UNITED STATES v. ONE HUNDRED AND THIRTY-TWO PACKAGES OF SPIRITUOUS LIQUORS AND WINES et al., 76 F. 364

CALDWELL, Circuit Judge (after stating the facts as above). The agreed statement of facts concedes that the packages of liquors and wines in question were removed from the distillery and rectifying establishment under names and brands other than the proper names and brands known to the trade as designating the kind and quality of the contents of the packages. This admitted fact brings the case within the letter of the statute, and the packages are unquestionably liable to forfeiture if the statute is of any force or validity. We do not think a review of all the legislation on the subject of distilled spirits is essential (o a right understanding of

section .3449. It prescribes a rule in plain and unmistakable language. Its meaning is perfectly clear, and its purpose obvious. The contention of the learned counsel for the claimant that the

section is noth; ing but a trade-mark regulation is not tenable. It is one of the numerous regulations prescribed by the internal revenue laws intended to prevent frauds on the revenue in the manufacture, removal, shipment, and sale of distilled spirits and other liquors and to aid in the detection of such frauds. The regulations for this purpose are very extensive and extremely minute. They embrace every step in connection with the manufacture and handling of spirits, from the introduction of the raw material into the distillery down to the rectification of the product, and its removal, shipment, and sale. The court cannot say that

section 3449 does not conduce in any degree to prevent frauds on the revenue, or aid in their discovery and punishment. Unquestionably, an observance of the requirement that packages of liquor shall be shipped or removed only under names indicating truthfully their contents will aid the revenue officers to trace and identify such packages, and thereby verify the truth or falsity of the hooks and records of the distiller or rectifier. There are doubtless other ways familiar to Hie revenue officers in which the requirement of

section 3449 tends to the detection and suppression of frauds on the revenue. Before a court would he authorized to hold

an act of congress obsolete and inoperative, it would have to appear conclusively that it was totally inoperative for any lawful or useful purpose. When the statute relates to a subject-matter within the constitutional competency of congress to legislate upon, the. presumption is that it serves a useful purpose. When a statute is susceptible of iwo constructions, one of which would render it valid and operative and the other press it beyond the constitutional competency of congress to enact, or render it inoperative, the former construction will be adopted. The

section is none the less a revenue regulation because its enforcement may tend to discourage the piracy of trade-marks, and prevent frauds upon those who consume the contents of the packages. These are mere incidents of the statute, and not its primary object. Congress has an undoubted right to legislate to prevent frauds on the public revenue, and the validity of such legislation is not affected by the fact that it incidentally tends to the discovery or suppression of private frauds. Another contention of the claimant is that the

section applies only to casks or receptacles of like character with casks, and that it does not apply to bottles, or boxes containing bottles. In support of this contention, we are cited to various sections of the internal revenue law relating to the gauging, inspection, marking, branding, and emptying of “a cask or package” of distilled spirits, where the term “package” is probably used in the sense of “cask,” but we think the term is not used in this

section in any such restricted sense. There is no connection or relation-between the marking and branding required in the sections referred to and the requirement of

section 8449 that packages shall not be shipped or removed “under any other than the proper name or brand known to the trade as designating the kind and quality of the contents” of the package. The “name or brand” here referred to is not placed on the package by any officer of the government, or under his direction. It is not an official name or brand. It is placed there by the distiller or rectifier, who, to prevent frauds on the revenue, and facilitate their discovery, is required to make the name or brand under which he ships or removes the package speak the truth.

This requirement cannot be evaded by putting the contents of the package in small packages or bottles. In this case, not only the package containing the bottles, but the bottles themselves, were falsely named or branded. The term “package,” as used in

section 3449, includes every box, barrel, or other receptacle into which distilled spirits have been placed for shipment or removal, either in quantity or in separate small packages, as bottles or jugs. We have set out in the statement the opinion of Judge Thayer on overruling the demurrer to the information. We fully agree with the reasoning and conclusion of that opinion. The judgment of the district court is reversed, and the cause remanded, with instructions to grant a new trial.