Blunt v. United States

• Decision Date: 24 July 1918
• Docket Number: 2599.
• Parties: BLUNT v. UNITED STATES.
• Court: U.S. Court of Appeals — Seventh Circuit

255 F. 332

BLUNT v. UNITED STATES.

No. 2599.

United States Court of Appeals, Seventh Circuit.

July 24, 1918

On Petition for Rehearing, December 13, 1918.

Hope Thompson, of Chicago, Ill., for plaintiff in error.

Charles F. Clyne and Benjamin P. Epstein, both of Chicago, Ill., for the United States.

Before BAKER and MACK, Circuit Judges.

MACK Circuit Judge.

Writ of error to review a judgment and sentence against plaintiff in error, Arthur L. Blunt, under an indictment charging him with a violation of sections 1 and 2, Harrison Act (Act Dec. 17 1914, c. 1, 38 Stat. 785 (Comp. St. Secs. 6287g, 6287h)) copied in substance as a footnote. The first 12 counts are substantially identical, except that each count refers to a separate transaction. The offense therein charged was that the defendant, a practicing physician, in Chicago, and one who dispensed and distributed certain derivatives of opium and who had registered his name and place of business with the collector of internal revenue, and had paid to the collector the special tax as required by law, unlawfully and feloniously obtained, by means of order forms theretofore issued by the Commissioner of Internal Revenue and sold to the defendant by the Commissioner, certain quantities of morphine sulphate--

'for a purpose other than the use or distribution thereof by him the said Arthur L. Blunt, in the legitimate practice of his profession as such physician, that is to say, for the sale by him of such morphine sulphate to persons who were not patients being treated in good faith by him, the said Arthur L. Blunt, as such physician, and for sale by him to other persons not in pursuance of written orders of such other persons or forms issued in blank for that purpose by said Commissioner of Internal Revenue.'

The fourteenth count charges that the defendant, as a dealer, unlawfully and feloniously sold to Thomas Dean 2,000 grains of morphine sulphate, without having registered as a dealer and without having paid the special tax as such dealer.

The sentence imposed was penitentiary imprisonment for five years on each of counts 1 to 12, inclusive, and count 14, the sentences to run concurrently, and a fine in the sum of $1,000 upon each of the counts 1 to 12, inclusive.

The evidence showed that the defendant was a licensed physician, with offices at 9 West Harrison street, Chicago, Ill.; that he had been practicing medicine for many years; that on July 1, 1916, he registered his name and place of business as a physician with the collector of internal revenue of the United States for the First internal revenue district of Illinois, and paid the special tax. He did not file a separate registration setting out that he was a 'dealer' in the drugs in question, and did not pay a separate tax as a 'dealer.'

After being so registered, he purchased from the collector a number of order forms, issued in accordance with the provisions of the act, and by using them obtained quantities of morphium and other drugs. These he dispensed to various drug addicts who came to his office for treatment for the drug habit. He kept a record of the name and address of each person treated, and indicated in his record the daily allowance of the drug to each such person. He did not always enter in his books the exact amount dispensed to an addict on a given day; in some cases addicts received sufficient drugs to supply their usual allowance for more than one day, and on such occasions the defendant marked in his books the proportionate amount for each of such days. In one case a patient secured sufficient amount to cover several days, urging as his reason that he feared he could not get it later on account of government intervention.

The fourteenth count is based upon a sale of 2,000 grains of drugs to a government secret agent, who was being treated as an addict and was registered as a patient, on his representation that he was about to leave the city and required that quantity to sustain him on his trip, or until a cure was effected.

1. As to the first 12 counts, it is necessary to consider only the principal contention of plaintiff in error, that the last paragraph of section 2 of the act (italicized in footnote), ^[1] is unconstitutional.

In view of United States v. Jin Fuey Moy, 241 U.S. 394, 36 Sup.Ct. 658, 60 L.Ed. 1061, Ann. Cas. 1917D, 854, it is no longer open to question that the Harrison Act is to be construed as a revenue law and considered as a revenue measure, and not as in any sense a regulation of commerce, whether foreign or interstate.

If an act is in fact a revenue law, it is beyond the province of the courts to inquire into its wisdom, justice or efficiency, the motives that led to its enactment, or its incidental effect as a police measure. The regulation of private morals, the suppression of frauds upon the public, or the protection of industry that may result from a revenue law, will not change in character or invalidate it, if it be otherwise constitutional. McCray v. U.S., 195 U.S. 27, 24 Sup.Ct. 769, 49 L.Ed. 78, 1 Ann.Cas. 561. And in the exercise of a power granted to it, whether it be that of taxation as in Felsenheld v. U.S., 186 U.S. 126, 22 Sup.Ct. 740, 46 L.Ed. 1085, sustaining the constitutionality of the italicized section of the clause of the Dingley Tariff Act (Act July 24, 1897, c. 11, Sec. 10, 30 Stat. 206) copied as footnote, ^[2] or that of regulating commerce, as in Hoke v. U.S., 227 U.S. 308, 33 Sup.Ct. 281, 57 L.Ed. 523, 43 L.R.A.(N.S.) 906, Ann. Cas. 1913E, 905, sustaining the constitutionality of the White Slave Traffic Act of June 25, 1910, c. 395, 36 Stat. 825 (Comp. St. Secs. 8812-8819), or in Hipolite Egg Co. v. U.S., 220 U.S. 45, 31 Sup.Ct. 364, 55 L.Ed. 364, sustaining the constitutionality of the Pure Food Act (Act June 30, 1906, c. 3915, 34 Stat. 768 (Comp. St. Secs. 8717-8728)), Congress may adopt 'not only means necessary but convenient to its exercise and the means may have the quality of police regulations.'

And in the Felsenheld Case it was held to be within the power of Congress to keep the package of tobacco to which a stamp was affixed to indicate payment of the federal tax on the tobacco, free from extraneous articles, such as prize or premium coupons, because, as Justice Brewer said, the government has the--

'power to prescribe that the packages which it stamps, upon which it collects a tax, shall contain the very articles and only the articles which it purports to tax and which its stamp certifies that it has taxed.'

It does not, however, follow from any of these cases or from the principles underlying them, that because Congress may tax any article regardless of whether or not it be a legitimate article of interstate commerce, it may enact an intrastate prohibition law as to any such article. Its power under article 8, cl. 1, of the Constitution, is only to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; not to regulate taxation throughout the land. And while a power to regulate interstate commerce may include the right to prohibit such interstate commerce as may be deemed harmful (Lottery Case, 188 U.S. 321, 23 Sup.Ct. 321, 47 L.Ed. 492; Hoke Case, supra (but see Hammer v. Dagenhart (June 3, 1918), 247 U.S. 251, 38 Sup.Ct. 529, 62 L.Ed. 1101)), the power to lay taxes on an article includes no right to make any specific use of such taxpaid article unlawful.

This, however, is the sole purpose and intent of the last clause in section 2. No question of tax or revenue or the protection or security thereof is involved; under this clause, it is declared unlawful for a physician who has paid the required license fee and has bought the order form essential to obtaining the drug, to consume it himself as a drug addict or to give it away or to sell it except in the legitimate exercise of his profession. In our judgment, this prohibition has no relation whatsoever to the taxing power of Congress; it is exclusively an attempt, in the guise of an incidental tax regulation, to exercise the police powers reserved to the states.

We pass only upon the question raised under this indictment and express no opinion upon the power of Congress to limit the sale of order forms to those entitled to registration thereby excluding the mere consumer from the right to obtain the drug otherwise than as a patient of a...