Chris Elioff Stafoff, alias Chris Elioff, was indicted with another for having in possession a still intended for the production of distilled spirits for beverage and commercial purposes, without having registered it, and for having unlawfully manufactured on premises other than an authorized distillery a mash fit for the production of distilled spirits. A demurrer to both counts was sustained (268 Fed. 417), and the United States brings error. Affirmed.
James L. Brooks was convicted of having in possession a still, and of manufacturing a mash, and of having carried on the business of a distiller without having given th bond required by law, and he brought error to the Circuit Court of Appeals, which certified to the Supreme Court questions as to whether the statutes on which the indictment was based had been repealed by the National Prohibition Act, and as to whether defendant could be sentenced under the National Prohibition Act. Questions as to the repeal answered 'Yes,' and question as to the sentence answered 'No.'
George Remus and others were indicted for having carried on the business of a liquor dealer and rectifier without having paid the special tax required by law. A demurrer to the indictment was sustained as to six of the seven counts of the indictment (283 Fed. 685), and the United States brings error. Judgment on counts 2, 4, and 6 affirmed, and that on counts 3, 5, and 7 reversed. [260 U.S. 477, 478] Mrs. Assistant Attorney General Willebrandt, for the United states.
Samuel Herrick, of Washington, D. C., for Brooks.
E. N. Zoline, of New York City, for Remus and others.
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. St. 3258 (Comp. St. 5994), 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. St. 3282 (Comp. St. 6022). A demurrer to these counts was sustained ( 268 Fed. 417), and the United States brings the case here under the Criminal Appeals Act of March 2, 1907, c. 2564, 34 Stat. 1246 (Comp. St. 1704).
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 sections 3258 and 3282, and also under Rev. St. 3281 (Comp. St . 6021), for having [260 U.S. 477, 479] carried on the business of a distiller without having given bond as required by law. The third and fourth counts under section 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. St. 3242 (Comp. St. 5965). A demurrer to these counts was sustained. 283 Fed. 685. The United States took a writ of error under the Criminal Appeals Act.
In United States v. Yuginovich, 256 U.S. 450 , 41 Sup. Ct. 551, it was decided that sections 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 section 5 of this statute:
But if an act violates both the former and the latter a conviction under one is a bar to rosecution under the [260 U.S. 477, 480] other. This section 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, 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. St. 3257 (Comp. St. 5993), 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 section 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, 198 , 33 S. Sup. Ct. 645. Of course Congress may tax what it also forbids. 256 U.S. 462 .1 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 [260 U.S. 477, 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 section 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 3, section 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 sections 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. 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.
[ Footnote 1 ] 41 Sup. Ct. 551.