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Case 7. Section 3176, R. S., as amended, did not take away from the Commissioner the power given by the other statutes to assess the tax on sales of grain, on exchange, on memoranda of which the stamps were not affixed. (Id.)

Case S. Section 3224, R. S., providing that no suit to restrain the assessment or collection of any tax shall be maintained in any court, forbids the issuance of an injunction to restrain the Commissioner of Internal Revenue from assessing the taxes on sales of grain to which no stamps were affixed; the only remedy of the taxpayer being by suit to recover the tax after payment as provided in section 3226, R. S. (Id.)

Case 9. Section 3224, R. S., providing that no suit for the purpose of restraining the assessment or collection of any tax shall be maintained in any court, applies to a suit to restrain proceedings to make the assessments, since assessment can not fairly be limited to the mental act of the officer who determines the amount of the tax, but includes the preliminary investigation as well as the final determination. (Id.)

Production of books.

Case 10. Section 3173, R. S., authorizes the Commissioner to compel the production of books of grain brokers who have failed to pay the stamp tax imposed on sales of grain on exchange by section 22, Schedule A of this act. (Id.)

HARRISON ANTI-NARCOTIC ACT OF DECEMBER 17, 1914.

[H. R. 6282.]

AN ACT To provide for the registration of, with collectors of internal revenue, and to impose a special tax upon all persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away opium or coca leaves, their salts, derivatives, or preparations, and for other purposes.

Be it enacted, etc., That on and after the first day of March, nineteen hundred and fifteen, every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away opium or coca leaves or any compound, manufacture, salt, derivative, or preparation thereof, shall register with the collector of internal revenue of the district his name or style, place of business, and place or places where such business is to be carried on: Provided, That the office, or if none, then the residence of any person shall be considered for the purposes of this act to be his place of business. At the time of such registry and on or before the first day of July, annually thereafter, every person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away any of the aforesaid drug shall pay to the said collector a special tax at the rate of $1 per annum: Provided, That no employee of any person who produces, imports, manufactures, compounds, deals in, dispenses, sells, distributes, or gives away any of the aforesaid drugs, acting within the scope of his employment, shall be required to register or to pay the special tax provided by this section: Provided further, That the person who employs him shall have registered and paid the special tax as required by this section: Provided further, That officers of the United States Government who are lawfully engaged in making purchases of the above-named drugs for the various departments of the Army and Navy, the Public Health Service, and for Government hospitals and prisons, and officers of any State government, or of any county or municipality therein, who are lawfully engaged in making purchases of the above-named drugs for State, county, or municipal hospitals or prisons, and officials of any Territory or insular possession or the District of Columbia or of the United States who are lawfully engaged in making purchases of the above-named drugs for hospitals or prisons therein shall not be required to register and pay the special tax as herein required.

It shall be unlawful for any person required to register under the terms of this act to produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away any of the aforesaid drugs without having registered and paid the special tax provided for in this section.

That the word "person" as used in this act shall be construed to mean and include a partnership, association, company, or corporation, as well as a natural person; and all provisions of existing law relating to special taxes, so far as applicable, including the provisions of section thirty-two hundred and forty of the Revised Statutes of the United States are hereby extended to the special tax herein imposed,

That the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall make all needful rules and regulations for carrying the provisions of this act into effect.

Construction.

GENERAL PROVISIONS.

The above act providing that persons who produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away any opium or coca leaves must register and pay a special tax, and making it unlawful to fail to do so is a criminal statute, and must be strictly construed. (United States v. Wilson, 225 Fed. 82, 1915.)

101

In construing an act of Congress, while the court may not recur to the views of individual members expressed in debate, nor consider the motive which influenced them in voting, it may consider the history of the times to ascertain the reason for the legislation and under appropriate circumstances the mode in which particular language was introduced into the law as shown by the journals and records. (Tucker et al. v. Williamson, 229 Fed. 201, 1915.)

The provisions of the act exacting a license as a condition for the sale, dispensing, or distribution of drugs are not an exercise of the police power, but are for the purpose of revenue, and such license is a mere form of imposing a tax, and implies nothing more than that the licensee shall not be subject to the penalties of the act. (Id.)

The act must be construed with reference to the known usages and modes of practice in the profession, in which the prescribing for patients without personal examination is the rare exception and not the rule. (Id.)

Plaintiff imported novocaine, which is made from benzol derived from coal tar. No other commercial method of manufacture existed, though novocaine might be chemically obtained from coca leaves. It is not used as a liniment, ointment, or preparation for external use, but is a local anesthetic used by injection. Held, That, though novocaine might be used as a habit-forming drug, it can not, the Harrison Act being a revenue measure the terms of which must be construed in their ordinary meaning, be treated as a derivative of coca leaves or as a liniment or ointment or other preparation for external use containing cocaine; for the words "other preparation" must be construed under the principle of ejusdem generis in connection with liniments. (Lowe v. Farbwerke-Hoechst Co., 240 Fed. 671, 1917.)

A statute must be so construed, if fairly possible, as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.

This court can not assume to know judicially that no opium is produced in this country; nor is it warranted in so assuming when construing a statute itself purporting to deal with producers of that article. When Congress contemplates the production of an article within the United States, this court must construe the act on the hypothesis that such production takes place.

An attempt of Congress to make possession of an article-in this case opium-produced in any of the States a crime, would raise the gravest question of power. (United States v. Jin Fuey Moy, 241 U. S. 394, 1916.) See later case between same parties pending in United States Supreme Court.

In construing a statute which calls itself a registration or taxing act and does not purport to be in execution of a treaty and which

contains a provision not required by any treaty, a grave doubt arises whether such a statute is entitled to the supremacy claimed for treaties on the ground that it does in effect carry out existing treaty obligations on the general subject of both treaty and statute. While the opium registration act of December 17, 1914, may have a moral end, as well as revenue, in view, this court, influenced by the grave doubts of its constitutionality except as a revenue measure, construes it as such.

Every question of construction is unique, and an argument that might prevail in one case may be inadequate in another.

Only definite words will warrant the conclusion that Congress intended to strain its powers almost, if not quite, to the breaking point, to make a great proportion of citizens prima facie criminals by mere possession of an article. (United States v. Jin Fuey Moy, 241 U. S. 394, 1916.) See later case between same parties pending in United States Supreme Court.

Constitutionality.

Opium or coca leaves, their salts, derivatives, or preparations, being exclusively foreign products, it was within the power of Congress in the interest of the general welfare to exclude their importation entirely, or to so regulate the traffic in them that their importations may be traced, as was done by act December 17, 1914, and hence, to sustain the constitutionality of that act, it is not necessary to hold that it is designed to protect the revenues of the United States. (United States v. Charter, 227 Fed. 331, 1915.)

Harrison Antinarcotic Law, section 2, forbidding any person selling opium to another not presenting a written blank furnished by a revenue collector, is not invalid as a revenue provision, though its chief purpose may be to control distribution, by empowering physicians exclusively to distribute the drug only as a medicine, and thereby suppress consumption by addicts. (United States v. Rosenberg, 251 Fed. 963, 1918, and Hughes v. United States, 253 Fed. 543, 1918.)

The act is constitutional. (United States v. Denker et al. and Same v. Bernstein et al., 255 Fed. 339, 1918.)

The provisions of section 2 of the act have direct relation to the revenue provision of the act and are within the constitutional powers of Congress. (Foreman e. United States, 255 Fed. 621, 1918.) The Harrison Antinarcotic Act is not unconstitutional. (United States v. Hoyt, 255 Fed. 927, 1917.)

Sections 1 and 2 of the act are constitutional. Loewenthal, 257 Fed. 444, 1919.)

(United States v.

The administrative provisions of the act, section 1, relating to taxation and registration, are valid. (Stetson v. United States, 257 Fed.

689, 1919.)

Section 2 of the act is constitutional. (Thompson v. United States, 258 Fed. 196, 1919.)

The first sentence of section 2 of the act prohibits retail sales of morphine by druggists to persons who have no physician's prescription, who have no order blank therefor, and who can not obtain an order blank because not of the class to which such blanks are allowed to be issued under the act. This construction does not make unconstitutional the prohibition of such sale. (United States v. Doremus, 249 U. S. 86, and Webb et al. v. United States, 249 U. S. 96, 1919.) While Congress may not exert authority which is wholly reserved to the States, the power conferred by the Constitution to levy excise taxes, uniform throughout the United States, is to be exercised at the discretion of Congress, and where the provisions of the law enacted have some reasonable relation to this power the fact that they may have been impelled by a motive, or may accomplish a purpose, other than the raising of revenue, can not invalidate them; nor can the fact that they affect the conduct of the business which is subject to regulation by the State police power. Held, that the provisions of section 2 have a reasonable relation to the enforcement of the tax provided by section 1 (which is clearly unobjectionable), and do not exceed the power of Congress. (U. S. v. Doremus, 249 U. S. 86, reversing 246 Fed. 958, 1919. Followed in Webb v. U. S.,

249 U. S. 93, 19.9.)

Evidence In prosecutions for violations of the act.

The court will take judicial notice of the fact that opium is not grown or produced in the United States. (United States v. Brown, 224 Fed. 135, 1915.) But see next case.

This court can not assume to know judicially that no opium is produced in this country. (United States v. Jin Fuey Moy, 241 U. S. 394, 1916, affirming 225 Fed. 1003.) See later case between same parties pending in United States Supreme Court.

Where the evidence abundantly supported more than one of the five counts charging the defendant with violating the act of December 17, 1914, and the sentence imposed was such as could have been imposed under section 9 of that act for a single offense, the judgment will not be reversed for errors affecting only one count. (Baldwin v. United States, 238 Fed. 793, 1917.)

In a prosecution under Harrison Antinarcotic Act, section 2, against a physician who sold large quantities of narcotics to habitual users of the drug, medical testimony as to recognized methods among physicians for treating persons addicted to the use of narcotic drugs was admissible, for the purpose of showing that the accused physician did not come within the exception as to physicians dispensing drugs in the course of their practice, for, while the act is in the guise of a revenue measure, it was intended to accomplish a moral purpose. In a prosecution against a physician for violating Harrison Antinarcotic Act, section 2, by dispensing narcotics to habitual users of

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