United States v. La Franca

• Decision Date: 25 May 1928
• Docket Number: No. 18951.,18951.
• Citation: 26 F.2d 706
• Parties: UNITED STATES v. LA FRANCA.
• Court: U.S. District Court — Eastern District of Louisiana

26 F.2d 706 (1928)

UNITED STATES v. LA FRANCA.

No. 18951.

District Court, E. D. Louisiana.

May 25, 1928.

Wayne G. Borah, U. S. Atty., and T. M. Logan Bruns, Asst. U. S. Atty., both of New Orleans, La.

M'Caleb & M'Caleb, E. Howard M'Caleb, Jr., and R. H. Carter, Jr., all of New Orleans, La., for defendant.

BURNS, District Judge.

This is a civil suit at law, commenced by a petition alleging in substance that the defendant, on specified dates in October of 1924 and in April of 1925, was the owner, operator, and proprietor of the Delmonico Restaurant at 1300 St. Charles street in New Orleans, where he had possessed and sold to federal prohibition agents certain drinks of whisky and other liquor, viz. a total of some sixteen drinks on three occasions in October, 1924, and a total of eight drinks on two occasions in April, 1925; that, by his answer in a civil proceeding (in which it appears that the premises were declared a nuisance and closed by a writ of injunction under section 22 of the National Prohibition Act 27 USCA § 34), the defendant admitted two of the said sales charged against him in October; and that, in a criminal prosecution, he pleaded guilty to the other of said sales (for which, it appears, he was sentenced to pay a fine of $300 and serve a term of imprisonment, execution of this latter being suspended under the National Probation Act of March 4, 1925 18 USCA §§ 724-727).

The petition further recites that, because of these said same acts, viz. by reason of the defendant selling distilled spirits in quantities of less than five gallons at the same time, he became and was on these five dates a retail liquor dealer, subject to the payment of a tax as such to the plaintiff government under the provisions of U. S. Revised Statutes, § 3244 (26 USCA §§ 202-205; Comp. St. § 5971 1-5), the tax provided by which statute to be doubled according to section 35, tit. 2, of the National Prohibition Act (27 USCA §§ 52, 55); that, because he failed to make and file a return as a retail liquor dealer to the collector of internal revenue as required by section 53 of the Act of October 1, 1890 (26 Stat. L. 624 26 USCA § 186; Comp. St. § 5960), he is liable for an additional tax penalty under U. S. Rev. Stat. § 3176 (26 USCA §§ 97, 98; Comp. St. § 5899); that, since the state of Louisiana, by Act 39 of 1921 (Hood Act), prohibits the business of retail liquor dealer, he thereby incurred a special "tax" in the sum of $1,500, which is due and payable to the plaintiff United States under section 701 of the Revenue Act of 1924 (Comp. St. § 5980o), in lieu of section 1001 of the Revenue Act of 1921 (Comp. St. § 5980o), which in turn was in lieu of section 1001 of the Revenue Act of 1918 (Comp. St. § 5980o), and this "tax" is doubled under section 35 of title 2 of the National Prohibition Act (October 28, 1919); that also because of his quality as a retail liquor dealer he is liable further in the penal sum of $500 as a specific penalty under said section 35.

The defendant demurs to the authority of the United States attorney to file such proceedings, but upon argument abandons that defense. He insists, however, on his plea of former jeopardy, viz. that his prior conviction of the same charges, and his sentence to a fine and imprisonment under section 29 of the National Prohibition Act (27 USCA § 46), bar this proceeding, which would otherwise put him twice in jeopardy for the same offense, in violation of his constitutional immunity under the Fifth Amendment, and also the prohibition of dual prosecution in section 5 of the Willis-Campbell Act (November 23, 1921 27 USCA § 3).

Much argument orally and by briefs was indulged upon the hearing and submission of this plea, with copious citations of authority on both sides. Reference to these will appear where it seems necessary as this opinion proceeds.

Section 35 of the National Prohibition Act was undoubtedly designed to cumulate penalties in addition to those variously provided in other sections of the act, in keeping with the general design of the whole act to enforce the Eighteenth Amendment by effectually suppressing the manufacture, traffic in, and use of alcoholic beverages. Congress emphasized this purpose by the Supplemental Act of November 23, 1921 (Willis-Campbell Act 42 Stat. 222), after the Supreme Court's decision in the case of United States v. Yuginovich et al., 256 U. S. 450, 41 S. Ct. 551, 65 L. Ed. 1043, holding that the penalties in section 35 superseded those in the Revised Statutes verbis Internal Revenue.

Section 5 of the Willis-Campbell Act then operated to continue in force all nonconflicting revenue statutes. U. S. v. Stafoff, 260 U. S. 477, 43 S. Ct. 197, 67 L. Ed. 358. It provides, inter alia: "But if any act is a violation of any such laws, and also of the National Prohibition Act 27 USCA, or this act, a conviction for such an act or offense under one shall be a bar to prosecution therefor under the other."

In Lipke v. Lederer, 259 U. S. 557, 42 S. Ct. 549, 66 L. Ed. 1061, the Supreme Court affirmatively held that the so-called taxes imposed by section 35 were in fact penalties imposed for violations of criminal laws which could not be collected by administrative officers in distraint proceedings, designed for the collection of taxes. Regal Drug Co. v. Wardell, 260 U. S. 386, 43 S. Ct. 152, 67 L. Ed. 318, and U. S. v. One Ford Coupé, 272 U. S. 321, p. 329, 47 S. Ct. 154, 71 L. Ed. 279, 47 A. L. R. 1025, are to the same effect.

Suits for penalties and forfeitures are not novel in the federal system. Such suits, while civil in...