Farley v. United States

• Decision Date: 07 February 1921
• Docket Number: 3483.
• Citation: 269 F. 721
• Parties: FARLEY v. UNITED STATES.
• Court: U.S. Court of Appeals — Ninth Circuit

269 F. 721

FARLEY v. UNITED STATES.

No. 3483.

United States Court of Appeals, Ninth Circuit.

February 7, 1921

Winter S. Martin, of Seattle, Wash., for plaintiff in error.

Robert C. Saunders, U.S. Atty., of Seattle, Wash., and F. R. Conway Asst. U.S. Atty., of Tacoma, Wash.

Before GILBERT and HUNT, Circuit Judges, and WOLVERTON, District judge.

WOLVERTON District Judge.

The plaintiff in error, being defendant below, was indicted under what is termed in this proceeding section 3242-a, R.S., which is section 16 of the Act of February 8, 1875, 18 Stat. 310 (Comp. St. Sec. 5966), for unlawfully carrying on the business of a retail liquor dealer without having paid the special tax therefor as required by law.

The penalty prescribed for a violation of the statute is a fine of not less than $100 nor more than $5,000 and imprisonment for not less than 30 days nor more than 2 years.

The defendant was convicted, and adjudged to serve a term of 60 days in jail and to pay a fine of $500.

It is insisted here that this statute, among others, has been superseded by the National Prohibition Act, and that the offense charged against the defendant no longer exists.

The National Prohibition Act (41 Stat.L. 305) is most comprehensive in its provisions relating to the subject of intoxicating liquors. It defines the term 'liquor' and the phrase 'intoxicating liquor,' and what is included thereby, namely, all spirituous, vinous, malt, or fermented liquor containing one-half of 1 per cent. or more of alcohol by volume, and thereafter covers the whole field respecting the manufacture of and the manner of dispensing intoxicants of whatsoever nature, including also the fixing of whatever revenues pertaining thereto are to accrue to the government. Otherwise the manufacture, disposition, and possession of any intoxicating liquor as defined by the act is absolutely prohibited. Section 3, tit. 2.

There can scarcely be a doubt that it was intended by this act to cover the entire subject of the manufacture, sale, and possession of intoxicating liquors.

The rule respecting repeals by implication is tersely stated by the Supreme Court in United States v. Tynen, 11 Wall. 88, 92, (20 L.Ed. 153), as follows:

'It is a familiar doctrine that repeals by implication are not favored. When there are two acts on the same subject, the rule is to give effect to both if possible. But, if the two are repugnant in any of their provisions, the latter act without any repealing clause, operates to the extent of the repugnancy as a repeal of the first; and even where two acts are not in express terms repugnant, yet if the latter act covers the whole subject of the first, and embraces new provisions, plainly showing that it was intended as a substitute for the first act, it will operate as a repeal of that act.'

So in a recent case in the Supreme Court of Michigan (People v Marxhausen, 204 Mich. 559, 576, 171 N.W. 557, 562 (3 A.L.R. 1505)) it is said:

'But where the later act covers the whole subject, contains new provisions evidencing an intent that it shall supersede the former law, or is repugnant to the earlier act, it operates as a repeal.' Such is the undoubted rule, sustained by uniform authority. See Porter v. Edwards, 114 Mich. 640, 72 N.W. 614; Graham v. Muskegon County Clerk, 116 Mich. 571, 74 N.W. 729; Attorney General v. Commissioner of Railroads, 117 Mich. 477, 76 N.W. 69.

Attention is directed to section 35 of title 2 of the act as indicative of an intendment not to repeal the revenue laws heretofore existing relating to intoxicants. It is provided by that section that--

'All provisions of law that are inconsistent with this act 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.'

While the language thus employed is by no means clear as defining the purpose of Congress, we think the first clause is merely declaratory of the existing law touching the interpretation of statutes in respect to repeals by implication. As to the last clause, it is obvious, when construed with the entire provisions of the act, that it was not intended that the statutes should be incumbered with two sets of criminal provisions respecting the manufacture and sale of intoxicants. Whatever provisions touching the subject-matter are contained in the later act not inconsistent with or repugnant to previous statutes would, of course, under the general rule for interpretation, operate as additional legislation. So that so far the provisions of section 35 do not call for a different interpretation from that which would be applied under the general rule of law obtaining.

A further provision of section 35 is:

'This act shall not relieve any one from paying any taxes or other charges imposed upon the manufacture or traffic in such liquor.'

It also provides that, in case of any such illegal manufacture or sale, there shall be assessed against and collected from the person responsible therefor double the amount of tax now provided by law, with an additional penalty of $500 on retail dealers and $1,000 on manufacturers. We construe this simply as providing for an additional tax and penalty for the unlawful trafficking in and manufacture of intoxicating liquors; but it is not to be regarded as a criminal statute. If it were, it is to be assumed that Congress would have manifested such purpose. The language of the quoted clause is indicative of this view.

As we have seen, the Prohibition Act, by the third section of title 2, inhibits in the most comprehensive terms possible the...