United States v. Dewitt
76 U.S. 41 (1869)

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U.S. Supreme Court

United States v. Dewitt, 76 U.S. 9 Wall. 41 41 (1869)

United States v. Dewitt

76 U.S. (9 Wall.) 41

Syllabus

1. The 29th section of the Internal Revenue Act of March 2, 1867, 14 Stat. at Large 484, which makes it a misdemeanor, punishable by fine and imprisonment, to mix for sale naphtha and illuminating oils or to sell or offer such mixture for sale, or to sell or offer for sale oil made of petroleum for illuminating purposes, inflammable at less temperature or fire test than 110 degrees Fahrenheit, is in fact a police regulation, relating exclusively to the internal trade of the states.

2. Accordingly, it can only have effect where the legislative authority of Congress excludes, territorially, all state legislation, as for example, in the District of Columbia. Within state limits, it can have no constitutional operation.

Page 76 U. S. 42

Section 29 of the act of March 2, 1867, [Footnote 1] declares,

"That no person shall mix for sale naphtha and illuminating oils, or shall knowingly sell or keep for sale, or offer for sale such mixture, or shall sell or offer for sale oil made from petroleum for illuminating purposes, inflammable at less temperature or fire test than 110 degrees Fahrenheit, and any person so doing shall be held to be guilty of a misdemeanor, and on conviction thereof by indictment or presentment in any court of the United States having competent jurisdiction, shall be punished by fine &c., and imprisonment,"

&c.

Under this section, one Dewitt was indicted, the offense charged being the offering for sale, at Detroit, in Michigan, oil made of petroleum of the description specified. There was no allegation that the sale was in violation or evasion of any tax imposed on the property sold. It was alleged only that the sale was made contrary to law.

To this indictment there was a demurrer, and thereupon arose two questions on which the judges were opposed in opinion.

(1) Whether the facts charged in the indictment constituted any offense under any valid and constitutional law of the United States?

(2) Whether the aforesaid section 29 of the act of March 2d, 1867, was a valid and constitutional law of the United States?

Page 76 U. S. 43

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