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United States v. Five Hundred Barrels of Whisky.

the payment of the costs taxed in the case by Stephens & Stone, according to the terms of the compromise. This point would be well taken, if the item now sought to be taxed, if allowed, would be chargeable to them. But, as they have fully complied with the conditions upon which the case was compromised, they are clearly not liable for any additional item in the taxation. It is now a question between the district attorney and the government. If the claim of the district attorney, in whole or in part, is allowed as a proper item of taxation, the government will be liable to pay it, and is willing to pay it, if it is adjudged to be legal. Indeed, it is within the spirit, if not within the letter, of the terms on which the secretary of the treasury ordered the dismissal of the information. And if the district attorney has not this remedy, there is no other course by which he can obtain compensation for his services.

In addition to the point suggested, the counsel resisting this taxation insists: 1. That there is no statutory provision under which compensation for the services of the district attorney can be included in the taxation of costs in this proceeding; 2. That if the district attorney's per centum is properly taxable, it can be estimated only on the proceeds of the whisky seized at Cincinnati, and within the jurisdiction of this court for adjudication, and not upon the whole amount paid into the treasury by Stephens & Stone, as due from them for unpaid duties and the penalties resulting from their violation of the law.

As to the first of the propositions, the court entertains no doubt that the district ttorney is entitled to compensation in this case under section 11 of the act of March 3, 1863. 12 Stat. at Large, 741. That section provides that there shall be taxed and paid to district attorneys two per centum upon all moneys collected or realized in any suit or proceeding arising under the revenue laws, conducted by them, in which the United States is a party. The words of this section are plain and intelligible. It gives to the district attorney two per cent. on all moneys collected or

United States v. Five Hundred Barrels of Whisky.

realized in any proceeding under the revenue laws, conducted by him. The argument of the counsel is, that this provision was intended for, and must be limited to, revenue cases arising under that statute, and can not be held to embrace a case arising under the internal revenue laws. But the language of the section does not require this restriction. It includes not revenue cases arising under that statute alone, but all cases arising under the revenue laws; embracing as well such as arise under the internal revenue laws as those that relate to import duties. If Congress had not so intended, there would have been words used requiring the restricted interpretation contended for. It is argued that the title and subject-matter of the act impose this restriction. It is entitled "An act to prevent and punish frauds upon the revenue, to provide for the more certain and speedy collection of claims in favor of the United States, and for other purposes." It is true the subject-matter of the act relates to external commerce, but the insertion of the words, in the title, for other purposes, allows of provisions not immediately connected with that subject. And section 9 actually includes a subject wholly foreign to the general purpose of the act, namely, the renting of unproductive lands or other property of the United States acquired under judicial proceedings. I can not doubt, therefore, tha section 11, before quoted, was intended to include, and from its phraseology does include, all cases arising under any revenue act, whether it relates to internal revenue or to duties upon imports. And this conclusion is fortified by the fact that the internal revenue laws contain, as I think, no provision for compensation to a district attorney, in the form of taxable costs, as a per centum on moneys collected or realized in proceedings to enforce forfeitures under those laws. And it would result, that if he can not tax the two per cent. authorized by section 11 of the act referred to, there is no provision of law for his compensation for services under the internal revenue laws, however laborious in themselves, or advantageous to the government.

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United States v. Five Hundred Barrels of Whisky.

As to the second point stated, namely, on what basis the percentage claimed shall be estimated, I concur with the views urged by the counsel resisting the taxation as claimed by the district attorney. The two per cent. to be taxed as his fees must be upon the moneys realized by the United States as the proceeds of the property seized by the process of this court, and within its jurisdiction. It is alleged by the district attorney, that the $130,000 paid by the Nashville distillers, for unpaid duties and penalties, was secured to the government by his vigilance and that of other government officials at Cincinnati, in seizing and retaining in the custody of the law the 500 barrels of whisky consigned to Styles & Co. And it is doubtless true, that the stupendous frauds practiced by Stephens & Stone would not have been developed except through the commendable zeal and vigilance of the district attorney and the revenue officials in this city. But I can not see that this fact affords any legal basis for a claim to a per centum by the district attorney on the gross sum paid by the Nashville firm for unpaid duties on spirits distilled, and the penalties resulting from their violations of law, at a place not within the jurisdiction of this court, and for which no decree of forfeiture could have been entered by this court. The jurisdiction of this court in this matter results from the accidental circumstance that a portion of the whisky manufactured was brought within the Southern District of Ohio, and here seized by legal process. Now, it is quite obvious that no per centum can be taxed to the district attorney except on the basis of the proceeds of the whisky seized, and for the condemnation of which the information was filed, and the penalties which, under the statute, attached to it. This will plainly appear from the consideration that if there had been no compromise between the government and the manufacturers, and the case had proceeded in this case to a decree of forfeiture, the district attorney's per centum could only have been taxed on the amount realized from the sale of the whisky. Although in this case there was no sale of

Beard v. Bowler.

pen

the whisky, owing to the compromise made at Washington, and the consequent dismissal of the information filed in this court, yet as the amount claimed by the government was "realized," in the language of the statute, the district attorney is clearly entitled to two per cent. on the sum for which the 500 barrels would have sold in this market. And he is fairly entitled to his per centum on the proportion which the proceeds of the 500 barrels will bear to $52,260, being the sum paid by the Nashville firm to the government as the penalties incurred by them for violating the law. The government has "realized" the amount of alties which attached to all the whisky manufactured, and I can not see any good reason why the district attorney may not claim a per centum on so much of the penalties as attaches to the 500 barrels proceeded against in this court. I shall direct the taxation to be made on the basis indicated. To make a specific taxation on this principle, the market value of the whisky must be ascertained, as also the proportion of the penalties which attached to the five hundred barrels under the terms of the compromise. And I would suggest the propriety of a reference of this matter to a competent person to ascertain the sum on which the two per cent. shall be estimated, unless counsel can agree upon the amount.

(CIRCUIT COURT.)

GABRIEL H. BEARD V. ROBERT B. BOWLER.

A demurrer to a plea presents the question of the sufficiency of the bill as well as of the plea.

Where a defendant is sued as the sole owner of a railroad, and the proof is that he is jointly concerned with others as a stockholder, the allegation of ownership is material, and unless the bill is amended no decree can be entered against defendant.

Beard v. Bowler.

An objection to a plea that it is defective in not responding to all the alle. gations of a bill is not sustainable, for a plea may be either to the whole bill, or to a part only.

George M. Lee, for plaintiff.

King & Thompson, for defendant.

OPINION OF THE COURT:

The question before the court arises on a demurrer to the defendant's plea in bar to the plaintiff's bill in equity. The bill alleges that the plaintiff is the owner of the exclusive right to an improved claw-bar for drawing spikes from the rails of a railroad, and other like purposes, by a patent issued in June, 1861, and that the defendant has infringed the patent by its use on the Kentucky Central Railroad. The bill prays for a discovery, an account of profits, and an injunction restraining the defendant from the further use of said improved claw-bar. The bill avers that the defendant is the owner of said railroad, and as such is, at the time of filing the bill, in the unlawful use of said improve

ment.

The defendant pleads in bar, that since January 1, 1861, the Kentucky Central Railroad has been owned by a joint stock company, the stock of which is divided into shares, held by individual shareholders, and that said company is under the control and management of five directors, of whom the plea admits the defendant is one.

The grounds of the demurrer to the plea are in substance: 1. That there is no denial of the defendant's sole ownership of the road prior to January 1, 1861. 2. That the defendant, on his admission that he is a shareholder in the joint stock company, is liable individually to respond to the plaintiff for the alleged infringement.

Upon a familiar principle of pleading, the demurrer to the plea presents the question of the sufficiency of the bill, as well as of the plea itself. Is the bill sustainable on the

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