It is within the power of Congress to prescribe that a package
of any article which it subjects to a tax, and upon which it
requires the affixing of a stamp, shall contain only the article
which is subject to the tax.
The coupons described in the statement of facts are within the
prohibitions of the Act of July 24, 1897, 30 Stat. 161.
Neither question three or question four presents a distinct
point or proposition of law, and, as each invites the Court to
search the entire record, the Court declines to answer them.
This was a proceeding commenced in the Circuit Court of the
United States for the District of West Virginia seeking a
forfeiture of certain tobacco. Attachment and monition were duly
issued. The case was submitted upon an agreed statement of facts,
and a judgment of forfeiture was entered. Whereupon the case was
taken on error to the Circuit Court of Appeals for the Fourth
Circuit, which certified four questions.
Page 186 U. S. 127
The facts as found in the agreed statement are these: at times,
a practice prevailed among manufacturers of tobacco of placing in
their packages of tobacco other articles of intrinsic value, such
as pen knives, etc. On November 4, 1891, the Commissioner of
Internal Revenue issued this circular:
"Manufacturers of tobacco, in marking the gross, tare, and net
weight of packages of tobacco, should include in the gross the full
weight of the package and all its contents. The tare should include
the weight of the pail, lining, covering, etc., so that the tare,
subtracted from the gross, will give the net weight of the tobacco
contained therein and expressed by the stamp. Great care should be
exercised by the collectors to prevent foreign articles of any kind
being included in any of the packages. A practice has grown up,
which seems to be on the increase, by which manufacturers have
included in statutory packages many foreign articles. This practice
should be discontinued. A package of tobacco means a package
containing tobacco and nothing else."
On July 24, 1897, Congress passed what is known as the Dingley
Bill. 30 Stat. 151, c. 11. The third clause of the tenth section
thereof amended section 3394 of the Revised Statutes so as to
read:
"None of the packages of smoking tobacco and fine-cut chewing
tobacco and cigarettes prescribed by law shall be permitted to have
packed in, or attached to, or connected with them any article or
thing whatsoever other than the manufacturers' wrappers and labels,
the internal revenue stamp, and the tobacco or cigarettes,
respectively, put up therein on which tax is required to be paid
under the internal revenue laws; nor shall there be affixed to, or
branded, stamped, marked, written or printed upon, said packages or
their contents any promise or offer of, or any order or certificate
for, any gift, prize, premium, payment, or reward."
On the 23d day of September, in the year 1898 at the City of
Wheeling, in the district aforesaid, the internal revenue collector
of the United States seized 1,440 packages of chewing and smoking
tobacco known by the name and brand of Merry World Tobacco,
weighing one and two-thirds ounces to the
Page 186 U. S. 128
package, and having a total weight of 150 pounds, and
afterwards, on the 5th day of April, in the year 1899, J. K.
Thompson, the marshal of the United States for the said District of
West Virginia, in pursuance of the attachment and monition
appearing in the record, took into his possession the said 1,440
packages of tobacco, and now holds the same in his possession.
At the time of the seizure by the collector, there was in each
of the packages a small slip of paper called a coupon, with printed
words and figures on both sides thereof, which coupon had been
placed within such package at the time when it was packed in the
manufactory and prepared for sale. These coupons were all alike,
and on each of them were the following words and figures, that is
to say, upon one side thereof the following words and figures:
"
Merry World Tobacco Coupon"
"With the tobacco packed herewith, the purchaser has bought a
definite share in any of the articles mentioned on the other side
of this voucher."
"We will send you postpaid any or all of the articles listed on
the other side for the number of coupons as stated."
"Mail these coupons to the Merry World Tobacco Co., Wheeling,
W.Va. stating number of coupons sent, articles wanted, your name,
street and number, city or town, county and state."
And on the other side, the following words and figures:
"Will send you postpaid for 20 coupons, 1 picture, 14 x 28,
handsome water-color facsimile, 12 subjects."
"30 coupons, 1 picture, 20 x 24, fine pastel facsimile, 12
subjects."
"40 coupons, 1 picture, 20 x 30, beautiful Venetian scenes, 4
subjects."
"50 coupons, 1 picture, 22 x 28, elegant water-color gravures, 2
subjects."
"60 coupons, 1 picture, 22 x 28, magnificent water-color
gravures, 4 subjects."
"No advertising or lettering on any of the above. Such excellent
works of art have never before been offered, except
Page 186 U. S. 129
through dealers at very high prices. They are suitable
decorations for the most elegant home, and to be appreciated must
be seen. See descriptive catalogue mailed on application. Order by
subjects."
"20 coupons, 1 book of Popular Seaside Library, 300 titles by
favorite authors."
"50 coupons, 1 cloth-bound book, 160 titles by eminent authors.
Catalogues of our books mailed on application."
"25 coupons, 1 scarf-pin, solid sterling silver."
"25 coupons, 1 pipe, genuine French briar."
"40 coupons, 1 rubber tobacco pouch, self-closing."
"75 coupons, 1 elegant pocketbook, finest quality leather,
gent's or ladies."
"70 coupons, 1 pocketknife, first quality, American manufacture
razor steel, hand-forged, finely tempered blades. Stag handle.
Choice between jackknife or penknife."
"95 coupons, 1 fine razor, highest grade steel, hollow
ground."
"40 coupons, 1 bicycle lock, nickeled, gent's sprocket or lady's
with chain."
"150 coupons, 1 cyclometer, 1,000 miles repeating. In ordering,
state size of wheel."
"550 coupons, 1 excellent open-face watch. Guaranteed without
qualification. Has all improvements up to date. I t will wear and
perform well for a lifetime if only ordinarily cared for."
"Illustrated catalogue for the above mailed upon
application."
This coupon is printed on thin paper, is of inappreciable
weight, is without any intrinsic value in itself, and has upon it
no picture of any kind and does not affect in any way the
ascertaining of the proper tax payable upon the package or
interfere in any way with the collection of such tax. The value of
the five cases of tobacco of 288 packages each is, and was when
they were seized as aforesaid, fifty-four dollars ($54.00). The
packages were owned by Emanuel Felsenheld, who at the proper time
intervened and claimed the property.
The following are the questions certified by the court of
appeals:
Page 186 U. S. 130
"First. Whether the third clause of the tenth section of the act
of Congress of July 24, 1897, if the prohibition of that statute be
applied to the coupons described in the foregoing statement of
facts, was in accordance with or in conflict with the Constitution
of the United States."
"Second. Whether, if the said section be properly construed, the
coupons described in the foregoing statement of facts are within
its prohibition."
"Third. Upon the facts stated, was the seizure set forth in the
information of the packages of Merry World tobacco therein
described, or was the judgment of forfeiture rendered in this case
justified under section 3453 of the Revised Statutes?"
"Fourth. Upon the facts stated, was the seizure set forth in the
information of the packages of Merry World tobacco therein
described, or was the judgment of forfeiture rendered in this case,
justified under section 3456 of the Revised Statutes?"
MR. JUSTICE BREWER delivered the opinion of the Court.
The first two questions may be considered together. There can be
no doubt that the coupon comes within the letter of the statute.
That prohibits packing in, attaching to, or connecting with, the
package "any article or thing whatsoever" other than certain
specified labels and stamps. If Congress intended excluding from
the package absolutely everything not named, it used the words to
express that intent, and could not have used any more strongly
indicative of it. "Any article or thing whatsoever" is a
descriptive clause as broad and comprehensive as could be selected,
and since that clause is used, followed by an express exception,
the coupon must come within the exception, or else it falls within
the comprehensive clause. The debatable question arises upon the
fact stated in the agreement
Page 186 U. S. 131
that the coupon is printed on thin paper of inappreciable
weight, without intrinsic value, and does not affect in any way the
ascertaining of the proper tax payable upon the package, or
interfere in any way with the collection of such tax. There seems
to have been a discussion in the internal revenue department
whether Congress could rightfully prevent the insertion in the
package of an article whose presence in no way affected the
collection of the internal revenue tax, and therefore, on the
theory that Congress could not have intended an unconstitutional
provision, whether the act should be construed as including such an
article.
In the internal revenue legislation, Congress has not simply
prescribed that certain articles shall pay a tax, but has provided
a series of rules and regulations for the manufacture and sale of
such articles, including therein directions as to the size and form
of packages, and such other matters as, in its best judgment, were
necessary or advisable for the purposes of effectually securing the
payment of the tax imposed. Now the contention is that the courts
may supervise this system of rules and regulations, and if they
find a provision which, in their judgment, in no way secures or
facilitates the proper collection of the tax, they may strike it
down as something beyond the power of Congress. It is said that the
only matter in which the national government is concerned is the
tax; that it is in no manner responsible for what goes into the
commercial world covered by its stamp; that it has no police power,
no duty of caring for the health or safety of citizens or others
who buy articles upon which its stamp is placed; that it does not
guarantee either quantity or quality, and, in short, that its power
is limited to such provisions as are essential or helpful in the
collection of the tax.
It may be conceded that the government's stamp is not a guaranty
of quantity or quality, and that no responsibility attaches to it,
although the manufacturer puts into the packages less than the
specified quantity of goods, or goods of inferior quality. But does
it follow that the government has no power to prescribe that the
packages which it stamps, upon which it collects a tax, shall
contain the very articles, and only the articles,
Page 186 U. S. 132
which it purports to tax, and which its stamp certifies that it
has taxed? Take the matter of tobacco -- can it be that a
manufacturer may fill packages purporting to be of tobacco with
half tobacco and half sawdust, and the government can pass no valid
statute to prevent it? If the manufacturer is willing to pay a full
tobacco tax on this package, half tobacco and half sawdust, must
the government take the money, affix its stamp, and thus in effect
certify that the contents are that which it has imposed a tax upon?
Manufactured goods are not necessarily sold in this country, but
may be shipped to other countries and sold there, and can it be
that the stamp of this government is absolutely worthless as an
assurance that that which is within the package is the article
which the government purports to have taxed? It is one thing to say
that the government's stamp is not a guaranty of either quantity or
quality, and that no liability attaches to it if the manufacturer
imposes upon his customers by inserting something which is not that
which is stamped, but it is a very different thing to hold that the
government is absolutely powerless to legislate so as to protect
the customer and prevent the manufacturer from putting within the
package anything but the article which it proposes to tax. Whatever
courts may rule as to the constitutional limits of the power of
Congress the great majority of people here an elsewhere will
believe in, and rely upon the truthfulness of a certificate made by
the government, and will be shocked to be told that it means
nothing to them, but only money to the government.
It seems to us that, in the rules and regulations for the
manufacture and handling of goods which are subjected to an
internal revenue tax, Congress may prescribe any rule or regulation
which is not, in itself, unreasonable; that it is a perfectly
reasonable requirement that every package of such goods should
contain nothing but the article which is taxed; that, in order to
make such a regulation constitutional, it is not necessary that
there be, either expressly or by implication, an exception of those
articles or things which, by virtue of their minute size or weight,
do not apparently affect the collection of the tax. Congress may
rightfully make the prohibition absolute, and the
Page 186 U. S. 133
courts may not draw a line between the foreign substance, which
is trifling in size or weight, and that which is of appreciable
size and weight, and hold in reference to a particular package the
act valid if the size or weight is appreciable, and invalid if it
is not.
Among the regulations prescribed by Congress in its internal
revenue legislation are many which are purely arbitrary, or at
least the necessity of which for the collection of taxes is not
apparent. For instance, Congress has directed (Rev.Stat. 3392) that
cigars shall be put up in boxes containing twenty-five, fifty, one
hundred, two hundred and fifty, and five hundred each. There is no
special efficacy in either of these numbers. Boxes containing
fifteen, thirty, or sixty cigars would apparently afford just the
same facilities for taxation, and yet can there be a doubt that
Congress may make such a rule and compel each manufacturer to abide
thereby? It has a right to select, and when it has made a
selection, although there may be no special reasons for the
specific numbers, and they are in fact arbitrarily selected, it
may, for purposes of uniformity, compel compliance with the rule.
So, if it should prescribe that at least nine-tenths of every
package, purporting to be a package of a particular kind of tobacco
and subject to a special tax, should be that particular kind of
tobacco, would the manufacturer be permitted to make one-third of
the contents of some other kind of tobacco or any other substance?
The proportion might be arbitrarily selected, it is true, but is it
not clearly within the power of Congress, in its regulations, to
make such arbitrary selection? And if it may say that not less than
nine-tenths of the contents shall be that particular tobacco, the
subject of the tax, is it any the less within the power of Congress
to prescribe that there shall be nothing in the package save that
tobacco?
Indeed, the admission that the government may require that the
contents of a package shall be partly of the goods which it taxes
is a concession that it may also require the entire contents to be
such goods.
There is in this statute no trespass upon the manufacturer's
right to fully advertise his goods or to offer with the utmost
freedom inducements for their purchase. He can put into the
Page 186 U. S. 134
box in which he ships his packages all the advertising material
he sees fit. That which is required is that each separate package
shall be, in its entirety, a package of tobacco and only tobacco.
Beyond that, the manner in which he shall sell, or the
advertisement he shall make of his tobacco after the tax has been
paid and the packages have been stamped, is a matter for him to
determine.
We are of opinion that it is within the power of Congress to
prescribe that a package of any article which it subjects to tax,
and upon which it requires the affixing of a stamp, shall contain
only the article which is subject to the tax.
Questions three and four do not come within the rules respecting
the certification of questions by the court of appeals. Those rules
were thus stated by the present CHIEF JUSTICE in
United States
v. Union Pacific Railway Company, 168 U.
S. 505,
168 U. S.
512:
"It is settled that the certification provided for in sections
five and six of the Judiciary Act of March 3, 1891, c. 517, 26
Stat. 826, is governed by the rules laid down in respect of
certificates of division under the Revised Statutes.
Columbus
Watch Company v. Robbins, 148 U. S. 266;
Maynard v.
Hecht, 151 U. S. 324;
Graver v.
Faurot, 162 U. S. 435;
Cross v.
Evans, 167 U. S. 60."
"By those rules, as repeated in these cases from prior
decisions,"
"each question had to be a distinct point or proposition of law,
clearly stated, so that it could be distinctly answered without
regard to the other issues of law in the case; to be a question of
law only, and not a question of fact, or of mixed law and fact, and
hence could not involve or imply a conclusion or judgment upon the
weight or effect of testimony or facts adduced in the case, and
could not embrace the whole case, even where its decision turned
upon matter of law only, and even though it was split up in the
form of questions."
"
Fire Insurance Association v. Wickham, 128 U. S.
426;
Dublin Township v. Milford Savings
Institution, 128 U. S. 510."
Neither of these questions presents a distinct point or
proposition of law. Each invites us to search the entire record,
and in effect determine whether the judgment of the district
court
Page 186 U. S. 135
should be affirmed or reversed. But, as settled in the cases
referred to in the last quotation, the court of appeals cannot thus
send up a whole case for consideration and disposition.
We therefore answer the second question by saying that the
coupons described are within the prohibition of the statute -- the
first, that the statute so construed is not in conflict with the
Constitution of the United States. The third and fourth we decline
to answer.
MR. JUSTICE GRAY and MR. JUSTICE WHITE did not hear the
argument, and took no part in the decision of this case.
MR. JUSTICE PECKHAM dissented.
