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provided that the national treasurer be was not asserted or prosecuted on that authorized to receive the appropriation, basis and that there is no description of and to pay (among other obligations) the services of Garland or their value, “20 per cent of such appropriation for and therefore no elements for a judgment the delegates of 1853 and 1854, to enable established, such as the statute authorthem to discharge all liabilities and ob- ized. It authorized, the explicit contenligations under said contracts (there tion is, a judgment on a quantum meruit, were other contracts than that with the and that therefore "no judgment can be delegates] and all expenses necessarily rendered on a petition which seeks to incurred in recovering said claim." It recover merely upon the ground of a was provided that all just debts due the contract.” nation from the delegation should first The contention under the facts disbe deducted.

closed in the petition is technical. The The enactment of 1888 was a deputa- petition showed services rendered, and, tion to LeFlore and McCurtain to collect if the petition be true, valuable services, and disburse the congressional appro- and for them there should have been priation, and they became for that pur- recovery if the nation was liable, and we pose the agents of the nation, not the think it was. How much we do not say agents of the delegation, and it was the nor did the court of claims consider, it first deputation of that power. By a being of opinion that the nation was prior enactment the payments made to not liable for anything. Upon the rethe delegation were from the national turn of the case it may determine the treasury, and another (1867) provided amount due Garland, if (446] anything, for such payment. In other words, un-dependent upon what his services contil the enactment of February 25, 1888, tributed in securing the congressional the control of the appropriation was in appropriation. the nation, and payments out of it by the The judgment of the Court of Claims nation.

must therefore be reversed, and it is so Our conclusion, therefore, from the ordered. record, is not that of the court of claims. Reversed. There was implication, at least, of liability to the delegates individually. And Mr. Justice McReynolds and Mr. Jus. this was the understanding of the dele. tice Clarke took no part in the considgates. LeFlore so understood it, and the eration and decision of this case. payment made to Garland's estate was a recognition of it. The payment is distinctly in opposition [445] to the contention of the government and the con- UNITED STATES OF AMERICA, Piff. in clusion of the court of claims. Both the

Err., contention and conclusion assert a unity in the delegation, the rejection of any

AMERICAN CHICLE COMPANY. individual payment or reward to the delegates, a time limit upon compensation

(See S. C. Reporter's ed. 446–449.) for their services, however great or effective, a kind of jus accrescendi in the Internal revenue - stamp tax goods

removed for sale. successors of deceased delegates. If such right existed at all, it would have of October 22, 1914, § 5, upon gum and oth

1. The stamp tax imposed by the Act existed even though the succession had er specified articles “sold or removed for come a moment before the congressional sale," contemplates payment by the manuappropriation was made, and no services facturer, although the amount of the tax whatever rendered by the successors of is determined by the retail price or value of deceased delegates.

the article, And these views must have impressed (For Dother cases, see Internal Revenue, III.

Digest Ct. Congress, and induced its enactment au- Internal revenue stamp tax - goods thorizing suit against the Choctaw Na- removed for sale. tion. Not, it is true, upon the contract, 2. Chewing gum transported by the because other services than Garland's manufacturer from the place of preparation were rendered in procurement of the ap- to one of its other factories or warehouses, propriation and should be considered, as the state of the stock therein or the conand Congress therefore required the dition of the trade may demand, must be judgment in the suit “to be rendered on by the Act of October 22, 1914, § 5, upon

deemed subject to the stamp tax imposed the principle of quantum meruit” for

gum and other

articles "sold or what Garland did and expended. removed for sale," although the amount of

It is objected, however, that the suit the tax is determined by the retail price

error.

or value of the article; especially in view warehouses, as the state of the stock of $ 20 of that act, under which manufac. therein, or the condition of the trade, turers of such articles are required to file monthly declarations that no such article

may

demand.” The goods concerned has been removed from the premises of such "had been removed from the factory at manufacturer other than such as has been which they were manufactured and preduly taken account of and charged with the pared for sale, to other factories or stamp tax.

warehouses of petitioner in other parts [For other cases, see, Internal Revenue, II. of the United States, as hereinbefore set in Digest Sup. Ct. 1908.)

forth.” They had upon them uncanceled (No. 175.)

revenue stamps, but belonged to the petiArgued January 24, 1921. Decided June 1, of sale on September 9, 1916, when the

tioner, and were subject to no contract 1921.

above-mentioned Act of September 8, IN the of (

United States for the Southern Dis- for the redemption of stamps, as we trict of New York to review a judgment have said. The petitioner sells only to for the redemption of certain revenue wholesale dealers, never at retail. By its stamps. Reversed.

own statement it must be taken to have The facts are stated in the opinion.

removed the goods for the purposes of cause, and, with Mr. R. P. Frierson, had taken place. It is said that, upon Solicitor General Frierson argued the sale to such places as seemed most like

ly to offer a market, although no sale filed a brief for plaintiff in error.

the language of the petition, the greater Mr. Charles P. Spooner argued the part of the goods may have been sent cause and filed a brief for defendant in to other factories. But it is for the

petitioner to state a case, and, so far as Mr. Justice Holmes delivered the opin- appears, and probably in fact, all the ion of the court:

removals had the same end in view. The defendant in error, the petitioner

We may assume, without deciding, below, made a claim against the United that the tax is levied in respect of the States for $6,318.56 paid by it for reve- sale rather than of the manufacture of nue stamps under the Act of October 22, goods; but that throws little light upon 1914, chap., 331, $ 5, and Schedule B, 38 the question of the precise moment when Stat. at L. 745, 754, 763, 4 Fed. Stat. it falls due. The words “sold or removed Anno. 2d ed. p. 135 (extended by Resolu- for sale” clearly mean that it falls due tion of December 17, 1915, chap. 4; 39 in some cases before a sale is complete. Stat. at L. 2, through December 31, No one, we presume, would doubt that 1916), which it alleges were unused after if the goods were removed for the purJanuary 1, 1916, and therefore were to pose of satisfying an outstanding conbe redeemed under $ 24 of the Act of tract for a certain amount of chewing October 22, 38 Stat. at L. 764, chap. 331, gum, the tax would be due at the moment 4 Fed. Stat. Anno. 2d ed. p. 305, and the of the removal, although the goods were Act of September 8, 1916, chap. 463, s not yet appropriated to the contract in 411, 39 Stat. at L. 756, 793, Comp. Stat. any binding way. It seems to us hardly $8 6336a, 6316a, Fed. Stat.' Anno. Supp. more doubtful that the same would be 1918, pp. 312, 381, the stamps having true if goods were removed by a manubeen purchased within two years of the facturer to put into the window of a application for redemption, as required retail shop kept by it on the other side by the latter act. The United States of the street. If we are right, these exdemurred to the petition, and the peti- amples show that removal for the purtioner recovered in the district court. pose of forwarding a sale is a removal The question is whether the petition dis- for sale, within the meaning of the act. closes facts upon which it can be said But, on the face of the petition, that that the goods were not "removed for was the object of the transfer of these sale” within the meaning of g 5, which goods to other parts of the United levies the tax upon the things mentioned States. in Schedule B "manufactured, sold, or Notwithstanding the assumption that removed for sale."

the tax is levied in respect of sale rather The petitioner manufactures chewing than of manufacture, we agree with the gum, one of the articles mentioned in government that the statute contemSchedule B, and, when the product is plates a payment by the manufacturer. prepared, transports it from the place of This is shown by $$ 17-19. By § 20 preparation, in the language of the peti- every manufacturer of any article protioner, "to one of its other factories or vided for in Schedule B is required to 1042

er

we

case

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 quashing 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 austruction 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, objection to its enactment.

(For other cases, see Internal Revenue, I. b. 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. place of manufacture as the place for (For other cases, see Statutes, III. b, in

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 sufficiently 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

any building other than a distillery author(See S. C. Reporter's ed. 450-464.)

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- 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.

acts.

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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.

freys Carlin and Barnet Goldstein, filed (For other cases, see Internal Revenue, VI. 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 liqfiled 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 764; Carpenter v. State, 120 Tenn. 586,

laws on that subject. 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, 20769, 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;

on

same

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 ex3 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," as required by statute. ton, 143 Ú. 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 reit 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 Volstatute 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 v. McClaughry, 183 U. S. 365, 395, 46 L.

practically the ed. 236, 251, 22 Sup. Ct. Rep. 181; demurrer were sustained by the district

grounds. The motion to quash and the Gavieres v. United States, 220 U. S. 338, 55 L. ed. 489, 31 Sup. Ct. Rep. 421; court. 266 Fed. 746.

The sections of the Revised Statutes Ebeling v. Morgan, 237 U. S. 625, 630, 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 distil. of 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. $ distillery premises, and subjects the of. 1704, 6 Fed. Stat. Annó. 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 a distillery authorAnno. 2d ed. p. 40, charges that the lized by law. A violation of this section

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