facture and sale of intoxicating liquors in [No. 523.] United States v. Sohm, 265 Fed. 910; United States v. One Essex Touring Automobile, 266 Fed. 138; United States v. Turner, 266 Fed. 248. Mr. Ransom Hooker Gillett argued the cause, and, with Messrs. Walter Jeffreys Carlin and Barnet Goldstein, filed a brief for defendants in error: The internal revenue laws are taxing statutes, and were enacted for the sole purpose of raising revenue for the gov Argued March 10, 1921. Decided June 1, ernment, and are not penal statutes. 1921. United States v. Hill, 123 U. S. 681, 686, 31 L. ed. 275, 277, 8 Sup. Ct. Rep. IN to of IN ERROR to the District Court of the 308. Oregon to review a judgment quashing an indictment charging violation of certain provisions of the Internal Revenue Laws relating to distilled spirits. Affirmed. The Congress can only tax "usual objects," and cannot tax a crime. Knowlton v. Moore, 178 U. S. 41, 44 L. ed. 969, 20 Sup. Ct. Rep. 747; People v. Raynes, 3 Cal. 366. The National Prohibition Act exSee same case below, 266 Fed. 746. presses the legislative intent of the The facts are stated in the opinion. Congress in carrying into effect the proAssistant Attorney General Adams visions of the 18th Amendment, and imargued the cause, and, with Special As-pliedly repeals antecedent statutes dealsistant to the Attorney General Zeisler, ing with the subject of intoxicating liqfiled a brief for plaintiff in error: The sections under consideration are not inconsistent with the National Prohibition Act. State v. Moeling, 129 La. 204, 55 So. 764; Carpenter v. State, 120 Tenn. 586, 113 S. W. 1042; Foster v. Speed, 120 Tenn. 470, 12 L.R.A. (N.S.) 949, 111 S. W. 925, 15 Ann. Cas. 1066; Webster v. Com. 89 Va. 154, 15 S. E. 513; State v. Smiley, 101 N. C. 709, 7 S. E. 904; State v. Smith, 126 N. C. 1057, 35 S. E. 615; License Tax Cases, 5 Wall. 462, 18 L. ed. 497; Com. v. Nickerson, 236 Mass. 281, 10 A.L.R. 1568, 128 N. E. 273; Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654; Conwell v. Sears, 65 Ohio St. 49, 61 N. E. 155. The National Prohibition Act does not impliedly repeal the revenue laws. United States v. Claflin, 97 U. S. 546, 24 L. ed. 1082; Henderson's Tobacco, 11 Wall. 652, 20 L. ed. 235; Great Northern R. Co. v. United States, 84 C. C. A. 93, 155 Fed. 945. The offenses denounced by the revenue laws are not the same as those denounced by the National Prohibition Act. uor. 22 Cyc. 1606. The National Prohibition Act imposes milder penalties for violation of the liquor laws, and hence repeals forever laws on that subject. United States v. Windham, 264 Fed. 376. Mr. Wayne B. Wheeler filed a brief as amicus curiæ: Taxes for other purposes than raising revenue only are sustained. Veazie Bank v. Fenno, 8 Wall. 533, 19 L. ed. 482; McCray v. United States, 195 U. S. 27, 49 L. ed. 78, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561; United States v. Jin Fuey Moy, 241 U. S. 394, 60 L. ed. 1061, 36 Sup. Ct. Rep. 658, Ann. Cas. 1917D, 854; Youngblood v. Sexton, 32 Mich. 406, 20 Am. Rep. 654; Home Ins. Co. v. Augusta, 50 Ga. 530; Adler v. Whitbeck, 44 Ohio St. 561, 9 N. E. 672; Cooley, Taxn. 3d ed. pp. 14, 242; License Tax Cases, 5 Wall. 462, 18 L. ed. 497; Foster v. Speed, 120 Tenn. 472, 22 L.R.A. (N.S.) 949, 111 S. W. 925, 15 Ann. Cas. 1066; Lyle v. Sears, 65 Ohio St. 49, 61 N. E. 155; Carpenter v. State, 120 Tenn. 586, 113 S. W. 1042; Com. v. Nickerson, 236 Mass. 281, 10 A.L.R. 1568, 128 N. E. 273. Revenue laws are not repealed by im Carter v. McClaughry, 183 U. S. 365, 46 L. ed. 236, 22 Sup. Ct. Rep. 181; Gavieres v. United States, 220 U. S. 338, 55 L. ed. 489, 31 Sup. Ct. Rep. 421;plication. Ebeling v. Morgan, 237 U. S. 625, 59 L. ed. 1151, 35 Sup. Ct. Rep. 710. Johnson v. Browne, 205 U. S. 309, 321, 51 L. ed. 816, 820, 27 Sup. Ct. Rep. 539, The decisions of the lower courts sus- 10 Ann, Cas. 636; Osborn v. Nicholson, tain the government's contentions. 13 Wall. 654, 662, 20 L. ed. 689, 695; Failure to comply with the revenue laws is an indictable offense.. Wood v. United States, 16 Pet. 342, 363, | defendants failed to keep on the distil10 L. ed. 987, 995; United States v. Gear, lery conducted by them, any sign ex3 How. 120, 131, 11 L. ed. 523, 528; hibiting the name or firm of the disUnited States v. Tynen, 11 Wall. 88, 20 tiller, with the words, "Registered L. ed. 153; District of Columbia v. Hut- Distillery," as required by statute. ton, 143 Ú. S. 18, 36 L. ed. 60, 12 Sup. The third count, based on § 3281 of Ct. Rep. 369; United States v. Claflin, the U. S. Rev. Stat., Comp. Stat. § 97 U. S. 546, 24 L. ed. 1082. 6021, 4 Fed. Stat. Anno. 2d ed. p. 41, charges the defendants with carrying on the business of distilling within the intent and meaning of the Revenue Laws of the United States without giving the bond required by law. The fourth count, based on § 3282 of the U. S. Rev. Stat., Comp. Stat. § 6022, 4 Fed. Stat. Anno. 2d ed. p. 44, charges the defendants with unlawfully making a mash, fit for distillation, in a building not a distillery duly authorized by law. Ulman v. State, 137 Md. 642, 113 Atl. 124; United States v. One Essex Touring Automobile, 266 Fed. 138; United States v. Turner, 266 Fed. 249; United States v. Sohm, 265 Fed. 910. There is no constitutional provision interfering with the continued existence of U. S. Rev. Stat. § 3279, Comp. Stat. § 6019, 4 Fed. Stat. Anno. 2d ed. p. 40, or the other section in issue in this case. It is unconstitutional, of course, to punish a person twice for the same offense, but, even in the face of this inhibition, it has been held that a single act may be an offense against two statutes; and if each statute requires proof of an additional fact which the other does not, an acquittal or conviction under either statute does not exempt defendant from prosecution and punishment under the other. Morey v. Com. 108 Mass. 433; Carter v. McClaughry, 183 U. S. 365, 395, 46 L. ed. 236, 251, 22 Sup. Ct. Rep. 181; Gavieres v. United States, 220 U. S. 338, 55 L. ed. 489, 31 Sup. Ct. Rep. 421; Ebeling v. Morgan, 237 U. S. 625, 630, 631, 59 L. ed. 1151, 1153, 35 Sup. Ct. Rep. 710; United States v. Turner, 266 Fed. 248. Mr. Justice Day delivered the opinion of the court: This case is here under the Criminal Appeals Act. March 2, 1907, 34 Stat. at L. 1246, chap. 2564, Comp. Stat. § 1704, 6 Fed. Stat. Anno. 2d ed. p. 149. The indictment is in four counts. [458] The first count, based on § 3257 of the U. S. Rev. Stat., Comp. Stat. § 5993, 4 Fed. Stat. Anno. 2d ed. p. 23, charges the defendants with unlawfully engaging in the business of distillers within the intent and meaning of the Internal Revenue Laws of the United States; and that in fact they did distill spirits subject to the internal revenue tax imposed by the laws of the United States; and did defraud and attempt to defraud the United States of the tax on said spirits. The second count, based on § 3279 of the U. S. Rev. Stat., Comp. Stat. § 6019, 4 Fed. Stat. Anno. 2d ed. p. 40, charges that the re The defendants interposed a motion to quash the indictment upon the grounds that the acts of Congress under which the same was found were pealed before the finding of the indictment, and that the acts charged to have been committed by them were after the date upon which the 18th Amendment to the Federal Constitution and the Volstead Act [October 28, 1919, 41 Stat. at L. 305, chap. 85] became effective. De fendants also filed a demurrer to the indictment on practically the same demurrer were sustained by the district grounds. The motion to quash and the court. 266 Fed. 746. The sections of the Revised Statutes may be summarized as follows: Section 3257 makes it an offense to defraud or attempt to defraud the United States of a tax [459] upon spirits distilled by one carrying on the business of a distillery; provides for forfeiting the distillery and the distilling apparatus and all spirits found in the distillery or on the distillery premises, and subjects the offender to a fine of not less than $500 or more than $5,000, and imprisonment of not less than six months or more than three years. Section 3279 requires distillers to exhibit on the outside of their place of business a sign with the words, "Registered Distillery." A violation of this section subjects the offender to a fine of $500. Section 3281 makes it an offense to carry on the business of a distiller without having given bond. For such offense the penalty is a fine from $1,000 to $5,000, and imprisonment not less than six months or more than three years. Section 3282 makes it penal to make or permit mash to be made in any building other than a distillery authorized by law. A violation of this section subjects the offender to a fine of not less than $500 or more than $5,000, and imprisonment of not less than six months or more than two years. These statutes have long been part of the Federal internal revenue legislation, and were passed under the authority of the taxing power conferred upon Congress by the Constitution of the United States. At the time of their enactment it was legal, so far as the Federal government was concerned, to manufacture and sell ardent spirits for beverage pur poses. The government derived large revenue from taxing the business, which it sought to realize and protect by the system of laws of which the sections in question were a part. This policy was radically changed by the adoption of the 18th Amendment to the Federal Constitution, and the enactment of legislation to make the Amendment effective. The 18th Amendment in comprehensive, and clear language prohibits the manufacture or sale of intoxicating liquors in the United States for [460] beverage purposes, and confers upon Congress the power to enforce the Amendment by appropriate legislation. To this end, Congress passed a national prohibition law known as the Volstead Act. 41 Stat. at L. 305, chap. 83. It is a comprehensive statute intended to prevent the manufacture and sale of intoxicating liquors for beverage purposes. Before taking up the sections of the Revised Statutes some provisions of the Volstead Act may be appropriately referred to. Section 3 provides that after the 18th Amendment to the Constitution of the United States goes into effect it shall be illegal to manufacture, sell, barter, transport, import, export, deliver, furnish, or possess any intoxicating liquor except as authorized in the act. Liquor for nonbeverage purposes and wine for sacramental purposes may be manufactured, purchased, sold, purchased, sold, bartered, transported, imported, exported, delivered, furnished, and possessed, but only as in the act provided, and the Commissioner of Internal Revenue may issue permits therefor. The act contains many provisions to make effective 1 Sec. 35. "All provisions of law that are inconsistent with this act are repealed only to the extent of such inconsistency and the regulations herein provided for the manufacture or traffic in intoxicating liquor shall be construed as in addition to existing laws. This act shall not relieve anyone from paying any taxes or other charges imposed upon the manufacture or traffic in such liquor. No liquor revenue stamps or the purposes declared in § 3. Section 25 makes it unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violation of the act, or which has been so used, and provides that no property rights shall exist in any such liquor or property. The same section provides for the issue of search warrants, and if it is found that any liquor or property be unlawfully held or possessed, or had been unlawfully used, the liquor and all property designed for the unlawful manufacture of liquor shall be destroyed, unless the court otherwise orders. Section 29 provides that any person who manufactures or sells liquor in violation of Title 2 of the act shall, for a first offense, be fined not less than $1,000, or be imprisoned not exceeding six months, and for a second or subsequent offense shall be fined [461] not less than $200 or more than $2,000, and be imprisoned for not less than one month nor more than five years. In Title 3 elaborate provision is made for the production of alcohol in industrial alcohol plants. It provides for the taxation of such alcohol, and excepts industrial alcohol plants and bonded warehouses for the storage and distribution of industrial alcohol from certain sections of the Revised Statutes. It is well settled that in cases of this character the construction or sufficiency of the indictment is not brought before us. United States v. Keitel, 211 U. S. 370, 53 L. ed. 230, 29 Sup. Ct. Rep. 123; United States v. Stevenson, 215 U. S. 190, 54 L. ed. 153, 30 Sup. Ct. Rep. 35. For the purpose of interpreting the statute we adopt the meaning placed upon the indictment by the court below. United States v. Colgate & Co. 250 U. S. 300, 63 L. ed. 992, 7 A.L.R. 443, 39 Sup. Ct. Rep. 465. As that court evidently construed the statutes upon the assumption that the charges had relation to intoxicating liquors intended for beverage purposes, we shall follow that view of the indictment in determining whether the former statutes are still in force. Section 35 (in the margin) in its first sentence repeals [462] all prior acts to tax receipts for any illegal manufacture or sale shall be issued in advance, but upon evidence of such illegal manufacture or sale a tax shall be assessed against, and collected from, the person responsible for such illegal manufacture or sale in double the amount now provided by law, with an additional penalty of $500 on retail dealers and $1,000 on manufacturers. The payment of such tax or penalty shall give no the extent of their inconsistency with It is, of course, settled that repeals by the National Prohibition Act,--to that implication are not favored. It is extent and no more, and provides that equally well settled that a later statute no revenue stamps or tax receipts shall repeals former ones when clearly inconbe issued in advance for the illegal man- sistent with the earlier enactments. ufacture or sale of intoxicating liquors, United States v. Tynen, 11 Wall. 88, 20 and that upon evidence of such illegal L. ed. 153. In construing penal statutes, manufacture or sale the tax shall be it is the rule that later enactments reassessed in double the amount now pro- peal former ones practically covering vided by law, with an additional penalty the same acts, but fixing a lesser penof $500 as to retail dealers and $1,000 alty. The concluding phrase of § 35, by as to manufacturers, and that the pay itself considered, is strongly indicative ment of such tax or penalty shall not of an intention to retain the old laws. give the right to engage in the manufac- But this section must be interpreted in ture or sale of such liquors, or relieve view of the constitutional provision conanyone from criminal liability. tained in the 18th Amendment, and in view of the provisions of the Volstead Act intended to make that Amendment effective. That Congress may, under the broad authority of the taxing power, tax in toxicating liquors notwithstanding their production is prohibited and punished, we have no question. The fact that the statute in this aspect had a moral end in view as well as the raising of revenue presents no valid constitutional objection to its enactment. License Tax Cases, 5 Wall. 462, 471, 18 L. ed. 497, 500; Re Pollock, 165 U. S. 526, 536, 41 I. ed. 813, 816, 17 Sup. Ct. Rep. 444; United States v. Jin Fuey Moy, 241 U. S. 394, 60 L. ed. 1061, 36 Sup. Ct. Rep. 658, Ann. Cas. 1917D, 854; United States v. Doremus, 249 U. S. 86, 63 L. ed. 493, 39 Sup. Ct. Rep. 214. The question remains concerning the applicability of § 3257, involving the right to punish for attempting to defraud the United States of a tax, Did Congress intend to punish such violation of law by imposing the old penalty denounced [463] in § 3257, or as provided in the new and special provision enacted in the Volstead Act? It is the contention of the government that § 35 saves the right to prosecute as to taxes, as well as the acts charged as violative of the other sections of the Revised Statutes, because of the phrase with which the section concludes: nor shall this act relieve any person from any liability, civil or criminal, heretofore or hereafter incurred under existing laws." right to engage in the manufacture or sale of such liquor, or relieve anyone from crim inal liability, nor shall this act relieve any person from any liability, civil or criminal, heretofore or hereafter incurred under existing laws. The commissioner, with the approval of the Secretary of the Treasury, may compromise any civil cause arising under this title before bringing action in court; and with the approval of the Attorney General he may compromise any such cause after action thereon has been commenced." Having in mind these principles, and considering now the first count of the indictment, charging an attempt to defraud and actually defrauding the government of the revenue tax, we do not believe that the general language used at the close of § 35 evidences the intention of Congress to inflict for such an offense the punishment provided in § 3257, with the resulting forfeiture, fine, and imprisonment, and at the same time to authorize prosecution and punishment under $35, enacting lesser and special penalties for failing to pay such taxes by imposing a tax in double the amount provided by law, with an additional penalty of $500 on retailers and $1,000 on manufacturers. Moreover, the concluding words of the first paragraph of § 35, as to all the offenses charged, must [464] be read in the light of established legal principles governing the interpretation of statutes, and in view of the provisions of the Volstead Act itself, making it unlawful to possess intoxicating liquor for beverage purposes, or property designed for the manufacture of such liquor, and providing for its destruction. We agree with the court below that while Congress manifested an intention to tax liquors illegally as well as those legally produced, which was within its constitutional power, it did This section has given rise to different constructions in the Federal courts: in some it has been held that the National Prohibition Act has repealed the old Revenue Laws. United States v. Windam, 264 Fed. 376; United States v. Puhac, 268 Fed. 392; United States v. Stafoff, 268 Fed. 417; Reed v. Thurmond, - C. C. A. — 269 Fed. 252. Contra, United States v. Sohm, 265 Fed. 910: United States v. Turner, 266 Fed. 249; United States v. Farhat, Sacein Rouhano, 269 Fed. 33. 1047 not intend to preserve the old penalties prescribed in § 3257 in addition to the specific provision for punishment made in the Volstead Act. unreasonable searches and seizures and self- We have less difficulty with the other sections of the prior revenue legislation under which the charges, already set forth, are made. We think it was not intended to keep on foot the requirement as to displaying the words "Registered Distillery" in a place intended for the production of liquor for beverage purposes which could no longer be lawfully conducted; nor to require a bond for the control of such production; nor to penalize the making of mash in a Argued April 11 and 12, 1921. Decided distillery which could not be authorized by law. The questions before us solely concern the construction of the statutes involved, under an indictment pertaining to the production of liquor for beverage purposes, and we think they were correctly answered in the opinion of the court below. It follows that its judgment is affirmed. [465] JOSEPH A. BURDEAU, Appt., V. J. C. MCDOWELL. (See S. C. Reporter's ed. 465-477.) Search and seizure private action. [For other cases, see Search and Seizure: Criminal Law, III. b. 2, in Digest Sup. Ct. 1908.] [No. 646.] June 1, 1921. APPEAL from the District Court of the United States for the Western District of Pennsylvania to review an order for the return of incriminating papers stolen by private persons and delivered to the Federal prosecuting attorneys. Reversed. The facts are stated in the opinion. Solicitor General Frierson argued the cause and filed a brief for appellant: Even if it could be said that the company or its representatives stole these papers from the appellee, this would not preclude their use in evidence if they should thereafter come to the hands of the Federal authorities. Weeks v. United States, 232 U. S. 1. The security afforded by U. S. Const. 4th Amend., against unreasonable 383, 58 L. ed. 652, L.R.A.1915B, 834, 34 search and seizure, applies solely to govern- Sup. Ct. Rep. 341, Ann. Cas. 1915C, mental action. It is not invaded by the un- 1177; Boyd v. United States, 116 U. S. lawful acts of individuals in which the gov-616, 29 L. ed. 746, 6 Sup. Ct. Rep. 524; ernment has no part. Digest Sup. Ct. 1908.] Search and seizure use of stolen papers. Adams v. New York, 192 U. S. 585, 48 [For other cases, see Search and Seizure, in L. ed. 575, 24 Sup. Ct. Rep. 372; Johnself-crimination son v. United States, 228 U. S. 457, 57 L. ed. 919, 47 L.R.A.(N.S.) 263, 33 Sup. Ct. Rep. 572; Perlman v. United States, 247 U. S. 7, 62 L. ed. 950, 38 Sup. Ct. Rep. 417. 2. Constitutional guaranties against Note. As to unreasonable search and seizure-see note to Levy v. Superior Court, 29 L.R.A. 818. Mr. E. Lowry Humes argued the On sufficiency of statutory immunity cause, and, with Messrs. A. M. Imbrie to satisfy constitutional guaranties and Rody P. Marshall, filed a brief for against self-incrimination-see notes to appellee: Interstate Commerce Commission V. Baird, 48 L. ed. U. S. 860, and Arndstein v. McCarthy, ante, 138. The right which the appellee asserted was a right which the court had jurisdiction to recognize and preserve. 58 L. ed. 657, L.R.A.1915B, 834, 34 Sup. Ct. Rep. 341, Ann. Cas. 1915C, 1177. On admissibility against defendant of Boyd v. United States, 116 U. S. 624, document or articles taken from him- 29 L. ed. 748, 6 Sup. Ct. Rep. 524: see notes to State v. Edwards, 59 L.R.A. Weeks v. United States, 232 U. S. 398, 465; State v. Fuller, 8 L.R.A.(N.S.) 762;| People v. Campbell, 34 L.R.A. (N.S.) 58; Weeks v. United States, L.R.A.1915B, 834, and Blacksburg v. Beam, L.R.A. 1916E, 716. And see note to this case as reported in 13 A.L.R. 1168. The right of a court of equity to order and decree the return of private property and papers is well recognized. McGowin v. Remington, 12 Pa, 56, 51 Am. Dec. 584; Pressed Steel Car Co. v. 256 U. S. |
