question whether the defendants
are bound to reimburse the plaintiffs the amount paid for their
per diem wages while in charge of their distillery
warehouses is a question of law depending upon the construction of
the joint resolution to which reference has been made. Argument to
show that the question must be answered in the affirmative, if the
joint resolution is applicable to the case, is hardly necessary, as
the language is explicit that the proprietors of all internal
revenue bonded warehouses shall reimburse to the United States the
expenses and salary of all storekeepers or other officers in charge
of such warehouses.
3. Attempt is made to show that a distillery warehouse is not a
bonded warehouse within the meaning of the joint resolution, but
the proposition cannot be maintained, as the act of Congress
provides that such a warehouse, when approved by the commissioner,
on report of the collector, shall be deemed a bonded warehouse of
the United States, and it matters not that the act provides that it
shall be known as a distillery warehouse, as the requirement of the
act is that it shall be under the direction and control of the
collector of the district, and be in charge of an internal revenue
storekeeper assigned thereto by the commissioner. Beyond all doubt,
therefore, the internal revenue bonded warehouse referred to in the
joint resolution includes the bonded warehouse known as the
distillery warehouse described in the fifteenth section of the act
imposing taxes on distilled spirits. [
Footnote 5]
4. Suppose that it is so, still it is contended by the
defendants that they are not bound by the first bond to reimburse
the plaintiffs for the amount paid to the storekeeper for that
service, because the bond was made and executed before the passage
of the joint resolution.
It must be admitted that any substantial addition by law to the
duties of the obligor of a bond, after the execution
Page 81 U. S. 501
of the instrument, materially enlarging his liabilities, will
not impose any additional responsibility upon his sureties unless
the words of the bond, by a fair and reasonable construction, bring
such subsequently imposed duties within its provisions. [
Footnote 6] Conceding that rule to be
correct, it becomes necessary to examine the recitals and condition
of the bond first described in the declaration, as the question
must depend very largely upon the construction of the language
there employed. By the recital of the bond, it appears that the
principals therein named intended, on and after that date, to be
engaged in the business of distillers within the Fifth Collection
District of the state, and the condition of the bond is that they
shall
in all respects faithfully comply with all the
provisions of law in relation to the duties and business of
distillers and that they shall pay all penalties incurred or fines
imposed on them for a violation of any of the said provisions.
Stronger language to signify an intention to stipulate that the
principals in the bond should comply with duties subsequently
imposed by law in relation to the business of a distiller could not
well be employed, as the language of the bond is that they shall
faithfully comply with all the provisions of law in relation to the
duties and business of distillers, knowing, as all the obligors
did, that Congress might at any time enact new provisions imposing
new duties or vary those already imposed. [
Footnote 7] Both parties, it must be assumed, knew that
changes might be made in that behalf at any time, and the
defendants must have understood that it never could have been
intended that a new bond should be required with every modification
made in relation to the duties and business in which the principals
in the bond were about to engage. Where a person was elected
sheriff and executed a bond to the county conditioned that he would
well and faithfully in all things discharge the duties of the
office during his continuance in the same by virtue of his said
election, the Supreme Court of
Page 81 U. S. 502
Ohio held that the language of the bond was broad enough not
only to embrace any duty imposed at the date of the bond, but any
also that might be imposed upon the officer by law during the term
for which the bond was given. [
Footnote 8] Bonds in such cases, as well as in cases like
the one before the Court, are required to secure the faithful
discharge of the duties ordinarily imposed upon the principal
obligor, without reference to the time when the law was passed
imposing the duty, and where, as in this case, the language of the
bond is sufficiently comprehensive to embrace duties subsequently
imposed of a character corresponding with those required at the
date of the bond, the construction which gives a prospective as
well as a retrospective operation to the condition of the bond may
well be adopted as both reasonable and just to all concerned.
[
Footnote 9]
Exceptional cases may doubtless arise, as where the condition of
the bond is, in terms or by a fair and reasonable construction,
limited to existing duties, or where the appointment is a temporary
one, to expire at the end of the next session of the senate.
Different rules are applied in the case of a temporary appointment,
as the commission is for a different tenure, and unless there is
something in the act under which the first commission issued
showing that it contemplated a permanent and continuing
responsibility under laws subsequently passed, the rule is that the
liability of sureties must be strictly confined to the duties
created by the acts passed antecedent to the date of the bond.
[
Footnote 10]
Given, as the second bond was, subsequent to the passage of the
joint resolution, the defense that the bond is not embraced in that
provision is entirely without merit and is accordingly
overruled.
5. Reimbursement for services rendered or work done by the
storekeepers, or for money paid for their
per diem
wages
Page 81 U. S. 503
on Sunday or the Lord's day, it is insisted cannot be lawfully
claimed because the law, it is said, did not contemplate their
employment on that day.
Storekeepers of the kind may be appointed by the Secretary of
the Treasury in such numbers as may be necessary, with such
compensation, not exceeding five dollars per day, as shall be
determined by the commissioner. They are required to take an oath
faithfully to perform the duties of their office and to give a bond
to be approved by the commissioner for the faithful discharge of
their duties, and they are to have charge of the warehouses to
which they may be respectively assigned under the direction of the
collector controlling the same, which warehouse, it is provided,
shall be in the joint custody of such storekeeper and the
proprietor thereof, and the provision is that the warehouses shall
be kept securely locked, and shall at no time be unlocked or
opened, or remain open, unless in the presence of such storekeeper
or other person who may be designated to act for him by the
collector in case of absence from sickness or from any other cause.
[
Footnote 11] Safe custody
of the articles deposited in the warehouse is one of the primary
duties of the storekeeper, and it is clear that he is required to
perform that duty on Sunday as well as on every ordinary working
day of the week, as such custody is a work of necessity, and
therefore is not unlawful even in jurisdictions where worldly labor
or business on the Lord's day is forbidden by law. [
Footnote 12]
6. Sufficient has already been remarked to show that the defense
set up in the separate plea filed by the sureties cannot be
maintained, as the language employed in the conditions of the
respective bonds is comprehensive enough to bring the case within
the duty imposed upon the proprietors of internal revenue bonded
warehouses by the joint resolution which requires such proprietors
to reimburse the United States for the expenses and salary paid to
such storekeepers or other officers in charge of such
warehouses.
Page 81 U. S. 504
Diametrically opposite views were entertained by the presiding
justice in the circuit court, and he accordingly instructed the
jury that neither the distillers nor their sureties were liable to
the plaintiffs under the first bond. (2) That the reimbursement to
the plaintiffs by the distillers of the salaries of storekeepers
was not one of the duties of the distillers for which the second
bond was given. [
Footnote
13] (3) That the plaintiffs could not recover the amount paid
to the storekeepers for services performed by them on Sundays, as
the law did not contemplate their employment on that day.
Under those instructions, the jury returned their verdict for
the defendants and the plaintiffs excepted and removed the cause in
this Court. Having determined that the instructions were erroneous,
it only remains to remark that the judgment must be
Reversed and the cause remanded with directions to issue a
new venire.
[
Footnote 1]
15 Stat. at Large 127, § 7.
[
Footnote 2]
16 Stat. at Large 52.
[
Footnote 3]
15 Stat. at Large 127.
[
Footnote 4]
16
id. 52.
[
Footnote 5]
15 Stat. at Large 130.
[
Footnote 6]
Farr v. Hollis, 9 Barnewall & Creswell 332.
[
Footnote 7]
Bartlette v. Governor, 2 Bibb 586;
Minor v.
Mechanics' Bank, 1 Pet. 73.
[
Footnote 8]
King v. Nichols, 16 Ohio St. 82;
United
States v. Bradley, 10 Pet. 343;
Cameron v.
Campbell, 3 Hawks 285.
[
Footnote 9]
White v. Fox, 22 Me. 341;
United
States v. Hudson, 10 Wall. 406;
United
States v. Tingey, 5 Pet. 127.
[
Footnote 10]
United States v.
Kirkpatrick, 9 Wheat. 730.
[
Footnote 11]
13 Stat. at Large 146.
[
Footnote 12]
Powhatan Steamboat Co. v.
Appomattox Railroad Co., 24 How. 255.
[
Footnote 13]
White v. Fox, 22 Me. 341;
State v. Bradshaw,
10 Iredell 232.
