cient or necessary to satisfy the craving of King therefor if consumed by him all at one [287] time; that King was not in any way restrained or prevented from disposing of the drugs in any manner he saw fit; and that the drugs so dispensed by the defendant were in the form in which said drugs are usually consumed by persons addicted to the habitual use thereof to satisfy their craving therefor, and were adapted for such consumption. The question is: Do the acts charged in this indictment constitute an offense within the meaning of the statute? As we have seen, the statute contains an exception to the effect that it shall not apply to the dispensing or distribution of such drugs to a patient by a registered physician, in the course of his professional practice only, nor to the sale, dispensing, or distribution of the drugs by a dealer to a consumer under a written prescription by a registered physician. The rule applicable to such statutes is that it is enough to charge facts sufficient to show that the accused is not within the exception. United States v. Cook, 17 Wall. 168, 173, 21 L. ed. 538, 539. The district judge who heard this case was of the opinion that prescriptions in the regular course of practice did not include the indiscriminate doling out of narcotics in such quantity to addicts as charged in the indictment, but, out of deference to what he deemed to be the view of a local district judge in another case, announced his willingness to follow such opinion until the question could be passed upon by this court, and sustained the demurrer. In our opinion the district judge who heard the case was right in his conclusion, and should have overruled the demurrer. tice, and not to extend it to include a sale by a dealer, or a distribution intended to cater to the appetite or satisfy the craving of one addicted to the use of the drug. A prescription' issued for either of the latter purposes protects neither the physician who issues it nor the dealer who knowingly accepts and fills it. Webb v. United States, supra." It is enough to sustain an indictment that the offense be described with sufficient clearness to show a violation of law, and to enable the accused to know the nature and cause of the accusation, and to plead the judgment, if one be rendered, in bar of future prosecution for the same offense. If the offense be a statutory one, and intent or knowledge is not made an element of it, the indictment need not charge such knowledge or intent. United States v. Smith, 2 Mason, 143, Fed. Cas. No. 16,338; United States v. Miller, Fed. Cas. No. 15,775; United States v. Jacoby, 12 Blatchf. 491, Fed. Cas. No. 15,462; United States v. Ulrici, 3 Dill. 532, Fed. Cas. No. 16,594 (opinion by Miller, Circuit Justice); United States v. Bayard, 21 Blatchf. 287, 16 Fed. 376, 383, 384; United States v. Jackson, 25 Fed. 548, 550; United States v. Guthrie, 171 Fed. 528, 531; United States v. Balint, this day decided, 258 U. S. 250, ante, 604, 42 Sup. Ct. Rep. 301. As It may be admitted that to prescribe a single dose, or even a number of doses, may not bring a physician within the penalties of the act; but what is here charged is that the defendant physician, by means of prescriptions, has enabled one, known by him to be an addict, to obtain from a pharmacist the enormous number of doses contained in 150 grains of heroin, 360 grains of morphine, [289] and 210 grains of cocaine. Former decisions of this court have shown by Wood's United States Disheld that the purpose of the exception is pensatory, a standard work in general to confine the distribution of these drugs use, the ordinary dose of morphine to the regular and lawful course of pro- is one fifth of a grain, or cocaine one fessional practice, and that not every-eighth to one fourth of a grain, of thing called a prescription is necessarily heroin one sixteenth to one eighth of such. Webb v. United States, 249 U. S. 96, 63 L. ed. 497, 39 Sup. Ct. Rep. 217; Jin Fuey Moy v. United States, 254 U. S. 189, 65 L. ed. 214, 41 Sup. Ct. Rep. 98. [288] Of this phase of the act this court said in the Jin Fuey Moy Case, page 194: "Manifestly the phrases 'to a patient' and in the course of his professional practice only' are intended to confine the immunity of a registered physician, in dispensing the narcotic drugs mentioned in the act, strictly within the appropriate bounds of a physician's professional prac are a grain. By these standards more than three thousand ordinary doses were placed in the control of King. Undoubtedly doses may be varied to suit different cases, as determined by the judgment of a physician. But the quantities named in the indictment charged to have been intrusted to a person known by the physician to be an addict, without restraint upon him in its administration or disposition by anything more than his own weakened and perverted will. Such so-called prescriptions could only result in the gratification of a diseased appetite for these pernicious upon the facts. I think that the judgdrugs, or result in an unlawful parting ment should be affirmed. with them to others, in violation of the act as heretofore interpreted in this court, within the principles laid down in tice Brandeis concur in this opinion. the Webb and Jin Fuey Moy Cases, supra. Mr. Justice McReynolds and Mr. Jus HUMP HAIRPIN MANUFACTURING COMPANY, Plff. in Err., We hold that the acts charged in the indictment constituted an offense within | the terms and meaning of the act. The judgment of the District Court to the LOUIS L. EMMERSON, Secretary of State contrary should be reversed. Reversed. Mr. Justice Holmes, dissenting: If this case raised a question of pleading, I should go far in agreeing to disregard technicalities that were deemed vital a hundred or perhaps even fifty years ago. But we have nothing to do with pleading as such, and as the judge below held the indictment bad, it can be sustained only upon a construction of the statute different from that adopted below. The indictment, for the very purpose of raising the issue that divides the court, alleges in terms that the drugs [290] were intended by the defendant to be used by King in divided doses over a period of several days. The defendant was a licensed physician and his part in the sale was the giving of prescriptions for the drugs. In view of the allegation that I have quoted, and the absence of any charge to the contrary, it must be assumed that he gave them in the regular course of his practice, and in good faith. Whatever ground for skepticism we may find in the facts, we are bound to accept the position knowingly and deliberately taken by the pleader, and evidently accepted by the court below. It seems to ine impossible to construe the statute as tacitly making such acts, however foolish, crimes, by saying that what is in form a prescription, and is given honestly, in the course of a doctor's practice, and therefore, so far as the words of the statute go, is allowed in terms, is not within the words, is not a prescription, and is not given in the course of practice, if the court deems the doctor's faith in his patient manifestly unwarranted. It seems to me wrong to construe the statute as creating a crime in this way without a word of warning. Of course, the facts alleged suggest an indictment in a different form; but the government preferred to trust to a strained interpretation of the law rather than to the finding of a jury V. of Illinois. (See S. C. Reporter's ed. 290–296.) Commerce -state taxation 1. Error on the part of a state official tax upon a foreign corporation, in treating or a state court when computing an excise as intrastate that which was really interstate business, while affording reason, in a proper case, for correcting the computation, will not justify declaring the taxing statute unconstitutional, as burdening interstate commerce, where the statute and the entiate state from interstate business, and court both show a candid purpose to differto use only the former in determining the amount of the disputed tax. [For other cases, see Commerce, IV. in Digest Sup. Ct. 1908.] Commerce what is interstate com merce. ginia manufacturing corporation with resi2. The business done by a West Vir dents of other states than Illinois is interstate, although all the property of the corporation is located in Illinois, all its manufacturing operations are conducted in that state, and all contracts of sale are ap Note. As to state licenses and taxes, generally, as affecting interstate commerce-see notes to Rothermel v. Meyerle, 9 L.R.A. 366; American Fertilizing 179; Gibbons v. Ogden, 6 L. ed. U. S. 23; Co. v. Board of Agriculture, 11 L.R.A. Brown v. Maryland, 6 L. ed. U. S. 678; Ratterman v. Western U. Teleg. Co. 32 L. ed. U. S. 229; Harmon v. Chicago, 37 L. ed. U. S. 217; Cleveland, C. C. & St. L. R. Co. v. Backus, 38 L. ed. U. S. 1041; L. ed. U. S. 311; and Pittsburg & S. Coal Postal Teleg. Cable Co. v. Adams, 39 Co. v. Bates, 39 L. ed. U. S. 538. On corporate taxation and the commerce clause-see note to Sanford v. Poe, 60 L.R.A. 641. On taxation of manufacturing corporations-see note to Williams v. Warren, 64 L.R.A. 33. On right to grade license tax according to volume of business or amount of capital employed-see note to Wayne Mercantile Co. v. Mt. Olive, 49 L.R.A. (N.S.) 955. The license fee in this case is one upon all capital stock of a foreign corporation, which makes more than ninety (90) per cent of its sales in interstate commerce; and total gross sales in both domestic and interstate commerce form one of two equal bases for the determination of the amount of the fee. setts, 246 U. S. 135, 142, 62 L. ed. 624, International Paper Co. v. Massachu629, 38 Sup. Ct. Rep. 292, Ann. Cas. 1918C, 617; Crew Levick Co. v. Pennsylvania, 245 U. S. 292, 62 L. ed. 295, 38 Sup. Ct. Rep. 126; Heyman v. Hays, 236 U. S. 178, 59 L. ed. 527, 35 Sup. Ct. Rep. 403; Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 62 L. ed. 827, 38 Sup. Ct. Rep. 373; American Mfg. Co. v. St. Louis, 250 U. S. 459, 63 L. ed. 1084, 39 Sup. Ct. Rep. 522; Addyston Pipe & Steel Co. v. United States, 175 U. S. 211, 44 L. ed. 136, 20 Sup. Ct. Rep. 96. The Illinois license fee upon foreign corporations derives no support from certain defined cases which, within limits, sustain state taxes measured in part by gross receipts derived from interstate commerce, or measured in part by total capital stock. 4. A West Virginia manufacturing corporation having all its tangible property in Illinois, conducting all its manufacturing operations in the latter state, and requiring all contracts of sale to be approved at Chicago, where the only business office of the corporation is maintained, may, although its business done with residents of states other than Illinois is interstate commerce, be subjected to an Illinois excise tax measured by the entire authorized capital stock of the corporation, as being the amount of the capital stock actually represented by property located and business transacted in the state, where the taxing statute clearly is not a disguised attempt to tax interstate International Paper Co. v. Massachucommerce, its purpose plainly being to dif-setts, 246 U. S. 135, 141, 142, 62 L. ed. ferentiate state from interstate business, and to impose the tax only upon the former, 624, 629, 38 Sup. Ct. Rep. 292, Ann. and where the tax, if computed at the stat- Cas. 1918C, 617; Maine v. Grand Trunk utory rate on the property admitted to have been in use in the state, would be but slightly less than the tax collected, although, if computed on the whole of the interstate business, it would have been trifling in amount, since, at most, the assessment, so far as interstate commerce is concerned, is incidental, remote, and unimportant, and it is therefore constitutional. [For other cases, see Commerce, IV. in Digest Sup. Ct. 1908.] R. Co. 142 U. S. 217, 35 L. ed. 994, 3 Inters. Com. Rep. 807, 12 Sup. Ct. Rep. 121, 163; United States Exp. Co. v. Minnesota, 223 U. S. 335, 56 L. ed. 459, 32 Sup. Ct. Rep. 211; Galveston, H. & S. A. R. Co. v. Texas, 210 U. S. 217, 226, 52 L. ed. 1031, 1037, 28 Sup. Ct. Rep. 638; Wisconsin & M. R. Co. v. Powers, 191 U. S. 379, 48 L. ed. 229, 24 Sup. Ct. Rep. 107; Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 62 L. ed. 827, 38 Sup. Ct. Rep. 373; Northwestern Mut. L. Ins. Co. v. Wisconsin, 247 U. S. 132, 62 L. ed. 1025, 38 Sup. Ct. Rep. 444; Meyer v. Wells, F. & Co. 223 U. S. 298, 56 L. ed. 445, 32 Sup. Ct. Rep. 218; Kansas City, Ft. S. & M. R. Co. v. Botkin, 240 U. S. 227, 60 L. ed. 617, 36 Sup. Ct. Rep. 261; Kansas City, M. & B. R. Co. v. Stiles, 242 U. S. 111, 61 L. ed. 176, 37 Sup. Ct. Rep. 58. The tax involved in this case receives no support from decisions of this court sustaining state taxes on net income, even though such net income is partly derived from interstate commerce. United States Glue Co. v. Oak Creek, 247 U. S. 321, 62 L. ed. 1135, 38 Sup. Ct. Rep. 499, Ann. Cas. 1918E, 748; Underwood Typewriter Co. v. Chamber lain, 254 U. S. 113, 65 L. ed. 165, 41 Sup. Ct. Rep. 45; Shaffer v. Carter, 252 U. S. 37, 57, 64 L. ed. 445, 458, 40 Sup. Ct. Rep. 221. Mr. Clarence N. Boord argued the cause, and Mr. Edward J. Brundage, Attorney General of Illinois, filed a brief for defendant in error: The license or franchise tax under the Illinois statute is not a tax upon all of the capital stock of the foreign corporation, or upon its gross receipts. American Can Co. v. Emmerson, 288 Ill. 300, 123 N. E. 581. The Illinois statute, and its construction by the supreme court of Illinois, do not place a burden upon interstate commerce, in violation of the Constitution of the United States. Grand Ibid.; United States Exp. Co. v. Minnesota, 223 U. S. 335, 56 L. ed. 459, 32 Sup. Ct. Rep. 211; Maine v. Trunk R. Co. 142 U. S. 217, 35 L. ed 994, 3 Inters. Com. Rep. 807, 12 Sup. Ct. Rep. 121, 163; Wisconsin & M. R Co. v. Powers, 191 U. S. 379, 383, 48 L. ed. 229, 230, 24 Sup. Ct. Rep. 107: Kansas City, M. & B. R. Co. v. Stiles, 242 U. S. 111, 61 L. ed. 176, 37 Sup. Ct Rep. 58; Northwestern Mut. L. Ins. Co. v. Wisconsin, 247 U. S. 132, 62 L. ed. 1025, 38 Sup. Ct. Rep. 444; Cudahy Packing Co. v. Minnesota, 246 U. S. 450, 62 L. ed. 827, 38 Sup. Ct. Rep. 373. The fact that the Illinois statute provides for cancelation of the authority to transact business in the state for failure to pay the tax does not render the law unconstitutional. St. Louis Southwestern R. Co. Arkansas, 235 U. S. 350, 59 L. ed. 265, 35 Sup. Ct. Rep. 99; Kansas City, M. & B. R. Co. v. Stiles, 242 U. S. 111, 119, 61 L. ed. 176, 187, 37 Sup. Ct. Rep. 58. Mr. Justice Clarke delivered the opin ion of the court: The case was tried on stipulated facts, from which we derive these as essential to a disposition of it: [292] In 1918 the authorized capital stock of the company was $6,000,000, of which $5,500,000 was reported by the company to the state as paid in and issued. It was a manufactur ing corporation, with all of its tangible The statute under which the tax was assessed reads: "It shall be the duty of the secretary from time to time to officers of such forof state to propound interrogatories ceptions] doing business in this state to eign corporations [with negligible exactually being represented by property ascertain the proportion of capital stock located and business transacted in the state of Illinois, which proportion shall be determined by averaging the percenttion transacted in Illinois with the perage of the total business of the corporacentage of the total tangible property (Hurd's Stat. located in this state." 1917, p. 719, § 67fb.) In a recent case, American Can Co. v. Emmerson, 288 Ill. 289, 123 N. E. 581, the supreme court of Illinois held that it has been the policy of that state since In 1918 the defendant in error, as sec 1872 to accord precisely equal treatment retary of state, assessed a tax of $6,045 to domestic and foreign corporations of upon the plaintiff in error, a corporation like character (Hurd's Stat. 1917, p. 703, organized under the laws of West Vir-§ 26), and that the fees for transacting ginia, for the privilege of doing business business in the state are computed on in the state of Illinois. The tax was the amount of the authorized capital paid under protest, and this suit was in-stock [293] of domestic corporations, stituted to recover the amount of it. and, at the same rate, on the amount based upon the contention that the statute under which it was imposed offends against the Federal Constitution for various reasons, the only one argued in this court, however, being that, if given effeet, it will constitute a regulation of. and impose a direct burden upon, interstate commerce. of the capital stock of foreign corporations actually "represented by property located and business transacted" in the state, as determined by the secretary of state under the statute. The basis for the computation was $50 for the first $5,000, and $1 upon each $1,000 over that amount. The contention of the plaintiff in error in this court is that, notwithstanding the manner in which it was done, the business which the company did with residents of states other than Illinois was interstate business, and that the treating of the amount of it as a part of the business of the company transacted in that state, in determining the percentage of the total business of the corporation transacted therein, renders the act under which the computation was made unconstitutional and void, for the reason that the tax assessed is a burden upon interstate commerce. Acting under these statutes, the sec-, is settled that a state excise tax which retary of state concluded that, under affects such commerce, not directly, but the facts as we have stated thein, all of only incidentally and remotely, may be the business of the company was "trans- entirely valid where it is clear that it is acted" in the state of Illinois, and, all of not imposed with the covert purpose or the tangible property of the company with the effect of defeating Federal being in the state, he computed the tax constitutional rights. As coming within on the entire authorized capital stock. this latter description, taxes have been The state supreme court sustained the so repeatedly sustained where the proassessment as valid. ceeds of interstate commerce have been used as one of the elements in the process of determining the amount of a fund (not wholly derived from such commerce) to be assessed, that the principle of the cases so holding must be regarded as a settled exception to the general rule. Maine v. Grand Trunk R. Co. 142 U. S. 217, 35 L. ed. 994, 3 Inters. Com. Rep. 807, 12 Sup. Ct. Rep. 121, 163; Wisconsin & M. R. Co. v. Powers, 191 U. S. 379, 48 L. ed. 229, 24 Sup. Ct. Rep. 107; Flint v. Stone Tracy Co. 220 U. S. 107, 55 L. ed. 389, 31 Sup. Ct. Rep. 342, Ann. Cas. 1912B, 1312; United States Exp. Co. v. Minnesota, 223 U. S. 335, 343, 56 Plainly this contention cannot be sus- L. ed. 459, 464, 32 Sup. Ct. Rep. 211; tained. The statute and the state su- Baltic Min. Co. v. Massachusetts, 231 U. preme court both show a candid purpose S. 68, 58 L. ed. 127, 34 Sup. Ct. Rep. to differentiate state from interstate 15; Kansas City, M. & B. R. Co. v. Stiles, business, and to use only the former in 242 U. S. 111, 61 L. ed. 176, 37 Sup. Ct. determining the amount of the disputed Rep. 58; United States Glue Co. v. Oak tax. If the secretary of state or the Creek, 247 U. S. 321, 326, 327, 62 L. ed. court, in computing the tax, erroneously 1135, 1140, 1141, 38 Sup. Ct. Rep. 499, treated as intrastate that which was Ann. Cas. 1918E, 748. The turning point really interstate business, such error of these decisions is whether, in its inwould be reason, in a proper case, for cidence, the tax affects interstate comcorrecting the computation, but would merce so directly and immediately as to not justify declaring the act unconstitu- amount to a genuine and substantial tional. The facts that all of the prop-regulation of, or restraint upon, [295] erty of the company was located in it, or whether it affects it only incidentIllinois, that all of its manufacturing ally or remotely, so that the tax is not operations [294] were conducted in in reality a burden, although in form it that state, and that all contracts of may touch, and, in fact, distantly affect, sale must be approved at Chicago, il. where the only business office of the company was maintained, certainly reduce the interstate element in its business to the lowest terms; but, nevertheless, we are constrained to hold that the business done with residents of states other than Illinois is interstate business, and therefore, there remains the question whether the use made of the amount of such interstate business, in determining the amount of the tax, renders it invalid. While a state may not use its taxing power to regulate or burden interstate commerce (United States Exp. Co. v. Minnesota, 223 U. S. 335, 56 L. ed. 459, 32 Sup. Ct. Rep. 211; International Paper Co. v. Massachusetts, 246 U. S. 135, 62 L. ed. 624, 38 Sup. Ct. Rep. 292, Ann. Cas. 1918C, 617), on the other hand it No formula has yet been devised by which it can be determined in all cases whether or not such a tax is valid; and, applying the repeated declaration of this court, in the cases cited and in many others, that the question is inherently a practical one, depending for its decision on the special facts of each case, we are clear that the tax here involved falls within the excepted class described, even though the business done with residents of states other than Illinois be regarded as interstate. Clearly the statute is not a disguised attempt to tax interstate commerce. On the contrary, its purpose plainly is to differentiate state from interstate business, and to impose the tax only on the former. Construed with other statutes, the act accords equal treatment to do |