Bookbinder v. United States

• Decision Date: 13 March 1923
• Docket Number: 2907.
• Citation: 287 F. 790
• Parties: BOOKBINDER v. UNITED STATES.
• Court: U.S. Court of Appeals — Third Circuit

287 F. 790

BOOKBINDER v. UNITED STATES.

No. 2907.

United States Court of Appeals, Third Circuit.

March 13, 1923

J Washington Logue and David Phillips, both of Philadelphia Pa., for plaintiff in error.

George W. Coles, U.S. Atty., and John Robert Jones, Sp. Asst. U.S Atty., both of Philadelphia, Pa.

Before BUFFINGTON, WOOLLEY, and DAVIS, Circuit Judges.

WOOLLEY Circuit Judge.

On a search warrant issued by a United States Commissioner, an Inspector of Customs searched the premises of Emanuel Bookbinder, in Philadelphia, and seized more than 300 cases of liquor. In September, 1921, Bookbinder was indicted. The indictment contained two counts. The first charged him with the unlawful possession of intoxicating liquors for beverage purposes upon premises occupied by him as a restaurant, in violation of the National Prohibition Act. Act of October 28 1919, c. 85, 41 Stat. 305. The second count charged that he did unlawfully 'receive and conceal certain merchandise,' to wit, intoxicating liquors of the brands named, 'knowing the same to have been imported into the United States contrary to law;' that the merchandise was imported into the United States without a permit as provided by the National Prohibition Act; without having been examined by a duly authorized official of the Treasury Department of the United States; without having been duly marked and labeled; and without payment of duty, as required by law.

In view of the charge of importation without payment of duty, the court, at the conclusion of the government's case, required the district attorney to elect whether he would press for conviction upon the ground that the liquor in question had been imported contrary to the National Prohibition Act or contrary to the Customs Laws. The district attorney elected to proceed on the ground that the liquor received and concealed by the defendant was liquor known by him to have been imported in violation of the National Prohibition Act, thus bringing it within the class of liquor imported for beverage purposes and excluding it from the class of liquor imported by permit for nonbeverage purposes subject to payment of duty.

The jury rendered a verdict of guilty on both counts. Under the first count the court sentenced the defendant to pay a fine and under the second count to pay a fine and be imprisoned. The case is here on the defendant's writ of error. The many assignments of error raise a number of questions, of which the most important are these:

Whether Section 3082 of the Customs Laws (Comp. St. Sec. 5785), in so far as it relates to receiving and concealing liquors imported for beverage purposes, was repealed by the National Prohibition Act and, if not, whether in view of the National Prohibition Act the cited section applies?

This provision of the Customs Laws reads as follows:

'If any person shall fraudulently or knowingly import or bring into the United States, or assist in so doing, any merchandise, contrary to law, or shall receive, conceal, buy, sell, or in any manner facilitate the transportation, concealment, or sale of such merchandise after importation, knowing the same to have been imported contrary to law, such merchandise shall be forfeited and the offender shall be fined in any sum not exceeding five thousand dollars nor less than fifty dollars, or be imprisoned for any time not exceeding two years, or both. Whenever, on trial for a violation of this section, the defendant is shown to have or to have had possession of such goods, such possession shall be deemed evidence sufficient to authorize conviction, unless the defendant shall explain the possession to the satisfaction of the jury.'

The repeal of statutes is solely a function of the legislative department of the government. It may perform this function in two ways: First, by express language; and second, by the implication of a subsequent enactment. Whether done in the latter way can only be determined by construing the later statute. This, like the construction of all statutes, is a function of the judicial department. In performing it, the courts do not in any sense repeal a statute but simply determine whether the Congress has itself effected a repeal by implication.

Courts, careful not to impinge upon legislative authority, always approach such a question with caution. Accordingly, they have provided for their guidance certain principles, now established by long usage. Briefly stated, these recognize that, if an act is so repugnant to, or so contradictory of, or so irreconcilably in conflict with, a prior act that the two acts cannot be harmonized and the purposes of both cannot be given effect, the later act is accepted as an expression of the legislative will and operates, without any repealing clause, as a repeal of the former to the extent of the inconsistency. But repeal by implication is not favored and will not be indulged in if there is any other reasonable construction. The presumption is always against the intention to repeal where express terms are not used, and the implication, in order to be operative, must be necessary. It must clearly appear from the statute under construction that it was the intention of the Congress to enact a new law in place of the old law. See 25 R.C.L. 1914-1924, and cases. Keeping these elemental principles in mind, we come to the question raised by the plaintiff in error, whether the Congress intended to repeal Section 3082 of the Customs Laws by later enacting the National Prohibition Act.

The plaintiff in error says it did, and for authority has cited the following cases: United States v. Dowling (D.C.) 278 F. 630; United States v. One Ford Automobile (C.C.A. 2d) 262 F. 374; The Goodhope (D.C.) 268 F. 694; Lewis v. United States (C.C.A. 6th) 280 F. 5; United States v. McKenzie (D.C.) 283 F. 667; United States v. Yuginovich, 256 U.S. 450, 41 Sup.Ct. 551, 65 L.Ed. 1043; United States v. Stafoff, Brooks v. United States, and United States v. Remus (26, 197 and 403, October Term 1922, Supreme Court) 43 Sup.Ct. 197, 67 L.Ed. . . . . In these cases courts have held that certain provisions of the Customs Laws have been impliedly repealed by provisions of the National Prohibition Act where the latter act has dealt with the same subjects and has provided new penalties. Therefore it will be necessary to examine these cases with reference to their bearing on the particular provision of the Customs Laws-- R.S. Sec. 3082-- here in question.

Lewis v. United States (C.C.A.) 280 F. 5; The Goodhope (D.C.) 268 F. 694, and United States v. One Ford Automobile & Fourteen Packages of Distilled Spirits (C.C.A.) 262 F. 374, are cases which arose under R.S. Secs. 3061, 3062 and 3450 (Comp. St. Secs. 5763, 5764, 6352), providing for seizure and forfeiture of merchandise imported in violation of the Customs Laws and also for seizure and forfeiture of the vehicles or conveyances used in its transportation. It was held that these sections were repealed by the National Prohibition Act. The plaintiff in error maintains that these cases are authority for his contention that that part of R.S. Sec. 3082, which makes it unlawful for a person to receive and conceal merchandise imported contrary to law, 'knowing the same to have been imported contrary to law,' was also repealed by the National Prohibition Act. We do not regard these cases as authority for this contention because the National Prohibition Act made special provision for the forfeiture of merchandise of a given kind unlawfully imported and for the forfeiture of vehicles transporting the same, and therefore in these cases it might with reason be held that the National Prohibition Act, the later enactment, impliedly repealed the provisions of the Customs Laws touching the same subjects. But we are dealing here not with the importation of merchandise contrary to law, or with the seizure and forfeiture of merchandise unlawfully imported, or with the seizure and forfeiture of its facilities of transportation, but with the altogether different offense denounced by R.S. Sec. 3082 of knowingly receiving and concealing merchandise which has been imported contrary to law. If the National Prohibition Act deals with and prescribes a new punishment for this offense, then perhaps that part of Section 3082 under which the plaintiff in error was indicted might thereby have been repealed. But, like the Act of August 10, 1917, Sec. 15 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 3115 1/8l), prohibiting the importation of distilled spirits, and the Act of November 21, 1918 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 3115 11/12f-3115 11/12h), prohibiting the importation of intoxicating liquors during the continuance of the war, the National Prohibition Act of October 28, 1919, neither denounces nor prescribes a penalty for receiving and concealing liquor imported contrary to law. Goldberg v. United States (C.C.A.) 277 F. 211, 218. This difference between the facts of the cases cited and the case at bar and the difference between the law applicable to their facts deprive these decisions of authoritative force in determining the question before us.

The plaintiff maintains with confidence that the case at bar is controlled by the decisions of the Supreme Court in United States v. Yuginovich, 256 U.S. 450, 41 Sup.Ct. 551, 65 L.Ed. 1043, and in the companion cases of United States v. Stafoff, Brooks v. United States, and United States v. Remus (26, 197 and 403 October Term 1922, Supreme Court) supra. The decisions in the last three cases, recently rendered, add nothing to the decision in the Yuginovich Case. They simply sustain the Yuginovich Case on the law as it stood before the Act Supplemental to the National Prohibition Act, passed November 23, 1921 (42 Stat. 222). But the...