Blumenthal v. United States

• Decision Date: 09 March 1937
• Docket Number: 10604.,No. 10596-10600,10603,10596-10600
• Citation: 88 F.2d 522
• Parties: BLUMENTHAL et al. v. UNITED STATES.
• Court: U.S. Court of Appeals — Eighth Circuit

88 F.2d 522 (1937)

BLUMENTHAL et al. v. UNITED STATES.

Nos. 10596-10600, 10603, 10604.

Circuit Court of Appeals, Eighth Circuit.

March 9, 1937.

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L. L. Drill and Robert V. Rensch, both of St. Paul, Minn. (Drill, Drill & Rensch, of St. Paul, Minn., on the brief), for appellants Harry Feinberg and Fred Blumenthal.

Morris J. Owen, of Winona, Minn., for appellants Nick Meyers and Henry Czaplewski.

A. Jerome Hoffmann, of St. Paul, Minn., for appellants Archie Bell, Albert Wanous, and John H. Anderson.

James J. Giblin, Asst. U. S. Atty., of St. Paul, Minn. (George F. Sullivan, U. S. Atty., and John L. Wheeler, Asst. U. S. Atty., both of St. Paul, Minn., on the brief), for the United States.

Before GARDNER, THOMAS, and FARIS, Circuit Judges.

GARDNER, Circuit Judge.

Separate appeals have been taken on a joint record from judgments and sentences entered on verdicts of guilty of a charge of conspiracy to violate the provisions of section 240 of the Criminal Code (title 18 U.S.C.A. § 390).

The indictment charged that defendants knowingly and unlawfully conspired to ship and cause to be shipped by motor-trucks and vans from divers places in the state of Wisconsin to divers places in Minnesota and Iowa, certain packages of spirituous liquor, namely, alcohol, without labeling such packages on the outside cover so as to show the name of the consignee, the nature of the contents, and the quantity thereof contained in such packages. The overt acts charged consisted of the transporting on hired trucks or vans of various loads of unlabeled liquor from points in Wisconsin to points in Minnesota, which transporting was done or caused to be done in each case by only one or two of the defendants who were jointly indicted. There were seventeen defendants so jointly indicted, seven of whom have appealed. Demurrers to the indictment were overruled.

On conviction, the punishment fixed by the lower court ran from a fine of $3,000 and two years' imprisonment in the federal prison in the case of the appellant Meyers, to five months' imprisonment in a workhouse in the case of the appellant Anderson.

The parties will be referred to as they appeared below.

Reversal is sought for the alleged errors of the court (1) in overruling defendants' demurrer; (2) in giving or refusing to give certain requested instructions to the jury; and (3) in denying their motion for a directed verdict.

In support of their contention that the court erred in overruling their demurrer, defendants contend that section 240 of the Criminal Code was repealed, superseded, or rendered inoperative by the adoption of the Eighteenth Amendment to the Constitution and its implementing legislation, the National Prohibition Act (27 U. S.C.A. § 1 et seq.) The conspiracy charged is alleged to have continued from November 1, 1933, to February 5, 1934. Section 240 of the Criminal Code was enacted as the third and last section of the Act of March 4, 1909, known as the Knox Act. The first of these sections, 238 (18 U.S.C.A. § 388), prohibits delivery of interstate shipments of intoxicating liquor to any one other than the bona fide consignee thereof, and applies to officers, agents, or employees of railroads, express companies, or other common carriers. The next section, 239 (18 U.S.C.A. § 389), refers to carriers who collect the purchase price of interstate shipments. The next section, 240 (18 U.S.C.A. § 390), the one here involved, reads as follows: "Same; shipping packages in interstate commerce not plainly marked. Whoever shall knowingly ship or cause to be shipped, from one State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, into any other State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, or from any foreign country into any State, Territory, or District of the United States, or place noncontiguous to but subject to the jurisdiction thereof, any package of or package containing any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, unless such package be so labeled on the outside cover as to plainly show the name of the consignee, the nature of its contents, and the quantity contained therein, shall be fined not more than $5,000; and such liquor shall be forfeited to the United States, and may be seized and condemned by like proceedings as those provided by law for the seizure and forfeiture of property imported into the United States contrary to law."

It will be helpful to consider the legislative history of this act and the conditions which prompted its enactment. In the early 80's, a number of the states of the Union had enacted prohibition laws. These local laws were to a very considerable degree rendered ineffectual by the decisions of the Supreme Court to the effect that because of the operation of the commerce clause of the Constitution, of the local laws could not be made applicable to intoxicating liquor coming from abroad, until or unless such liquor had become mingled with the common mass of property within the territory entered. Bowman v. Chicago & N. W. Ry. Co., 125 U.S. 465, 8 S.Ct. 689, 1062, 31 L.Ed. 700; Leisy v. Hardin, 135 U.S. 100, 10 S.Ct. 681, 34 L.Ed. 128. In an attempt to enable the states to enforce their local prohibition laws, Congress passed the so-called Wilson Act August 8, 1890 (27 U.S.C.A. § 121), which provided that intoxicating liquor transported into a state for use, consumption, or sale should become subject to state laws, and should not be exempt by reason of being introduced in the original package or otherwise, but under this act it was held that intoxicating liquors could be introduced into a state unaffected by the state law until delivery of the same. Rhodes v. Iowa, 170 U.S. 412, 18 S.Ct. 664, 42 L.Ed. 1088; American Express Co. v. Iowa, 196 U.S. 133, 25 S.Ct. 182, 49 L. Ed. 417; Heymann v. Southern R. Co., 203 U.S. 270, 27 S.Ct. 104, 51 L.Ed. 178, 7 Ann.Cas. 1130. By resort to a C. O. D. sale of liquor in the channels of interstate commerce, liquor distributions in the dry states were still possible. In these circumstances, and as a result of them, the Knox Act was passed March 4, 1909. Danciger v. Cooley, 248 U.S. 319, 39 S.Ct. 119, 63 L.Ed. 266. Still later, as a further effort to aid the dry states in the enforcement of their liquor laws, the Webb-Kenyon Act was enacted (27 U.S.C.A. § 122), and the so-called Reed Amendment (27 U.S.C.A. § 123). McCormick & Co. v. Brown, 286 U.S. 131, 52 S.Ct. 522, 76 L.Ed. 1017, 87 A.L.R. 448.

Each of the sections of the Knox Act penalizes certain acts with reference to the interstate shipment of liquor. Congress at that time had no authority to legislate on the subject except as the traffic affected interstate commerce. The act granted no right to ship liquor in interstate commerce, except as might be implied from its failure to penalize or otherwise prohibit all interstate shipments.

By section 1 of the Eighteenth Amendment to the Constitution, which became effective in January, 1920, it was provided as follows: "After one year from the ratification of this article the manufacture, sale, or transportation of intoxicating liquors within, the importation thereof into, or the exportation thereof from the United States and all territory subject to the jurisdiction thereof for beverage purposes is hereby prohibited."

The next section provided that Congress and the several states should have concurrent power to enforce the amendment by appropriate legislation. So far as the prohibition against intoxicating liquor for beverage purposes was concerned, the Eighteenth Amendment was self-executing. National Prohibition Cases, 253 U. S. 350, 40 S.Ct. 486, 588, 64 L.Ed. 946. Without supplemental legislation, it struck down every legislative act, congressional, state, or territorial, which authorized or sanctioned what it prohibited. It did not cover the regulation, manufacture, sale, or transportation of intoxicating liquor for nonbeverage purposes.

Manifestly, so far as section 240 of the Criminal Code (18 U.S.C.A. § 390) affected the transportation of intoxicating liquor manufactured and sold for nonbeverage purposes at least, it was not repealed by the Eighteenth Amendment.

Following the adoption of the Eighteenth Amendment, and pursuant to the authority thereby granted, Congress enacted the National Prohibition Act (title 27 U.S.C.A. §§ 11-64), otherwise known as the Volstead Act. It did not by specific reference repeal the Knox Act, but provided that "all provisions of law that are inconsistent with this act chapter are repealed only to the extent of such inconsistency and the regulations herein provided for the manufacture or traffic in intoxicating liquor shall be construed as in addition to existing laws." Section 35, tit. 2 (27 U.S.C.A. § 52). If the Knox Act was repealed therefore, it was because it was inconsistent with the provisions of the Volstead Act. Repeals by implication are not favored, and courts are loathe to hold that a statute has by implication been repealed by a later one. United States v. Noce, 268 U.S. 613, 45 S.Ct. 610, 69 L.Ed. 1116; United States v. Tynen, 11 Wall. 88, 20 L.Ed. 153. The implication must be clear, necessary, and irresistible. Chase v. United States (C.C.A.8) 238 F. 887; Wood v. United States, 16 Pet. 342, 10 L.Ed. 987.

The purpose of the Eighteenth Amendment and the Volstead Act was to prohibit, not to regulate, the sale or traffic in intoxicating liquors for beverage purposes. All prohibition laws were repealed by the adoption of the Eighteenth Amendment and the enactment of the Volstead Act, but regulatory laws were not necessarily so repealed. Vigliotti v. Pennsylvania, 258 U.S. 403, 42 S.Ct. 330, 331, 66 L.Ed. 686; Kennedy v. United States, 265 U.S. 344, 44 S.Ct. 501, 68 L.Ed. 1045; McCormick & Co. v. Brown, 286 U.S. 131, 52 S.Ct. 522, 526, 76 L.Ed....