United States v. Thompson

D. Kentucky

United States v. Thompson

45 F. 468, 1891 U.S. Dist. LEXIS 238

DecidedMarch 24, 1891

StatusPublished

This text of 45 F. 468 (United States v. Thompson) is published on Counsel Stack Legal Research, covering District Court, D. Kentucky primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Thompson, 45 F. 468, 1891 U.S. Dist. LEXIS 238 (kyd 1891).

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Opinion

Barr, J.

The defendant John S. Thompson was indicted under section 3279 of the Compilation Internal Revenue Laws, 1889, for not keeping the proper sign upon his distillery, and was found guilty, and fined by the court $500 and costs. This is the penalty fixed by the statute. The fine remains unpaid, and the present action is on his distiller’s bond, to recover the amount thereof from Thompson and his sureties. The defendants have filed a general demurrer, and insist no recovery can be had on the bond. The penalti’ of the bond is $800, and its condition is that if said Thompsons (there are two of them) “shall in all respects faithfully comply with all the provisions of law in relation to the duties and business of distillers, and shall pay all penalties incurred or fines imposed on him for a violation of, any of the said provisions, * * * then this obligation shall be void; otherwise it shall remain in full force.” The petition alleges the indictment of J. S. Thompson, his trial and conviction, and his sentence to a fine of $500 and costs, and that it was because of a violation of the law in regard to the distillery mentioned in the bond and within the period covered by it. The question presented is now, and undecided, as far as known to counsel or the court. The counsel for the defendants insists that this action will not lie, because of the conviction and sentence under the indictment, and that a recover}’ on the bond would be punishing Thompson twice for the same offense. It is evidently not the intention of the United States to collect the $500 fine heretofore imposed and also another $500 on the bond, but the purjioso is to collect the $500 fine already imposed. There is, therefore, no question of putting Thompson twice in jeopardy for the same offense. There is a most instructive opinion upon the meaning of “twice in jeopardy” by Judge Blatchford in Re Leszynshy, 16 Blatchf. 9, which clearly shows that the present case is not within the fifth amendment of the constitution or the common-law rule as to “twice in jeopardy.” The real question is, we apprehend, whether the plaintiff, having proceeded by indictment, and having obtained a sentence thereunder of $500 fine, which may, under the law’, be enforced against Thompson by a capias [469]*469pro fine as well as by an execution against his property, it can now recover on this bond. Section 1041, Rev. St. The penalty declared under section 3279 of the internal revenue law's could have been recovered in a civil action, (see section 3213,) and in that event we presume the penalty could have been enforced against the property of Thompson only, and not by a capias pro fine; but we do not think such a judgment could be enforced by a suit on the bond, if a judgment under an indictment could not bo. The difference in enforcing the judgments in these two proceedings can make no difference in the question of liability on the bond. The inquiry in each case is the fine or penalty covered by the bond. The bond provides that if Thompson “shall pay all penalties incurred or fines imposed on him, * * * then this obli’gation shall bo void; otherwise it shall remain in full force.” The only limitation is that the penalties incurred or fines imposed on him shall be for a violation of a provision of law' in relation to his duty and business as a distiller at the place designated in the bond. It may be claimed that the “penalties incurred or the fines imposed” are only those w'hich may be declared by a court in a suit on the bond in which the sureties have a right to appear and contest, but such a contention is answered by the language of the bond. The bond is a guaranty of the principal’s conduct, and an obligation that they shall pay all penalties incurred or fines imposed. The fines must be imposed, and a non-payment by the principals, before the sureties are liable on the bond. I do not see why, upon general principles, the defendants are not bound on their bond. The demurrer should be overruled, and it is so ordered.

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Barr, J.

The defendant John S. Thompson was indicted under section 3279 of the Compilation Internal Revenue Laws, 1889, for not keeping the proper sign upon his distillery, and was found guilty, and fined by the court $500 and costs. This is the penalty fixed by the statute. The fine remains unpaid, and the present action is on his distiller’s bond, to recover the amount thereof from Thompson and his sureties. The defendants have filed a general demurrer, and insist no recovery can be had on the bond. The penalti’ of the bond is $800, and its condition is that if said Thompsons (there are two of them) “shall in all respects faithfully comply with all the provisions of law in relation to the duties and business of distillers, and shall pay all penalties incurred or fines imposed on him for a violation of, any of the said provisions, * * * then this obligation shall be void; otherwise it shall remain in full force.” The petition alleges the indictment of J. S. Thompson, his trial and conviction, and his sentence to a fine of $500 and costs, and that it was because of a violation of the law in regard to the distillery mentioned in the bond and within the period covered by it. The question presented is now, and undecided, as far as known to counsel or the court. The counsel for the defendants insists that this action will not lie, because of the conviction and sentence under the indictment, and that a recover}’ on the bond would be punishing Thompson twice for the same offense. It is evidently not the intention of the United States to collect the $500 fine heretofore imposed and also another $500 on the bond, but the purjioso is to collect the $500 fine already imposed. There is, therefore, no question of putting Thompson twice in jeopardy for the same offense. There is a most instructive opinion upon the meaning of “twice in jeopardy” by Judge Blatchford in Re Leszynshy, 16 Blatchf. 9, which clearly shows that the present case is not within the fifth amendment of the constitution or the common-law rule as to “twice in jeopardy.” The real question is, we apprehend, whether the plaintiff, having proceeded by indictment, and having obtained a sentence thereunder of $500 fine, which may, under the law’, be enforced against Thompson by a capias [469]*469pro fine as well as by an execution against his property, it can now recover on this bond. Section 1041, Rev. St. The penalty declared under section 3279 of the internal revenue law's could have been recovered in a civil action, (see section 3213,) and in that event we presume the penalty could have been enforced against the property of Thompson only, and not by a capias pro fine; but we do not think such a judgment could be enforced by a suit on the bond, if a judgment under an indictment could not bo. The difference in enforcing the judgments in these two proceedings can make no difference in the question of liability on the bond. The inquiry in each case is the fine or penalty covered by the bond. The bond provides that if Thompson “shall pay all penalties incurred or fines imposed on him, * * * then this obli’gation shall bo void; otherwise it shall remain in full force.” The only limitation is that the penalties incurred or fines imposed on him shall be for a violation of a provision of law' in relation to his duty and business as a distiller at the place designated in the bond. It may be claimed that the “penalties incurred or the fines imposed” are only those w'hich may be declared by a court in a suit on the bond in which the sureties have a right to appear and contest, but such a contention is answered by the language of the bond. The bond is a guaranty of the principal’s conduct, and an obligation that they shall pay all penalties incurred or fines imposed. The fines must be imposed, and a non-payment by the principals, before the sureties are liable on the bond. I do not see why, upon general principles, the defendants are not bound on their bond. The demurrer should be overruled, and it is so ordered.

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45 F. 468, 1891 U.S. Dist. LEXIS 238, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-thompson-kyd-1891.

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