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sional practice, the physician to keep a rec- The legislation under consideration was ord thereof, except in the case of personal before us in a case concerning section 8 of attendance upon a patient; and (b) to the the act, and in the course of the decision we sale, dispensing, or distributing of the drugs said: by a dealer upon a prescription issued by a physician, etc., registered under the act. Other exceptions follow which are unnecessary to the consideration of this case.

Section 9 (section 62870) inflicts a fine or imprisonment, or both, for violation of the

act.

This statute purports to be passed under the authority of the Constitution, article 1, § 8, which gives the Congress power "To lay and collect taxes, duties, imposts, and excises to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States."

"It may be assumed that the statute has a moral end as well as revenue in view, but we are of opinion that the District Court, in treating those ends as to be reached only through a revenue measure and within the limits of a revenue measure, was right." United States v. Jin Fuey Moy, 241 U. S. 394, 402, 36 Sup. Ct. 658, 659, 60 L. Ed. 1061, Ann. Cas. 1917D, 854.

That

Considering the full power of Congress over excise taxation the decisive question here is: Have the provisions in question any relation to the raising of revenue? Congress might levy an excise tax upon such dealers, and others who are named in section 1 of the act, cannot be successfully dis

Con

The only limitation upon the power of Con-puted. The provisions of section 2, to which gress to levy excise taxes of the character we have referred, aim to confine sales to registered dealers and to those dispensing now under consideration is geographical unithe drugs as physicians, and to those who formity throughout the United States. This come to dealers with legitimate prescriptions court has often declared it cannot add others. of physicians. Congress, with full power Subject to such limitation Congress may over the subject, short of arbitrary and unselect the subjects of taxation, and may exer- reasonable action which is not to be assumed, cise the power conferred at its discretion. inserted these provisions in an act specifically License Tax Cases, 5 Wall. 462, 471, 18 L. providing for the raising of revenue. Ed. 497. Of course Congress may not in the sidered of themselves, we think they tend to exercise of federal power exert authority keep the traffic aboveboard and subject to wholly reserved to the states. Many deciinspection by those authorized to collect the sions of this court have so declared. And revenue. They tend to diminish the opporfrom an early day the court has held that the tunity of unauthorized persons to obtain the fact that other motives may impel the exer- drugs and sell them clandestinely without cise of federal taxing power does not author-paying the tax imposed by the federal law. ize the courts to inquire into that subject. This case well illustrates the possibility If the legislation enacted has some reason- which may have induced Congress to insert g able relation to the exercise of the taxing the provisions limiting sales to registered authority conferred by the Constitution, it dealers and requiring patients to obtain these cannot be invalidated because of the supposed drugs as a medicine from physicians or upmotives which induced it. Veazie Bank v. on regular prescriptions. Ameris, being as Fenno, 8 Wall. 533, 541, 19 L. Ed. 482, in the indictment charges, an addict may not which case this court sustained a tax on a have used this great number of doses for state bank issue of circulating notes. Mc- himself. He might sell some to others withCray v. United States, 195 U. S. 27, 24 Sup. out paying the tax, at least Congress may Ct. 769, 49 L. Ed. 78, 1 Ann. Cas. 561, where have deemed it wise to prevent such possible the power was thoroughly considered, and an dealings because of their effect upon the act levying a special tax upon oleomargarine collection of the revenue. artificially colored was sustained. And see Flint v. Stone Tracy Co., 220 U. S. 107, 147, 153, 156, 31 Sup. Ct. 342, 55 L. Ed. 389, Ann. Cas. 1912B, 1312, and cases cited.

Nor is it sufficient to invalidate the taxing authority *given to the Congress by the Constitution that the same business may be regulated by the police power of the state. License Tax Cases, 5 Wall. 462, 18 L. Ed. 497, supra.

The act may not be declared unconstitutional because its effect may be to accomplish another purpose as well as the raising of revenue. If the legislation is within the taxing authority of Congress-that is sufficient to sustain it. In re Kollock, 165 U. S. 526, 536, 17 Sup. Ct. 444, 41 L. Ed. 813.

We cannot agree with the contention that the provisions of section 2, controlling the disposition of these drugs in the ways de scribed, can have nothing to do with facilitating the collection of the revenue, as we should be obliged to do if we were to declare this act beyond the power of Congress acting under its constitutional authority to impose excise taxes. It follows that the judgment of the District Court must be reversed. Reversed.

The CHIEF JUSTICE dissents because he is of opinion that the court below correctly held the act of Congress, in so far as it embraced the matters complained of, to be beyond the constitutional power of Congress to

*94

enact because to such extent the statute was a mere attempt by Congress to exert a power not delegated, that is, the reserved police power of the states.

Mr. Justice McKENNA, and Mr. Justice VAN DEVANTER and Mr. Justice McREYNOLDS concur in this dissent.

(249 U. S. 96)

Mr. Justice DAY delivered the opinion of the Court.

This case involves the provisions of the Harrison Narcotic Drug Act (Act Dec. 17, 1914, c. 1, 38 Stat. 785; Comp. St. §§ 6287g6287q), considered in United States v. Doremus (No. 367, just decided) 249 U. S. 86, 39 Sup. Ct. 214, 63 L. Ed. 493. The case comes here upon a certificate from the Circuit Court of Appeals for the Sixth Circuit. From the certificate it appears that Webb and Goldbaum were convicted and sentenced in the District Court of the United States for the Western District of Tennessee on a charge of conspiracy (section 37, Penal Code [Act Decided March 3, March 4, 1909, c. 321, 35 Stat. 1096; Comp. St. § 10201]) to violate the Harrison Narcotic Law. While the certificate states that the indictment is inartificial, it is certified to be sufficient to support a prosecution upon the theory that Webb and Goldbaum intended to have the latter violate the law by using the order blanks (section 1 of the act) for a prohibited purpose.

WEBB et al. v. UNITED STATES.

(Argued Jan. 16, 1919.

1919.)

No. 370.

1. POISONS 2-HARRISON SALES PROHIBITED.

DRUG Аст

The Harrison Narcotic Drug Act, § 2 (Comp. St. § 6287h), first sentence, prohibits retail sales of morphine by druggists to persons who have no physician's prescription, who have no order blank therefor, and who cannot obtain one because not of the class to which such blanks are allowed to be issued.

2. POISONS

2-HARRISON ACT-CONDITIONS OF SALES-CONSTITUTIONALITY. Harrison Narcotic Drug Act, § 2 (Comp. St. § 6287h), first sentence, construed as prohibiting retail sales by druggists of morphine to a person not having a prescription or order blank held not unconstitutional.

3. POISONS 2-HARRISON CIAN'S PRESCRIPTION."

The certificate states:

"If section 2, rightly construed, forbids sales to a non-registrable user, and if such prohibition is constitutional, we next meet the question whether such orders as Webb gave to applicants are 'prescriptions,' within the meaning of exception (b) in section 2.

"We conclude that the case cannot be disposed of without determining the construction and perhaps the constitutionality of the law in certain particulars, and for the purpose of certifiIcation, we state the facts as follows-assuming, ACT-"PHYSI- as for this purpose we must do, that whatever the evidence tended to show, in aid of the prosecution, must be taken as a fact:

A physician's order for morphine issued to an habitual user, not in the course of professional treatment for a cure, but to keep him comfortable by maintaining his customary use, is not | a "physician's prescription" within Harrison Narcotic Drug Act, § 2 (Comp. St. § 6287h), exception(b).

[Ed. Note.-For other definitions, see Words and Phrases, First and Second Series, Prescription.]

The Chief Justice, Mr. Justice McKenna, Mr. Justice Van Devanter, and Mr. Justice McReynolds dissenting.

On a Certificate from the United States Circuit Court of Appeals for the Sixth Circuit.

W. S. Webb and Jacob Goldbaum were convicted of violation of the Harrison Drug Act, and took the case to the Circuit Court of Appeals, which certifies questions. Questions answered.

Messrs. Ralph Davis and Ike W. Crabtree, both of Memphis, Tenn., for Webb and another.

*Mr. Assistant Attorney General Porter, for the United States.

"Webb was a practicing physician and Goldbaum a retail druggist, in Memphis. It was Webb's regular custom and practice to prescribe morphine for habitual users, upon their application to him therefor. He furnished these 'prescriptions,' not after consideration of the applicant's individual case, and in such quantities and with such direction as, in his judgment, would tend to cure the habit, or as might be necessary or helpful in an attempt to break ther in such quantities as the applicant desired the habit, but with such consideration and rafor the sake of continuing his accustomed use. Goldbaum was familiar with such practice and habitually filled such prescriptions. Webb had duly registered and paid the special tax as required by section 1 of the act. Goldbaum had also registered and paid such tax and kept all records required by the law. Goldbaum had been provided with the blank forms contemplated by section 2 of the act for use in ordering morphine, and, by the use of such blank order forms, had obtained from the wholesalers, in Memphis, a stock of morphine. It had been agreed and understood between Webb and Goldbaum that Goldbaum should, by using such order forms, procure a stock of morphine, which morphine he should and would sell to those who desired to purchase and who came provided with Webb's so-called prescriptions. It was the

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

Mr. Justice MCKENNA, Mr. Justice VAN DEVANTER, and Mr. Justice MCREYNOLDS concur in the dissent.

(249 U. S. 34)

G. S. NICHOLAS & CO. et al. v. UNITED
STATES.

intent of Webb and Goldbaum that morphine should thus be furnished to the habitual users thereof by Goldbaum and without any physician's prescription issued in the course of a good faith attempt to cure the morphine habit. In order that these facts may have their true color, it should also be stated that within a period of eleven months Goldbaum purchased from wholesalers, in Memphis, thirty times as much morphine as was bought by the average retail druggist doing a larger general business, and he sold narcotic drugs in 6,500 instances; that Webb regularly charged fifty cents for each so-called prescription, and within this period had furnished, and Goldbarm had filled, over four thousand such prescriptions; and that one Rabens, a user of the *drug, came from another state and applied to Webb for morphine and was given at one time ten so-called The "allowance" of three pence or five pence prescriptions for one drachm each, which pre-made by British revenue legislation on each galscriptions were filled at one time by Goldbaum lon of certain spirits, on the exportation thereupon Rabens' presentation, although each was of, is a "grant" bestowed, within Tariff Act, § made out in a separate and fictitious name."

ALEX. D. SHAW & CO. et al. v. SAME. (Argued Jan. 14, 1919. Decided March 3, 1919.) Nos. 62, 63.

CUSTOMS DUTIES 21 - ADDITIONAL DUTY -"GRANT" BY FOREIGN COUNTRY ON EXPORTATION.

4, par. E (Comp. St. § 5296), providing that, whenever any country shall pay or bestow, di

and paid on it, on importation, in addition to the exportation of any article, there shall be levied regular duty, an additional one, equal to the net amount of such bounty or grant, however it be paid or bestowed.

Upon these facts the Circuit Court of Ap-rectly or indirectly, any bounty or grant on the peals propounds to this court three questions: 1. "Does the first sentence of section 2 of the Harrison Act prohibit retail sales of morphine by druggists to persons who have no physician's prescription, who have no order blank therefor and who cannot obtain an order blank because not of the class to which such blanks are allowed to be issued?"

2. "If the answer to question one is in the affirmative, does this construction make unconstitutional the prohibition of such sale?"

3. "If a practicing and registered physician issues an order for morphine to an habitual user thereof, the order not being issued by him in the course of professional treatment in the attempted cure of the habit, but being issued for

the purpose of providing the user with morphine sufficient to keep him comfortable by maintaining his customary use, is such order a physician's prescription under exception (b) of section 2?"

"If question one is answered in the negative, or question two in the affirmative, no answer to question three will be necessary; and if question three is answered in the affirmative, questions one and two become immaterial."

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Grant.]

On Writs of Certiorari to the United States Court of Customs Appeals.

Protests of G. S. Nicholas & Co. and others and of Alex. D. Shaw & Co. and others against imposition of additional duties on importations of spirits were overruled by the Board of General Appraisers, which decision was affirmed by the Court of Customs Appeals (7 Ct. Cust. Appeals, 97), and they bring certiorari. Affirmed.

Mr. W. P. Preble, of New York City, for Alex. D. Shaw & Co. and others.

Mr. Albert H. Washburn, of New York

City, for G. S. Nicholas & Co. and others. Mr. Assistant Attorney General Hanson, for the United States.

Mr. Justice MCKENNA delivered the opinion of the Court.

[1-3] What we have said of the construction and purpose of the act in No. 367 plainly requires that question one should be answerWrits of certiorari to review a judgment of ed in the affirmative. Question two should be the Court of Customs Appeals, affirming a answered in the negative for the reasons decision by the Board of General Appraisstated in the opinion in No. 367. As to ques-ers, which overruled the protests of petitiontion three-to call such an order for the use of morphine a physician's prescription would be so plain a perversion of meaning that *no discussion of the subject is required. That question should be answered in the negative. Answers directed accordingly.

For the reasons which prevented him from assenting in No. 367, the Chief Justice also dissents in this case.

ers against the action of collectors of customs at Boston and New York assessing additional or countervailing duties on whisky and gin imported from Great Britain. 7 Ct. Cust. Appeals, 97.

Paragraph E of section 4 of the Tariff Act of 1913 (38 Stat. 114 [Comp. St. § 5296]) reads as follows:

"E. That whenever any country, dependency, colony, province or other political subdivision of

For other cases see same topic and KEY-NUMBER in all Key-Numbered Digests and Indexes

government shall pay or bestow, directly or in- [an enumeration of warehouses and their directly, any bounty or grant upon the exporta-purposes which, however necessary from the tion of any article or merchandise from such standpoint of the law, happily is not necescountry, dependency, colony, province or other sary to our consideration of the questions in political subdivision of government, and such the case, although counsel describe them and article of merchandise is dutiable under the use them in display of the options which *it provisions of this act, then upon the importation is contended the law gives to a distillerof any such article or merchandise into the United States, whether the same shall be im- that is, to export, warehouse, or sell the spirported directly from the country of production its or use them under conditions which or otherwise, and whether such article or mer- would or would not result in an allowance. chandise is imported in the same condition as We do not find it necessary to go into such when exported from the country of production confusing considerations. The question in or has been changed in condition by manufac- the case is more direct, and is whether the ture or otherwise, there shall be levied and three pence and five pence paid on account of paid, in all such cases, in addition to the duties export from the United Kingdom is the beotherwise imposed by this act, an additional stowal "directly or indirectly" of a "bounty duty equal to the net amount of such bounty or grant, however the same be paid or bestowed. or grant upon the exportation of any article The net amount of all such bounties or grants or merchandise from such country," to use shall be from time to time ascertained, determin- the words of paragraph E. ed, and declared by the Secretary of the Treasury, who shall make all needful regulations for the identification of such articles and merchandise and for the assessment and collection of such additional duties."

The question in the case is the legality of the countervailing duty. It was determined and declared to be necessary under paragraph E by reason of the allowance under the British legislation of three pence upon plain British spirits and five pence upon British compounded spirits. 23 & 24 Vict. c.

129.

Looking only at the paragraph and judging from the first impressions of its words, the problem presented would seem to be without difficulty. There is paid to an exporter of spirits from the United Kingdom the sum of three or five pence a gallon, as the case may be, and the instant conclusion is that the sale of spirits to other countries is relieved from a burden that their sale in the United Kingdom must bear. There is a benefit, therefore, in exportation, an inducement to seek the foreign market. And thus it would seem, if we regard the substance of things, that the condition of the application of paragraph E obtains.

Counsel, however, resist this view in somewhat lengthy and minute arguments, only the basic propositions of which we can give. They dwell especially upon the purpose of the British act and the differences, not only actual, as they contend, but recognized in the administrative and legislative parlance of this country, between the words "allowance," "bounty," "drawback" and "grant." In sup

The case is not of broad compass. The act of Parliament referred to above levies a duty upon every gallon of spirits of a certain strength which after certain designated dates were or should be distilled within the United Kingdom, or which, having been distilled therein, were on the designated dates in the stock or possession of any distiller or in any duty-free warehouse, and which after the named dates should be taken out for consumption within the United King-port of the first contention-that is, the purdom.

the

*

pose of the British act-it is urged that the It is provided that “in consideration of the allowance provided for is not a "bounty" loss and hindrance caused by excise regula- upon exportation, but "compensation" to the tion in the distillation and rectification of distiller and rectifier for costs due to excise spirits in the United Kingdom" there shall restrictions. In other words, that the albe paid "to any distiller or proprietor of lowance is not a premium on exportation, such spirits on the exportation thereof from but the remission or reimbursement of the a duty-free warehouse or on depositing the expense of manufacture to accommodate the same in a customs warehouse ** "peculiar conditions and necessities" of the allowance of two pence per gallon British fiscal policy. In confirmation of this and to any licensed rectifier who * view it is said that not all British spirits has or shall have deposited in a customs when exported get the allowance, but only warehouse spirits distilled and rectified in those that are warehoused in a certain specithe United Kingdom the following allowanc-fied way, and that, besides, the allowance is Three pence per gallon, and also paid when certain spirits go into do on spirits of the nature of spirits of wine an mestic consumption. And the British ambasallowance of two pence per gallon. * sador is quoted as saying of the allowances Subsequent acts of Parliament repeat the that they "do not even compensate the loss provisions for allowance upon exported spir- they are intended to reimburse, as is abunits, adding some details, and are replete with dantly proved." the regulations and provisions which the legislators thought or experience had demonstrated were necessary. And there is quite

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It is hence asserted that the condition of the application of paragraph E-that is, a premium bestowed on an exportation from

another country-is absent and that, besides, (portation (of course, we mean of the spirits the paragraph is of limited scope, the word destined for the United States)-the event, bounty not being used in its most compre- that the spirits may be sold cheaper in the hensive sense, and that there is a wide difference between an "indirect bounty" and "indirectly paying a bounty," and that for an indirect bounty the paragraph does not provide. Counsel attempt to justify the distinction and illustrate it by the citation of the example of many acts of Congress by which "indirect" bounties were legislated and also by the comments of legislators in discussion of the purpose and effect of the use of the words "allowances," and "rebates," and "drawbacks." And United States v. Passavant, 169 U. S. 16, 23, 18 Sup. Ct. 219, 42 L. Ed. 644, is quoted for a distinction between "the word 'bounty' as differentiated from the word 'drawback' in tariff parlance" and "the shades of meaning which Congress had in mind when enacting paragraph E and provisions in pari materia." In further support of their distinctions counsel cite the executive practice of this country, and adduce the decisions of this and other courts to show that such practice is a useful resolvent of the meaning of words and of legis-gument. lative intention.

United States than in the United Kingdom, and necessarily there may be that aid to their competitive power. We do not think that it is a repelling answer to say that they are sold here at the same price that they would be sold for in the United Kingdom if the latter imposed no tax, that is, sold here as if they had not been taxed at all, and therefore sold not below their natural cost. This is mere speculation of the effects of a different situation. We have the fact of spirits able to be sold cheaper in the United States than in the place of their production, and this the result of an act of government because of the destination of the spirits being a foreign market. For that situation paragraph E was intended to provide. What legislation some other situation might require or receive we are not called upon to conjecture.

Our conclusion is supported, we think, by United States v. Passavant, supra, a case from which counsel have adduced some ar

An importation of goods from Germany was the subject of the decision. That country imposed a tax upon merchandise when sold by the manufacturer thereof for consumption or sale in the markets of Germany. Upon exportation of the merchandise the tax was remitted. The remission was called 'bonification of tax' as distinguished from being refunded as a rebate. The merchandise could be purchased in bond for exportation in the principal markets of Germany at the net invoice price and without paying the so-called German duty. The merchandise with which the case was concerned was so purchased.

This

We appreciate the strength of the argument, but the circumstances are but aids to persuasion; they do not compel it. Every new statute is individual and presents its own problem. That before us does, and, as we have said, looking at its words alone, has no uncertainty of purpose. Whenever any country "shall pay or bestow, directly or indirectly, any bounty or grant upon the exportation of any article or merchandise," there shall be levied and paid upon it, upon importation, in addition to the regular duty, an additional one "equal to the net amount of such bounty or grant, however the same be paid or bestowed." The statute was addressed to a condition and its words must be considered as intending to define it, and all of them-"grant" as well as "bounty"-must be given effect. If the word "bounty" has a limited sense the word "grant" has not. word of broader significance than "grant" could not have been used. Like its synonyms "give" and "bestow," it expresses a concession, the conferring of something by one perAnd if the "something" be conferred by a country "upon the exportation of any article or merchandise" a countervailing duty is required by paragraph E. There can be, therefore, but one inquiry: Was something-bounty or grant-paid or bestowed upon the exportation of spirits? Counsel's answer we have given; ours is different. They dwell upon the meaning of one word and the necessary adjustments of the British revenue legislation; we regard all of the words, the fact of payment and the And this conclusion was reached upon the event-the fact that the grant is made at effect of the remitted tax and not upon the the time of exportation and only upon ex-word used to designate it. In other words,

son upon another.

A

Upon importation of the merchandise it was determined by the collector and customs appraiser that its value was the net invoice value with the German duty added. ruling was contested by the importer and the Board of General Appraisers reversed it. The Circuit Court, to which the case had been carried, affirmed the decision of the Board of General Appraisers. Upon appeal to the Circuit Court of Appeals that court had been lawfully included by the collector asked of this court whether the German duty and customs appraiser in their estimate of the dutiable value. We answered in the affirmative, and said, through Mr. Chief Jus

tice Fuller:

That "the laws of this country in the assessment of duties proceed upon the market value in the exporting country and not upon the market value less such remission or amelioration as that country chooses to allow in accordance with its own views of public policy."

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