United States v. Remus

Decision Date25 April 1922
Docket Number2142.
PartiesUNITED STATES v. REMUS et al.
CourtU.S. District Court — Southern District of Ohio

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.

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 The motion to quash and demurrer raise the vexed question of the extent, if any, to which these statutes have been repealed or modified by the National Prohibition Act.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 Sup.Ct. 551, 65 L.Ed. 1043, June 1, 1921, to repeal section 3257, R.S. (Comp. St. Sec. 5993), in the case of one who makes liquor for beverage purposes without paying the tax. See, also, Lewis v. United States, 280 F. 5 (C.C.A. 6), decided April 14, 1922; Ketchum v. United States (C.C.A.) 270 F. 416. Section 3257 denounces the nonpayment of the tax with intent to defraud by a distiller, and is in pari materia, with section 3242. There is no doubt that the effect of section 35 of title 2 of the National Prohibition Act is the same upon each. The result is that, while a permittee who deals in liquor for nonbeverage purposes without paying the annual tax may be subject to the penalties prescribed in section 3242, one who deals in liquor for beverage purposes is liable to the various penalties prescribed by the National Prohibition Act, but not to those of section 3242. Gray v. United States, 276 F. 395 (C.C.A. 6).

Section 3242, having thus been repealed as to dealers in liquor for beverage purposes, can only operate...

To continue reading

Request your trial
2 cases
  • Schwab v. United States
    • United States
    • U.S. Court of Appeals — Seventh Circuit
    • February 9, 1927
    ...F. 369; Bailey v. United States (C. C. A.) 276 F. 27; United States v. 2,000 Cases of Whisky, etc. (C. C. A.) 277 F. 410; United States v. Remus (D. C.) 283 F. 685; Gray v. United States (C. C. A.) 276 F. 395 — we answer this query in the The judgment is reversed, with directions to grant a......
  • In re Boulder Mill. & Elevator Co.
    • United States
    • U.S. District Court — District of Colorado
    • September 13, 1922
    ...283 F. 683 In re BOULDER MILLING & ELEVATOR CO. No. 4172.United States District Court, D. Colorado.September 13, 1922 ... Carlson ... & Erickson, of ... ...

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT