La Franca v. United States, 5654.

• Decision Date: 07 January 1930
• Docket Number: No. 5654.,5654.
• Parties: LA FRANCA v. UNITED STATES.
• Court: U.S. Court of Appeals — Fifth Circuit

37 F.2d 269 (1930)

LA FRANCA v. UNITED STATES.

No. 5654.

Circuit Court of Appeals, Fifth Circuit.

January 7, 1930.

E. Howard M'Caleb, Jr., of New Orleans, La., for appellant.

T. M. Logan Bruns, Asst. U. S. Atty., of New Orleans, La. (Edmond E. Talbot, U. S. Atty., and T. M. Logan Bruns, Asst. U. S. Atty., both of New Orleans, La., on the brief), for the United States.

Before WALKER, BRYAN, and FOSTER, Circuit Judges.

WALKER, Circuit Judge.

This was an action against the appellant to recover the tax imposed on retail liquor dealers by section 3244 of the Revised Statutes (26 USCA § 205), the amount of which is increased by section 35 of title 2 of the National Prohibition Act (27 USCA § 52), the penalty for failure to make return required by statute, and the additional penalty of $500 on retail liquor dealers prescribed by section 35 of title 2 of the National Prohibition Act (27 USCA § 52). The claims asserted were based upon described sales of whisky by appellant on October 10, 1924, October 23, 1924, and April 25, 1925, upon described sales of apricot brandy by appellant on October 24, 1924, and upon a described sale of benedictine by the appellant on April 23, 1925. The granting of the relief sought was resisted on the ground that prior to the institution of the suit appellant had been convicted and sentenced under an information charging him with possessing intoxicating liquor, with maintaining a common nuisance, and with selling intoxicating liquor, which charges were based on the same sales which were alleged in the petition in this case. The court ruled against the defense so set up, and, upon the parties stipulating in writing that a jury be waived and that the facts were substantially as alleged in the petition and in the pleading setting up the above-mentioned defense, the court rendered judgment in accordance with the prayer of the petition.

The so-called taxes and other charges retained in force by section 35 of title 2 of the National Prohibition Act (27 USCA § 52) and section 5 of the Willis-Campbell Act (42 Stat. 223 27 USCA § 3), are penalties or fines imposed as punishment for criminal misconduct. Lipke v. Lederer, 259 U. S. 557, 42 S. Ct. 549, 66 L. Ed. 1061; Regal Drug Corp. v. Wardell, 260 U. S. 386, 43 S. Ct. 152, 67 L. Ed. 318. Section 5 of the Willis-Campbell Act (27 USCA § 3) contains the following provision: "That all laws in regard to the manufacture and taxation of and traffic in intoxicating liquor, and all penalties for violations of such laws that were in force when the National Prohibition Act was enacted, shall be and continue in force, as to both beverage and nonbeverage liquor, except such provisions of such laws as are directly in conflict with any provision of the National Prohibition Act or of this Act; but if any act is a violation of any of such laws and also of the National Prohibition Act or of this Act, a conviction for such act or offense under one shall be a bar to a prosecution therefor under the other."

The conviction of appellant was for violations of the National Prohibition Act, tit. 2, §§ 21, 25, and 29 (27 USCA §§ 33, 39, 46). The so-called tax sought to be enforced by this suit was imposed by section 3244 of the Revised Statutes (26 USCA § 205), but the amount of it was increased by the provision contained in section 35 of title 2 the National Prohibition Act (27 USCA § 52). But for laws which were in existence prior to the enactment of the National Prohibition Act, appellant would not have been liable for the amounts sought to be recovered in this suit, as only pre-existing laws provide for a tax on retail...