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file a monthly declaration that no such the indictment is not brought before the article has been "removed from Federal Supreme Court on a writ of error (449] the premises of such manufactur- sued out to a district court under the Act

other than such as have of March 2, 1907, to review a decision been duly taken account of and charged uashing and sustaining a demurrer to the with the stamp tax," under a penal. (For other cases, see Appeal and Error, I. e, ty for neglect. This seems to us to in Digest Sup. Ct. 1908.) confirm the conclusion that al-Appeal by government in criminal ready have indicated. If the peti

scope of review. tioner should send a mass of chewing statute on which an indictment is founded,

2. For the purpose of interpreting the gum from its factory in New Jersey or the meaning placed upon such indictment New York to a more promising market by the Federal district court will be in another state, it does not appear to adopted by the Federal Supreme Court on us that it could escape the obligation a direct writ of error sued out under the of § 20 by showing that, although the Act of March 2, 1907, to review a decision gum unquestionably had left the premi- of the district court, quashing and susses of the manufacturer, it was destined taining a demurrer to such indictment. to another warehouse that the petitioner

[For other cases, see Appeal and Error, I. e,

in Digest Sup. Ct. 1908. ] also owned. That does not seem to us Internal revenue — power of Congress the natural or the rational meaning of taxation of intoxicating liquors. the words used. It is said that the con- 3. Congress may, under the broad au. struction of a similar Act of June 13, thority of the taxing power, tax intoxicat1898, chap. 448, 30 Stat. at L. 448-463, ing. liquors, notwithstanding the fact that Comp. Stat. § 6144, 4 Fed. Stat. Anno. (For other cases, see Internal Revenue, I. b,

their production is prohibited and punished. 2d ed. p. 135, was the same while that in Digest Sup. Ct. 1908.) was in force, and that presumably the Internal revenue power of Congress later act adopted the construction. The - tax law

moral purpose. argument is another confirmation of the 4. The fact that a Federal tax law had view that we adopt.

a moral end in view as well as the raising The tax is 4 cents upon packages of of revenue presents no valid constitutional not more than $1 of actual retail value, (For other cases, see Internal Revenue; I. b.

objection to its enactment. with 4 cents for each additional dollar;

in Digest Sup. Ct. 1908.) but this rough reference to retail price

Statutes - implied repeal penal is far from implying that the package must have been sold in order to fix the

5. Existing penal statutes are repealed tax. It appears to us entirely natural by later ones covering practically the same that Congress should look to the original acts, but fixing lesser penalties.

Statutes, III. b. in place of manufacture as the place for [For other

Digest Sup. Ct. 1908. ) the identification of the taxable goods,

Internal revenue distilled spirits and to the moment of leaving it, except

penalty for violating laws implied in exceptional cases, as the time for the

repeal national prohibition. attaching of the tax. It seems to us to 6. So far as intoxicating liquors inhave done so in sufliciently unmistakable tended for beverage purposes are concerned, terms.

the provisions of U. S. Rev. Stat. SS 3257, Judgment reversed.

3279, 3281, and 3282, making it a criminal offense to defraud or attempt to defraud the United States of a tax upon spirits dis

tilled by one carrying on the business of a [450] UNITED STATES OF AMERICA, distillery, or to fail to keep the sign “regPiff. in Err.,

istered distillery" on the outside of a place

of business used as a distillery, or to carry BOZE YUGINOVICH and Cousin Boze on the business of a distillery without bond, Yuginovich.

or to make or permit mash to be made in (See S. C. Reporter's ed. 450-464.)

any building other than a distillery author

ized by law, must be regarded as repealed Appeal by government in criminal by the national Prohibition Act of October scope of review.

28, 1919, enacted to make effective U. S. 1. The construction or sufficiency of | Const. 18th Amend., prohibiting the manuNote.--As to repeal of statutes by im-1 On direct review in Federal Supreme plication, generally, see notes to State Court of judgments of district or cirv. Massey, 4 L.R.A. 309, and United cuit courts-see notes to Gwin v. United States v. Henderson, 20 L. ed. U. S. 235. States, 46 L. ed. U. S. 741; B. Altman &

On construction and effect of the Vol. Co. v. United States, 56 L. ed. U. S. stead Act-see note to Street v. Lincoln 894, and Berkman v. United States, 63 Safe Deposit Co. 10 A.L.R. 1553. L. ed. U, S. 877.




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facture and sale of intoxicating liquors in United States v. Sohm, 265 Fed. 910; the United States for beverage purposes, al, United States v. One Essex Touring though such act, in $ 35, which repeals all Automobile, 266 Fed. 138; United States prior laws only to the extent of their inconsistency with it, provides that the act

v. Turner, 266 Fed. 248. shall not relieve any person from any lia- Mr. Ransom Hooker Gillett argued bility, civil or criminal, theretofore or the cause, and, with Messrs. Walter Jefthereafter incurred under existing laws. [For other cases, see Internal Revenue. vi. freys Carlin and Barnet Goldstein, filed b, 2; VI. c, in Digest Sup. Ct. 1908.)

a brief for defendants in error:

The internal revenue laws are taxing (No. 523.]

statutes, and were enacted for the sole

purpose of raising revenue for the govArgued March 10, 1921. Decided June 1, ernment, and are not penal statutes. 1921.

United States v. Hill, 123 U. S. 681,

686, 31 L. ed. 275, 277, 8 Sup. Ct. Rep. IN N ERROR to the District Court of the 308.

United States for the District of The Congress can only tax "usual obOregon to review a judgment quashing jects," and cannot tax a crime. an indictment charging violation of cer- Knowlton v. Moore, 178 U. S. 41, 44 tain provisions of the Internal Revenue L. ed. 969, 20 Sup. Ct. Rep. 747; People Laws relating to distilled spirits. Af- v. Raynes, 3 Cal. 366. firmed.

The National Prohibition Act See same case below, 266 Fed. 746. presses the legislative intent of the The facts are stated in the opinion. Congress in carrying into effect the proAssistant Attorney General Adams

visions of the 18th Amendment, and imargued the cause, and, with Special As- pliedly repeals antecedent statutes dealsistant to the Attorney General Zeisler, ing with the subject of intoxicating ligfiled a brief for plaintiff in error: The sections under consideration are

22 Cyc. 1606. not inconsistent with the National Pro

The National Prohibition Act imposes hibition Act.

milder penalties for violation of the State v. Moeling, 129 La. 204, 55 So. liquor laws, and hence repeals forever

laws on that subject. 764; Carpenter v. State, 120 Tenn. 586, 113 S. W. 1042; Foster v. Speed, 120

United States v. Windham, 264 Fed.

376. Tenn. 470, 12 L.R.A.(N.S.) 949, 111 S. W. 925, 15 Ann. Cas. 1066; Webster v. Mr. Wayne B. Wheeler filed a brief as Com. 89 Va. 154, 15 S. E. 513; State amicus curiæ: v. Smiley, 101 N. C. 709, 7 S. E. 904; Taxes for other purposes than raising State v. Smith, 126 N. C. 1057, 35 S. E. revenue only are sustained. 615; License Tax Cases, 5 Wall. 462, 18 Veazie Bank v. Fenno, 8 Wall. 533, 19 L. ed. 497; Com. v. Nickerson, 236 Mass. L. ed. 482; McCray v. United States, 195 281, 10 A.L.R. 1568, 128 N. E. 273; | U. S. 27, 49 L. ed. 78, 24 Sup. Ct. Rep. Youngblood v. Sexton, 32 Mich. 406, 20 | 769, 1 Ann. Cas. 561; United States v. Am. Rep. 654; Conwell v. Sears, 65 Ohio Jin Fuey Moy, 241 U. S. 394, 60 L. ed. St. 49, 61 N. E. 155.

1061, 36 Sup. Ct. Rep. 658, Ann. Cas. The National Prohibition Act does not 1917D, 854; Youngblood v. Sexton, 32 impliedly repeal the revenue laws. Mich. 406, 20 Am. Rep. 654; Home Ins.

United States v. Claflin, 97 U. S. 546, Co. v. Augusta, 50 Ga. 530; Adler v. 24 L. ed. 1082; Henderson's Tobacco, 11 Whitbeck, 44 Ohio St. 561, 9 N. E. Wall. 652, 20 L. ed. 235; Great Northern 672; Cooley, Taxn. 3d ed. pp. 14, 242; R. Co. v. United States, 84 C. C. A. 93, License Tax Cases, 5 Wall. 462, 18 L. 155 Fed. 945.

ed. 497; Foster v. Speed, 120 Tenn. 472, The offenses denounced by the reve- 22 L.R.A.(N.S.) 949, 111 S. W. 925, 15 nue laws are not the same as those de- Ann. Cas. 1066; Lyle v. Sears, 65 Ohio nounced by the National Prohibition St. 49, 61 N. E. 155; Carpenter v. State, Act.

120 Tenn. 586, 113 S. W. 1042; Com. Carter v. McClaughry, 183 U. S. 365, v. Nickerson, 236 Mass. 281, 10 A.L.R. 46 L. ed. 236, 22 Sup. Ct. Rep. 181; 1568, 128 N. E. 273. Gavieres v. United States, 220 U. S. Revenue laws are not repealed by im338, 55 L. ed. 489, 31 Sup. Ct. Rep. 421; plication. Ebeling v. Morgan, 237 U. S. 625, 59 L. Johnson v. Browne, 205 U. S. 309, 321, ed. 1151, 35 Sup. Ct. Rep. 710.

51 L. ed. 816, 820, 27 Sup. Ct. Rep. 539, The decisions of the lower courts sus- 10 Ann. Cas. 636: Osborn v. Nicholson, tain the government's contentions. 13 Wall. 654, 662, 20 L. ed. 689, 695;





Wood v. United States, 16 Pet. 342, 363, defendants failed to keep on the distil10 L. ed. 987, 995; United States v. Gear, lery conducted by them, any sign ex. 3 How. 120, 131, 11 L. ed. 523, 528; hibiting the name or firm of the disUnited States v. Tynen, 11 Wall. 88, 20 tiller, with the words, “Registered L. ed. 153; District of Columbia v. Hut- Distillery," required by statute. ton, 143 Ư. S. 18, 36 L. ed. 60, 12 Sup. The third count, based on § 3281 of Ct. Rep. 369; United States v. Claflin, the U. S. Rev. Stat., Comp. Stat. § 97 U. S. 546, 24 L. ed. 1082.

6021, 4 Fed. Stat. Anno. 2d ed. p. 41, Failure to comply with the revenue charges the defendants with carrying on laws is an indictable offense.

the business of distilling within the inUlman v. State, 137 Md. 642, 113 Atl. tent and meaning of the Revenue Laws 124; United States v. One Essex Tour- of the United States without giving the ing Automobile, 266 Fed. 138; United bond required by law. The fourth States v. Turner, 266 Fed. 249; United count, based on § 3282 of the U. S. Rev. States v. Sohm, 265 Fed. 910.

Stat., Comp. Stat. § 6022, 4 Fed. Stat. There is no constitutional provision Anno. 2d ed. p. 44, charges the defendinterfering with the continued existence ants with unlawfully making a mash, fit of U. S. Rev. Stat. 3279, Comp. Stat. for distillation, in a building not a dis§ 6019, 4 Fed. Stat. Anno. 2d ed. p. 40, tillery duly authorized by law. or the other section in issue in this case. The defendants interposed a motion It is unconstitutional, of course, to punto quash the indictment upon the ish a person twice for the same offense, grounds that the acts of Congress under but, even in the face of this inhibition, which the same was found were it has been held that a single act may pealed before the finding of the indictbe an offense against two statutes; and ment, and that the acts charged to have if each statute requires proof of an ad been committed by them were after the ditional fact which the other does not, date upon which the 18th Amendment to an acquittal or conviction under either the Federal Constitution and the Vol. statute does not exempt defendant from stead Act [October 28, 1919, 41 Stat. at prosecution and punishment under the L. 305, chap. 85] became effective. Deother.

fendants also filed a demurrer to the inMorey v. Com. 108 Mass. 433; Carter

dictment practically the v. McClaughry, 183 U. S. 365, 395, 46 L. grounds. The motion to quash and the ed. 236, 251, 22 Sup. Ct. Rep. 181; demurrer were sustained by the district Gavieres v. United States, 220 U. S.

court. 266 Fed. 746. 338, 55 L. ed. 489, 31 Sup. Ct. Rep. 421 ; Ebeling v. Morgan, 237 U. S. 625, 630,

The sections of the Revised Statutes 631, 59 L. ed. 1151, 1153, 35 Sup. Ct. may be summarized as follows: Section Rep. 710; United States v. Turner, 266 3257 makes it an offense to defraud or Fed. 248.

attempt to defraud the United States of

a tax [459] upon spirits distilled by Mr. Justice Day delivered the opinion one carrying on the business of a distilof the court:

lery; provides for forfeiting the distilThis case is here under the Criminal lery and the distilling apparatus and all Appeals Act. March 2, 1907, 34 Stat. spirits found in the distillery or on the at L. 1246, chap. 2564, Comp. Stat. s distillery premises, and subjects the of 1704, 6 Fed. Stat. Anno. 2d ed. p. 149. fender to a fine of not less than $500 or The indictment is in four counts.

more than $5,000, and imprisonment of [458] The first count, based on $ not less than six months or more than 3257 of the U. S. Rev. Stat., Comp. Stat. three years. Section 3279 requires dis$ 5993, 4 Fed. Stat. Anno. 2d ed. p. 23, tillers to exhibit on the outside of their charges the defendants with unlawfully place of business a sign with the words, engaging in the business of distillers “Registered Distillery.” A violation of within the intent and meaning of the In- this section subjects the offender to a ternal Revenue Laws of the United fine of $500. Section 3281 makes it an States; and that in fact they did distill offense to carry on the business of a disspirits subject to the internal revenue tiller without having given bond. For tax imposed by the laws of the United such offense the penalty is a fine from States; and did defraud and attempt $1,000 to $5,000, and imprisonment not to defraud the United States of the less than six months or more than three tax on said spirits. The second count, years.

Section 3282 makes it penal to based on § 3279 of the U. S. Rev. make or permit mash to be made in any Stat., Comp. Stat. § 6019, 4 Fed. Stat. building other than distillery authorAnno. 2d ed. p. 40, charges that the lized by law. A violation of this section subjects the offender to a fine of not less, the purposes declared in § 3. Section 25 than $500 or more than $5,000, and im- makes it unlawful to have or possess prisonment of not less than six months any liquor or property designed for the or more than two years.

manufacture of liquor intended for use These statutes have long been part of in violation of the act, or which has been the Federal internal revenue legislation, so used, and provides that no property and were passed under the authority of rights shall exist in any such liquor or the taxing power conferred upon Con-property. The same section provides gress by the Constitution of the United for the issue of search warrants, and if States. At the time of their enactment it is found that any liquor or property it was legal, so far as the Federal gov- be unlawfully held or possessed, or had ernment was concerned, to manufacture been unlawfully used, the liquor and all and sell ardent spirits for beverage pur property designed for the unlawful poses. The government derived large manufacture of liquor shall be derevenue from taxing the business, which stroyed, unless the court otherwise orit sought to realize and protect by the ders. Section 29 provides that any system of laws of which the sections in person who manufactures or sells liquor question were a part. This policy was in violation of Title 2 of the act shall, radically changed by the adoption of the for a first offense, be fined not less than 18th Amendment to the Federal Consti- | $1,000, or be imprisoned not exceeding tution, and the enactment of legislation six months, and for a second or subseto make the Amendment effective. The quent offense shall be fined [461] not 18th Amendment in comprehensive, and less than $200 or more than $2,000, and clear language prohibits the manufac- be imprisoned for not less than one ture or sale of intoxicating liquors in the month nor more than five years. United States for [460] beverage pur

In Title 3 elaborate provision is made poses, and confers upon Congress the for the production of alcohol in induspower to enforce the Amendment by trial alcohol plants. It provides for the appropriate legislation. To this end, taxation of such alcohol, and excepts Congress passed a national prohibition industrial alcohol plants and bonded law known as the Volstead Act. 41 warehouses for the storage and distriStat. at L. 305, chap. 83. It is a' bution of industrial alcohol from cercomprehensive statute intended to pre- tain sections of the Revised Statutes. vent the manufacture and sale of intox- It is well settled that in cases of this icating liquors for beverage purposes.

character the construction or sufficiency Before taking up the sections of the of the indictment is not brought before Revised Statutes some provisions of the us. United States v. Keitel, 211 U. S. Volstead Act may be appropriately re- 370, 53 L. ed. 230, 29 Sup. Ct. Rep. 123; ferred to. Section 3 provides that after United States v. Stevenson, 215 U. S. the 18th Amendment to the Constitution 190, 54 L. ed. 153, 30 Sup. Ct. Rep. 35. of the United States goes into effect it For the purpose of interpreting the statshall be illegal to manufacture, sell, bar- ute we adopt the meaning placed upon ter, transport, import, export, deliver, the indictment by the court below. furnish, or possess any intoxicating liq- United States v. Colgate & Co. 250 U. S. uor except as authorized in the act. 300, 63 L. ed. 992, 7 A.L.R. 443, 39 Sup. Liquor for nonbeverage purposes and Ct. Rep. 465. As that court evidently wine for sacramental purposes may be construed the statutes upon the assumpmanufactured, purchased, sold, bar- tion that the charges had relation to intered, transported, imported, exported, toxicating liquors intended for beverdelivered, furnished, and possessed, but age purposes, we shall follow that view only as in the act provided, and the of the indietment in determining whethCommissioner of Internal Revenue may er the former statutes are still in force. issue permits therefor.

The act con- Section 351 (in the margin) in its first tains many provisions to make effective sentence repeals [462] all prior acts to

1 Sec. 35. "All provisions of law that tax receipts for any illegal manufacture or are inconsistent with this act are repealed sale shall be issued in advance, but upon only to the extent of such inconsistency evidence of such illegal manufacture or and the regulations herein provided for the sale a tax shall be assessed against, and manufacture or traffic in intoxicating liquor collected from, the person responsible for shall be construed as in addition to exist. | such illegal manufacture or sale in double ing laws. This act shall not relieve any. the amount now provided by law, with an one from paying any taxes or other charges additional penalty of $500 on retail dealers imposed upon the manufacture or traffic in and $1.000 on manufacturers. such liquor. No liquor revenue stamps or ment of such tax or penalty shall give no

The pay


the extent of their inconsistency with, It is, of course, settled that repeals by the National Prohibition Act,--to that implication not

favored. It is extent and no more,--and provides that equally well settled that a later statute no revenue stamps or tax receipts shall repeals former ones when clearly inconbe issued in advance for the illegal man- sistent with the earlier enactments. ufacture or sale of intoxicating liquors, United States v. Tynen, 11 Wall. 88, 20 and that upon evidence of such illegal L. ed. 153. In construing penal statutes, manufacture or sale the tax shall be it is the rule that later enactments reassessed in double the amount now pro- peal former ones practically covering vided by law, with an additional penalty the same acts, but fixing a lesser penof $500 as to retail dealers and $1,000 alty. The concluding phrase of $ 35, by as to manufacturers, and that the pay- itself considered, is strongly indicative ment of such tax or penalty shall not of an intention to retain the old laws. give the right to engage in the manufac- But this section must be interpreted in ture or sale of such liquors, or relieve view of the constitutional provision conanyone from criminal liability.

tained in the 18th Amendment, and in That Congress may, under the broad view of the provisions of the Volstead authority of the taxing power, tax in- Act intended to make that Amendment toxicating liquors notwithstanding their effective. production is prohibited and punished, Having in mind these principles, and we have no question. The fact that the considering now the first count of the statute in this aspect had a moral end indictment, charging an attempt to dein view as well as the raising of revenue fraud and actually defrauding the govpresents no valid constitutional objec-ernment of the revenue tax, we do not tion to its enactment. License Tax believe that the general language used Cases, 5 Wall. 462, 471, 18 L. ed. 497, at the close of $ 35 evidences the inten500; Re Pollock, 165 U. S. 526, 536, 41 tion of Congress to inflict for such an I.. ed. 813, 816, 17 Sup. Ct. Rep. 444; offense the punishment provided in s United States v. Jin Fuey Moy, 241 U. 3257, with the resulting forfeiture, fine, S. 394, 60 L. ed. 1061, 36 Sup. Ct. Rep. and imprisonment, and at the same time 658, Ann. Cas. 1917D, 854; United to authorize prosecution and punishment States v. Doremus, 249 U. S. 86, 63 under $ 35, enacting lesser and special L. ed. 493, 39 Sup. Ct. Rep. 214. The penalties for failing to pay such taxes question remains concerning the appli- by imposing a tax in double the amount cability of $ 3257, involving the right to provided by law, with an additional punish for attempting to defraud the penalty of $500 on retailers and $1,000 United States of a tax, Did Congress on manufacturers. Moreover, the conintend to punish such violation of law cluding words of the first paragraph of by imposing the old penalty denounced $ 35, as to all the offenses charged, must [463] in § 3257, or as provided in the [464] be read in the light of established new and special provision enacted in the legal principles governing the interpreVolstead Act?

tation of statutes, and in view of the It is the contention of the government provisions of the Volstead Act itself, that $ 35 saves the right to prosecute as making it unlawful to possess intoxicatto taxes, as well as the acts charged as ing liquor for beverage purposes, or violative of the other sections of the Re- property designed for the manufacture vised Statutes, because of the phrase of such liquor, and providing for its dewith which the section concludes: struction. We agree with the court be. nor shall this act relieve any low that while Congress manifested an person from any liability, civil or crim- intention to tax liquors illegally as well inal, heretofore or hereafter incurred as those legally produced, which was under existing laws.”

within its constitutional power, it did right to engage in the manufacture or sale This section has given rise to different of such liquor, or relieve anyone from crim. constructions in the Federal courts; in inal liability, nor shall this act relieve any some it has been held that the National person from any liability, civil or criminal, Prohibition Act has repealed the old Rev. heretofore or hereafter incurred under ex. enue Laws. United States v. Windam, 264 isting laws.

The commissioner, with the Fed. 376; United States v. Puhae, 268 Fed. approval of the Secretary of the Treasury, 392 ; United States v. Stafoff, 268 Fed, 417; may compromise any civil cause arising Reed v.

Thurmond, - C. C. A. --, 269 Fed. under this title before bringing action in

252. Contra, United States v. Solm, 265 court; and with the approval of the Attorney General he may compromise any such Fed. 910: United States v. Turner, 266 Fed. cause after action thereon has been com- 249; United States v. Farhat, Sacein Rou. menced.”

hano, 269 Fed. 33.


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