§ 1449. Oleomargarine - Forfeiture - Removal of Stamp. All packages of oleomargarine subject to tax under this act, that shall be found without stamps or marks as herein provided, and all oleomargarine intended for human consumption which contains ingredients adjudged, as hereinbefore provided, to be deleterious to the public health, shall be forfeited to the United States. Any person who shall willfully remove or deface the stamps, marks, or brands on package containing oleomargarine taxed as provided herein shall be guilty of a misdemeanor, and shall be punished by a fine of not less than one hundred dollars nor more than two thousand dollars, and by imprisonment for not less than thirty days nor more than six months.1

An indictment alleging that the defendants willfully, etc., defaced the stamps, marks and brands upon two certain packages containing oleomargarine in their possession, but failing to show that the stamps removed were such as are prescribed by the statute, was held insufficient.2 But in another case an indictment on similar facts was sustained.3

§ 1450. Exportation - Regulations.

Oleomargarine may be removed from the place of manufacture for export to a foreign country without payment of tax or affixing stamps thereto, under such regulations and the filing of such bonds and other security as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may prescribe. Every person who shall export oleomargarine shall brand upon every tub, firkin, or other package containing such article the word "oleomargarine", in plain Roman letters not less than one-half inch square.1

§ 1451. Fraud by Manufacturer.

Whenever any person engaged in carrying on the business of manufacturing oleomargarine defrauds, or attempts to defraud, the United States of the tax on the oleomargarine

§ 1449. 1 Act of August 2, 1886, c. 840, 15, 24 Stat. L. 212.

2 United States v. Joyce, 138 Fed. 457.

3 Wilkins v. United States, 96 Fed. 837, 37 C. C. A. 588 (3d Cir.).

§ 1450. Act of August 2, 1886, c. 840, § 16, 24 Stat. L. 212.

produced by him, or any part thereof, he shall forfeit the factory and manufacturing apparatus used by him, and all oleomargarine and all raw material for the production of oleomargarine found in the factory and on the factory premises, and shall be fined not less than five hundred dollars nor more than five thousand dollars, and be imprisoned not less than six months nor more than three years.1

The essential elements of the offense defined in section 17 are: (1) That the defendant is engaged in carrying on the business of manufacturing oleomargarine. (2) That he has produced oleomargarine. (3) That he has attempted to defraud the United States. When a defendant has produced oleomargarine with the intent to defraud the government out of the tax thereon, there is an attempt to defraud under this section although he has neither sold nor removed nor attempted to sell or remove any of the product. Mixing white oleomargarine with artificial coloration, so that it looks like butter, brings one within the definition of a manufacturer. The section is not limited to those who have received a license to manufacture oleomargarine. The offense defined by this section may be committed by a corporation.6 And an employee may be convicted of violating this section." No matter how active the coöperation of third persons, they are not subject to the penalties imposed by the act unless there is the concurring act of a person engaged in the business of manufacturing oleomargarine, and unless such third persons are charged with aiding and abetting, or otherwise are brought within section 332 of the Criminal Code. The section is directed at the principal, and does not, like many statutes, in terms make agents or employees of a principal or officers of a corporation liable as principal offenders. Therefore an indictment which does not follow the terms of the statute and charge directly that the

8

defendants were engaged in carrying on the business of manufacturing oleomargarine, but qualifies the language of the statute by alleging that they, while engaged as officers, agents, and employees of a certain corporation, did, in their several capacities, carry on such business, without charging directly that the corporation carried on such business, was held insufficient. This objection would not apply to an indictment which did not allege that the defendants carried on the business in "their said several capacities" as officers of a corporation, but charged them individually as principals.10 In some instances indictments charging substantially in the language of the statute have been upheld." An indictment following the language of the statute, and in addition describing the defendants, their place of business, the date and place where they conducted the business of manufacturing oleomargarine in violation of the law, and further defining with considerable particularity the steps taken that led up to and were a part of the alleged attempt to defraud the government out of the tax was held sufficient.12 An indictment under section 17 is not objectionable for failure to allege the manner in which the attempt to defraud was made,13 or the particular acts relied upon to prove the attempt to defraud,14 or the specific means employed,15 or that the tax was assessable.16 Indictments charging violations of the act need not negative any of the exceptions in the statute.17 In a prosecution under this act it has been held that the government may prove the violation of a state statute prohibiting colored oleomargarine, for the purpose of showing guilty intent.18 But the soundness of this decision may well be doubted.

• United States v. Orr, supra. 10 Ibid.

11 Jelke v. United States, 255 Fed. 264, C. C. A.- (7th Cir.), the report of which case contains the indictment (p. 266), and consult index Volume III for forms used in this case; United States v. New Jersey Melting, etc. Co., 141 Fed. 475.

12 Marhoeffer v. United States, supra.

13 May v. United States, supra.
14 Hardesty v. United States,

supra.

15 Enders v. United States, 187 Fed. 754, 109 C. C. A. 502 (7th Cir.). 16 Ibid.

17 Jelke v. United States, supra; Enders v. United States, supra; Hardesty v. United States, supra; May v. United States, supra.

18 Jelke v. United States, supra. v.

§ 1452. Failure to Comply with Law.

If any manufacturer of oleomargarine, any dealer therein or any importer or exporter thereof shall knowingly or willfully omit, neglect, or refuse to do, or cause to be done, any of the things required by law in the carrying on or conducting of his business, or shall do anything by this act prohibited, if there be no specific penalty or punishment imposed by any other section of this act for the neglecting, omitting, or refusing to do, or for the doing or causing to be done, the thing required or prohibited, he shall pay a penalty of one thousand dollars; and if the person so offending be the manufacturer of or a wholesale dealer in oleomargarine, all the oleomargarine owned by him, or in which he has any interest as owner, shall be forfeited to the United States.1

§ 1453. Recovery of Fines.

All fines, penalties, and forfeitures imposed by this act may be recovered in any court of competent jurisdiction.1

§ 1454. Regulations.

The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may make all needful regulations for the carrying into effect of this act.1

Authority is not given by this section to the treasury officials to make regulations that would destroy or undermine the act, or run counter to its provisions legally interpreted.2

§ 1455. Butter, Adulterated Butter, and Process or Renovated Butter Definition.

For the purpose of this Act "butter" is hereby defined. to mean an article of food as defined in “An Act defining butter, also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine", approved August second, eighteen hundred and eighty-six:

§ 1452. Act of August 2, 1886, c. 840, 18, 24 Stat. L. 212.

§ 1453. Act of August 2, 1886, c. 840, § 19, 24 Stat. L. 212.

§ 1454. Act of August 2, 1886, c. 840, § 20, 24 Stat. L. 212.

2 Moxley v. Hertz, 185 Fed. 757, 108 C. C. A. 95 (7th Cir.).

that adulterated butter" is hereby defined to mean a
grade of butter produced by mixing, reworking, rechurning
in milk or cream, refining, or in any way producing a uni-
form, purified, or improved product from different lots or
parcels or melted or unmelted butter or butter fat, in which
any acid, alkali, chemical, or any substance whatever is
introduced or used for the purpose or with the effect of
deodorizing or removing therefrom rancidity, or any butter
or butter fat with which there is mixed any substance foreign
to butter as herein defined, with intent or effect of cheapen-
ing in cost the product or any butter in the manufacture or
manipulation of which any process or material is used with
intent or effect of causing the absorption of abnormal
quantities of water, milk, or cream; that "process butter
or "renovated butter" is hereby defined to mean butter
which has been subjected to any process by which it is
melted, clarified or refined and made to resemble genuine
butter, always excepting "adulterated butter" as defined
by this Act.1

It has been held that butter containing an abnormal quantity
of water is subject to the tax without regard to the intent of the
manufacturer.2 On the other hand, it was held that there must be
an intent to cause the absorption of an abnormal quantity of
water.3

§ 1456. Manufacturer's Statement of Business, Inventories,
Books, Returns, and Signs.

Every manufacturer of process or renovated butter or
adulterated butter shall file with the collector of internal
revenue of the district in which his manufactory is located
such notices, inventories, and bonds, shall keep such books
and render such returns of material and products, shall put
up such signs and affix such number of his factory, and
conduct his business under such surveillance of officers and

§ 1455. Act of May 9, 1902, c.
784, § 4, 32 Stat. L. 194.

2 Coopersville Coöperative Cream-
ery Co. v. Lemon, 163 Fed. 145,
89 C. C. A. 595 (6th Cir.).

3 Baldwin Coöperative Creamery

Assn. v. Williams, 233 Fed. 607. See
also United States v. Eleven Thou-
sand One Hundred and Fifty Pounds
of Butter, 195 Fed. 657, 115 C. C. A.
463 (8th Cir.).