United States v. Whitmell, 7 N.C. 137, 3 Mur. 137 (1819)

May 1819 · Supreme Court of North Carolina

7 N.C. 137, 3 Mur. 137

The United States v. Thomas Whitmell.

From Halifax.

The Defendant obtained a licence to distil, under the act of Congress passed 24th July, 1813. After the passage of the act of 21st'December, 1814, laying a duty of twenty cents per gallon on spirits distilled, he failed to give notice to the Collector of the Internal Revenue of his intention to desist from stilling under liis licence, after tire 1st February, 1814. By reason of this neglect, he became liable to pay the duties laid by both acts.

The following affidavits disclose the facts of this case :

“ STATE OE NORTH-CAROIINA.

“ Thomas Whitmell maketh oath, that on or about the 12th day of November, 1814, he entered with the Collector of the Internal Revenue “ for the district of Halifax, four stills, for tire distillation of spirits from “ domestic materials, for the term of twelve months, and obtained from “ him a licence. That after the additional duty of twenty cents per “ gallon was laid by Congress, on spirits distilled, he withdrew two of his “ small stills. That afterwards, and before the expiration of his licence, ct he was warned by the Collector not to distil under Iris licence alone; “ that if he should, he would incur the penalties inflicted by the act of “ Congress imposing additional duties. That, in consequence of this “ warning, he gave bond with security for the payment of the additional “ duty of twenty cents per gallon; on which bond suit had been instituí» “ ed and judgment recovered in Halifax County Court, for 288 dollars:— “ with this judgment the deponent was dissatisfied, and from which he “ would have appealed, had he been able at tire time to grve security: “ that he was'now able to give security, and he prayed for a writ of cer- “ tiorari.”

The writ of certiorari with a supercedeas, having been awarded upon this affidavit, Ehesa Head, the Collector of the Internal Duties, came into Court, and filed the following affidavit, to wit,

“ Halifax County — Set.—Superior Court of Lato, April Term, 1817.

“ The United States 1 »• > “ Thomas Whitmell. j

“ Rhesa Read maketh oath thatafter the passage of the act of Congress * laying additional duties upon distilled spirits, he informedthe Defendant ® that he must comply with the requisites of said act, by giving bond and “ security for the payment of the said duties, agreeably to tbe directions “ of the said act, or he should consider it to be his duty, as Collector for “ the District, to enforce the penalties of the act against him. That “ Defendant gave bond with security accordingly, and having made a “ return of spirits distilled by him, and neglected for eleven months to “ pay the duties, suit was instituted on his bond, and the judgment “ obtained of which Defendant complains. That the judgment thus “ obtained, was founded upon and was pursuant to the return which the “ Defendant had made, of the spirits distilled by him.”

A motion was made to dismiss tlie certiorari, and

Daniel, Judge,

delivered the opinion of the Coiirt:

The Defendant had obtained a licence under the act of Congress passed 24th July, 1813, which laid a tax on stills according to their capacity. The act of 21st December, 1814, laid a duty of twenty cents on every gallon of spirits distilled, in addition to duties payable for licences. The objects of taxation in the two acts are different, and there is no constitutional objection to enforcing the provisions of the last act against the Defendant. The circumstance of his having a licence under the first act, did not exempt the spirits distilled from the duties imposed by the last act. Nor do I see that the contract (if the licence be considered as constituting one) between the United States and the Defendant, is impaired by enforcing the provisions of the last act: for, in addition to the circumstance that the objects of taxation are different, and each a fair one, if the exigencies of the country demanded a revenue from them, a provision is made in the 17th section of the act of 1814, to relieve the Defendant and others in his situation from, the duties under the licence, from the time of notifying the Collector of the fact, provided he gave such notice, and desisted from stilling before the first February, 1815. if he did not desist from stilling, and has thought proper to proceed, he has become liable to pay the duties laid by both acts j and there being no presumption that the judgment is for a huger sum than what is due to the United States, the certiorari must be dismissed.