United States v. Hodson

June 30th, 1864, ch. 173.^[10] That section required-a bond to be given by every licensed distiller, and prescribes its conditions. They are substantially:

That if the distiller shall use any additional still he will report the fact to the assessor.

That he will from' day to day enter in a book to be kept for that purpose, the number of gallons that may be distilled, and the quantity of grain he may use; and that the book shall be open at all times to the insnection of the assessor.

That he will render to the assessor, on the 1st, 11th, and 21st days of each month an account in writing' of the number of gallons distilled, of the number placed in warehouse, and of the number sold or removed for consumption and sale, -and also of the quantity of grain used for the fractional part of a month next preceding the report, and the proof thereof, which report is to be verified by affidavit.

. That he will not sell, or permit to be removed for con- . sumption and sale, any spirits distilled under his license until they have been inspected, gauged, proved, and entered upon.his books, as aforesaid.

And that he will at the time of rendering his account to the collector pay the duty imposed by law upon such .spirits.

It is not denied that all the breaches are within the requirements of the statute touching.-the' bond', except that part pf the first one, which is,-that the licensee did not, from day to day, “ make true and exact entry thereof in a book to be kept for that purpose, of the number of gallons by him placed in warehouse, and the number of gallons by him sold and removed for consumption and sale, and the proof thereof.” It is said the statute required him to do this, but did not require him to- give a bond that he would do so. The statute required the bond to be conditioned that he would, from day to day, enter in a book to be kept for that

purpose, the number of gallons distilled; that the book should be open to the inspection of the assessor; that-he would render, at the time specified, “ an exact aceo'unt in writiug ” of the number of gallons sold, or removed for sale and consumption, and the proof thereof; and that he' would not sell, or permit to be sold or removed, for consumption or sale, any spirits distilled by' him until the quantity had been “ duly entered upon his books, as aforesaid.” Considering these provisions together, we think the implication clear, that they require such an account to be kept as the breach alleges was not kept, and that if the conditions, as prescribed, had been set out at length ,in the bond, such would have been their legal effect. The first part of the 57th section is sclent as to the bond, but is explicit as .to the account, and strongly supports the conclusion at which we have arrived. The question must be' considered in the light of the entire context bearing upon the subject. What is implied in a statute is as much a part of it as what is expressed.^[10]

Revenue statutes are not to be regarded as penal, and therefore to be construed strictly. They are remedial in their character, and to be. construed liberally, to carry out the purposes of their enactment.^[7]

We hold this, like all the other breaches, to be within the conditions which the statute enacts the bond shall contain.

In one view of the case, this fact is important; in another- and perhaps more important one, it is no wise material. Both will be presently considered.

The record is silent as to any coercion or duress. The bofid is, therefore, to be considered a voluntary one.^[8] A bond in this form is not prohibited by the statute, nor is it contrary to public policy. It was founded upon a sufficient consideration, and was intended to subserve a lawful purpose.

- In The United States v. Tingey,^[5] the suit was upon the bond

of a purser in the. navy. The statute declared “ that every purser, before entering on the duties of his office, shall give bond, with two or more sufficient sureties,-in the penalty of two thousand dollars, conditioned faithfully to perform all the duties of purser in the navy of the United States'.”^[10] The court said “ it is obvious that the condition of the present bond is. not in the terms prescribed by the act, . . . and it is not limited to the duties or disbursements of Deblois as purser, but creates a liability for all moneys received by him, and for all public property, committed to his care, whether officially as purser or otherwise.” The bond was held to be valid. The decision was put upon the grounds that the government had the capacity to make the contract, that the United States were a body politic, and that, as incident to its general right of sovereignty, it was competent to enter into any contract not prohibited by law, and found to be expedient in the just exercise of the powers confided to it by the Constitution. Dugan v. The United States^[7] was referred to as sustaining this proposition. It was remarked that a different principle would involve a denial to the General and the State governments of the ordinary rights of 'sovereignty. In conclusion, it was said, in relation to the bond there in question, “The United States have a political capacity to take it. We see no objection to its validity in a legal or moral view.” Tingey, who was a surety, pleaded, among other things, in the court below, that the bond “ was under color and pretence of said act of Congress, and, under color of office, required and extorted from the said Deblois, and from the defendant, as one of his sureties, against the form and effect of the said statutes, by the then secretary of the navy.” The United States demurred. The court overruled the demurrer, and gave judgment for the defendant. The United States prosecuted a writ of error. This court held the plea sufficient and affirmed the judgment.

In the case of The United States v. Bradley,^[8] the views of

the court expressed in The United States v. Tingey were restated-and, upon the fullest consideration, were reaffirmed.

The United States v. Linn,^[10] was an action against a receiver of public moneys and-his sureties. The statute in that case required that the receiver should “ give bond, with approved security, in the sum of ten thousand dollars, for the faithful discharge of his trust.” The instrument given was without seal, and was, therefore, not the security required by the statute. The counsel for the defendants insisted that the instrument was void for the reasons, among others, that it was not the form of security required by the statute; that the prescribing of one security was an implied prohibition .of .all others, and that if the instrument in question could be sustained, the statute might in all cases be disregarded and a mortgage of realty or personalty or any other imaginable security might be substituted for that .which the statute required. The court responded: “ If this is a contract, entered- into by competent parties and for a lawful purpose, not prohibited by law, and is founded upon a sufficient consideration, it Í3 a valid contract at common law.”. “ A mortgage, or any other approved security voluntarily given, would no doubt be valid.”

These cases are conclusive of the question before us. Their authority has not been shaken by any later adjudication; we think they rest upon the soundest principles, and are in accordance with a wise and salutary policy. We ' feel no disposition to re-examine the propositions they affirm.

A narrower view of the instrument in question may be taken, which will also maintain its validity to the extent of the breaches assigned in the declaration. It is a settled principle of law that - where' a bond contains conditions, some of which are legal and others illegal,’ and they are severable and separable, the latter may be disregarded and the former enforced. Applying-this principle to the case before us, all which this instrument contains with reference

to statutes other than the act of 1864, under which it was taken, may be rejected, and the generality of the reference to that act may be so limited as to include only what is covered by the conditions prescribed by the statute, as if those conditions were incorporated and set out in the bond in hoic verba. An authority exactly in point, for this construction, is found in the well-considered case of Ohio v. Findley and others^[10] The principal in the bond in that case was a county treasurer. The bond was conditioned that he should perform his official duties according to law. The statute, as in the case before us, was specific in its requirements as to what the bond should contain, and the condition, it was admitted, largely exceeded them. The court said.: “That part which is legal is marked out in the statute-book itself, and is therefore as completely severable from the rest as if the two parts were separated in the condition of the bond.”

But we prefer to place our judgment upon the broader ground marked out by the adjudications of this court, to which we have referred. Every one is presumed to know the law. Ignorance standing alone can never be the basis of a legal right. If a bond is liable to the objection taken in this case and the parties are dissatisfied, the objection should be. made when the bond, is presented for execution. If executed under constraint, the constraint will destroy it. But where it is voluntarily entered into and the principal enjoys the benefits which it is intended to secure and a breach occurs, it is then too late to raise the question of its validity. The parties are estopped from availing themselves of such a defence. In such cases there'is neither injustice nor hardship in holding that the contract as made is the measure of the rights of the government and of the liability of the obligors.

Judgment reversed, order to issu'’ a and the cause remanded with an

Venire de novo.