264 F. 376 | E.D.S.C. | 1920
At the call of the case for trial, Mr. J. M. Spears, counsel for the defendant, moved that the indictment be quashed, on the ground that the acts charged in the indictment are alleged.to have been committed posterior to the 17th day of January, 1920, on which day the Eighteenth Amendment to the Constitution of the United States and the statute of October 28, 1919 (chapter. 85), enforcing that amendment, took effect, and arguments of
The. present indictment charges a violation of sections 3258, 3279, and 3281, Revised Statutes U. S. (Comp. St. §§ 5994, 6019, 6021). There are also on the calendar prosecutions against parties charged with transporting and concealing distilled spirits, contrary to the provisions of R. S. U. S. § 3296 (Comp. St. § 6038), under acts alleged in the indictments to have been committed after the 17th of January, 1920. These sections are part of a general statutory plan or scheme enacted many years ago for the purpose of protecting and collecting the revenue of the government. Under that plan, heavy taxes were imposed on the manufacture, vending and dealing in distilled and fermented liquors, containing alcohol as an ingredient, and heavy penalties prescribed for the violation of the provisions for the collections of these taxes, as well as for the transportation or concealment of such liquors before the tax levied had been paid. The revenue derived from these taxes constituted a large element in the country’s income. For the purpose of providing this revenue, the policy of the country would appear to have encouraged the production of such taxable products. For the purpose of protecting the receipt of this revenue and preventing the evasion of its payment, the punitory sections of the statutes, containing, among others, the ones recapitulated, were enacted.
Since that time, the entire statutory policy of the country has changed. In lieu of encouraging or permitting the production and vending of such liquors, such production and use for beverage purposes is wholly prohibited. The entire system of deriving a revenue from taxes imposed on such production and use for beverage purposes has been abrogated. On the 28th of October, 1919, a statute was enacted covering the entire ground in providing for the inhibition of all liquors containing over one-half of 1 per cent, of alcohol for beverage purposes, and for its permitted manufacture and use in the restricted applications allowed, exclusive of beverage purposes.
In construing this section, it must be assumed that Congress had in mind the existing rules of law, as well as the rules of statutory construction. Under the provisions of the Fifth Amendment to the Constitution of the United States, prohibiting the placing of a party twice in' jeopardy, and similar constitutional provisions, it has been held that the constitutional inhibition applies to any attempt to try a man twice and to punish him twice for the same offense. To such extent, therefore, as the last statute of October 28, 1919, would appear to cover and include the same offenses mentioned and described in the previous sections of the Revised Statutes of the United States, and to provide a punishment for them, it would be the imposing of different penalties and different punishments for the same offenses, against the constitutional inhibition:
The effect of the constitutional inhibition as contained in the Eighteenth Amendment is'to prohibit the transportation or manufacture or sale or disposition for beverage purposes of liquors containing alcohol over the prohibited amount, and logically that would appear impliedly to repeal all provisions of law which contemplated such manufacture, sale, disposition, or use for those purposes; and, if so, any requirements to secure the payment of the tax, so as to authorize the party to manufacture, sell, or transport for the prohibited purpose, would appear to be repealed also.
The question, then, further arises whether the sections of the Revised Statutes and the prohibitions contained in the last statute of October 28, 1919, cover the same offenses, inasmuch as the prohibition of the sections of • the Revised Statutes is against doing the things required with an intent to defraud the United States, or with intent to evade the tax, or when the tax has not been paid, while the provisions of the last statute are to prohibit their being done at all.
Title 3 of the statute provides a complete system with regard to the manufacture of what it terms industrial alcohol, and all plants for the manufacturing of industrial alcohol under that title are by section 9 of that title expressly exempted from the provisions of sections 3258 and 3279 of the Revised Statutes, and that title would appear, when carefully read, to institute a system for the manufacture of industrial alcohol independent of and differing from the system formerly existing for the manufacture of alcoholic spirits for beverage purposes.
Section 3258 requires every person having in his possession a still or distilling apparatus set up to register the same with the collector of the district, which provision is apparently superseded by section 2 of title 3 of the statute of October 28, 1919, which directs application to the Commissioner to be made for registration of an industrial alcohol plant.
Under section 3281 every person carrying on the business of a rectifier or wholesale liquor dealer, retail liquor dealer, etc. (which includes the dealing in liquor for beverage purposes), without having paid the special tax as required by law, or who shall carry on the business of a distiller without having given bond as required by law, or who shall engage in or carry on the business of a distiller with intent to defraud the United States of the tax on the spirits distilled by him, etc., is subject to prosecution and punishment for so doing; when, by the new statute, the carrying on of any of this business is absolutely prohibited, no tax is allowed to be paid for permission to carry it on for beverage purposes, and there cannot be any intent to defraud the United States of a tax which is not allowed to be levied as preliminary to a permission to carry it on.
Taking the new statute as a whole, its provisions would appear to cover and provide for the punishment of every act which could be punished under the former provisions of the Revised Statutes with regard to the manufacture and sale of liquors for beverage purposes. To hold that the old law is continued would therefore be to hold that two inconsistent sets of statutory provisions, punishing the same sub
Giving to the repealing clause of the last statute that construction which it would be assumed the legislative department intended— that is, that it should be construed in harmony with existing rules of law and the existing rules of statutory construction — it appears to the court that the sections referred to have been repealed by the last statute, and the indictment will be accordingly quashed.
' Inasmuch, however, as under the warrant of arrest the act committed would be one for which the party would be liable to indictment or information under the last statute of .October 28, 1919, if not under the section of the Revised Statutes referred to, if imprisoned, he will be detained until he can give bond for his release, or, if out on bond, his bond will be continued of full force for his appearance for trial whenever thereto lawfully required.