This case comes here by certificate of the Circuit Court of Appeals of the Eighth Circuit, and is intended to submit to us, for answer, certain questions concerning the validity and proper construction of the Anti-Narcotic Act of December 17, 1914, c. 1, 38 Stat. 785, as amended in the Revenue Act of 1918, February 24, 1919, § 1006, c. 18, 40 Stat. 1057, 1130.
The Circuit Court of Appeals bases its questions on issues arising in its consideration on error of a judgment of conviction on the second count of an indictment drawn under § 2 of the Act. The count charged that one Frank Nigro and one Roy Williams unlawfully sold to one A.L. Raithel one ounce of morphine, not being sold in pursuance of a written order of A.L. Raithel on a form
"That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue."
A summing up of the evidence, tending to show the sale of an ounce of morphine by the defendants as charged in the second count, is contained in the certificate by the court.
The questions submitted for our consideration are as follows:
Is the provision which is contained in the first sentence of section 2 of the Act limited in its application to those persons who by section 1 are required to register and pay the tax?
If a broader construction is given to said provision, is the provision as so construed, constitutional?
If question I is answered in the affirmative, then we ask,
Is it necessary for the Government in prosecuting under said provision, to allege and prove that defendant was a person required by section I to register and pay the tax?
Is the allegation that defendant made the sale not in pursuance of a written order of the buyer on a form issued in blank for that purpose by the Commissioner of Internal Revenue of the United States, sufficient to charge that defendant was a person required to be registered and to pay the tax under section I?
The second question was invoked by what we said in United States v. Daugherty, 269 U.S. 360, 362, as follows:
"The constitutionality of the Anti-Narcotic Act, touching which this Court so sharply divided in United States v. Doremus, 249 U.S. 86, was not raised below and has not been again considered. The doctrine approved in Hammer v. Dagenhart, 247 U.S. 251; Child Labor Tax Case, 259 U.S. 20; Hill v. Wallace, 259 U.S. 44, 67; and Linder v. United States, 268 U.S. 5, may necessitate a review of that question if hereafter properly presented."
In Alston v. United States, 274 U.S. 289, 294, the question of the constitutionality of the Act was sought to be presented, but the case only involved the validity of § 1 as amended in the Revenue Act of 1918. We held that section valid because it imposed a stamp tax on certain narcotic drugs, making it unlawful to purchase or sell them except in or from original stamped packages, which was plainly within the taxing power of Congress and had no necessary connection with any other requirement of the Act which might subject it to reasonable question. We said that § 1 did not absolutely prohibit buying or selling; that it produced a substantial revenue and contained nothing to indicate that by colorable use of taxation Congress was attempting to invade the reserved powers of the States.
We have put in the margin
In interpreting the Act, we must assume that it is a taxing measure, for otherwise it would be no law at all. If it is a mere act for the purpose of regulating and restraining the purchase of the opiate and other drugs, it is beyond the power of Congress and must be regarded as invalid, just as the Child Labor Act of Congress was held to be, in Bailey, Collector, v. Drexel Furniture Company, 259 U.S. 20. Everything in the construction of § 2 must
The literal meaning of "any person," in the first line of the first sentence of § 2, includes all persons within the jurisdiction. The word "persons" is given expressly the meaning of a partnership, association or corporation, as well as that of a natural person. Why should it not be given its ordinary comprehensive significance? The argument to the contrary in favor of limiting it to exclude all but those who are required to register and pay the tax is that it would be superfluous to include persons selling opium who are not registered, because they are denounced as criminals by the first section for selling without registration. That is no reason why they may not be included under a second reasonable restriction enforceable by punishment. Of course such a restriction should be fairly adapted to obstruct the successful accomplishment of the main crime, or furnish means of detecting the guilty person,
It would seem to be admissible and wise, in a law seeking to impose taxes for the sale of an elusive subject, to require conformity to a prescribed method of sale and delivery calculated to disclose or make more difficult any escape from the tax. If this may be done, any departure from the steps enjoined may be punished, and added penalties may be fixed for successive omissions, but all for the one ultimate purpose of making it difficult to sell opium or other narcotics without registering or paying the tax.
The reasonableness of such requirements is well illustrated in the many limitations which were imposed upon the ancient freedom in the making and sale of distilled spirits, to the end that the collection of the heavy tax on the subject-matter might be successfully secured in spite of the temptation to avoid the tax. The provision of § 2 making it an offense to sell unless the purchaser gives a particular official form of order to the seller was enacted with a like object. The sale without such an order thus carries its illegality on its face. Its absence dispenses with the necessity of sending to examine the list of those registered to learn whether the seller is engaged in a legal sale. The requirement that the official forms can only be bought and obtained by one entitled to buy, whose name shall be stamped on the order form, and that after the sale the order form shall be recorded, effects a kind of registration of lawful purchasers, in addition to one of lawful sellers, and keeps selling and buying on a plane where evasion of the tax will be difficult.
There are persons who may lawfully have access to or even custody of the drugs without registration. Thus included among such persons are the employees of those
Section 2 of the Act is the same as it was when originally passed in 1914. The construction put upon it before the amendment of § 1, by the Revenue Act of 1918, must be the same now as before. Under § 1 in the original Act, the only provision to keep track of purchasers was the order form provision of § 2, as it is now. Without it, unless it applied to those not required to register or pay the tax, there was no restriction upon such persons, whether illegal sellers or illegal purchasers, in the disposition and spread of the drug, except the simple punishment for unregistered sellers in the first section, and there was entire immunity from order requirements of the purchasers from illegal sales. We can not suppose that, considering the general language of § 2, any such result was intended by Congress.
By the amendment of § 1, much higher occupation taxes were imposed, and they vary in amount for producers and manufacturers and for wholesale and retail dealers and for physicians. More than that, an excise tax of one cent per ounce of the drug is imposed and payment thereof is to be evidenced by stamps attached to the bottle or box
There is nothing in the language of the section itself that would reduce the significance of the words "any person" from the meaning of "all persons" to that of those persons only who are required to register and pay the tax, as there was in United States v. Jin Fuey Moy, 241 U.S. 394, upon which the appellant relies much. In that case, the defendant was indicted for conspiring to get morphine into the possession of an unregistered person for use by him as an addict and not for medical purposes. The question was whether the possession conspired for was within § 8 of the Act, declaring it unlawful for any person who was not registered and had not paid the special tax to have the drug in his possession. It was held that § 8 applied only to persons required to register under § 1 and pay the occupation tax. The language of § 8 is more restricted than § 2. It reads: "That it shall be unlawful for any person not registered under the provisions of this Act, and who has not paid the special tax provided for by this Act, to have in his possession or under
In Fyke v. United States, 254 Fed. 225, the Circuit Court of Appeals for the Fifth Circuit decided that the proper construction of § 2, under the original Act of 1914, made it applicable to sales by any person, whether registered or not. Speaking of the Act as it was before 1918, the Court said:
"All sellers were members of the class required to register and pay the tax, under § 1, and the revenue derived from sellers, as provided for by that section, could manifestly not be collected unless Congress had the power to, and did in fact, punish the sale of the prohibited drugs by all persons except when made in conformity to the act. The necessity of prohibiting sales by unregistered persons and of sales by registered persons, not complying with the act, were of equal importance. If only the latter class were subject to its penalties, all persons, by failing to register, could sell with impunity, without paying the tax or complying with the other requirements of the act.
"Section 1 punishes sales by persons who have neither registered nor paid the tax. Section 2 punishes persons
The exception "d" here referred to is that which requires no order form to be used by officers of the national, state, county and municipal governments, in purchases for certain governmental uses, and which would indicate that such officers, who are not required to register, would, but for this exception, be covered by § 2.
The Circuit Court of Appeals of the Ninth Circuit, in Coleman v. United States, 3 F.2d 243, expressly found that the first provision of § 2 was not intended to be limited in its application to the persons required to register under § 1.
United States v. Katz, 271 U.S. 354, is said to be in conflict with our view of the question before us. We do not think so. Defendants there were indicted for a conspiracy to sell intoxicating liquors, without making a permanent record of the sale, in violation of § 10, Title II, of the National Prohibition Act. That section provided that no person should make, sell or transport intoxicating liquor without making a permanent record of it, showing in detail the amount and kind of liquor dealt with, the names of persons with whom dealt, and the time and place of such dealing. The form of the records was to be prescribed by the Commissioner and to be open to inspection by him, his agent, or any peace officer of the State. The defendants contended that the section applied only to those who under the Act were authorized to sell liquor under a permit. The United States contended
Section 2 of the Anti-Narcotic Act introduces into the Act the feature of the required and stamped order form to accompany each sale. It is to bear the name of the purchaser, and is addressed to the seller, with other data. Recorded as the law requires it to be, it constitutes a registry of purchasers, as distinguished from that of sellers. Congress intended not only to punish sales without registration under the first section, but also to punish them without order forms from the purchaser to the seller, as a means of making it difficult for the unregistered seller to carry through his unlawful sales to those who could not get order forms. Thus an illegal unregistered seller might wish to clothe his actual unregistered sales with order forms that would give the transaction a specious appearance of legality. To punish him for this misuse of an order form is not to punish him for not
We are of opinion, therefore, that the provision which is contained in the first sentence of § 2 of the Act is not limited in its application to those persons who by § 1 are required to register and pay the tax. We answer the first question in the negative.
This brings us to the second question, which is ". . . is the provision as so construed, constitutional?" It was held to be constitutional in United States v. Doremus, 249 U.S. 86, 94. In that case the validity of the Anti-Narcotic Drug Act, as it was enacted, December 17, 1914, 38 Stat. 785, was under examination by this Court. The inquiry was whether § 2, in making sales of the drugs unlawful except to persons giving orders on forms issued by the Commissioner of Internal Revenue, to be preserved for official inspection, and forbidding any person to obtain the drugs by means of such order forms for any other purpose than use, sale or distribution in the conduct of a lawful business, or in the legitimate practice of his profession, bore a reasonable relation to the enforcement of the tax provided by § 1 and did not exceed the power of Congress. It was held that § 2 aimed to confine sales
"This case well illustrates the possibility which may have induced Congress to insert the provisions limiting sales to registered dealers and requiring patients to obtain these drugs as a medicine from physicians or upon regular prescriptions. Ameris, being as the indictment charges an addict, may not have used this great number of doses for himself. He might sell some to others without paying the tax, at least Congress may have deemed it wise to prevent such possible dealings because of their effect upon the collection of the revenue."
Referring to the same § 2, in United States v. Balint, 258 U.S. 250, 253; this Court said:
"It is very evident from a reading of it that the emphasis of the section is in securing a close supervision of the business of dealing in these dangerous drugs by the taxing officers of the Government and that it merely uses a criminal penalty to secure recorded evidence of the disposition of such drugs as a means of taxing and restraining the traffic."
Four members of the Court dissented in the Doremus case, because of opinion that the court below had correctly held the Act of Congress, in so far as it embraced the matters complained of, to be beyond its constitutional
It may be true that the provisions of the Act forbidding all but registered dealers to obtain the order forms has the incidental effect of making it more difficult for the drug to reach those who have a normal and legitimate use for it, by requirement of purchase through order forms or by physician's prescription. But this effect, due to the machinery of the Act, should not render the order form provisions void as an infringement on state
We said in the Child Labor Tax Case, 259 U.S. 20, 38:
"Taxes are occasionally imposed in the discretion of the legislature on proper subjects with the primary motive of obtaining revenue from them and with the incidental motive of discouraging them by making their continuance onerous. They do not lose their character as taxes because of the incidental motive."
In this case, the qualification of the right of a resident of a State to buy and consume opium or other narcotic without restraint by the Federal Government, is subject to the power of Congress to lay a tax by way of excise on its sale. Congress does not exceed its power if the object is laying a tax and the interference with lawful purchasers and users of the drug is reasonably adapted to securing the payment of the tax. Nor does it render such qualification or interference with the original state right an invasion of it because it may incidentally discourage some in the harmful use of the thing taxed. License Tax Cases, 5 Wall. 462; Nicol v. Ames, 173 U.S. 509, 524; Knowlton v. Moore, 178 U.S. 41, 60, 61; In re Kollock, 165 U.S. 526, 536.
This leads to an answer to the second question in the affirmative, and makes it unnecessary for us to answer the remaining third and fourth questions.
The separate opinion of MR. JUSTICE McREYNOLDS.
Nigro, not alleged to be registered as a dealer, was charged with violating § 2 of the Harrison Anti-Narcotic
It is maintained, first, that § 2 applies to all sales, including, of course, those made by one who is not registered, to a purchaser who cannot possibly secure an order form; and, secondly, that so construed, it is constitutional. Both propositions, I think, are wrong.
Section 1 of the Act imposes a definite tax (uniform for each class) upon "every person" who imports, manufactures, produces, compounds, sells, deals in, dispenses, or gives away opium; also a stamp tax of one cent per ounce upon the drug. All who are subject to the tax are required to register; and the section further provides —
"It shall be unlawful for any person required to register under the provisions of this Act to import, manufacture, produce, compound, sell, deal in, dispense, distribute, administer, or give away any of the aforesaid drugs without having registered and paid the special tax as imposed by this section.
Section 2. declares —
"That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs [opium, &c.] except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. . . .
"The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall cause suitable forms to be prepared for the purposes above mentioned, and shall cause the same to be distributed to collectors of internal revenue for sale by them to those persons who shall have registered and paid the special tax as required by section one of this Act in their districts, respectively; . . ."
Fair application of the principles of construction approved in United States v. Palmer, 3 Wheaton 610; United States v. Jin Fuey Moy, 241 U.S. 394, and United States v. Katz, 271 U.S. 354, should at least limit the words "any person" in the first line of § 2 to those required to register by § 1, which renders unlawful every sale by an unregistered person, whether the purchaser possesses an order blank or no. And it seems unreasonable to conclude that the purpose of the next section was awkwardly to state something already plainly declared.
The sale by Nigro was to one who could not obtain an order blank. Only a small group — importers, manufacturers, dealers, etc. — can obtain these blanks. As construed by the United States, the statute prohibits all sales except to those who are registered or hold physicians' prescriptions — no others can buy lawfully. Admittedly, the statute is valid only as a revenue measure. Any provision therein not appropriate to that end is beyond the power of Congress.
I can discover no adequate ground for thinking Congress could have supposed that collection of the prescribed tax would be materially aided by requiring those who engage in selling surreptitiously to consumers to do an impossible thing — receive an order upon a blank which the purchaser could not obtain. The plain intent is to control the traffic within the States by preventing sales except to registered persons and holders of prescriptions, and this amounts to an attempted regulation of something reserved to the States. The questioned inhibition of sales has no just relation to the collection of the tax laid on dealers. The suggestion to the contrary is fanciful. Although disguised, the real and primary purpose is not difficult to discover and it is strict limitation and regulation of the traffic.
This Court said in United States v. Wong Sing, 260 U.S. 18, 21: "There could be no object in requiring a purchaser of the drugs to register, but it fulfilled the purpose of the law to forbid a purchase `except in the original stamped package or from the original stamped package.'"
The habit of smoking tobacco is often deleterious. Many think it ought to be suppressed. The craving for diamonds leads to extravagance and frequently to crime. Silks are luxuries and their use abridges the demand for cotton and wool. Those who sell tobacco, or diamonds, or silks may be taxed by the United States. But, surely, a provision in an act laying such a tax which limited sales of cigars, cigarettes, jewels, or silks to some small class alone authorized to secure official blanks would not be proper or necessary in order to enforce collection. The acceptance of such a doctrine would bring many purely local matters within the potential control of the Federal Government. The admitted evils incident to the use of opium cannot justify disregard of the powers "reserved to the States respectively, or to the people."
MR. JUSTICE SUTHERLAND concurs in these views.
MR. JUSTICE BUTLER, dissenting.
Section 1 was originally enacted December 17, 1914, c. 1, 38 Stat. 785. It was amended by the Revenue Act of 1918 passed February 24, 1919, § 1006, c. 18, 40 Stat. 1057, 1130. It contains the following: "It shall be unlawful for any person required to register under the provisions of this Act to . . . sell . . . any of the aforesaid drugs without having registered and paid the special tax as imposed by this section."
The effect of these two provisions is to prohibit sale by any person who has not registered and to permit sale by a registered person upon a written blank issued by the Commissioner. That conclusion is so plain that discussion cannot affect it.
Question 1 should be answered Yes.
Question 2 need not be answered.
Question 3 should be answered Yes.
Question 4 should be answered No.
MR. JUSTICE SUTHERLAND concurs in this opinion.
It was also provided that: "It shall be unlawful for any person required to register under the terms of this Act to produce, import, manufacture, compound, deal in, dispense, sell, distribute, or give away any of the aforesaid drugs without having registered and paid the special tax provided for in this section." The section provided that the word "person" used in the Act should be construed to mean and include a partnership, association or corporation as well as a natural person.
By the Revenue Act of 1918, this first part of section one is made to read as follows: "That on or before July 1 of each year every person who imports, manufactures, produces, compounds, sells, deals in, dispenses, or gives away opium or coca leaves, or any compound, manufacture, salt, derivative, or preparation thereof, shall register with the collector of internal revenue of the district, his name or style, place of business and place or places where such business is to be carried on, and pay the special taxes hereinafter provided." A special tax is then imposed on importers, manufacturers, producers or compounders of the drugs of $24.00 per annum, on wholesale dealers, $12.00, on retail dealers, $6.00, and on physicians entitled to administer the drugs in their professional practice, $3.00. Employees of all lawfully registered persons are exempted from tax. It is then provided that: "It shall be unlawful for any person required to register under the provisions of this Act to import, manufacture, produce, compound, sell, deal in, dispense, distribute, administer, or give away any of the aforesaid drugs without having registered and paid the special tax as imposed by this section." Then an excise revenue tax of one cent per ounce on the drug is imposed through stamps to be affixed to the bottle or other container. It is made unlawful to sell or dispense the drugs except in or from the original stamped package and possession of the drug by any person is made prima facie evidence of violation of the section. Possession of an original stamped package containing the drug is made prima facie evidence of liability to pay the tax. These presumptions are not to apply to a person obtaining the drug from a registered dealer in pursuance of a prescription written for legitimate medical uses issued by a physician or other registered practitioner and where the bottle or other container in which the drug is put up by the dealer bears the druggist's name, his serial and registry number, the number, name and address of the patient, as well as those of the writer of the prescription. The presumptions are not to apply to the dispensing of the drug to a patient by a registered physician, or practitioner in the course of his professional practice for legitimate medical purposes where a record is kept. All the provisions of existing law relating to the engraving, sale and cancellation of tax-paid stamps provided for in the internal revenue laws are made to apply to the stamps issued under the section. Unstamped packages found in possession of any person except as provided in the section are subject to seizure. Importers, manufacturers and wholesale dealers are to keep books and records and render monthly returns in relation to dealing with such drugs as are required by regulation made by the Commissioner and approved by the Secretary of the Treasury.
Section 2 of the Act of 1914 was not changed by the Revenue Act of 1918. This section provides: "That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Every person who shall accept any such order, and in pursuance thereof, shall sell, barter, exchange, or give away any of the aforesaid drugs, shall preserve such order for a period of two years in such a way as to be readily accessible to inspection by any officer, agent, or employee of the Treasury Department duly authorized for that purpose, and the State, Territorial, District, municipal, and insular officials named in section five of this Act. Every person who shall give an order as herein provided to any other person for any of the aforesaid drugs shall, at or before the time of giving such order, make or cause to be made a duplicate thereof on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue, and in case of the acceptance of such order, shall preserve such duplicate for said period of two years in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned." But § 2 is not to apply,
1. to dispensing by a registered physician in the course of his professional practice only, if he keep a record of all his dispensing except what he dispenses in personal attendance upon a patient; or
2. to dispensing of the drug to a consumer by a registered dealer on written prescription of a registered physican if dated on the day it is signed, the dealer to keep record of such prescriptions for inspection; or
3. to sale, exportation, shipment, or delivery of the drug by any person within the country for exportation under regulations; or
4. to sale or giving away any of the drug to any officer of the National Government or State, county or municipality lawfully engaged in making purchases for hospitals or prisons.
The Commissioner of Internal Revenue with the approval of the Secretary of the Treasury is to cause suitable forms to be prepared for the purposes mentioned, to be distributed to the collectors of internal revenue for sale by them, to persons who have registered and paid the special tax, and no collector is to sell any forms except to such persons. The price of these forms is to be fixed by the Commissioner of Internal Revenue as approved by the Secretary of the Treasury, but is not to exceed one dollar per hundred. When a collector shall sell forms, he is to cause the name of the purchaser to be plainly written or stamped on them before sale and delivery, and no person other than such purchaser shall use the forms so stamped to procure delivery or shipment of any such drug. It is made unlawful to obtain by means of such forms any such drug for use, sale or distribution of it, except in the conduct of a lawful business in the drug or in the legitimate practice of a medical profession.
The third section provides for returns and records to be made by registered persons.
The fourth section makes it unlawful for any non-registered person who has not paid the tax to send, ship, or deliver to any person in another State, except common carriers and employees of registered persons.
Section 5 provides for official inspection of orders, prescriptions, etc., and forbids a disclosure of information except for the enforcement of the Act.
Section 6 of the original Act was amended by the Revenue Act of 1918 and relates to minimum limitations upon strength of opium and other drugs to come within statute, but dealers in preparations that are less than minimum are to keep a record of the sale of such for inspection.
By section 7, internal revenue laws as to assessment, collection, remission and refund of internal revenue taxes are made applicable to taxes under the Act so far as not inconsistent.
By section 8, it is made unlawful "for any person not registered" under the Act, and who has not paid the special tax, to have in his possession or under his control such drugs, and his thus having them shall be presumptive evidence of a violation of this section, with the usual exemptions of employees of registered persons, and of government officers having such possession for their official duties. The section directs that the exemptions need not be negatived in an information or indictment and that the burden of proof is to be upon persons claiming exemption.
Section 9 subjects any one violating or failing to comply with the requirements of the Act to a fine of not more than $2,000 or imprisonment not more than five years or both.
Section 10 authorizes appointment of agents and others necessary to enforce provisions of the Act and
Section 11 makes appropriation for carrying out the Act.