1. In § 2 of the Anti-Narcotic Act, as amended, which provides
that it shall be unlawful for "any person" to sell, etc., any of
the drugs specified in the first section except in pursuance of a
written order of the person to whom the article is sold, etc., on a
form issued by the Commissioner of Internal Revenue, the words "any
person" include all persons, and not merely those who by § 1 are
required to register and pay the tax. P.
276 U. S.
340.
2. So construed, the provision is constitutional. P.
276 U. S.
351.
3. The Act, as amended February 24, 1919, is a genuine taxing
act. P.
276 U. S.
352.
4. The provision in question, being reasonably adapted to
enforcement of the tax, is not an undue invasion of the police
power of the states, and an incidental motive to discourage harmful
uses of the drugs taxed would not make it so. P.
276 U. S.
353.
Response to questions certified by the circuit court of appeals
relative to the conviction of Nigro for selling morphine without a
written order from the purchaser on an official form.
Page 276 U. S. 337
MR. CHIEF JUSTICE TAFT delivered the opinion of the Court.
This case comes here by certificate of the Circuit Court of
Appeals of the Eighth Circuit, and is intended to submit to us, for
answer, certain questions concerning the validity and proper
construction of the Anti-Narcotic Act of December 17, 1914, c. 1,
38 Stat. 785, as amended in the Revenue Act of 1918, February 24,
1919, § 1006, c. 18, 40 Stat. 1057, 1130.
The circuit court of appeals bases its questions on issues
arising in its consideration on error of a judgment of conviction
on the second count of an indictment drawn under § 2 of the Act.
The count charged that one Frank Nigro and one Roy Williams
unlawfully sold to one A. L. Raithel one ounce of morphine, not
being sold in pursuance of a written order of A. L. Raithel on a
form
Page 276 U. S. 338
issued in blank for that purpose by the Commissioner of Internal
Revenue. Roy Williams was not apprehended. Frank Nigro was tried
and convicted, and sentence was imposed of five years' imprisonment
at the Leavenworth penitentiary. The circuit court of appeals
expressed the opinion that the case could not be disposed of
without determining the construction and possibly the
constitutionality of the first provision of § 2 of the Act, reading
as follows:
"That it shall be unlawful for any person to sell, barter,
exchange, or give away any of the aforesaid drugs except in
pursuance of a written order of the person to whom such article is
sold, bartered, exchanged, or given, on a form to be issued in
blank for that purpose by the Commissioner of Internal
Revenue."
A summing up of the evidence, tending to show the sale of an
ounce of morphine by the defendants as charged in the second count,
is contained in the certificate by the Court.
The questions submitted for our consideration are as
follows:
"
QUESTION I"
"Is the provision which is contained in the first sentence of §
2 of the Act limited in its application to those persons who by § 1
are required to register and pay the tax?"
"
QUESTION II"
"If a broader construction is given to said provision, is the
provision as so construed, constitutional?"
If question I is answered in the affirmative, then we ask:
"
QUESTION III"
"Is it necessary for the government in prosecuting under said
provision, to allege and prove that defendant was a person required
by § 1 to register and pay the tax? "
Page 276 U. S. 339
If question III is answered in the affirmative, then we ask:
"
QUESTION IV"
"Is the allegation that defendant made the sale not in pursuance
of a written order of the buyer on a form issued in blank for that
purpose by the Commissioner of Internal Revenue of the United
States sufficient to charge that defendant was a person required to
be registered and to pay the tax under § 1?"
The second question was invoked by what we said in
United
States v. Daugherty, 269 U. S. 360,
269 U. S. 362,
as follows:
"The constitutionality of the Anti-Narcotic Act, touching which
this Court so sharply divided in
United States v. Doremus,
249 U. S.
86, was not raised below, and has not been again
considered. The doctrine approved in
Hammer v. Dagenhart,
247 U. S.
251;
Child Labor Tax Case, 259 U. S.
20;
Hill v. Wallace, 259 U. S.
44,
259 U. S. 67, and
Linder
v. United States, 268 U. S. 5, may necessitate a
review of that question, if hereafter properly presented."
In
Alston v. United States, 274 U.
S. 289,
274 U. S. 294,
the question of the constitutionality of the Act was sought to be
presented, but the case only involved the validity of § 1 as
amended in the Revenue Act of 1918. We held that section valid
because it imposed a stamp tax on certain narcotic drugs, making it
unlawful to purchase or sell them except in or from original
stamped packages, which was plainly within the taxing power of
Congress and had no necessary connection with any other requirement
of the Act which might subject it to reasonable question. We said
that § 1 did not absolutely prohibit buying or selling; that it
produced a substantial revenue and contained nothing to indicate
that, by colorable use of taxation, Congress was attempting to
invade the reserved powers of the states.
Page 276 U. S. 340
The present case relates to the validity of the second section
of the law; but, before considering this, we must answer the first
question and construe the meaning of the first sentence of § 2
quoted above. The controversy is whether the words "any person" in
that sentence include all persons, or apply only to persons who are
required to register and pay the tax under the first section of the
Act.
We have put in the margin
* a synopsis of
the original § 1 of the Act of 1914, and of the same section as
amended
Page 276 U. S. 341
in the Revenue Act of 1918, and of some other sections now in
force, including § 2.
In interpreting the Act, we must assume that it is a taxing
measure, for otherwise it would be no law at all. If it is a mere
act for the purpose of regulating and restraining the purchase of
the opiate and other drugs, it is beyond the power of Congress, and
must be regarded as invalid, just as the Child Labor Act of
Congress was held to be, in
Bailey, Collector v. Drexel
Furniture Co., 259 U. S. 20.
Everything in the construction of § 2 must
Page 276 U. S. 342
be regarded as directed toward the collection of the taxes
imposed in § 1 and the prevention of evasion by persons subject to
the tax. If the words cannot be read as reasonably serving such a
purpose, § 2 cannot be supported.
Page 276 U. S. 343
The importation, preparation, and sale of the opiate or other
like drugs and their transportation and concealment in small
packages are exceedingly easy, and make the levy and collection of
a tax thereon correspondingly
Page 276 U. S. 344
difficult. More that this, use of the drug for other than
medicinal purposes leads to addiction, and causes the addicts to
resort to so much cunning, deceit and concealment in the
procurement and custody of the drug and to be willing to pay such
high prices for it that, to be efficient, a law for taxing it needs
to make thorough provision for preventing and discovering evasion
of the tax as by requiring that sales, purchases and other
transactions in the drug be so conducted and evidenced that any
dealing in it where the tax has not been paid may be detected and
punished and that opportunity for successful evasion may be
lessened as far as may be possible.
The literal meaning of "any person," in the first line of the
first sentence of § 2, includes all persons within the
jurisdiction. The word "persons" is given expressly the meaning of
a partnership, association or corporation, as well as that of a
natural person. Why should it not be given its ordinary
comprehensive significance? The argument to the contrary in favor
of limiting it to exclude all but those who are required to
register and pay the tax is that it would be superfluous to include
persons selling opium who are not registered, because they are
denounced as criminals by the first section for selling without
registration. That is no reason why they may not be included under
a second reasonable restriction enforceable by punishment. Of
course, such a restriction should be fairly adapted to obstruct the
successful accomplishment of the main crime or furnish means of
detecting the guilty person,
Page 276 U. S. 345
and not be a fruitless, useless inhibition only resulting in
what is in effect a duplication of punishment for substantially the
same crime, as in the case of
United States v. Katz,
271 U. S. 354,
271 U. S.
362.
It would seem to be admissible and wise in a law seeking to
impose taxes for the sale of an elusive subject to require
conformity to a prescribed method of sale and delivery calculated
to disclose or make more difficult any escape from the tax. If this
may be done, any departure from the steps enjoined may be punished,
and added penalties may be fixed for successive omissions, but all
for the one ultimate purpose of making it difficult to sell opium
or other narcotics without registering or paying the tax.
The reasonableness of such requirements is well illustrated in
the many limitations which were imposed upon the ancient freedom in
the making and sale of distilled spirits to the end that the
collection of the heavy tax on the subject matter might be
successfully secured in spite of the temptation to avoid the tax.
The provision of § 2 making it an offense to sell unless the
purchaser gives a particular official form of order to the seller
was enacted with a like object. The sale without such an order thus
carries its illegality on its face. Its absence dispenses with the
necessity of sending to examine the list of those registered to
learn whether the seller is engaged in a legal sale. The
requirement that the official forms can only be bought and obtained
by one entitled to buy, whose name shall be stamped on the order
form, and that, after the sale the order form shall be recorded,
effects a kind of registration of lawful purchasers, in addition to
one of lawful sellers, and keeps selling and buying on a plane
where evasion of the tax will be difficult.
There are persons who may lawfully have access to or even
custody of the drugs without registration. Thus, included among
such persons are the employees of those
Page 276 U. S. 346
who have registered and paid the tax. If they were to attempt to
sell such drugs the necessity for an order form from the would-be
purchaser would embarrass the illegal sale, for the participants
would hesitate to make a record of the transaction. Thus, the
operation of § 2 in preventing an individual not a registered
dealer or physician from acquiring the drug other than by an order
form or a prescription is directly related to tax enforcement,
because such drugs are not necessarily consumed by the purchaser
but may be peddled or sold illegally. These order form provisions
constitute a needed check on illegal sales, and they are distinctly
helpful in the detection of an attempted dealing in, or selling of,
the drug free from the tax.
Section 2 of the Act is the same as it was when originally
passed in 1914. The construction put upon it before the amendment
of § 1, by the Revenue Act of 1918, must be the same now as before.
Under § 1 in the original Act, the only provision to keep track of
purchasers was the order form provision of § 2, as it is now.
Without it, unless it applied to those not required to register or
pay the tax, there was no restriction upon such persons whether
illegal sellers or illegal purchasers in the disposition and spread
of the drug, except the simple punishment for unregistered sellers
in the first section, and there was entire immunity from order
requirements of the purchasers from illegal sales. We cannot
suppose that, considering the general language of § 2, any such
result was intended by Congress.
By the amendment of § 1, much higher occupation taxes were
imposed, and they vary in amount for producers and manufacturers
and for wholesale and retail dealers and for physicians. More than
that, an excise tax of one cent per ounce of the drug is imposed,
and payment thereof is to be evidenced by stamps attached to the
bottle or box
Page 276 U. S. 347
containing the drug, and the sale of the drug from anything but
a stamped bottle or container is punishable. The provision for
order forms is thus useful under the amended section, and there is
therefore still reason for holding the provisions of § 2 to apply
to all persons so as to be helpful in promoting detection of
evasion from the added tax imposed under the new § 1. The two tax
provisions of that section would be much less effective if a
purchaser of drugs from an unregistered dealer is not required to
furnish an order form. The purchaser may be himself one who should
register, but has not done so, or he may be dealing in and selling
the drug on which the stamp tax has not been paid, and it is just
as important that sales by an unregistered dealer should be
punished unless made on a prescribed form as that sales by
registered dealers should be subject to penalty.
There is nothing in the language of the section itself that
would reduce the significance of the words "any person" from the
meaning of "all persons" to that of those persons only who are
required to register and pay the tax as there was in
United
States v. Jin Fuey Moy, 241 U. S. 394,
upon which the appellant relies much. In that case, the defendant
was indicted for conspiring to get morphine into the possession of
an unregistered person for use by him as an addict and not for
medical purposes. The question was whether the possession conspired
for was within § 8 of the Act, declaring it unlawful for any person
who was not registered and had not paid the special tax to have the
drug in his possession. It was held that § 8 applied only to
persons required to register under § 1 and pay the occupation tax.
The language of § 8 is more restricted than § 2. It reads:
"That it shall be unlawful for any person not registered under
the provision of this Act, and who has not paid the special tax
provided for by this Act, to have in his possession or under
Page 276 U. S. 348
his control any of the aforesaid drugs."
The words "any person" in § 2 are not linked with those who have
not registered and have not paid the tax, but ought to do so, as
are the same words in § 8. The narrow construction of § 8 in the
Jin Fuey Moy case was reached in part certainly because of
the juxtaposition of the words. This is shown by a more recent
decision of this Court in
United States v. Wong Sing,
260 U. S. 18. In
that case, Wong Sing was indicted under the amendment, § 1006 of
the Revenue Act of 1918 for purchasing the drug not from an
original stamped package and not from a person who was a registered
dealer. It was objected that, under the
Jin Fuey Moy case,
a person to be criminally liable under § 1006 must be of a class
who must register and pay taxes, but it was held that that section
was not limited as § 8 was held to be.
In
Fyke v. United States, 254 F. 225, the Circuit Court
of Appeals for the Fifth Circuit decided that the proper
construction of § 2 under the original Act of 1914 made it
applicable to sales by any person whether registered or not.
Speaking of the Act as it was before 1918, the Court said:
"All sellers were members of the class required to register and
pay the tax under § 1, and the revenue derived from sellers as
provided for by that section, could manifestly not be collected
unless Congress had the power to, and did in fact punish the sale
of the prohibited drugs by all persons except when made in
conformity to the Act. The necessity of prohibiting sales by
unregistered persons and of sales by registered persons not
complying with the Act were of equal importance. If only the latter
class were subject to its penalties, all persons, by failing to
register, could sell with impunity without paying the tax or
complying with the other requirements of the Act."
"Section 1 punishes sales by persons who have neither registered
nor paid the tax. Section 2 punishes persons
Page 276 U. S. 349
who sell not in pursuance of a written order of the person to
whom the sale is made. The language of § 2 is general, and does not
restrict the prohibition to registered sellers in terms. Indeed,
the exception, lettered 'd,' applies to a class expressly excepted
from registry and payment of the tax by § 1. This exception would
seem to be superfluous if § 2 applied only to registered persons,
since the excepted class would not then be included in the class
against whom the penalties of the section are directed."
The exception "d" here referred to is that which requires no
order form to be used by officers of the national, state, county,
and municipal governments in purchases for certain governmental
uses, and which would indicate that such officers, who are not
required to register, would, but for this exception, be covered by
§ 2.
The Circuit Court of Appeals of the Ninth Circuit, in
Coleman v. United States, 3 F.2d 243, expressly found that
the first provision of § 2 was not intended to be limited in its
application to the persons required to register under § 1.
United States v. Katz, 271 U.
S. 354, is said to be in conflict with our view of the
question before us. We do not think so. Defendants there were
indicted for a conspiracy to sell intoxicating liquors, without
making a permanent record of the sale, in violation of § 10, Title
II, of the National Prohibition Act. That section provided that no
person should make, sell or transport intoxicating liquor without
making a permanent record of it, showing in detail the amount and
kind of liquor dealt with, the names of persons with whom dealt,
and the time and place of such dealing. The form of the records was
to be prescribed by the Commissioner, and to be open to inspection
by him, his agent, or any peace officer of the state. The
defendants contended that the section applied only to those who
under the Act were authorized to sell liquor under a permit. The
United States contended
Page 276 U. S. 350
that the section, in its general negation, applied to any
violator of the Act. We held with the defendants that such a
construction of § 10 imputed to Congress an improbable incongruity
in wishing to add to the crime of making, selling, or transporting
liquor a second offense, if the person committing it should fail to
make a record of his own wrongdoing. It was pointed out that
Congress had before it the previous revenue acts governing
distillers, rectifiers, and brewers, requiring detailed records of
all transactions which were lawfully subject to governmental
regulation as a condition of granting permits, and that, when
Congress came to the Prohibition Act, it adopted the same system of
permits, and the parliamentary history of the § 10 showed that to
secure records from its permittees was its only purpose in that
section. The
Katz case was really, therefore, decided
because of the incongruity that would result in an interpretation
of § 10 as claimed by the government. Here, there is really no such
incongruity.
Section 2 of the Anti-Narcotic Act introduces into the Act the
feature of the required and stamped order form to accompany each
sale. It is to bear the name of the purchaser, and is addressed to
the seller, with other data. Recorded as the law requires it to be,
it constitutes a registry of purchasers, as distinguished from that
of sellers. Congress intended not only to punish sales without
registration under the first section, but also to punish them
without order forms from the purchaser to the seller, as a means of
making it difficult for the unregistered seller to carry through
his unlawful sales to those who could not get order forms. Thus, an
illegal unregistered seller might wish to clothe his actual
unregistered sales with order forms that would give the transaction
a specious appearance of legality. To punish him for this misuse of
an order form is not to punish him for not
Page 276 U. S. 351
recording his own crime. It is to punish him for an added crime
-- that of deceiving others into the belief that the sale is a
lawful sale. There is no incongruity in increasing the criminal
liability of the nonregistered seller who fails to use an order
form in his sales, or who misuses it. Both the registered and the
nonregistered seller are, under our construction of the section,
punished for not using the order forms as the statute requires, or
for misusing them. The order form is not a mere record of a past
transaction; it is a certificate of legality of the transaction
being carried on, or else it is a means of discovering the
illegality and is useful for the latter purpose. We think the
resemblance of the
Katz case and this case is superficial,
and that they are distinguishable.
We are of opinion, therefore, that the provision which is
contained in the first sentence of § 2 of the Act is not limited in
its application to those persons who by § 1 are required to
register and pay the tax. We answer the first question in the
negative.
This brings us to the second question, which is " . . . is the
provision as so construed constitutional?" It was held to be
constitutional in
United States v. Doremus, 249 U. S.
86,
249 U. S. 94. In
that case, the validity of the Anti-Narcotic Drug Act as it was
enacted December 17, 1914, 38 Stat. 785, was under examination by
this Court. The inquiry was whether § 2, in making sales of the
drugs unlawful except to persons giving orders on forms issued by
the Commissioner of Internal Revenue, to be preserved for official
inspection, and forbidding any person to obtain the drugs by means
of such order forms for any other purpose than use, sale, or
distribution in the conduct of a lawful business, or in the
legitimate practice of his profession, bore a reasonable relation
to the enforcement of the provided by § 1, and did not exceed the
power of Congress. It was held that § 2 aimed to confine sales
Page 276 U. S. 352
to registered dealers, and to those dispensing the drugs as
physicians, and to those who come to dealers with legitimate
prescriptions of physicians; that Congress, with full power over
the subject, inserted these provisions in an Act specifically
providing for the raising of revenue. Considered of themselves, the
Court thought that they tended to keep the traffic above-board and
subject to inspection by those authorized to collect the revenue;
that they tended to diminish the opportunity of unauthorized
persons to obtain the drugs and sell them clandestinely without
paying the tax imposed by the federal law. This Court said in the
Doremus case:
"This case well illustrates the possibility which may have
induced Congress to insert the provisions limiting sales to
registered dealers and requiring patients to obtain these drugs as
a medicine from physicians or upon regular prescriptions. Ameris,
being, as the indictment charges, an addict, may not have used this
great number of doses for himself. He might sell some to others
without paying the tax; at least Congress may have deemed it wise
to prevent such possible dealings because of their effect upon the
collection of the revenue."
Referring to the same § 2, in
United States v. Balint,
258 U. S. 250,
258 U. S. 253,
this Court said:
"It is very evident from a reading of it that the emphasis of
the section is in securing a close supervision of the business of
dealing in these dangerous drugs by the taxing officers of the
government and that it merely uses a criminal penalty to secure
recorded evidence of the disposition of such drugs as a means of
taxing and restraining the traffic."
Four members of the Court dissented in the
Doremus
case, because of opinion that the court below had correctly held
the Act of Congress, insofar as it embraced the matters complained
of, to be beyond its constitutional
Page 276 U. S. 353
power and that the statute, in § 2, was a mere pretext as a tax
measure, and was in fact an attempt by Congress to exercise the
police power reserved to the states and to regulate and restrict
the sale and distribution of dangerous and noxious narcotic drugs.
Since that time, this Court has held that Congress, by merely
calling an Act a taxing act, cannot make it a legitimate exercise
of taxing power under § 8 of Article I of the federal Constitution
if in fact the words of the Act show clearly its real purpose is
otherwise.
Child Labor Tax Case, 259 U. S.
20,
259 U. S. 38. By
the Revenue Act of 1918, the Anti-Narcotic Act was amended so as to
increase the taxes under § 1, making an occupation tax for a
producer of narcotic drugs $24 a year, for a wholesale dealer $12,
for a retail dealer, $6, and for a physician administering the
narcotic, $3. The amendment also imposes an excise tax of one cent
an ounce on the sale of the drug. Thus, the income from the tax for
the government becomes substantial. Under the Narcotic Act as now
amended, the tax amounts to about $1,000,000 a year, and since the
amendment in 1919 it has benefited the Treasury to the extent of
nearly $9,000,000. If there was doubt as to the character of this
Act as an alleged subterfuge, it has been removed by the change
whereby what was a nominal tax before was made a substantial one.
It is certainly a taxing act now, as we held in the
Alston
case.
It may be true that the provisions of the Act forbidding all but
registered dealers to obtain the order forms has the incidental
effect of making it more difficult for the drug to reach those who
have a normal and legitimate use for it by requirement of purchase
through order forms or by physician's prescription. But this
effect, due to the machinery of the Act, should not render the
order form provisions void as an infringement on state
Page 276 U. S. 354
police power where these provisions are genuinely calculated to
sustain the revenue features. Section 2 was once sustained by this
Court, some nine years ago, with more formidable reason against it
than now exists under the amended statute. Its provisions have been
enforced for those years. Whatever doubts may have existed
respecting the order form provisions of the Act have been removed
by the amendment made in 1919.
We said in the
Child Labor Tax Case, 259 U. S.
20,
259 U. S.
38:
"Taxes are occasionally imposed in the discretion of the
legislature on proper subjects with the primary motive of obtaining
revenue from them and with the incidental motive of discouraging
them by making their continuance onerous. They do not lose their
character as taxes because of the incidental motive."
In this case, the qualification of the right of a resident of a
state to buy and consume opium or other narcotic without restraint
by the federal government is subject to the power of Congress to
lay a tax by way of excise on its sale. Congress does not exceed
its power if the object is laying a tax and the interference with
lawful purchasers and users of the drug is reasonably adapted to
securing the payment of the tax. Nor does it render such
qualification or interference with the original state right an
invasion of it because it may incidentally discourage some in the
harmful use of the thing taxed.
License
Tax Cases, 5 Wall. 462;
Nicol v. Ames,
173 U. S. 509,
173 U. S. 524;
Knowlton v. Moore, 178 U. S. 41,
178 U. S. 60-61;
In re Kollock, 165 U. S. 526,
165 U. S.
536.
This leads to an answer to the second question in the
affirmative, and makes it unnecessary for us to answer the
remaining third and fourth questions.
* The original first section required every person who produced,
sold, or gave away opium or coca leaves, or any preparation
thereof, to register with the proper internal revenue collector his
name and place of business and to pay a special tax of a dollar a
year, provided that no employee of such person need either register
or pay, nor were officers, of the general government or of state or
county or municipal governments lawfully engaged in purchasing the
drugs for hospitals or prisons required to do so.
It was also provided that:
"It shall be unlawful for any person required to register under
the terms of this act to produce, import, manufacture, compound,
deal in, dispense, sell, distribute, or give away any of the
aforesaid drugs without having registered and paid the special tax
provided for in this section."
The section provided that the word "person" used in the Act
should be construed to mean and include a partnership, association
or corporation, as well as a natural person.
By the Revenue Act of 1918, this first part of section one is
made to read as follows:
"That on or before July 1 of each year, every person who
imports, manufactures, produces, compounds, sells, deals in,
dispenses, or gives away opium or coca leaves, or any compound,
manufacture, salt, derivative, or preparation thereof, shall
register with the collector of internal revenue of the district his
name or style, place of business and place or places where such
business is to be carried on, and pay the special taxes hereinafter
provided."
A special tax is then imposed on importers, manufacturers,
producers or compounders of the drugs of $24 per annum, on
wholesale dealers, $12, on retail dealers, $6, and on physicians
entitled to administer the drugs in their professional practice,
$3. Employees of all lawfully registered persons are exempted from
tax. It is then provided that:
"It shall be unlawful for any person required to register under
the provisions of this Act to import, manufacture, produce,
compound, sell, deal in, dispense, distribute, administer, or give
away any of the aforesaid drugs without having registered and paid
the special tax as imposed by this section."
Then an excise revenue tax of one cent per ounce on the drug is
imposed through stamps to be affixed to the bottle or other
container. It is made unlawful to sell or dispense the drugs except
in or from the original stamped package and possession of the drug
by any person is made
prima facie evidence of violation of
the section. Possession of an original stamped package containing
the drug is made
prima facie evidence of liability to pay
the tax. These presumptions are not to apply to a person obtaining
the drug from a registered dealer in pursuance of a prescription
written for legitimate medical uses issued by a physician or other
registered practitioner and where the bottle or other container in
which the drug is put up by the dealer bears the druggist's name,
his serial and registry number, the number, name and address of the
patient, as well as those of the writer of the prescription . The
presumptions are not to apply to the dispensing of the drug to a
patient by a registered physician or practitioner in the course of
his professional practice for legitimate medical purposes where a
record is kept. All the provisions of existing law relating to the
engraving, sale, and cancellation of tax-paid stamps provided for
in the internal revenue laws are made to apply to the stamps issued
under the section. Unstamped packages found in possession of any
person except as provided in the section are subject to seizure.
Importers, manufacturers, and wholesale dealers are to keep books
and records and render monthly returns in relation to dealing with
such drugs as are required by regulation made by the Commissioner
and approved by the Secretary of the Treasury.
Section 2 of the Act of 1914 was not changed by the Revenue Act
of 1918. This section provides:
"That it shall be unlawful for any person to sell, barter,
exchange, or give away any of the aforesaid drugs except in
pursuance of a written order of the person to whom such article is
sold, bartered, exchanged, or given, on a form to be issued in
blank for that purpose by the Commissioner of Internal Revenue.
Every person who shall accept any such order, and in pursuance
thereof shall sell, barter, exchange, or give away any of the
aforesaid drugs, shall preserve such order for a period of two
years in such a way as to be readily accessible to inspection by
any officer, agent, or employee of the Treasury Department duly
authorized for that purpose, and the state, territorial, district,
municipal, and insular officials named in section five of this Act.
Every person who shall give an order as herein provided to any
other person for any of the aforesaid drugs shall at or before the
time of giving such order, make, or cause to be made a duplicate
thereof on a form to be issued in blank for that purpose by the
Commissioner of Internal Revenue, and in case of the acceptance of
such order, shall preserve such duplicate for said period of two
years in such a way as to be readily accessible to inspection by
the officers, agents, employees, and officials hereinbefore
mentioned."
But § 2 is not to apply
"(1) To dispensing by a registered physician in the course of
his professional practice only if he keep a record of all his
dispensing except what he dispenses in personal attendance upon a
patient."
"(2) Or to dispensing of the drug to a consumer by a registered
dealer on written prescription of a registered physician if dated
on the day it is signed, the dealer to keep record of such
prescriptions for inspection."
"(3) Or to sale, exportation, shipment or delivery of the drug
by any person within the country for exportation under
regulations."
"(4) Or to sale or giving away any of the drug to any officer of
the national government or state, county or municipality lawfully
engaged in making purchases for hospitals or prisons."
The Commissioner of Internal Revenue, with the approval of the
Secretary of the Treasury, is to cause suitable forms to be
prepared for the purposes mentioned to be distributed to the
collectors of internal revenue for sale by them to persons who have
registered and paid the special tax, and no collector is to sell
any forms except to such persons. The price of these forms is to be
fixed by the Commissioner of Internal Revenue as approved by the
Secretary of the Treasury, but is not to exceed $1 per hundred.
When a collector shall sell forms he is to cause the name of the
purchaser to be plainly written or stamped on them before sale and
delivery, and no person other than such purchaser shall use the
forms so stamped to procure delivery on shipment of any such drug.
It is made unlawful to obtain by means of such forms any such drug
for use, sale or distribution of it except in the conduct of a
lawful business in the drug or in the legitimate practice of a
medical profession.
The third section provides for returns and records to be made by
registered persons.
"The fourth section makes it unlawful for any nonregistered
person who has not paid the tax to send, ship, or deliver to any
person in another state, except common carriers and employees of
registered persons."
Section 5 provides for official inspection of orders,
prescriptions, etc., and forbids a disclosure of information except
for the enforcement of the Act.
Section 6 of the original Act was amended by the Revenue Act of
1918, and relates to minimum limitations upon strength of opium and
other drugs to come within statute, but dealers in preparations
that are less than minimum are to keep a record of the sale of such
for inspection.
By § 7, internal revenue laws as to assessment, collection,
remission and refund of internal revenue taxes are made applicable
to taxes under the Act so far as not inconsistent.
By § 8, it is made unlawful "for any person not registered"
under the Act, and who has not paid the special tax, to have in his
possession or under his control such drugs, and his thus having
them shall be presumptive evidence of a violation of this section,
with the usual exemptions of employees of registered persons and of
government officers having such possession for their official
duties. The section directs that the exemptions need not be
negatived in an information or indictment and that the burden of
proof is to be upon person claiming exemption.
Section 9 subjects any one violating or failing to comply with
the requirements of the Act to a fine of not more than $2,000 or
imprisonment not more than five years or both.
Section 10 authorizes appointment of agents and others necessary
to enforce provisions of the Act; and
Section 11 makes appropriation for carrying out the Act.
The separate opinion of MR. JUSTICE McREYNOLDS.
Nigro, not alleged to be registered as a dealer, was charged
with violating § 2 of the Harrison Anti-Narcotic
Page 276 U. S. 355
Act by selling opium (whether in or from an original stamped
package does not appear) to Raithel, not a dealer, without an order
upon a form issued by the Commissioner of Internal Revenue.
It is maintained, first, that § 2 applies to all sales,
including, of course, those made by one who is not registered to a
purchaser who cannot possibly secure an order form, and secondly
that, so construed, it is constitutional. Both propositions, I
think, are wrong.
Section 1 of the Act imposes a definite tax (uniform for each
class) upon "every person" who imports, manufactures, produces,
compounds, sells, deals in, dispenses, or gives away opium; also a
stamp tax of one cent per ounce upon the drug. All who are subject
to the tax are required to register, and the section further
provides:
"It shall be unlawful for any person required to register under
the provisions of this act to import, manufacture, produce,
compound, sell, deal in, dispense, distribute, administer, or give
away any of the aforesaid drugs without having registered and paid
the special tax as imposed by this §."
Section 2 declares:
"That it shall be unlawful for any person to sell, barter,
exchange, or give away any of the aforesaid drugs [opium, &c.]
except in pursuance of a written order of the person to whom such
article is sold, bartered, exchanged, or given, on a form to be
issued in blank for that purpose by the Commissioner of Internal
Revenue. . . ."
"The Commissioner of Internal Revenue, with the approval of the
Secretary of the Treasury, shall cause suitable forms to be
prepared for the purposes above mentioned, and shall cause the same
to be distributed to collectors of internal revenue for sale by
them to those persons who shall have registered and paid the
special tax as required by § one of this Act in their districts,
respectively. . . . "
Page 276 U. S. 356
Obviously, no one who has not registered and paid the special
tax laid by § 1 can obtain "suitable forms."
Fair application of the principles of construction approved in
United States v.
Palmer, 3 Wheat. 610;
United States v Jin Fuey
Moy, 241 U. S. 394, and
United States v. Katz, 271 U. S. 354,
should at least limit the words "any person" in the first line of §
2 to those required to register by § 1, which renders unlawful
every sale by an unregistered person, whether the purchaser
possesses an order blank or no. And it seems unreasonable to
conclude that the purpose of the next section was awkwardly to
state something already plainly declared.
The sale by Nigro was to one who could not obtain an order
blank. Only a small group -- importers, manufacturers, dealers,
etc. -- can obtain these blanks. As construed by the United States,
the statute prohibits all sales except to those who are registered
or hold physicians' prescriptions -- no others can buy lawfully.
Admittedly, the statute is valid only as a revenue measure. Any
provision therein not appropriate to that end is beyond the power
of Congress.
I can discover no adequate ground for thinking Congress could
have supposed that collection of the prescribed tax would be
materially aided by requiring those who engage in selling
surreptitiously to consumers to do an impossible thing -- receive
an order upon a blank which the purchaser could not obtain. The
plain intent is to control the traffic within the states by
preventing sales except to registered persons and holders of
prescriptions, and this amounts to an attempted regulation of
something reserved to the states. The questioned inhibition of
sales has no just relation to the collection of the tax laid on
dealers. The suggestion to the contrary is fanciful. Although
disguised, the real and primary purpose is not difficult to
discover, and it is strict limitation and regulation of the
traffic.
Page 276 U. S. 357
Whether, or how far, opium, tobacco, diamonds, silk, etc., may
be sold within their borders is primarily for the states to decide;
the federal government may not undertake direct regulation of such
matters.
This Court said in
United States v. Wong Sing,
260 U. S. 18,
260 U. S.
21:
"There could be no object in requiring a purchaser of the drugs
to register but it fulfilled the purpose of the law to forbid a
purchase 'except in the original stamped package or from the
original stamped package.'"
The habit of smoking tobacco is often deleterious. Many think it
ought to be suppressed. The craving for diamonds leads to
extravagance, and frequently to crime. Silks are luxuries, and
their use abridges the demand for cotton and wool. Those who sell
tobacco, or diamonds, or silks may be taxed by the United States.
But surely a provision in an act laying such a tax which limited
sales of cigars, cigarettes, jewels, or silks to some small class
alone authorized to secure official blanks would not be proper or
necessary in order to enforce collection. The acceptance of such a
doctrine would bring many purely local matters within the potential
control of the federal government. The admitted evils incident to
the use of opium cannot justify disregard of the powers "reserved
to the states respectively, or to the people."
MR. JUSTICE SUTHERLAND concurs in these views.
MR. JUSTICE BUTLER, dissenting.
Section 1 was originally enacted December 17, 1914, c. 1, 38
Stat. 785. It was amended by the Revenue Act of 1918 passed
February 24, 1919, § 1006, c. 18, 40 Stat. 1057, 1130. It contains
the following:
"It shall be unlawful for any person required to register under
the provisions of this Act to . . . sell . . . any of the aforesaid
drugs without having registered and paid the special tax as imposed
by this section. "
Page 276 U. S. 358
Section 2 appeared in its present form in the original Act. The
pertinent provision is:
"It shall be unlawful for any person to sell . . . any of the
aforesaid drugs except in pursuance of a written order of the
person to whom such article is sold . . . on a form to be issued in
blank for that purpose by the Commissioner of Internal
Revenue."
38 Stat. 786.
The effect of these two provisions is to prohibit sale by any
person who has not registered and to permit sale by a registered
person upon a written blank issued by the Commissioner. That
conclusion is so plain that discussion cannot affect it.
Question 1 should be answered Yes.
Question 2 need not be answered.
Question 3 should be answered Yes.
Question 4 should be answered No.
MR. JUSTICE SUTHERLAND concurs in this opinion.