299 F. 75 | 6th Cir. | 1924
(after stating the facts as above). It is urged that merely to violate a regulation made by the Commissioner of Internal Revenue under the purported authority of section 7 of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138J4cc) ■does not constitute such a crime or offense against the United States .as to support a prosecution for conspiracy under section 37 of the Criminal Code (Comp. St. § 10201). U. S. v. Eaton, 144 U. S. 677, 12 Sup. Ct. 764, 36 L. Ed. 591. It is also' urged that, in so far as Treasury Decision 3,208, undertook to prevent wholesale druggists, otherwise authorized, from selling more" than a limited quantity of intoxicating liquor made before the Prohibition Act was passed, it was invalid, and reliance is had upon the opinion of the Attorney General, dated March 3, 1921, holding that the act did not indicate any intention to permit executive officers to limit the amount of existing liquors which could .legally be sold for medicinal purposes, as well as upon the known lim
Each of these two contentions, as -well as some others presented, we pass by without consideration,
1. It was a familiar common-law rule that, after a statute creating an offense was repealed without a saving clause, there could be no further criminal prosecution for its violation, and even prosecutions pending at the date of the repeal were abated. In the fedetal courts this rule was extended to the case of that repeal by implication which comes from passing an inconsistent statute (U. S. v. Tynen, 11 Wall. 88, 20 L. Ed. 153); but, even if there were effective analogy between such a statutory repeal and the present change of regulations, we observe that this common-law rule is no longer in force. The Act of February 25, 1871 (R. S. § 13 [Comp. St. §■ 14]), is a complete saving clause as to all later statutes which do not reject it (Gt. Northern R. R. v. U. S., 208 U. S. 452, 28 Sup. Ct. 313, 52 L. Ed. 567), and covers all offenses (U. S. v. Reisinger, 128 U. S. 398, 9 Sup. Ct. 99, 32 L. Ed. 480).
2. It is settled that with regard to criminal prosecutions for those acts which are not mala in se, but which through legislative exercise of the police power have become mala prohibits, no conscious intent to break any law is essential. The respondent need not even know that the law exists. Shevlin v. Minnesota, 218 U. S. 57, 68, 30 Sup. Ct. 663, 54 L. Ed. 930; U. S. v. Balint, 258 U. S. 250, 252, 42 Sup. Ct. 301, 66 L. Ed. 604; Armour v. U. S., 209 U. S. 56, 85, 86, 28 Sup. Ct. 428, 52 L. Ed. 681. When, however, the prosecution is for conspiracy, the text-books and elementary discussions seem to agree that there must be a “corrupt intent,” which is interpreted to be the mens rea, the conscious and intentional purpose to break the law. Bishop’s Criminal Law (8th Ed.) §§ 297, 3C0; 12 C. J., p. 552, § 16; 5 R. C. L. p. 1066, § 6.
We find nothing which goes further in modifying the generality of this principle than the decision of this court in the Chadwick Case, 141 Fed. 225, 243, 72 C. C. A. 343, to the effect that knowledge of the law which prohibits an act “of evil design and wrongful purpose” will be imperatively imputed to the respondents, or the decision of the Second Circuit Court of Appeals in the Hamburg-American Case, 250 Fed. 747, 758, 759, 163 C. C. A. 79, to the effect that, where the act to be done is malum in se, it is not controlling that the respondent does not in fact know of the specific prohibitory act. The principle of these two decisions does not reach a case where the contemplated act is not inherently wrongful, where the prohibitory statute is ambiguous, where there is good reason for both lawyers and laymen to think that the act planned is not prohibited, and where the respondent plans and does the act in the actual belief, supported by good-faith advice of counsel, that it is a lawful act. In such a situation the conclusion that the respondent has a “corrupt intent” to violate the law is, in our judgment, one repugnant to the fundamental principles of justice, and not to be adopted unless under the compulsion of authoritative decisions. We find nothing requiring such adoption.
Is the defense presented in this case of the character we have described as being sufficient? The obvious purpose of Treasury Decision 3,208 was to prevent those who were not, in fact, wholesale druggists from masquerading under that name. While they could sell only to retail druggists or other wholesale druggists, yet there was manifest propriety in not permitting some one who desired to deal in liquor to
The system of permits provided for by regulation 60, of which T. D. 3,208 was amendatory, is far from clear. It prescribes (section 7) that “permits to sell * * * also confer the right to procure liquor upon furnishing permits to purchase,” whatever that means; also that “permits to purchase * * * convey the right to procure.” It contemplates that permits to sell shall be on form 1,405 and permits to purchase on form 1,410. We held in Smulyan v. U. S., 283 Fed. 293, that where the seller was not engaged in that business, and had made only a single sale, the purchaser’s 1,410 was a sufficient permit under the law. The permit issued in this case to the Drug Company purported to be a 1,405, and contained no express limitations; but its foundation application, to which it referred, specified that the maximum quantity of intoxicating liquor to be received during any quarterly period shall be less than 476 gallons. It is to be assumed from the proofs received or offered that the wholesale druggists who continued as wholesale druggists under the National Prohibition Act had commonly been wholesale dealers under the former internal revenue law and were familiar with the procedure thereunder. The revenue acts provided that distilleries and wholesale dealers should each keep, records on 52A and 52B of all liquors received into and sent out from their places of business. Regulation 60, in section 58 (g), as amended by T. D. 3,208, provided that:
“Each manufacturer must keep at his free warehouse at the place of manufacture * * * record 52; and each wholesale druggist shall keep at his. place of business record 52. There shall be kept at each distillery * * * and wholesale druggists’ establishment * * * a permanent file containing a copy of each permit to purchase, upon which deliveries of intoxicating liquor have been made or are to be made from such place.”
It had been a long time and familiar practice under the old revenue law, and continued to be the customary practice under the Prohibition
Again, we observe in (a) of section 58, T. D. 3,208:
“The title to such tax-paid liquor may be transferred by means of warehouse receipts or certificates, but all persons conveying title by means of such receipts must hold permits, and pay special taxes, and keep record 52.”
This is not of clear application; but it is riot inappropriate to at least part of defendants’ sales exdistillery. ' It tends to indicate that sales from drug store stock and sales from distillery free warehouses were effectively differentiated.
We also find in (c) of section 58 that, in filing an application for a permit, the wholesale druggists must specifically set forth “the kind and maximum quantity of each land of liquor to be held at any one time.” This is simple and workable, if “to be held” refers only to what is to be held in the drug store stock; it is complicated and somewhat unworkable, if it refers to what is to be held in the distillery free warehouses, in connection with dealings in warehouse receipts or certificates.
Passing from the environment and coming to the precise language of the limiting clause first above quoted from T. D. 3,208, and upon which the prosecution depends, it says: “No wholesale druggists shall be permitted to procure or withdraw or sell, etc.” True, the disjunctive and not the conjunctive is used; but this may well be accounted for.by a desire not to confine the limitation to the joint act of procuring and selling, but to reach either so long as it pertains to maintaining 'the stock in the drug establishment in due condition in spite of continuing procurements and sales. We think this clause is capable of the construction that it was intended to refer only to business done at the drug establishment, and not to business continued in the customary way through shipments made by the distillery under its permits. We do not intend to adopt that construction of this clause, but only to say that it may be so interpreted with no more disregard of its literalness than is often approved in statutory construction.
By this construction its meaning is completely reconciled with the legitimate purpose of the regulation; and the validity of the regulation becomes at least less doubtful, under the Attorney General’s .opinion above cited, than if it were construed to extend to distillery sales having no connection with the status of the permittees as good-faith druggists.
Upon the trial it was consistently ruled that the respondents interpreted this regulation at their peril, and that no amount of good faith in following the advice of counsel, and no mistake in solving any am
We also note, though it was not argued, a query whether the quoted paragraph is a direct restriction upon sales or only upon the granting of permits. It does not say that no druggist shall sell, but that no druggist shall be “permitted” to sell, and it is in connection with the granting of permits. The last clause clearly contemplates the employment of the restriction upon an application for a permit (though it, mentions only withdrawals). The paragraph also states its measure with indirect reference to “the month during which he proposes to withdraw, procure or sell.” This language is appropriate only to the problem of granting a permit.
For an informing review of the background of prosecutions for criminal conspiracy, see Criminal Conspiracy, by Francis B. Sayre, 35 Harv. Law Rev. 393.
See “Ignorance and Mistake in the Criminal Law,” by Edwin R. Keedy, 22 Harv. Law Rev. 75, S9.
In the Hamburg-American Case, infra, the object of the conspiracy was not “innocent” but “dishonest and fraudulent”; in such a situation the conspirators must take the chance whether there is any law forbidding their contemplated fraud.