Reymann Brewing Co. v. Brister, 179 U.S. 445 (1900)
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Reymann Brewing Company v. Brister
No. 76
Submitted November 7, 1900
Decided December 17, 1900
179 U.S. 445
APPEAL FROM THE CIRCUIT COURT OF THE UNITED
STATES FOR THE SOUTHERN DISTRICT OF OHIO
Syllabus
The statute of Ohio, known as the Dow Law, 83 Ohio Laws, 157, which levies a tax upon the business of trafficking in spirituous, vinous, malt or any intoxicating liquors, carried on within the state, is not in conflict with the provisions of the Constitution of the United States when applied to a corporation of West Virginia, having its principal place of business in Wheeling in that state and manufacturing there beer which it sends in barrels, or wooden cases containing several bottles each, to Ohio for sale or for storing in the original barrels, cases or bottles, to be sent out as stored to the State of Ohio for disposition and sale.
The Dow Law is within the scope of the police power of the state, and does not discriminate between foreign and domestic dealers.
On January 13, 1898, the Reymann Brewing Company, a corporation of the State of West Virginia with its principal office in the City of Wheeling, filed a bill of complaint in the Circuit Court of the United States for the Southern District of the State of Ohio, against Harry Brister, Treasurer of the County of Jefferson, State of Ohio, seeking to restrain and enjoin the said Brister from retaining the possession of certain personal property belonging to the brewing company which he had seized in enforcement of certain laws of the State of Ohio which provide for the collection of a tax known as the "Dow Tax."
The cause was submitted upon the bill, a general demurrer thereto, and a statement of facts agreed upon by the parties. The statement of facts was as follows:
The Reymann Brewing Company, the complainant, is a corporation resident in and a citizen of the State of West Virginia, and owns and operates a brewery at Wheeling, West Virginia, where it manufactures a beverage of malt and intoxicating liquor commonly known as "beer." It packs said beer in wooden barrels of various sizes and also in glass bottles, which bottles are packed in wooden boxes called "cases," twenty-four quart bottles or thirty-six pint bottles being packed in each case.
These barrels and cases are packed at the brewery of the Reymann Brewing Company at Wheeling, in the State of West Virginia, there delivered to the common carrier, the railroad company, and shipped to Steubenville, in the County of Jefferson, in the State of Ohio, where they are received by Bert Meyers, who is employed by the Reymann Brewing Company in the capacity of soliciting agent, salesman, and driver, and who calls on retail dealers in intoxicating liquors at their places of business in and about said City of Steubenville, and as such agent then and there solicits orders for and sells any number of the above-described packages desired. He then loads on the wagon owned by the Reymann Brewing Company the barrels or cases above described, and delivers them to the purchasers in the original and unbroken packages in the same shape and condition as delivered to the common carrier at the brewery at Wheeling. Said agent also makes sales of said packages at, and delivers the same from, the place where stored at Steubenville. In no instance are any of the barrels or cases opened until after sold and delivered to the purchaser, and no change is made in any of the packages from the time they are packed at the brewery at Wheeling until delivered to the persons purchasing the same.
Packages received by the said Bert Meyers at the railway station at Steubenville for which he has not received orders or which he has not already sold are stored in a room on the ground floor of a cold storage house in said City of Steubenville, for which the Reymann Brewing Company pays a regular monthly rental, and of which room the said brewing company has the exclusive use and possession. The packages not delivered directly from the railway station to purchasers are delivered from the said storage house or room upon orders solicited, as aforesaid, and upon sales then and there at said storage room made. The price of the beer thus delivered is collected in some instances from time to time by a collector from the brewery at Wheeling, who calls on the purchasers and collects, and in other instances such collections are made by said agent, Bert Meyers at the time of sale and delivery at said storage room.
During the period for which the assessments hereinafter mentioned were made, the said Reymann Brewing Company carried on its beer business in said City of Steubenville in the same manner as herein described.
The horses, harness, and wagon described in the bill on which the defendant, Harry Brister, has levied, and which he has taken into his possession, are used by the Reymann Brewing Company solely in the matter of delivering to purchasers the packages above described.
Two barrels and cases of beer described in the bill were packed at the brewery at Wheeling and shipped in the manner above described to Steubenville, Ohio, placed in the storeroom above mentioned, and were to be there sold and delivered in the manner above described, when they were levied on and taken possession of by the defendant, Harry Brister. The defendant, Harry Brister, is Treasurer of Jefferson County, in the State of Ohio, and as such treasurer did so levy upon and take into his possession and has advertised for sale the following personal property of the Reymann Brewing Company:
Two horses (bay geldings), two horse covers, one set of double harness, one beer wagon, thirty-seven of said original and unbroken cases of beer containing quarts, four of said original and unbroken cases of beer containing pints, sixty-five original and unbroken barrels of beer, one-eighth size, one hundred and fourteen original and unbroken wooden barrels of beer of one-quarter size, twenty-nine original and unbroken wooden barrels of beer of one-half size-all of which he has done as said Treasurer of Jefferson County, Ohio, for the purpose of collecting from the said Reymann Brewing Company certain taxes or assessments and penalties, amounting to $873.60, and charged against said company on the tax duplicate in the office of said treasurer under and by virtue of a law of the State of Ohio entitled "An Act Providing against the Evils Resulting from the Traffic in Intoxicating Liquors," passed May 14, 1886 (
see 83 Ohio Laws, p. 157), as amended by acts March 21, 1887 (
see 84 Ohio Laws, p. 224), March 26, 1888 (
see 84 Ohio Laws, p. 117), and February 20, 1896 (
see 92 Ohio Laws, p. 34), known as the "Dow Law;" which said levy and seizure were duly made, and which amount ($873.60) the said Reymann Brewing Company lawfully owes, if, under the circumstances in this statement set forth and the law herein referred to, said company or its business in said City of Steubenville, as herein described, should and may lawfully be assessed, as aforesaid.
The defendant will, unless restrained by the court, insist on collecting future assessments of the complainant under said Dow Law in the manner prescribed by said law -- that is to say by further seizures.
It is agreed by both parties to the above-styled cause that the foregoing statement is a true statement of the facts, and that the said cause may be submitted to the court on said statement of facts agreed.
The Ohio statute referred to in the agreed statement of facts, known as the "Dow Law," and entitled "An Act Providing against the Evils Resulting from the Traffic in Intoxicating Liquors," provides:
SEC. 1. That upon the business of trafficking in spirituous, vinous, malt, or any intoxicating liquors, there shall be assessed, yearly, and shall be paid into the county treasury, as hereinafter provided, by every person, corporation, or copartnership engaged therein, and for each place where such business is carried on by or for such person, corporation, or copartnership, the sum of three hundred and fifty dollars.
SEC. 2. That said assessment, together with any increase thereof, as penalty thereon, shall attach and operate as a lien upon the real property on and in which such business is conducted, as of the fourth Monday of May each year, and shall be paid at the times provided for by law for the payment of taxes on real or personal property within the state, to-wit, one-half on or before the twentieth day of June, and one-half on or before the twentieth day of December, of each year.
SEC. 4. That if any person, corporation, or copartnership shall refuse or neglect to pay the amount due from them under the provisions of this act within the time therein specified, the county treasurer shall thereupon forthwith make said amount due with all penalties thereon, and four percent collection fees and costs, by distress and sale, as on execution, of any goods and chattels of such person, corporation, or copartnership; he shall call at once at the place of business of each person, corporation, or copartnership, and in case of the refusal to pay the amount due, he shall levy on the goods and chattels of such person, corporation, or copartnership, wherever found in said county, or on the bar, fixtures, or furniture, liquors, leasehold and other goods and chattels used in carrying on such business, which levy shall take precedence of any and all liens, mortgages, conveyances, or encumbrances hereafter taken or had on such goods and chattels, so used in carrying on such business; nor shall any claim of property by any third person to such goods and chattels, so used in carrying on such business, avail against such levy so made by the treasurer, and no property, of any kind, of any person, corporation, or copartnership liable to pay the amount, penalty, interest, and cost due under the provisions of this act, shall be exempt from said levy. The treasurer shall give notice of the time and sale of the personal property to be sole under this act, the same as in cases of the sale of personal property on execution, and all provisions of law applicable to sales of personal estate on execution shall be applicable to sales under this act except as herein otherwise provided, and all moneys collected by him under this act shall be paid, after deducting his fees and costs, into the county treasury. In the event of the treasurer, under the levy provided for under this act, being unable to make the amount due thereunder, or any part thereof, the county auditor shall place the amount due and unpaid on the tax duplicate against the real estate in which said traffic is carried on, and the same shall be collected as other taxes and assessments on said premises.
SEC. 8. The phrase "trafficking in intoxicating liquors," as used in this act, means the buying or procuring and selling of intoxicating liquors otherwise than upon prescription issued in good faith by reputable physicians in active practice, or for exclusively known mechanical, pharmaceutical, or sacramental purposes, but such phrase does not include the manufacture of intoxicating liquors from the raw material, and the sale thereof at the manufactory, by the manufacturer of the same in quantities of one gallon or more at any one time.
Subsequently the defendant, with leave of court, withdrew the demurrer, and, the cause coming on to be heard, was, after agreement, submitted to the court upon the bill and the agreed statement of facts. On February 25, 1899, a final judgment was entered dismissing the bill at the cost of the complainant. Thereupon an appeal was allowed to this Court.