268 F. 417 (E.D.Mo. 1920), 7400, United States v. Stafoff

• Docket Nº: 7400.
• Citation: 268 F. 417
• Party Name: UNITED STATES v. STAFOFF et al.
• Case Date: October 18, 1920
• Court: United States District Courts, 8th Circuit, Eastern District of Missouri

Page 417

268 F. 417 (E.D.Mo. 1920)

UNITED STATES

v.

STAFOFF et al.

No. 7400.

United States District Court, E.D. Missouri, Eastern Division.

October 18, 1920

Vance J. Higgs, Asst. Atty. Gen.

J. H. Mackler and Bass & Bass, all of St. Louis, Mo., for defendants.

FARIS, District Judge.

Defendants are being prosecuted on an indictment wherein the first count charges them with the violation of section 3258, R.S. (Comp. St. Sec. 5994), and the second count thereof with the violation of section 3282, R.S. (Comp. St. Sec. 6022). They demur to these counts, for that, as they contend, sections 3258 and 3282 were repealed by the provisions of the Volstead Act. Act Oct. 28, 1919 (41 Stat. 305). Sections 3258 and 3282, supra, are contained among the provisions of the law relating to internal revenue, and they were obviously intended and designed originally as parts of the necessary machinery of that law, for the better enforcement of the collection of the revenue. Section 3258, supra, makes it a crime to set up a still without having theretofore registered such

Page 418

still with the collector of internal revenue of the appropriate district; while section 3282, supra, forbids the making of a mash fit for the production of distilled spirits on any premises except those of an authorized distillery.

Section 35, tit. 2, of the Volstead Act, provides that all existing statutory provisions which are not inconsistent with the provisions of the Volstead Act are not to be held as repealed thereby, but to be additions to such act. Conversely, it follows that there is a repeal of all former existing laws when such former laws are inconsistent. This provision is only declaratory of the general law. A repeal by implication would occur, absent such statutory declaration, if the new law is inconsistent with the old law on the same subject.

Holding that sections 3258, 3279, and 3281, R.S. (Comp. St. Secs. 5994, 6019, 6021), were repealed by the Volstead Act, Judge Smith, in the case of United States v. Windham (D.C.) 264 Fed.loc.cit. 377, said:

'The general rule for the construction of statutes is that, when a later statute is enacted inconsistent with a preceding statute and covering the entire ground of the subject matter, it supersedes and impliedly repeals the preceding statute. Especially is this the case when the later statute imposes penalties of less severity for the same offenses; the rule in favor of clemency being that, where different penalties are imposed for the same offense, the lighter penalty, when imposed in a later statute, is presumed to supersede the earlier and heavier.'

There can, of course, be no manner of doubt as to the correctness of the applicatory rule of law as stated by Judge Smith in the above excerpt. U.S. v. Tynen, 11 Wall. 88, 20 L.Ed. 153. If, therefore, the provisions of the Volstead Act are inconsistent with the provisions of the older revenue laws, a repeal has occurred. In passing, I may observe that there is in title III of the Volstead Act, which title deals with the manufacture of alcohol, a similar provision (section 19, title III, Act Oct. 28, 1919), providing for the repeal of all inconsistent laws. Besides, title III, in section 9 thereof, expressly declares that section 3258, R.S., is not applicable to industrial alcohol plants.

The provisions of title II of the Volstead...