United States v. Sapinkow

• Decision Date: 29 November 1898
• Citation: 90 F. 654
• Parties: UNITED STATES v. SAPINKOW.
• Court: U.S. District Court — Southern District of New York

90 F. 654

UNITED STATES v. SAPINKOW.

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

November 29, 1898

Clarence S. Houghton and Wm. S. Ball, Asst. U.S. Atty., for the United states.

Max J Kohler, for defendant.

THOMAS District Judge.

The defendant was arrested upon a warrant issued by Mr Commissioner Shields, upon the complaint of a private person for alleged violation of the internal revenue laws of the United States, in that (1) he unlawfully removed from the place of manufacture 500 cigarettes, not properly boxed and stamped; (2) and unlawfully and willfully sold and offered for sale 500 cigarettes, which were not packed in box or boxes previously unused for that purpose, and were not stamped with a stamp denoting the internal revenue tax on the same cigarettes; (3) and did unlawfully fail, neglect, and omit to put up 700 cigarettes manufactured by him and for him, and well the same, and remove the same for consumption and use, without putting up the said cigarettes in proper packages or parcels, as required by law, and without having affixed to each of said packages or parcels a suitable stamp denoting the tax thereon, and did unlawfully fail, neglect or omit to properly cancel the stamp thereon appearing, prior to the sale and removal of the said cigarettes for consumption and use; (4) and did unlawfully sell and offer to sell 500 cigarettes, packed in a form other than in new boxes or packages, not before used for that purpose, containing, respectively, 10, 20, 50, and 100 cigarettes each, but which were placed in old boxes or packages, which had been before used for packing cigarettes, the number of said boxes or packages so removed being no less than 50 boxes or packages, each containing 10 cigarettes.

The statute relating to the offenses charged is contained in chapter 7 of title 35 of the United States Revised Statutes, which comprises sections 3387 to 3406, inclusive. The particular sections involved are section 3387 (the first section in the chapter) and section 3392 and 3397 contained in such chapter. It is not denied by the defendant that certain sections of the Revised Statues exist, numbered sections 3392 and 3397, which prohibit the acts and omissions charged against the defendant. But it urged that the defendant has not committed an offense under such section, (1) because sections 3392 and 3397, having been amended, are not a part of chapter 7, so as to be applicable to cigarettes, by mere force of the provisions of section 3387 of chapter 7, which provides that 'cigarettes and cheroots shall be held to be cigars under the meaning of this chapter'; (2) because the new section 3397 does not of itself make provision for cigarettes, and, while 3392 does provide for the packing of cigarettes, no penalty is attached to a disobedience of the provision.

The following legal proposition will be first considered: When a chapter of the Revised Statutes relates to cigars, and the leading section defines cigars to include cigarettes, does a subsequent change in the sections of the chapter exempt cigarettes from the statutory definition? By Act 1879, c. 125, Sec. 16, sections 3387, 3392, and 3397, were amended (1 Supp.Rev.St. pp. 240, 241), and by Act 1890, c. 1244, section 3392 was again amended (1 Supp.Rev.St.p. 864). But the definition of cigars, as contained in original 3387, is not, in terms, disturbed. By the act of 1879 it is provided 'that section thirty-three hundred and ninety-seven be, and the same is hereby, amended by striking out all after the said number, and substituting therefor the following. ' Then follows the new phraseology, which differs from that in the original section by providing for 'stamping, indenting, burning or impressing into each box, in a legible and durable manner (with a branding iron), the number of cigars contained therein (the name of the manufacturer), the number of the manufactory, and the number of the district, and the state,' etc. The italicised words are in the new section, and not in the old, and the words in parentheses are in the old statute, and not in the new. The new section also contains a provision relating to cigars exported, and their exemption from the internal revenue tax. Two facts are noticeable: (1) The new section is a substitute for the old, and is in terms related to chapter 7; (2) the new provision for 'stamping, indenting, or impressing into each box' certain information, makes the provision more applicable to cigarette packages than did the old provision for burning, which was more suitable for cigar boxes. Therefore the amendments make the section more applicable to cigarettes than it was before. Without referring for the moment to section 3392, the present inquiry may be, is section 3397 so made a part of chapter 7 as to bring cigarettes within its provisions by virtue of the definition of cigars contained in section 3387? Chapter 7 is a constituent part of title 35, which in turn is a subdivision of the Revised Statutes. Chapter 7 as regards the subject of which it treats, is given a certain isolation and completeness, whereby certain sections are assembled into one common whole. This clustering of sections was adopted because they were deemed homogeneous, and, whole they may be interdependent, they are not related for the purposes of their application, either to other parts of the Revised Statutes, or to extrinsic chapters. The result is that when a certain section is changed, either in form or substance, a change is made, not only in the section, but also in the entire chapter; and the lawmaker, in providing the new matter, if it be such, is deemed to have had chapter 7 and all its sections in view, and to have subjected the new provisions to their influence. When section 3397 was changed in phraseology, and slightly in substance, by the addition of cognate matter, it was still 3397 of chapter 7, and continued to perform the former office of that section, in its allotted relation to all the other sections of the group of which it was an integral part. Attention is called in the interesting and skillful brief of the defendant's counsel to U.S. v. Mason, 8 Fed. 412; U.S. v. Hewitt, 11 F. 243; U.S. v. Jenson, 15 F. 138, U.S. v. Starn, 17 F. 435; U.S. v. Moore, 18 F. 686; U.S. Goodwin, 20 F. 237; U.S. v. Van Vliet, 22 F. 641. See, contra, U.S. v. Dowdell, 8 Fed. 881. These cases involved an offense created by section 5485 of the Revised Statues, which is a part of the crimes act, which made it a crime for a person to charge or retain 'any greater compensation for which section 4875 provided that such compensation should be $25. Subsequently this section was repealed, and provision was made in the repealing act for allowable charges of pension agent. See chapter 367, Act 1878 (20 Stat. 243). This repeal of section 4785 left section 5485 without foundation for a criminal prosecution, since the section to which it referred had ceased to exist. In other words, the offense and its punishment were created by two primarily independent statutes, contained in different titles of the Revised Statutes; but a connection was established for the purpose of the penalty by a reference in one statute to the other. Later the section containing the punishment by repeal ceased to exist, and nothing was inserted in its place. Hence the section referred to an hiatus in 'the title pertaining to pensions.' The case is not at all analogous to that at bar. Here the changed section (3397) is a component part of a particular chapter, adjusted to its other provisions, and in terms is attached to that chapter, and the amendments in certain particulars made the section more applicable to cigarettes, and in other particulars did not make it less applicable to cigarettes. If the material that made up the old section was taken away, coincidentally with its removal a similar provision took its place. But in the application of the definition contained in section 3387 to cigarettes there is an opportunity for interpretation. Under such definition chapter 7 would not be regarded as applicable to cigarettes, so far as some special provision therein was specifically made for cigarettes. Thus, in section 3394, the tax on cigars and cigarettes is stated at different amounts. In such case the specific provision for a tax on cigarettes would except it from the provision relating to cigars, and it may be that some other provision might, in the nature of the case, be so peculiarly applicable to cigars, and so obviously inapplicable to cigarettes, that a court would be justified in construing the statute accordingly.

Having concluded that section 3397 as amended is but a continuation of the original section, and subject to the operation of section 3387, the court is brought to the consideration of section 3392. Should the same construction be observed? The amendment changes the former section in the following particulars: (1) By allowing cigars to be packed in boxes containing 200 each; (2) by allowing the use of sample boxes containing not less than 12 nor more than 13 cigars; (3) by prohibiting packing less than the allowed number of cigars in each box; (4) by omitting the minimum fine and imprisonment (5) by providing (a) for the packing of cigarettes in quantities other than the quantities appointed for cigars, (b) for the affixing of suitable stamps on packages of cigarettes, and the cancellation thereof, prior to sale or removal for consumption or use, under such regulations a; the commissioner of internal revenue shall prescribe, (c) that imported cigarettes shall be packed, stamped, and the stamps canceled in like manner in addition to the import stamp. See similar...