United States v. Obermeyer

E.D. New York

United States v. Obermeyer

27 F. Cas. 211, 5 Ben. 541, 15 Int. Rev. Rec. 83, 1872 U.S. Dist. LEXIS 48

DecidedFebruary 27, 1872

StatusPublished

This text of 27 F. Cas. 211 (United States v. Obermeyer) is published on Counsel Stack Legal Research, covering District Court, E.D. New York primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Obermeyer, 27 F. Cas. 211, 5 Ben. 541, 15 Int. Rev. Rec. 83, 1872 U.S. Dist. LEXIS 48 (E.D.N.Y. 1872).

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Opinion

BENEDICT, District Judge.

In this case, the question reserved at the trial was, whether the omission by a brewer to enter in his brewer’s book a true account of the [212]*212barrels of fermented liquors made by him, as required by section 49 of the internal revenue act of 1866, renders him liable to forfeit and pay $300, under the provision of the last clause of section 51 of the same act, notwithstanding it appears that the brewer had provided himself with a book in proper form, and had made and put in it what purported to be the account required by section 49, the items of which, however, were not correct.

By section 51, any fraudulent neglect or refusal to make true and exact entries in the brewer’s book is made punishable by forfeiture and fine and imprisonment The section next provides for a false entry in the book, intentionally made, which is also punishable by forfeiture, fine, and imprisonment; and then the section declares, that “any brewer who shall neglect to keep the books, or refuse to furnish the account, and duplicate thereof, as provided by law, * * * shall forfeit and pay the sum of $300.” ' The government contends that the words in this last clause, “as provided by law,” must be held to apply to the keeping of the books, as well as to the refusal to furnish the account, and that the provision must be construed to cover every case of failure to make correct entries in the book, as required by section 49. On the part of the defence, it is insisted that the clause in question was intended to provide for the case of a total omission to have any book, containing what purports to be. the account required by section 49 to be entered in the brewer’s book. I am of the opinion that the latter is the true construction of the clause, and that, where, as in this case, the brewer has kept a book, which contains what purports to be an account such as is required by section 49, he is not liable to an action for the $300, provided for in the fifty-first section. So construed, the section provides a punishment for any fraudulent omissions in the account, and also for any false entries intentionally made therein, but does not punish an accidental omission of an item, or an unintentional error in the account as kept, and its effect will be reasonable and just The words, “keep the book,” are elsewhere used, but not always, if ever, as equivalent to the words, “make correct entries in the book,” which is what the government contends for here. Thus, in the seventh section of the act, in respect to cotton, the provision is, “if any person shall neglect to keep such book, or make false entries in such book.” That the distinction indicated in the seventh section is intended to be made in section 51 is shown, I think, by the provisions of the section. Were there no provision in regard to the entries in the book, a different construction might be maintained.

The motion for new trial is accordingly denied, and judgment will be entered for the defendant.

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BENEDICT, District Judge.

In this case, the question reserved at the trial was, whether the omission by a brewer to enter in his brewer’s book a true account of the [212]*212barrels of fermented liquors made by him, as required by section 49 of the internal revenue act of 1866, renders him liable to forfeit and pay $300, under the provision of the last clause of section 51 of the same act, notwithstanding it appears that the brewer had provided himself with a book in proper form, and had made and put in it what purported to be the account required by section 49, the items of which, however, were not correct.

By section 51, any fraudulent neglect or refusal to make true and exact entries in the brewer’s book is made punishable by forfeiture and fine and imprisonment The section next provides for a false entry in the book, intentionally made, which is also punishable by forfeiture, fine, and imprisonment; and then the section declares, that “any brewer who shall neglect to keep the books, or refuse to furnish the account, and duplicate thereof, as provided by law, * * * shall forfeit and pay the sum of $300.” ' The government contends that the words in this last clause, “as provided by law,” must be held to apply to the keeping of the books, as well as to the refusal to furnish the account, and that the provision must be construed to cover every case of failure to make correct entries in the book, as required by section 49. On the part of the defence, it is insisted that the clause in question was intended to provide for the case of a total omission to have any book, containing what purports to be. the account required by section 49 to be entered in the brewer’s book. I am of the opinion that the latter is the true construction of the clause, and that, where, as in this case, the brewer has kept a book, which contains what purports to be an account such as is required by section 49, he is not liable to an action for the $300, provided for in the fifty-first section. So construed, the section provides a punishment for any fraudulent omissions in the account, and also for any false entries intentionally made therein, but does not punish an accidental omission of an item, or an unintentional error in the account as kept, and its effect will be reasonable and just The words, “keep the book,” are elsewhere used, but not always, if ever, as equivalent to the words, “make correct entries in the book,” which is what the government contends for here. Thus, in the seventh section of the act, in respect to cotton, the provision is, “if any person shall neglect to keep such book, or make false entries in such book.” That the distinction indicated in the seventh section is intended to be made in section 51 is shown, I think, by the provisions of the section. Were there no provision in regard to the entries in the book, a different construction might be maintained.

The motion for new trial is accordingly denied, and judgment will be entered for the defendant.

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Bluebook (online)

27 F. Cas. 211, 5 Ben. 541, 15 Int. Rev. Rec. 83, 1872 U.S. Dist. LEXIS 48, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-obermeyer-nyed-1872.