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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 indictment 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.

The pay. such liquor. No liquor revenue stamps or ment of such tax or penalty shall give no

is

the extent of their inconsistency with, It is, of course, settled that repeals by the National Prohibition Act--to that implication are not favored. It 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 inten. 500; 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 § 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 Reyheretofore or hereafter incurred under ex- enue Laws. I'nited States v. Windam, 264 isting laws. The commissioner, with the Fed. 376; United States v. Puhac, 268 Fed. approval of the Secretary of the Treasury, 392; United States v. Stafoff, 268 Fed. 417; may compromise any civil cause arising Reed y. Thurmond, C. C. A. 269 Fed. under this title before bringing action in court; and with the approval of the Attor- 252. Contra, United States v. Solim, 265 ney General he may compromise any such Fed. 910; l'nited States v. Turner, 266 Fed. cause after action thereon has been com. 249; United States v. Farhat, Sacein Roumenced.”

hano, 269 Fed. 33.

cases,

see

V.

not intend to preserve the old penalties unreasonable searches and seizures and seliprescribed in § 3257 in addition to the incrimination will not be violated if the specific provision for punishment made Federal prosecuting authorities to whom in the Volstead Act,

incriminating papers stolen by private per. We have less difficulty with the other a view to their use in a subsequent investi

sons have been delivered, retain them with sections of the prior revenue legislation gation by a grand jury where such papers under which the charges, already set will be part of the evidence against the acforth, are made. We think it was not cused, and may be used against him upon intended to keep on foot the require trial should an indictment be returned, the ment as to displaying the words “Regis- government having had no part in the tered Distillery” in a place intended for wrongful taking.

[For other the production of liquor for beverage

Search and Seizure :

Criminal Law, III. b, 2. in Digest Sup. Ct. purposes which could no longer be law- 1908.) fully conducted; nor to require a bond

[No. 646.) for the control of such production; nor to penalize the making of mash in a Argued April 11 and 12, 1921. Decided distillery which could not be authorized

June 1, 1921. by law.

The questions before us solely concern the construction of the statutes in- the United States for the Western volved, under an indictment pertaining District of Pennsylvania to review an to the production of liquor for beverage order for the return of incriminating purposes, and we think they were cor- papers stolen by private persons and derectly answered in the opinion of the livered to the Federal prosecuting attorcourt below. It follows that its judg- neys. Reversed. ment is affirmed.

The facts are stated in the opinion.

Solicitor General Frierson argued the

cause and filed a brief for appellant: (465) JOSEPH A. BURDEAU, Appt., Even if it could be said that the com

pany or its representatives stole these J. C. MCDOWELL.

papers from the appellee, this would not

preclude their use in evidence if they (See S. C. Reporter's ed. 465-477.)

should thereafter come to the hands of

the Federal authorities. Search and seizure private action. 1. The security afforded by U. S.

Weeks v. United States, 232 U. S. Const. 4th Amend., against unreasonable 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 search and seizure, applies solely to govern. Sup. Ct. Rep. 341, Ann. Cas. 1915C, mental action. It is not invaded by the un- 1177; Boyd v. United States, 116 U. S. lawful acts of individuals in which the gov. 616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524: ernment has no part.

Adams v. New York, 192 U. S. 585, 48 (For other cases seeo Search and Seizure, in | L. ed. 575, 24 Sup. Ct. Rep. 372; John

Sup. 1908. Search and seizure self-crimination son v. United States, 228 U. S. 457, 57 use of stolen papers.

L. ed. 919, 47 L.R.A.(N.S.) 263, 33 Sup. 2. Constitutional guaranties against Ct. Rep. 572; Perlman v. United States,

247 U. S. 7, 62 L. ed. 950, 38 Sup. Ct. Note.-As to unreasonable search and

Rep. 417. seizure-see note to Levy v. Superior Court, 29 L.R.A. 818.

Mr. E. Lowry Humes argued the On sufficiency of statutory immunity cause, and, with Messrs. A. M. Imbrie to satisfy constitutional guaranties and Rody P. Marshall, filed a brief for against self-incrimination-see notes to appellee: Interstate Commerce Commission The right which the appellee asserted Baird, 48 L. ed. U. S. 860, and Arndstein was a right which the court had jurisv. McCarthy, ante, 138.

diction to recognize and preserve. On admissibility against defendant of Boyd v. United States, 116 U. S. 624, document or articles taken from him-29 L. ed. 748, 6 Sup. Ct. Rep. 524; see notes to State v. Edwards, 59 L.R.A. Weeks v. United States, 232 U. S. 398, 465; State v. Fuller, 8 L.R.A.(N.S.) 762; 58 L. ed. 657, L.R.A.1915B, 834, 34 Sup. People v. ('ampbell, 34 L.R.A.(N.S.) 58; Ct. Rep. 341, Ann. Cas. 1915C, 1177. Weeks v. United States, L.R.A.1915B, The right of a court of equity to or834, and Blacksburg v. Beam, L.R.A. der and decree the return of private 1916E, 716.

property and papers is well recognized. And see note to this case as reported McGowin v. Remington, 12 Pa. 56, 51 in 13 A.L.R. 1168.

Am. Dec. 584; Pressed Steel Car Co. v.

Standard Steel Car Co. 210 Pa. 464, 60 was had before the district judge, who Ati. 4; Dock v. Dock, 180 Pa. 15, 57 made an order requiring the delivery of Am. St. Rep. 617, 36 Atl. 411.

the papers to the clerk of the court, to

gether with all copies, memoranda, and Mr. Justice Day delivered the opinion data taken therefrom, which the court of the court:

found had been stolen from the offices J. C. McDowell, hereinafter called the of the petitioner at rooms numbered petitioner, filed a petition in the United 1320 and 1321 in the Farmers' Bank States district court for the western dis- Building, in the city of Pittsburgh. trict of Pennsylvania, asking for an The order further provided that, upon order for the return to him of certain delivery of the books, papers, etc., to books, papers, memoranda, correspond- the clerk of the court, the same should ence, and other data in the possession be sealed and impounded for the period of Joseph A. Burdeau, appellant herein, of ten days, at the end of which period Special Assistant to the Attorney Gen- they should be delivered to the petieral of the United States.

tioner or his attorney unless an appeal In the petition it is stated that Bur- were taken from the order of the court, deau and his associates intended to pre-in which event, the books, papers, etc., sent to the grand jury in and for the should be impounded until the determiwestern district of Pennsylvania a nation of the appeal.

An order was charge against petitioner of an alleged made restraining Burdeau, Special Asviolation of $ 215 of the Criminal Code sistant Attorney General, the Departof the United States for the fraudulent ment of Justice, its officers and agents, use of the mails; that it was the inten- and the United States Attorney, from tion of Burdeau and his associates, in- presenting to the United States Commis. cluding certain postoffice inspectors co- sioner, the grand jury, or any official operating with him, to present to the tribunal, any of the books, papers, memgrand jury certain private books, pa- oranda, letters, copies of letters, correpers, memoranda, etc.

, which were the spondence, etc., or any evidence of any private property of the petitioner; that nature whatsoever secured by or coming the papers had been in the possession into their possession as a result of the and exclusive control of the petitioner knowledge obtained from the inspection in the Farmers' Bank Building, in Pitts- of such books, papers, memoranda, etc. burgh. It is alleged that during the In his opinion the district judge statspring and summer of 1920 these papersed that it was the [472] intention of were unlawfully seized and stolen from the Department of Justice, through Burpetitioner by certain persons participat-deau and his assistants, to present the ing in and furthering the proposed in- books, papers, etc., to the grand jury vestigation so to be made by the grand with a view to having the petitioner injury, under the direction and control of dicted for the alleged violation of $ 215 Burdeau as Special Assistant to the At- of the Criminal Code of the United torney General, and that such books, States, and the court held that the papers, memoranda, etc., were being evidence offered by the petitioner held in the possession and control of showed that the papers had been stolen Burdeau and his assistants; that in the from him, and that he was entitled taking of the personal private books and ; to the return of the same. In this conpapers, the person who purloined and nection the district judge stated that it stole the same drilled the petitioner's did not appear that Burdeau, or any private safes, broke the locks upon his official or agent of the United States, private [471] desk, and broke into and or any of the Departments, had anyabstracted from the files in his offices thing to do with the search of the his private papers; that the possession petitioner's safe, files, and desk, or the of the books, papers, etc., by Burdeau abstraction therefrom of any of the and his assistants, was unlawful and in writings referred to in the petition, violation of the legal and constitutional and added that "the order made in rights of the petitioner. It is charged this case is not made because of any that the presentation to the grand jury unlawful act on the part of anybody of the same, or any secondary or other representing the United States or any evidence secured through or by,' them, of its Departments, but solely upon would work a deprivation of petitioner's the ground that the government should constitutional rights secured to him by not use stolen property for any purpose the 4th and 5th Amendments to the Con- after demand made for its return." Exstitution of the United States.

pressing his views, at the close of the An answer was filed, claiming the right testimony, the judge said that there had to hold and use the papers. A hearing been a gross violation of the 4th and 5th

were

Amendments to the Federal Constitu- took private papers of McDowell's also. tion; that the government had not been While the rooms were in charge of de. a party to any illegal seizure; that those tectives both safes were blown open. In Amendments, in the understanding of the small safe nothing of consequence the court, were passed for the benefit of was found, but in the large safe papers the states against action by the United belonging to McDowell

found. States—forbidden by those Amend. The desk was forced open, and all the ments, and that the court was satisfied papers taken from it. [474] The pathat the papers

were illegally and pers were placed in cases, and shipped wrongfully taken from the possession of to Doherty & Company, 60 Wall street, the petitioner, and were then in the New York. hands of the government.

In June, 1920, following. Doherty & So far as is necessary for our consid- Company, after communication with the eration, certain facts from the record Department of Justice, turned over a may be stated. Henry L. Doherty & letter, found in McDowell's desk, to the Company of New York were operating Department's representative. Burdeau managers of the Cities Service Com- admitted at the hearing that, as the reppany, which company is a holding com- resentative of the United States in the pany, having control of various oil and Department of Justice, he had papers gas companies. Petitioner was a direc- which he assumed were taken from the tor in the Cities Service Company [473] office of McDowell. The communication and a director in the Quapaw Gas Com- to the Attorney General stated that Mepany, a subsidiary company, and occu- Dowell had violated the laws of the pied an office room in the building owned United States in the use of the mail in by the Farmers' Bank of Pittsburgh. the transmission of various letters to The rooms were leased by the Quapaw parties who owned the properties which Gas Company. McDowell occupied one were sold by or offered to the Cities room for his private office. He was Service Company; that some of such letemployed by Doherty & Company as ters, or copies of them, taken from Mcthe head of the natural gas division Dowell's file, were in the possession of of the Cities Service Company. Do- the Cities Service Company; that the herty & Company discharged McDowell company also had in its possession porfor alleged unlawful and fraudulent tions of a diary of McDowell in which conduct in the course of the business. he had jotted down the commissions An officer of Doherty & Company and which he had received from a number the Cities Service Company went to of the transactions, and other data Pittsburgh in March, 1920, with au- which, it is stated, would be useful in thority of the president of the Quapaw the investigation of the matter before Gas Company, to take possession of the grand jury and subsequent prosecnthe company's office. He took posses- tion should an indictment be returned. sion of room 1320; that

room and

We do not question the authority of the adjoining room had McDowell's the court to control the disposition of

on the door. At various times the papers, and come directly to the conpapers were taken from the safe and tention that the constitutional rights of desk in the rooms, and the rooms were the petitioner were violated by their seizplaced in charge of detectives. A large ure, and that having subsequently come quantity of papers taken and into the possession of the prosecuting shipped to the auditor of the Cities | officers of the government, he was enService Company at 60 Wall street, titled to their return. The Amendments New York, which was the office of that involved are the 4th and 5th, protecting company, Doherty & Company, and the a citizen against unreasonable searches Quapaw Gas Company. The secretary and seizures, and compulsory testimony of McDowell testified that room 1320 against himself. An extended considwas his private office; that practically eration of the origin and purposes of all the furniture in both rooms belonged these Amendments would be superfluous to him; that there was a large safe be- in view of the fact that this court has longing to the Farmers' Bank and a had occasion to deal with those subjects small safe belonging to McDowell; that in a series of cases. Boyd v. United on March 23, 1920, a representative of States, 116 l: S. 616, 29 L. ed. 746, 6 the company and a detective came to Sup. ('t. Rep. 524; Adams r. New York, the offices; that the detective was placed 192 U. S. 585, 48 L. ed. 575, 24 Sup. Ct. in charge of room 1320; that the large Rep. 372; Weeks [475] United safe was opened with a view to selecting States, 232 U. S. 383, 58 L. ed. 652, papers belonging to the company, and L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, that the representative of the company! Ann. Cas. 1915C, 1117; Johnson r.

name

were

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