Nigro v. United States

Decision Date09 April 1928
Docket NumberNo. 600,600
Citation48 S.Ct. 388,72 L.Ed. 600,276 U.S. 332
CourtU.S. Supreme Court

The Attorney General and W. D. Mitchell, Sol. Gen., of Washington, D. C., for the United States.

[Argument of Counsel from pages 335-337 intentionally omitted] Mr. Chief Justice TAFT delivered the opinion of the Court.

This case comes here by certificate of the Circuit Court of Appeals of the Eighth Circuit, and is intended to submit to us, for answer, certain questions concerning the validity and proper construction of the Anti-Narcotic Act of December 17, 1914, c. 1, 38 Stat. 785, as amended in the Revenue Act of 1918, February 24, 1919, § 1006, c. 18, 40 Stat. 1057, 1130 (26 USCA §§ 691-695; Comp. St. § 6287g).

The Circuit Court of Appeals bases its questions on issues arising in its consideration on error of a judgment of conviction on the second count of an indictment drawn under section 2 of the act (26 USCA § 696; Comp. St. § 6287h). The count charged that one Frank Nigro and one Roy Williams unlawfully sold to one A. L. Raithel one ounce of morphine, not being sold in pursuance of a written order of A. L. Raithel on a form issued in blank for that purpose by the Commissioner of Internal Revenue. Roy Williams was not apprehended. Frank Nigro was tried and convicted, and sentence was imposed of five years' imprisonment at the Leavenworth penitentiary. The Circuit Court of Appeals expressed the opinion that the case could not be disposed of without determining the construction and possibly the constitutionality of the first provision of section 2 of the act, reading as follows:

'That it shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the

Commissioner of Internal Revenue.'

A summing up of the evidence, tending to show the sale of an ounce of morphine by the defendants as charged in the second count, is contained in the certificate by the Court.

The questions submitted for our consideration are as follows:

Question I.

Is the provision which is contained in the first sentence of section 2 of the act limited in its application to those persons who by section 1 are required to register and pay the tax?

Question II.

If a broader construction is given to said provision, is the provision as so construed, constitutional?

If question I is answered in the affirmative, then we ask:

Question III.

Is it necessary for the government in prosecuting under said provision, to allege and prove that defendant was a person required by section 1 to register and pay the tax?

If question III is answered in the affirmative, then we ask:

Question IV.

Is the allegation that defendant made the sale not in pursuance of a written order of the buyer on a form issued in blank for that purpose by the Commissioner of Internal Revenue of the United States sufficient to charge that defendant was a person required to be registered and to pay the tax under section 1?

The second question was invoked by what we said in United States v. Daugherty, 269 U. S. 360, 362, 46 S. Ct. 156, 157 (70 L. Ed. 309), as follows:

'The constitutionality of the Anti-Narcotic Act, touching which this Court so sharply divided in United States v. Doremus, 249 U. S. 86, 39 S. Ct. 214, 63 L. Ed. 493, was not raised below, and has not been again considered. The doctrine approved in Hammer v. Dagenhart, 247 U. S. 251, 38 S. Ct. 529, 62 L. Ed. 1101, 3 A. L. R. 649, Ann. Cas. 1918E. 724; Child Labor Tax Case, 259 U. S. 20, 242 S. Ct. 449, 66 L. Ed. 817; Hill v. Wallace, 259 U. S. 44, 67, 42 S. Ct. 453, 66 L. Ed. 822; and Linder v. United States, 268 U. S. 5, 45 S. Ct. 446, 69 L. Ed. 819, (39 A. L. R. 229), may necessitate a review of that question, if hereafter properly presented.'

In Alston v. United States, 274 U. S. 289, 294, 47 S. Ct. 634, 71 L. Ed. 1052, the question of the constitutionality of the act was sought to be presented, but the case only involved the validity of section 1 as amended in the Revenue Act of 1918. We held that section valid because it imposed a stamp tax on certain narcotic drugs, making it unlawful to purchase or sell them except in or from original stamped packages, which was plainly within the taxing power of Congress and had no necessary connection with any other requirement of the act which might subject it to reasonable question. We said that section 1 did not absolutely prohibit buying or selling; that it produced a substantial revenue and contained nothing to indicate that by colorable use of taxation Congress was attempting to invade the reserved powers of the States.

The present case relates to the validity of the second section of the law; but, before considering this, we must answer the first question and construe the meaning of the first sentence of section 2 quoted above. The controversy is whether the words 'any person' in that sentence include all persons or apply only to persons who are required to register and pay the tax under the first section of the act.

We have put in the margin1 a synopsis of the original section 1 of the Act of 1914, and of the same section as amended in the Revenue Act of 1918, and of some other sections now in force, including section 2.

In interpreting the act, we must assume that it is a taxing measure, for otherwise it would be no law at all. If it is a mere act for the purpose of regulating and restraining the purchase of the opiate and other drugs, it is beyond the power of Congress, and must be regarded as invalid, just as the Child Labor Act of Congress was held to be, in Bailey, Collector, v. Drexel Furniture Co., 259 U. S. 20, 42 S. Ct. 449, 66 L. Ed. 817, 21 A. L. R. 1432. Everything in the construction of section 2 must be regarded as directed toward the collection of the taxes imposed in section 1 and the prevention of evasion by persons subject to the tax. If the words cannot be read as reasonably serving such a purpose, section 2 cannot be supported.

The importation, preparation, and sale of the opiate or other like drugs and their transportation and concealment in small packages are exceedingly easy, and make the levy and collection of a tax thereon correspondingly difficult. More that this, use of the drug for other than medicinal purposes leads to addiction, and causes the addicts to resort to so much cunning, deceit and concealment in the procurement and custody of the drug and to be willing to pay such high prices for it that, to be efficient, a law for taxing it needs to make thorough provision for preventing and discovering evasion of the tax-as by requiring that sales, purchases and other transactions in the drug be so conducted and evidenced that any dealing in it where the tax has not been paid may be detected and punished and that opportunity for successful evasion may be lessened as far as may be possible.

The literal meaning of 'any person,' in the first line of the first sentence of section 2, includes all persons within the jurisdiction. The word 'persons' is given expressly the meaning of a partnership, association or corporation, as well as that of a natural person. Why should it not be given its ordinary comprehensive significance? The argument to the contrary in favor of limiting it to exclude all but those who are required to register and pay the tax is that it would be superfluous to include persons selling opium who are not registered, because they are denounced as criminals by the first section for selling without registration. That is no reason why they may not be included under a second reasonable restriction enforceable by punishment. Of course such a restriction should be fairly adapted to obstruct the successful accomplishment of the main crime or furnish means of detecting the guilty per- son, and not be a fruitless, useless inhibition only resulting in what is in effect a duplication of punishment for substantially the same crime, as in the case of United States v. Katz, 271 U. S. 354, 362, 46 S. Ct. 513, 70 L. Ed. 986.

It would seem to be admissible and wise in a law seeking to impose taxes for the sale of an elusive subject to require conformity to a prescribed method of sale and delivery calculated to disclose or make more difficult any escape from the tax. If this may be done, any departure from the steps enjoined may be punished, and added penalties may be fixed for successive omissions, but all for the one ultimate purpose of making it difficult to sell opium or other narcotics without registering or paying the tax.

The reasonableness of such requirements is well illustrated in the many limitations which were imposed upon the ancient freedom in the making and sale of distilled spirits to the end that the collection of the heavy tax on the subject-matter might be successfully secured in spite of the temptation to avoid the tax. The provision of section 2 making it an offense to sell unless the purchaser gives a particular official form of order to the seller was enacted with a like object. The sale without such an order thus carries its illegality on its face. Its absence dispenses with the necessity of sending to examine the list of those registered to learn whether the seller is engaged in a legal sale. The requirement that the official forms can only be bought and obtained by one entitled to buy, whose name shall be stamped on the order form, and that after the sale the order form shall be recorded, effects a kind of registration of lawful purchasers, in addition to one of lawful sellers, and keeps selling and buying on a plane where evasion of the tax will be difficult.

There are persons who may lawfully have access to or even custody of the drugs without registration....

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