1. An act of Congress cannot make past conduct criminal by
purporting to construe a former act as having been in force at a
time when this Court has held it was repealed. P.
260 U. S.
480.
2. As applied to criminal prosecutions, (1) for carrying on the
business of rectifier, wholesaler or retailer of liquor for
beverage purposes, without having paid the special tax therefor,
(2) for keeping a still for production of such spirits "for
beverage and commercial purposes" without having registered it with
the Collector of Internal Revenue, (3) for carrying on the business
of a distiller of spirits for beverage purposes without having
given bond, and, (4) for making a mash for production of such
spirits, in an unauthorized distillery, and separation of spirits
therefrom -- Rev.Stats. §§ 3242, 3258, 3281 and 3283, respectively,
were repealed by the National Prohibition Act. P.
260 U. S. 479.
United States v. Yuginovich, 256 U.
S. 450.
3. These laws, however, were revived by the Supplementary
Prohibition Act of November 23, 1921, c. 134, § 5, 42 Stat. 223, as
to conduct subsequent to its enactment. P.
260 U. S.
480.
4. Congress may tax what it also forbids. P.
260 U. S.
480.
5. A conviction upon an indictment based upon Rev.Stats. §§
3258, 3281 and 3282, repealed, cannot be sustained under the
National Prohibition Act by spelling out acts violative of that
statute from the indictment. P.
260 U. S.
481.
68 F. 417 (No. 26) affirmed.
283 F. 685 (No. 403) affirmed in part and reversed in part.
Page 260 U. S. 478
The first and third of these cases came on writs of error sued
out by the United States to review judgments of district courts
sustaining demurrers to counts of indictments based on sections of
the Revised Statutes relating to internal revenue. The second arose
upon questions certified by the circuit court of appeals in a
similar case in which the defendant, Brooks, had been
convicted.
MR. JUSTICE HOLMES delivered the opinion of the Court.
In the first of these cases, Stafoff was indicted with another
for having had in their possession a still intended for the
production of distilled spirits for beverage and commercial
purposes without having registered it with the Collector of
Internal Revenue, as required by Rev.Stats. § 3258, and in a second
count for having unlawfully manufactured on premises other than an
authorized distillery a mash fit for the production of distilled
spirits, to-wit, whisky, contrary to Rev.Stats. § 3282. A demurrer
to these counts was sustained, 268 F. 417, and the United States
brings the case here under the Criminal Appeals Act of March 2,
1907, c. 2564, 34 Stat. 1246.
The case of Brooks comes here on a certificate from the Circuit
Court of Appeals for the Ninth Circuit. Brooks was convicted under
the above mentioned §§ 3258 and 3282, and also under Rev.Stats. §
3281, for having
Page 260 U. S. 479
carried on the business of a distiller without having given bond
as required by law. The third and fourth counts under § 3282
respectively charged the making of a mash as above and the
separating by distillation of alcoholic spirits from a fermented
mash. The questions certified are whether the three sections
mentioned are repealed by the National Prohibition Act of October
28, 1919, c. 85, 41 Stat. 305, and whether, if they are repealed,
the cause should be remanded with directions to enter judgment and
impose sentence under the last-named act.
In the third case, Remus and his associates were charged in six
counts with having carried on the business of a wholesale liquor
dealer, that of a retail liquor dealer, and that of a rectifier,
without having paid the special tax as required by law. Rev.Stats.
§ 3242. A demurrer to these counts was sustained. 283 F. 685. The
United States took a writ of error under the Criminal Appeals
Act.
In
United States v. Yuginovich, 256 U.
S. 450, it was decided that §§ 3281 and 3282 were
repealed by the later law, at least as to the production of liquor
for beverage purposes. Since that decision and with reference to
it, as appears from the House Report No. 224, 67th Congress, 1st
Session, and the debates, 61 Cong. Record, part 3, pp. 3095, 3096,
the Act Supplemental to the National Prohibition Act was passed.
Act of November 23, 1921, c. 134, § 5, 42 Stat. 222, 223. By § 5 of
this statute,
"all laws in regard to the manufacture . . . of and traffic in
intoxicating liquor, and all penalties for violations of such laws
that were in force when the National Prohibition Act was enacted
shall be and continue in force as to both beverage and nonbeverage
liquor except such provisions of such laws as are directly in
conflict with any provision of the National Prohibition Act or of
this Act."
But if an act violates both the former and the latter, a
conviction under one is a bar to prosecution under the
Page 260 U. S. 480
other. This § is not declaratory, even in form. It does not
purport to construe the National Prohibition Act as leaving in
force what this Court has declared to have been repealed. It could
not in this way give a retrospective criminality to acts that were
done before it was passed and that were not criminal except for the
statutes held to have been repealed.
Ogden v.
Blackledge, 2 Cranch 272,
6 U. S. 277;
Koshkonong v. Burton, 104 U. S. 668. Of
course, a statute purporting to declare the intent of an earlier
one might be of great weight in assisting a court when in doubt,
although not entitled to control judicial action. But that is not
this case. The decision in
United States v. Yuginovich
must stand for the law before November 23, 1921. In that case,
besides what we have mentioned, it was held also that the penalty
imposed by Rev.Stats. § 3257 on a distiller for defrauding the
United States of the tax on the spirits distilled by him was
repealed. So far as the liquor is for beverage purposes, the same
reasoning must apply to the penalty in § 3242 for carrying on the
business of rectifier or wholesale or retail liquor dealer without
having paid the special tax imposed by law.
But the Supplemental Act that we have quoted puts a new face
upon later dealings. From the time that it went into effect, it had
the same operation as if, instead of saying that the laws referred
to shall continue in force, it had enacted them in terms. The form
of words is not material when Congress manifests its will that
certain rules shall govern henceforth.
Swigart v. Baker,
229 U. S. 187,
229 U. S. 198.
Of course, Congress may tax what it also forbids. 256 U.S.
256 U. S. 462.
For offenses committed after the new law,
United States v.
Yuginovich cannot be relied upon. Three counts in the
Remus case charge carrying on the business mentioned up to
April 1, 1922, and therefore are governed in part by the
Supplemental Act. So far as the decision of the Court below
neglected this distinction,
Page 260 U. S. 481
it was wrong. The decision in Stafoff's case dealt with conduct
before the date of the Supplemental Act, and was right. The keeping
of a still to make liquor for beverage purposes contrary to § 3258
is within the principle of the
Yuginovich case, and the
addition of the words "and commercial" to the statement of the
purposes does not seem to us enough to take it out. The reference
to this section in Title III, § 8, of the Prohibition Act may have
been inserted simply for greater caution. It is one of several
considerations tending to a different conclusion in
United
States v. Yuginovich, but, as they did not prevail then, they
cannot prevail now.
There remain the questions certified in
Brooks v. United
States. They are somewhat broader than we indicated in our
summary statement, as they include the revenue laws generally. as
well as the §§ 3258, 3281 and 3282. The general question manifestly
is too broad to require an answer. From the summary given of the
indictment, we infer that what we have said is sufficient with
regard to the sections named. The fourth question, whether, in view
of what we have decided, the case should be remanded for judgment
and sentence under the National Prohibition Act must be answered
No. The indictment plainly purported to be drawn under the old law,
and it would be unjust to treat the conviction as covering an
offense under a law of fundamentally different policy if facts
could be spelled out that might fall within the latter, although
alleged with no thought of it or any suggestion to the accused that
he must be prepared to defend against the different charge.
No. 26. Judgment affirmed.
No. 403. Judgment on counts 2, 4 and 6 affirmed. Judgment on
counts 3, 5 and 7 reversed.
No.197. Questions 1, 2 and 3, as limited above answered Yes.
Question 4 answered No.