CASES ARGUED AND DETERMINED IN THE Circuit Courts of the United States WITHIN THE SECOND CIRCUIT. THE UNITED STATES vs. EDWARD MYNDERSE AND CHARLES D. MYNDERSE. The 39th section of the Internal Revenue Act of July 1st, 1862, (12 U. S. Stat. at Large, 446,) describes the bond to be given to the United States by distillers, on application for a license to distil, and specifies the several conditions of such bond in detail. The declaration herein averred, that G. made application to the collector of Internal Revenue for a license as a distiller, and that the defendants thereupon became bound, by writing obligatory, sealed, &c., to the United States, in the sum of $18,000, conditioned that the said G. should truly and faithfully conform to all of the provisions of the said Act, and of such other Act or Acts as were then, or might thereafter be, in that behalf enacted: Held, that the bond was a valid bond, and the defendants were liable thereon. Where a statute makes it the duty of a public officer to require of another an official bond, or a bond on granting a license, or the like, such bond is not necessarily invalid because it contains conditions which the statute does not prescribe, or exceeds the requirements of the statute. When such bond is voluntarily given, and is not exacted or extorted colore officii› it is binding. When conditions in excess of the statute requirement are inserted therein, such conditions may be rejected as surplusage, and the bond be sustained as to the: others. (Before WOODRUFF and HALL, JJ., Northern District of New York, June, 1870.) VOL. XI.-1 The United States v. Mynderse. WOODRUFF, J. It is conceded, on the argument of the defendants' demurrer to the declaration herein, that the only question to be considered is, whether the bond declared upon is a valid instrument. It recites, that Jane Goodwin had made application to the collector of Internal Revenue for the 25th Collection District of the State of New York, for a license as distiller, at the distillery situated at the town of Torrey, in, &c., and is conditioned, that, "if the said Jane Goodwin shall truly and faithfully conform to all the provisions of an Act entitled, An Act to provide internal revenue to support the Government, and to pay interest on the public debt, approved July 1st, 1862, and of such other Act or Acts as were then, or might thereafter be, in this behalf, enacted, then the said obligation to be void, and of no further effect, otherwise," &c., &c. By the 39th section of the Act of July 1st, 1862, (12 U. S. Stat. at Large, 446,) referred to in the bond, it is made the duty of collectors, within their respective districts, to grant licenses for distilling to any person, being a resident of the United States, who shall desire the same, by application, &c., upon payment of the sum or duty prescribed; and it is provided, that, "at the time of applying for said license, and before the same is issued, the person so applying shall give bond to the United States, in such sum as shall be required by the collector, and with one or more sureties, to be approved by said collector, conditioned," (1) "that, in case any additional still or stills, or other implements to be used as aforesaid, shall be erected by him, his agent or superintendent, he will, before using, &c., report in writing to the said collector the capacity thereof, and information from time to time of any change in the form, capacity, &c., &c., which either of the said stills, &c., may undergo;" (2) "that he will, from day to day, enter, or cause to be entered, in a book to be kept for that purpose, the number of gallons of spirits that may be distilled by said still or stills, &c., and, also, of the quantities of grain, or other vegetable productions, or other substances, put into the mash tub, or otherwise used by him * * for the purpose The United States v. Mynderse. * * * * * put for the * of producing spirits, which said book shall be open at all times during the day (Sundays excepted) to the inspection of the said collector, who may make memorandums or transcripts therefrom;" (3) " and that he will render to the said collector, on the first, tenth, and twentieth days of each and every month, or within five days thereafter, during the continuance of said license, an exact account, in writing, taken from his books, of the number of gallons of spirits distilled and sold, or removed for consumption or sale, and the proof thereof, and, also, of the quantities of grain, &c., into the mash tub, or otherwise used by him, purpose of producing spirits, for the period or fractional part. of a month then next preceding the date of said report, which said report shall be verified by affidavit in the manner prescribed by this Act;" (4) " and that he will not sell, or permit to be sold, or removed for consumption or sale, any spirits distilled by him under and by virtue of his said license, until the same shall have been inspected, gauged, and proved, and the quantity thereof duly entered upon his books as aforesaid; " (5)" and that he will, at the time of rendering said. account, pay to the said collector the duties which by this Act are imposed upon the spirits so distilled." It is, of course, conceded, that the bond described in the declaration is not in the words of this 39th section. It is conditioned for conformity by the distiller to "all the provisions' of the Act, and of such other Acts as were then, (i. e., at the time of the execution of the bond,) or might thereafter be, in that behalf, (i. e., in regard to the duty of distillers,) enacted. Now, if the condition of this bond, in its broad generality, did, in fact, require, as a condition, nothing which is not included in the details enumerated in the section describing the bond, the only question would be-is the bond void, because it does not follow the words of the section, but, in lieu thereof, employs general language, having no greater meaning; or, in another form, if the bond prescribed by the 39th section, literally followed, would be conditioned for the performance of specific acts and duties, which, in truth, embrace all The United States v. Mynderse. the duties imposed by the Act, does the failure to enumerate all those duties in detail invalidate the bond? I think not. In such case, the words, "conform to all the provisions" of the Act, are, in meaning and in legal effect, the same as, "do and perform the several things in detail, enumerated in the Act." Grouping the various duties in one phrase, and describing them as "conformity to all the provisions," is exactly equivalent to an enumeration of each in detail. Such a bond is no more onerous to the principal obligor, or to the sureties, and binds them to nothing which the statute did not require that they should, by the bond, be bound to do and perform. But, laying out of view, for the present, that part of the condition of the bond in suit which requires conformity to the provisions of Acts which may thereafter be enacted, I am not ready to agree that a bond voluntarily given upon an application for a license as a distiller, conditioned for the performance of all the duties imposed on distillers by the Act under which the license is granted, is invalid, even if the applicant might have claimed such license upon tender of a bond less comprehensive in its scope. The cases relied upon by the defendants do not affirm such a proposition, but rather the contrary. It is to be carefully observed, that it does not appear that the collector, in the case before us, required, exacted, or extorted the bond in the particular form in which it was given; but, only, that Jane Goodwin was a distiller of spirits, and owner of a distillery in the said town of Torrey, &c., and the defendants, by their certain writing obligatory, sealed, &c., recited an application to the collector for a license as distiller, and acknowledged themselves bound to the United States in the sum of $18,000, conditioned, nevertheless, that the said Jane Goodwin should truly and faithfully conform to all of the provisions of the Act under which such license was permitted. It is an undertaking, upon the granting and acceptance of a license to distil, that she will obey the statute which regulates her conduct as a distiller. In the first place, as we must assume that such a bond The United States v. Mynderse. was voluntarily tendered, the rule, and the cases which hold that a bond exacted by a public officer, colore officii, is void, if it embrace conditions which he is not authorized to require, have no application to the case. (United States v. Tingey, 5 Peters, 115; Hawes v. Marchant, 1 Curtis' C. C. R., 136; United States v. Gordon, 1 Brock., 190.) On the other hand, in the case of United States v. Tingey, in which the rule last mentioned is stated and applied, the opinion of the Court distinctly and unequivocally declares, that "it would be very different where such a bond was, by mistake or otherwise, voluntarily substituted by the parties for the statute bond, without any coercion or extortion by color of office." In that case, the statute required that a purser should give bond "conditioned faithfully to perform all the duties of purser in the navy of the United States." The bond actually given was construed to require him to account for all moneys received by him, and for all public property committed to his care, whether officially as purser, or otherwise, and was deemed clearly not in the terms of the Act, and Mr. Justice Story, in giving the opinion of the Court, says: "Upon this posture of the case, a question has been made, and elaborately argued at the bar, how far a bond voluntarily given to the United States, and not prescribed by law, is a valid instrument, in other words, whether the United States have, in their political capacity, a right to enter into a contract, or to take a bond, in cases not previously provided for by some law. Upon full consideration of this subject, we are of opinion, that the United States have such a capacity to enter into contracts." Upon further discussion, and full affirmance of this doctrine, the opinion of the Court places the decision of the case upon the sole ground, that the bond was (as the demurrer was held to admit) required and extorted by the Secretary of the Navy, under color of office. Upon the principles declared in the opinion, it cannot be doubted, that, had the bond then in question been found a voluntary bond, executed without duress or requirement, it would have been binding according to its terms, * * |