United States v. Anthony

• Decision Date: 23 June 1936
• Docket Number: No. 12069-12072.,12069-12072.
• Citation: 15 F. Supp. 553
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. ANTHONY et al.

15 F. Supp. 553

UNITED STATES v. ANTHONY et al.

Nos. 12069-12072.

District Court, S. D. California, Central Division.

June 23, 1936.

Peirson M. Hall, U. S. Atty., by Howell Purdue, Deputy U. S. Atty., both of Los Angeles, Cal.

Ames Peterson, of Los Angeles, Cal., for defendants.

YANKWICH, District Judge (after stating the facts as above).

The practice has grown up, both in the state and federal courts, for judges, when determining criminal cases, without a jury, to state their reasons. Whether it is a good practice or not, I do not know. I have followed it at all times. And the facts in this case warrant a full statement of the grounds of the decision reached.

I realize that a case of this character is of great importance to the government and to the defendant. Ultimately, the Harrison Act is an important statute. It passed was in 1914 (38 Stat. 785). It has been before the courts on many occasions, and has been sustained. It has, in many instances, and in many respects, been declared a great success. It has been followed, as a matter of fact, by statutes in various states, supplementing it so as to cover the situations which could not be handled under the act.

Every one is satisfied that the Harrison Act has been noteworthy in destroying or minimizing the nefarious traffic in narcotics. It has been very successful in reaching the peddler, who, for many years, has been the great source of illegitimate supply, to such an extent that whether administering state laws or the federal law, judges have drawn the line between the addict who may be found with illegally obtained drugs in his possession and the peddler who, for a consideration, supplies the need and barters upon what has been here declared to be a disease. And in dealing out punishment I think the courts, as a rule, have distinguished between the two conditions, treating one as a diseased and unfortunate person and the other as a mercenary trafficker in drugs.

I am making the remarks to indicate why I consider a prosecution under this act important from the standpoint of the government. Ultimately, of course, we have to administer the law as we find it. We go back to the old Latin phrase that the province of the court is jus dicere not jus dare; to pronounce the law, not to make or give the law.

The prosecution in this case is not the prosecution of a lay peddler. It is the prosecution of a physician for having trafficked in narcotics. A physician is within the exceptions to the prohibitions of the statute which is now codified as section 1044, title 26 U.S.C.A. The statute (section 1044 (a) itself provides: "It shall be unlawful for any person to sell, barter, exchange, or give away any of the drugs mentioned in section 1040 (a) 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." Section 1040 (a), to which reference is made in the section quoted, provides: "There shall be levied, assessed, collected, and paid upon opium, coca leaves, any compound, salt, derivative, or preparation thereof, produced in or imported into the United States, and sold, or removed for consumption or sale, an internal revenue tax at the rate of 1 cent per ounce, and any fraction of an ounce in a package shall be taxed as an ounce."

The exception which is in paragraph (c) of section 1044, U.S.C.A., title 26, says: "Nothing contained in this chapter shall apply — (1) To the dispensing or distribution of any of the drugs mentioned in section 1040 (a) to a patient by a physician, dentist, or veterinary surgeon registered under section 1384 in the course of his professional practice only."

The statute has been sustained as a revenue statute. And in the various decisions to which reference has been made during the course of the discussion here, particularly in United States v. Doremus (1919) 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493, a majority of the court sustained the act upon the ground that it is not an invasion of the province of the state; that it is a revenue measure only; and that its moral ends are incidental only. Mr. Chief Justice White, Justices McKenna, Van Devanter, and McReynolds expressed the view, to which they later adhered, that the act was not a revenue act, was an invasion of the province of the states, and was, therefore, unconstitutional.

I am referring to these facts in order to indicate that we must bear in mind the purpose of the act — that the act is a borderline statute which must be interpreted in such a manner as to bring it within the constitutional power. And if we depart from it and interpret it either as attempting to regulate the disposition and sale of narcotics or attempting the regulation of medicine, we extend the act to the realm which the Supreme Court has repeatedly said the federal government cannot enter, under the penalty of unconstitutionality.

The Linder Case (Linder v. United States 1925 268 U.S. 5, 45 S.Ct. 446, 449, 69 L.Ed. 819, 39 A.L.R. 229) is very important. We all seem to agree, whether we read it alike or not, that it determines this case, so far as the law is concerned. I wish to refer to it for the present only for the purpose of pointing out that the moment we assume that this act regulates the sale within the state of narcotics and that it aims to regulate the practice of medicine, we must hold it unconstitutional.

In the Linder Case, Mr. Justice McReynolds, speaking for the court, made this observation: "Obviously, direct control of medical practice in the states is beyond the power of the federal government. Incidental regulation of such practice by Congress through a taxing act cannot extend to matters plainly inappropriate and unnecessary to reasonable enforcement of a revenue measure. The enactment under consideration levies a tax, upheld by this court, upon every person who imports, manufactures, produces, compounds, sells, deals in, dispenses or gives away opium or coca leaves or derivatives therefrom, and may regulate medical practice in the states only so far as reasonably appropriate for or merely incidental to its enforcement. It says nothing of `addicts' and does not undertake to prescribe methods for their medical treatment. They are diseased and proper subjects for such treatment, and we cannot possibly conclude that a physician acted improperly or unwisely or for other than medical purposes solely because he has dispensed to one of them in the ordinary course and in good faith, four small tablets of morphine or cocaine for relief of conditions incident to addiction. What constitutes bona fide medical practice must be determined upon consideration of evidence and attending circumstances. Mere pretense of such practice, of course, cannot legalize forbidden sales, or otherwise nullify valid provisions of the statute, or defeat such regulations as may be fairly appropriate to its enforcement within the proper limitations of a revenue measure." Linder v. United States, supra, 268 U.S. at page 5, 45 S.Ct. 446, 449, 69 L.Ed. 819, 39 A.L.R. 229.

Further on in the opinion, referring to the Webb Case (Webb v. United States 1919 249 U.S. 96, 39 S.Ct. 217, 63 L.Ed. 497), which Mr. Howell Purdue, the assistant United States attorney, has mentioned in his concluding remarks, the court limits the language of that decision which was first interpreted as meaning that no prescription to an addict could be justified under the act, and says: "The question specified no definite quantity of drugs, nor the time intended for their use. The narrated facts show, plainly enough, that physician and druggist conspired to sell large quantities of morphine to addicts under the guise of issuing and filling orders. The so-called prescriptions were issued without consideration of individual cases and for the quantities of the drugs which applicants desired for the continuation of customary use. The answer thus given must not be construed as forbidding every prescription for drugs, irrespective of quantity, when designed temporarily to alleviate an addict's pains, although it may have been issued in good faith and without design to defeat the revenues."

Further on in the opinion, talking about the Behrman Case, also referred to by Mr. Purdue (United States v. Behrman 1922 258 U.S. 280, 42 S.Ct. 303, 66 L.Ed. 619), and interpreting some of the language contained in it, the court says:

"This opinion related to definitely alleged facts and must be so understood. The enormous quantity of drugs ordered, considered in connection with the recipient's character, without explanation, seemed enough to show prohibited sales and to exclude the idea of bona fide professional action in the ordinary course. The opinion cannot be accepted as authority for holding that a physician, who acts bona fide and according to fair medical standards, may never give an addict moderate amounts of drugs for self-administration in order to relieve conditions incident to addiction. Enforcement of the tax demands no such drastic rule, and if the Act had such scope it would certainly encounter grave constitutional difficulties.

"The Narcotic Law is essentially a revenue measure and its provisions must be reasonably applied with the primary view of enforcing the special tax."

In a subsequent case, Nigro v. United States (1928) 276 U.S. 332, at page 341, 48 S.Ct. 388, 390, 72 L.Ed. 600, Mr. Chief Justice Taft, writing the opinion for the court, in answering certain certified questions by the Eighth Circuit Court of Appeals came back to the subject of interpretation of the act, saying: "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,...