283 F. 685 (S.D.Ohio 1922), 2142, United States v. Remus

Docket Nº:2142.
Citation:283 F. 685
Party Name:UNITED STATES v. REMUS et al.
Case Date:April 25, 1922
Court:United States District Courts, 6th Circuit, Southern District of Ohio

Page 685

283 F. 685 (S.D.Ohio 1922)



REMUS et al.

No. 2142.

United States District Court, S.D. Ohio, Western Division.

April 25, 1922

Thomas H. Morrow, U.S. Atty., and R. T. Dickerson, Asst. U.S. Atty., both of Cincinnati, Ohio.

J. J. Kilgarriff, of Cincinnati, Ohio, and E. N. Zoline, of New York City, for defendants.

PECK, District Judge.

On motion to quash and demurrer. The first count of the indictment charges a conspiracy by the defendants to violate the National Prohibition Act (41 Stat. 305) in specified ways, with averments of overt acts of transportation, possession, and sale of whisky for beverage purposes. The motion to quash and demurrer to this count have heretofore been overruled.

Page 686

The other six counts proceed under section 3242, Revised Statutes (Comp. St. Sec. 5965), and charge the carrying on of the business of a wholesale and of a retail liquor dealer and of a rectifier during two several years, without payment of the special tax provided for in section 3244, R.S.U.S. (Comp. St. Sec. 5971). The motion to quash and demurrer raise the vexed question of the extent, if any, to which these statutes have been repealed or modified by the National Prohibition Act.

Under section 3242 such dealings without the payment of the tax are punishable by fine of from $1,000 to $5,000 and imprisonment from six months to two years. The tax is payable annually July 1st, in advance. Under the National Prohibition Law and section 5 of the supplemental act of November 23, 1921 (42 Stat. p. 223, c. 134), such dealers are still subject to the tax, and as to permittees manufacturing or dealing in liquor for nonbeverage purposes it is thought that the penalties prescribed by section 3242 aforesaid, for failure to pay the annual taxes, may still be in force. But as to those who deal for beverage purposes-- that is to say, illegally-- it is provided by section 35 of title 2 of the National Prohibition Act that no taxes shall be received in advance, but that upon evidence of such illegal manufacture or sale a tax shall be assessed against and collected from the person responsible in double the amount provided by law at the time the National Prohibition Act took effect, with an additional penalty of $500 on retail dealers, and $1,000 on manufacturers. This provision was held by the Supreme Court in United States v. Yuginovich, 256 U.S. 450, 41...

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