Joseph P. Bradley

“ If he uses any grain in excess of the capacity of his distillery, as estimated according to law, an assessment is made against him at the rate of 90 cents for every proof gallon of such excess. It is an assessment of this kind of which the plaintiffs complain. Whenever a distiller desires to open or close any of his tubs for the purpose of increasing or reducing the capacity of his distillery, he must give notice to that effect to the collector, who makes the change by sealing or opening the tubs designated. ”

“ As we understand the counsel for the government, it is claimed by the defendant that this circular fixes and defines the daily producing capacity of a distillery by taking the average capacity of the fermenting period of three days, four days, or whatever it may be. Thus if the fermenting period is three days, and the producing capacity is 500 bushels of grain the first day, 500 the second day, and 200 the third day, the average for the three days is 400 bushels; and the circular makes this average the daily capacity. ”

“ It is not pretended that the plaintiffs failed in any respect to comply with this requirement of the law, or that they used, or ceased to use, any fermenting tubs without the knowledge and sanction of the collector of internal revenue. Another provision of the law requires that on the first of each month a return shall be made to the collector by the distiller, or his principal manager, under oath, of the amount of materials used for the production of spirits each day during the previous month, and the number of gallons and proof gallons of spirits produced and placed in the warehouse. ”