United States v. Denker

• Citation: 255 F. 339
• Parties: UNITED STATES v. DENKER et al. SAME v. BERNSTEIN et al.
• Decision Date: 16 August 1918
• Court: U.S. District Court — Eastern District of New York

255 F. 339

UNITED STATES v. DENKER et al.

SAME v. BERNSTEIN et al.

United States District Court, E.D. New York.

August 16, 1918

Melville J. France, U.S. Atty., and Charles J. Buchner, Asst. U.S Atty., both of Brooklyn, N.Y., for the United States.

K Henry Rosenberg, of New York City, for defendants.

GARVIN District Judge.

These two cases were argued at the same time and may be disposed of together.

The defendants have demurred to the indictments, claiming that Act Dec. 17, 1914, 38 Stat. 785, c. 1 (Comp. St. Secs 6287g-6287q), known as the Harrison Drug Law, is unconstitutional. The defendants Denker and Morganstein are charged in one indictment with having violated sections 1 and 2 of the act. The defendants Bernstein and Horowitz by a second indictment are charged with violating sections 1, 2 and 8. The demurrer of the defendants Bernstein and Horowitz to the second charge (a violation of section 8) must be sustained. United States v. Jin Fuey Moy, 241 U.S. 394, 36 Sup.Ct. 658, 60 L.Ed. 1061, Ann. Cas. 1917D, 854.

The defendants all claim that the entire Harrison Law is unconstitutional, under the authority of United States v. Doremus (D.C.) 246 F. 958, a decision of the District Court for the Western District of Texas. Subsequently the law has been declared constitutional by the District Court for the Southern District of New York. United States v. Jacob Rosenberg (decided July 17, 1918) 251 F. 963. A decision has also been rendered by the United States Circuit Court of Appeals for the Seventh Circuit in Arthur L. Blunt v. United States of America, 255 F. 332, . . . C.C.A. . . ., by which the last paragraph of section 2 has been held unconstitutional, but the first part of that section has been held constitutional. To the same effect are United States of America v. Hoyt, 255 F. 927, United States District Court, Southern District of New York, November 9, 1917, and United States v. Jin Fuey Moy, 253 F. 213, United States District Court, Western District of Pennsylvania, November term, 1917.

A statute constitutional in part only will be upheld as to what is constitutional, if it can be separated from the unconstitutional provisions. Presser v. Illinois, 116 U.S. 252, 6 Sup.Ct. 580, 29 L.Ed. 615. I am of the opinion that the weight of authority is substantially in favor of upholding the constitutionality of this law, except so far as section 8 is concerned.

The demurrers, therefore,...