United States v. Freidericks
| Decision Date | 17 May 1921 |
| Parties | UNITED STATES v. FREIDERICKS et al. |
| Court | U.S. District Court — District of New Jersey |
Isaac Gross, Asst. U.S. Atty., of Jersey City, N.J.
Samuel Kessler, of Newark, N.J., for defendant Freidericks.
The indictment contains three counts, to which the defendant Freidericks demurs. In substance, and so far as pertinent to the present inquiry, they charge First Count. That on or about September 12, 1920, the defendants, with unknown others, intending to commit an offense against the United States, fraudulently, etc conspired to unlawfully remove from the La Breque Company Incorporated, warehouse at 600 Ogden street, in the city of Newark, New Jersey-- a United States government bonded warehouse for spirits authorized by law-- a quantity of distilled spirits, to wit, 400 gallons of Overholt and Glenmore whisky, on which the tax had not been paid, and that to effect the object of said conspiracy, the named defendants, on or about that date, placed the whisky into empty barrels and cans theretofore taken by them to the La Breque warehouse, and did remove the whisky on which the tax had not been paid from that warehouse to a place on Ferry street, near Wilson avenue, in said city.
Second Count. The unlawful removal of the liquor on which the tax had not been paid from the La Breque warehouse to the Ferry street location.
Third Count. The unlawful removal of the liquor from the La Breque warehouse to the Ferry street location, in the absence, and without the knowledge of the storekeeper in charge of the warehouse, and by breaking and tampering with its locks.
The greater number of the grounds of demurrer filed are too general and vague for consideration, and were not argued either orally or in the brief. Those argued are to the effect that section 3296, R.S. (Comp. Stat. Sec. 6038), and section 51 of the Act of August 27, 1894, 28 Stat. 565 (Comp. Stat. Sec. 6058), indorsed on the indictment as the sections violated, as well as sections 600 and 604 of the Act of February 24, 1919, 40 Stat. 1105 (Comp. St. Ann. Supp. 1919, Secs. 5986e and 5986j), were repealed by the National Prohibition Act (41 Stat. 305), hereinafter called the Enforcement Act.
The reported federal court decisions dealing with like contentions differ greatly as to the effect of the Enforcement Act upon such earlier laws. Except that later decisions take the opposite view from that reached in United States v. Turner (D.C.W.D. Va.) 266 F. 248, which held on reasons which to my mind are convincing that R.S. Sec. 3296, was not repealed by the Enforcement Act, I should have been content to overrule this demurrer on a mere citation of that case. However, in view of such differing opinions, and particularly of that in Reed v. Thurmond (C.C.A. 4) 269 F. 252, said by the demurrant to overrule the Turner Case, I am constrained to give the matter a more extended consideration.
The indorsements constitute no part of the indictment, and it will be upheld if there is any act in force which can sustain it, whether any act is specifically mentioned therein, or if a different one is indorsed thereon. Williams v. United States, 168 U.S. 382, 389, 18 Sup.Ct. 92, 42 L.Ed. 509; United States v. Nixon, 235 U.S. 231, 35 Sup.Ct. 49, 59 L.Ed. 207; United States v. Wood (D.C.N.J.) 168 F. 438. However, in my judgment, the sections so indorsed furnish a legal basis for the challenged indictment.
The Enforcement Act does not expressly repeal these sections.
The contention is that it does so by necessary implication. The question to be considered, therefore, is simply one of statutory interpretation.
'Where two statutes cover, in whole or in part, the same matter, and are not absolutely irreconcilable, and no purpose to repeal the earlier act is expressed or clearly indicated, the court will, if possible, give effect to both. ' Frost v. Wenie, 157 U.S. 46, 15 Sup.Ct. 532, 39 L.Ed. 614; United States v. Lee Yen Tai, 185 U.S. 213, 22 Sup.Ct. 629, 46 L.Ed. 878; Franke v. Murray (C.C.A. 8) 248 F. 865, 160 C.C.A. 623, L.R.A. 1918E, 1015, Ann. Cas. 1918D, 98; United States v. Sacein Rouhana Farhat (D.C.S.D. Ohio, E.D.) 269 F. 33.
Manifestly this act was not intended to prescribe the only rules which should govern the manufacture of and traffic in intoxicating liquor. Neither in title nor provision is there warrant for the contention that this act was to supplant in toto the earlier laws dealing with the general subject of manufacture of and traffic in intoxicating liquor. True, it was a prohibitory enactment; but the prohibitions did not go beyond those ordained by the Eighteenth Amendment, which were limited to the manufacture of and traffic in intoxicating liquor for beverage purposes. On the contrary, the act (sections 3, 6, and 12, title 2) contemplates the manufacture of and traffic in alcoholic liquors for nonbeverage purposes. In section 3 it is declared that all the provisions of the act were to 'be liberally construed to the end that the use of intoxicating liquor as a beverage may be prevented. ' And section 35 of the same title declares:
This section gives legislative emphasis and sanction to the well-supported canon of interpretation of statutes, viz. repeals by implication are not favored, and may be inferred only if the later statute is so repugnant to or inconsistent with the earlier one that it is clear that the legislative body must have so intended. Wood v. United States, 41 U.S. (16 Pet.) 342, 10 L.Ed. 987; Arthur v. Homer, 96 U.S. 137, 24 L.Ed. 811; Witte v. Shelton (C.C.A. 8) 240 F. 265, 153 C.C.A. 191. The word 'traffic,' as used in section 35, must be given its larger significance. It is a generalization of the more specific terms used in the other parts of the act, such as 'sell,' 'purchase,' 'barter,' 'storage,' 'transport,' 'import,' 'export,' 'prescribe,' 'deliver,' and 'furnish' (see sections 3, 6, 7, 10, 13, 14, 26, 33, and 37), and includes every step taken in the commerce in liquor from the manufacturer to its ultimate destination. There is no mistaking the legislative purpose expressed in the quoted section. It is to continue in force all previous legislation not inconsistent with its provisions.
Therefore, as the question of repeal in the instant case is limited to whether the cited sections of the earlier laws are inconsistent with the Enforcement Act, these sections, as well as the pertinent ones of the later act, need to be stated. Section 3296, R.S., a re-enactment of section 36 of the Act of July 20, 1868, 15 Stat. 140 (Comp. Stat. Sec. 6130), inter alia, denounces as crimes the removal, or aiding the removal, of distilled spirits 'on which the tax has not been paid to a place other than the distillery warehouse provided by law,' and the removal, or aiding the removal, of such spirits 'from any * * * warehouse for distilled spirits authorized by law, in any manner other than is provided by law.'
Section 51 of the Revenue Act of August 27, 1894, 28 Stat. 564 (Wilson Tariff Act; Comp. Stat. Sec. 6058), authorizes the Commissioner of Internal Revenue, upon terms, to establish bonded warehouses for the exclusive 'storage of spirits distilled from materials other than fruit,' and provides that such warehouses shall be in charge of a storekeeper and be kept securely locked, and not be unlocked or opened except in the presence of the storekeeper. Section 59 of this act (Comp. Stat. Sec. 6065) denounces as crimes violations of the provisions of section 51, and also the taking from any such warehouse of any distilled spirits deposited therein, without a full compliance with that act.
Sections 600 (a) and (b) and 604 of the Revenue Act approved February 24, 1919, 40 Stat. 1057, 1105 (Comp. Stat. Ann. Supp. 1919, Secs. 5986e, 5986f, and 5986j), impose a tax on distilled spirits then in bond, or that have been, or thereafter may be, produced in or imported into the United States; a distinction being made in the amount of tax between that held for beverage purposes and that held for other purposes. The tax imposed under section 600 is to be paid on withdrawal of the liquor and is to be in lieu of all internal revenue taxes theretofore imposed.
The Enforcement Act has three main divisions. Title 1 deals exclusively with the enforcement of the war-time prohibition acts. See list in United States v. Turner (D.C.) 266 F. 248, 249, supra. These were emergency measures, and were to be in operation only during the period of the war and until the termination of demobilization. The remaining divisions-- titles 2 and 3-- are respectively entitled 'Prohibition of Intoxicating Liquors' and 'Industrial Alcohol.' The main purpose of the legislation grouped under title...
To continue reading
Request your trial
-
Maresca v. United States
... ... Williams Case, the court held the reference to the statute ... was no part of the indictment. See, to the same effect, ... Wechsler v. United States, 158 F. 579, 86 C.C.A. 37, ... decided by this court; United States v. Wood (D.C.) ... 168 F. 438; United States v. Freidericks (D.C.) 273 ... F. 188. In the Nixon Case the entries on the back and in the ... caption of the indictment described it as being for violation ... of a certain statute, which was inapplicable, and the court ... declared that this did not invalidate the indictment, but ... that it was for the ... ...