United States v. Rosenberg

• Decision Date: 17 July 1918
• Citation: 251 F. 963
• Parties: UNITED STATES v. ROSENBERG.
• Court: U.S. District Court — Southern District of New York

251 F. 963

UNITED STATES v. ROSENBERG.

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

July 17, 1918

Francis G. Caffey and John E. Walker, both of New York City, for the United States.

Abraham Levy, of New York City, for defendant.

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

The chief question raised by the demurrer is whether section 2 of the Harrison Act is valid as a revenue provision, as which alone it can stand. That section forbids any person from selling opium to another who does not present a written blank furnished by the collector of internal revenue. The section later provides that the collector may furnish these blanks only to registered persons, who are defined by section 1, and who, roughly speaking, must be either sellers or makers. Presumably the phrase 'any person' in the first sentence of the section, means 'any registered person,' as in section 8 (U.S v. Jin Fuey Moy, 241 U.S. 394, 36 Sup.Ct. 658, 60 L.Ed. 1061 Ann. Cas. 1917D, 854), though that question is not of much consequence here. In any view it follows that section 2 forbids the sale of opium to any one not himself in turn a seller, and that it therefore forbids any distribution whatever to consumers, and this prohibition would be absolute except for the provisos, (a), (b), (c), and (d). The first of these allows a physician to prescribe opium 'in the course of his professional practice only'; the second allows 'a dealer' to fill the physician's prescription. Provisos (c) and (d) create other exceptions not here of moment.

Now, it is of course quite true (McCray v. U.S., 195 U.S 27, 24 Sup.Ct. 769, 49 L.Ed. 78, 1 Ann.Cas. 561), and indeed it has been long recognized (Veazie Bank v. Fenno, 8 Wall. 533, 19 L.Ed. 482), that in the exercise of its taxing powers Congress may in fact be actuated, in part anyway, by purposes quite different from the raising of revenue, and the courts will nevertheless not question the result; and so it does not matter that the chief purpose of this section is pretty obviously not to raise revenue, but to control the distribution of opium. There must, however, be some objective test to determine how far the ancillary provisions of the act have any actual pertinency to a revenue measure, because it is clear that some degree of irrelevancy will exclude a subsidiary provision from the scope of the power. This, indeed, is involved in the court's right to scrutinize the power at all.

The effect of the act as a whole is in the first place to require all those who make or traffic in opium to register and pay their fees, and also to require all those registered persons who buy opium to pay for the blanks. In so far as it merely forbids all those who do not pay those sums from buying or selling or making opium, no question can arise. A question does arise over those provisions of section 2 which in effect prescribe that the distribution to consumers must be either by a physician or under his supervision. It is at first blush a little hard to see how this conduces to the collection of the registration fees, or how it tends to increase the number of registrants. U.S. v. Doremus (D.C.) 246 F. 958. Nevertheless, as in all such cases, the statute must be sustained so long as any plausible support for it can be found in the powers of Congress, and I think that a fair analysis can be made to show such a support here, however remote it may in fact have been from the purposes of those who framed and passed the act. The tax being an excise, it was an essential part of its purpose that there should be no sales by unregistered persons. Yet the final sale must be to an unregistered person, the consumer. There was, therefore, a genuine difficulty in insuring that the sale to any unregistered person should be to a consumer, and that he should not in turn resell. Physicians were naturally the class who would dispense a large part of the drug to consumers, whether used as a medicine or to gratify an appetite. It was a reasonable contrivance to limit the final sales to physicians upon the theory that they were the most reliable of all available classes of distributors to insure its limitation to genuine consumers. I cannot say, therefore that it was not a fair piece of administrative machinery to empower this class exclusively to distribute the drug.

The section does, however, go further than this, because it forbids physicians selling opium except as a medicine, and it must be confessed that it may not be easy to see how this limitation can proceed from any other consideration than a...