Marks v. United States

196 F. 476 | 2d Cir. | 1912

NOYES, Circuit Judge

(after stating the facts as above). The indictment charges violations of the Act of 1890 relating to the manufacture of smoking opium. The first count avers that the defendant engaged in such manufacture without giving the required bond. The second alleges that he did so without paying the required tax. The third charges that he dlid so without obeying the regulations governing, the conduct of the business.

[1] Assuming that the process through which the defendant put the opium amounted to “manufacture” within the statute, it is clear that the evidence warranted the jury in finding the defendant guilty of its violation. He did not give any bond, pay any tax, or obey any of the regulations for the conduct of the business of manufacturing smoking opium. The testimony showedl that both crude opium and smoking opium were found upon his premises. An opium smoking outfit was also found and the various receptacles in which it is the custom to retail smoking opium. Apparatus for heating opium was also found and utensils for treating it. The jury may well have determined that the so-called “opicurine” was merely diluted smoking opium..

The first question, then, • is whether the acts of the defendant in converting the crude opium product into the smoking opium did amount to its manufacture within the meaning of the act.

The purpose of the statute is to tax and regulate the manufacture of smoking opium and it applies, manifestly, to any process by which the crude opium is converted into a product fit for smoking. Any such process constitutes manufacture within such a limited statute even if it might not amount to manufacture under a statute of general application. The contrary is the equivalent of saying that the manufacture of smoking opium cannot be regulated because it is not a manufactured product. If there had been a statute in the Anheuser-Busch Case, 207 U. S. 556, 28 Sup. Ct. 204, 52 L. Ed. 336, specifically allowing drawbacks in the case of manufactured bottle corks, it is by no means certain that, within the meaning of such a statute, the process there described would not have been held to amount to manufacture. Moreover, while in that case it was properly said that the cork after the process was still a cork, it is apparent here that the dry and hard crude opium product was substantially transformed in its nature by the heating and other treatment which -it received before it became the molasses-like substance fit for smoking. We are of the opinion that the process of the defendant amounted to manufacture within the statute in question.

[2] But the defendant‘contends that this conclusion does not end the case and urges that the statute under which the indictment is framed' is not in force; that is to say, he claims that the Act of 1890 was repealed in whole or part by the Act of 1909 which — as shown , in the footnote — relates to the importation of opium. But the later statute does not in terms repeal the former and presumably both stand if there is anything for them to operate upon. The statute of 1909 must be shown to be repugnant to the Act of 1890 to repeal it or any portion of it.

While the Act of 1909 prohibits the importation of opium except for medicinal purposes, it does not make it a criminal offense to divert it for other purposes unless the party so using it knows “the same to have been imported contrary to law” and! it does not apply to opium imported before its enactment. Obviously also it has nothing to do with domestic grown opium.

The Act of 1890 then applies clearly to the manufacture of opium imported after 1909 where the manufacturer has no knowledge that it was unlawfully imported; to the manufacture of opium imported into this country prior to 1909, and to opium grown in this country. In all these cases the Act of 1909 has no application. If the Act of 1890 is inapplicable, the manufacture of opium of these classes can be carried on with impunity.

Moreover, we think that the Act of 1890 should have a still broader application. In our opinion it applies to every case where, as a matter of fact, a man engages in the manufacture of smoking opium in the United States, regardless of whether it was imported before or after 1909 and regardless of his knowledge concerning its importation. If the defendant desired to engage in the manufacture of smoking opium,' he was obliged to do it according to law and if he did not do so, he broke the statute of 1890 notwithstanding that in case he knew that the opium he used had been imported contrary to law he might also by receiving the same have violated the statute of 1909.

The statement is made in the defendant’s brief in support of its argument that the Act of 1890 is inoperative that the Treasury Department “now refuses to accept the bonds of opium manufacturers as provided by the Act of 1890.” We. think this statement erroneous. The regulations of the Treasury Department of July 1, 1911, to which our attention has been directed, provide for the giving of bonds. Moreover we do not see how a departmental refusal to accept the bonds prescribed by the statute, would constitute any authority for the defendant to violate the statute. The Treasury Department cannot repeal an act of Congress.

The judgment is affirmed.