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duties on imports or tonnage, or a law pro of $500 on retail dealers, and $1,000 on manviding in terms for revenue; that is to say, ufacturers, is a provision for the levying of a a law which is directly traceable to the pow. tax, and is therefore a revenue provision of er granted to Congress by section 8, article the National Prohibition Act. That question 1, of the Constitution, 'to lay and collect was conclusively settled by the Supreme taxes, duties, imposts, and excises.'

Court in Lipke v. Lederer, 259 U. S. 557, 42 In Twin Falls Canal Co. v. Foote (C. C.) S. Ct. 549, 66 L. Ed. 1061, where Mr. Justice 192 F. 583, a case involving the question McReynolds cited the title of the National whether the Reclamation Act of June 17, Prohibition Act and the following language 1902 (Comp. St. $$ 4700_4708), is a revenue used in United States v. Yuginovich, 256 U. act, the court said:

S. 450, 41 S. Ct. 551, 65 L. Ed. 1043: "It is "It is clear that, in so far as it is a fea- a comprehensive statute intended to prevent ture at all, revenue is an incident only, and the manufacture and sale of intoxicating liqnot the primary purpose of the act, and it uors for beverage purposes”-and, after cittherefore follows that the act does not fall ing the provisions of title 2, section 3 (Comp. within the terms of section 7 of article 1 of St. Ann. Supp. 1923, § 1013872aa), prohibitthe Constitution of the United States, pro ing the manufacture, sale, etc., of intoxicatviding that ‘all bills for raising revenue shall ing liquor, and of title 2, section 29 (section originate in the House of Representatives.' 101381/2p), providing for penalties of fine ‘Bills for raising revenue, it is generally and imprisonment for offenses against the thought, are such as 'levy taxes in the strict act and of title 2, section 35, he said: sense of the word'; and the constitutional “The mere use of the word 'tax' in an limitation has not been understood to ex- act primarily designed to define and suppress tend to bills for other purposes, which may crime is not enough to show that within the incidentally create revenue.' Story on the true intendment of the term a tax was laid. Constitution, $ 880; United States v. Norton, Child Labor Tax Case, ante [259 U. S. 20, 91 U. S. 566, 23 L. Ed. 454; Twin City Bank 42 S. Ct. 449, 66 L. Ed. 817, 21 A. L. R v. Nebeker, 167 U. S. 196, 17 S. Ct. 766, 42 1432]. When by its very nature the imposiL. Ed. 134; Millard v. Roberts, 202 U. S. tion is a penalty, it must be so regarded. 429, 26 S. Ct. 674, 50 L. Ed. 1090." The question whether the National Pro [23 S. Ct. 427, 47 L. Ed. 614]. Evidence of

Helwig v. United States, 188 U. S. 605, 613 hibition Act is a revenue law has arisen in crime (section 29) is essential to assessment the consideration of the right of removal of under section 35. It lacks all the ordinary suits on prosecutions commenced in the state courts. In Smith v. Gilliam (D. C.) 282 F. characteristics of a tax, whose primary func628, the question before the

court was wheth- tion ‘is to provide for the support of the gover a suit brought against prohibition officernment' and clearly involves the idea of puncers in a state court, and removed to the Unit. ishment for infraction of the law—the defed States District Court, was properly re

inite function of a penalty. O'Sullivan v. movable under the provisions of section 33 Felix, 223 U. S. 318, 324 (34 S. Ct. 596, 58 of the Judicial Code, as amended by the Act L. Ed. 980].” of August 23, 1916 (Comp. St. § 1015), au

Lipke v. Lederer was followed in Regal thorizing revenue officers to remove civil Drug Corporation v. Wardell, 260 U. S. 386, suits against them on account of any act done 43 S. Ct. 152, 67 L. Ed. 318. under color of their office or of any revenue

In Oregon v. Wood (D. C.). 268 F. 975, law. Judge Evans, in a careful and well- where the question of the removal of an inreasoned opinion, reached the conclusion that dictment from a state court was in question, the National Prohibition Act is not a revenue

it was held that, in view of sections 35 and law, within the meaning of section 33 of the 37 of title 2 (Comp. St. Ann. Supp. 1923, $$ Judicial Code, and that prohibition officers 101381/2v, 101381/2x), and other provisions of are not revenue officers.

the act, the National Prohibition Act is a But the government insists that title 2, revenue act, as well as a prohibition act, and section 35, of the National Prohibition Act in Re Higgins (D. C.) 273 F. 832, the court (Comp. St. Ann. Supp. 1923, $ 1013812v), followed the reasoning and conclusion of

. providing that, upon evidence of illegal man

Oregon v. Wood. Those cases were decided ufacture or sale of intoxicating liquors, a tax prior to the opinion of the Supreme Court shall be assessed against and collected from in Lipke v. Lederer. Since that decision, the person responsible for such illegal man- Judge Morton, of the District Court of Masyfacture or sale in double the amount now

sachusetts, in Commonwealth v. Bogan, 285 provided by law, with an additional penalty F. 668, a removal case, said:

10 F.(2d) 977 "In view of recent decisions of the Su. 2. Judgment 751-Aquittal held bar to subpreme Court (see Lipke v. Lederer [259 U.

sequent prosecution under res judicata doo

trine. S. 557] 42 S. Ct. 549, 66 L. Ed. 1061), it

Acquittal of conspiracy to defraud United seems clear that the National Prohibition Act States by issuing withdrawal permits in violais not a revenue law, and it follows that pro- tion of National Prohibition Act (Comp. St. hibition agents are not ‘appointed or acting Ann.. Supp. 1923, & 1013844 et seq.), because by authority of any revenue law of the Unit

of failure of attempt to prove guilty knowledge,

barred second prosecution for such conspiracy ed States.'

by knowingly and unlawfully issuing same perIt is concluded that the National Pro- mits, under doctrine of res judicata; former hibition Act is not a revenue law, that term jeopardy, within Const. Amend. 5, not being

. being applied only to laws having for their invoked. purpose the raising of revenue, and not to those in which the raising of revenue is in

William C. McConnell, one Slater, and cidental only to the main purpose of the law;

one Benner were indicted for conspiracy to that the main purpose of the act in question violate the National Prohibition Act, by isis, as clearly expressed in its title and in its suing withdrawal permits to persons not en

titled thereto. entire text, the carrying into effect and en

On motion to quash indictforcement of the Eighteenth Amendment;

ment. Motion granted. See, also, 285 F.

164. that section 35 is not a revenue provision of the act, its purpose being the imposition of George W. Coles, U. S. Atty., and Franpenalties for criminal offenses and not the cis B. Biddle, Asst. U. S. Atty., both of imposition of taxes. None of the other sec- Philadelphia, Pa. tions, in which provision is made concern

Henry W. Braude, George S. Russell, ing the application of existing tax laws to Murdoch Kendrick, and John C. Bell, all of liquor subject to the purposes of the act, at- Philadelphia, Pa., for defendants. tempts to impose any tax not already imposed. As the term "revenue provisions of a THOMPSON, District Judge. The inlaw” must be construed necessarily in the dictment contains five counts, each charging same sense as the term “revenue law,” there à separate conspiracy of the several deare no revenue provisions contained in the fendants to commit an offense against the act within the meaning of the Act of June 8, United States, in violation of the National 1875.

Prohibition Act (Comp. St. Ann. Supp. 1923, The defendant, as prohibition director for $ 1013814 et seq.), “to wit, to unlawfully the state of Pennsylvania, appointed and withdraw, transport, sell, and deliver inacting under the provisions of the National toxicating liquors, in violation of the NaProhibition Act, was not, therefore, as set out tional Prohibition Act.” McConnell is in the indictment, an officer or agent appoint- charged as federal prohibition director for ed and acting under the authority of a rev- the state of Pennsylvania, Slater as federal enue law, or revenue provision of a law, of prohibition agent, and Benner as federal the United States, and therefore cannot, for prohibition inspector. the acts alleged, be prosecuted for offenses

Each count charges a conspiracy as part arising under section 3169 of the Revised of the general charge to issue and deliver Statutes, as extended by the Act of February certain permits for the withdrawal of liquor 8, 1875.

to persons not lawfully entitled as permitThe demurrer is sustained.

tees to receive such permits. Count 1 makes this charge as to permit No. 44051, count 2 as to permit No. 24052, count 3 as to permit No. 41603, count 4 as to permits Nos. 41601, 41602, and 41604, and count 5 as to per

mit No. 43389. UNITED STATES V, MCCONNELL et al. The third reason assigned for quashing (District Court, E. D. Pennsylvania. February cannot be convicted under any of the counts

the indictment is: “Because the defendant 4, 1926.)

of the present indictment, unless it is No. 14,

shown that he had knowledge of the unlawful 1. Indictment and information 136–Motion withdrawal, transportation, sale, or delivery to quash is in substance a plea in bar.

of liquor following the issue of permits reMotion to quash indictment is in substance spectively mentioned in the counts, and in a plea in bar.

the previous case it has been determined in 10 F.(20)-62

a prosecution by the United States against indictment, together with other defendants this same defendant, where such knowledge were brought to trial under the prior inwas one of the issues of the case, that he dictment in this court, and upon the faildid not have knowledge of the withdrawal, ure of the prosecution in any manner to transportation, sale, or delivery, following connect the several groups with the genthe issue of any of the permits specified in eral conspiracy charged, and the failure the sent indictment."

to prove knowledge upon the part of Mc“The previous case” referred to in the Connell, Slater, or Benner, that the permotion to quash was a prosecution under mits, upon which the indictment was based an indictment in this court as of March term, were unlawfully issued for the withdraw1922, No. 14. To that indictment, charging al of liquor in amounts and character otha conspiracy of the present defendants and er than those to which the permittees were 44 others to defraud the United States in lawfully entitled, or to persons not permitissuing and causing to be issued fraudulent tees, or in the names of permittees who had permits by McConnell, Benner, and Slater not made applications for permits, the deto be used by others in obtaining liquor from fendants were acquitted upon a directed vervendors for unlawful sale, delivery, and dict. It appears conclusively that guilty transportation, demurrers were filed which knowledge concerning each of the permits were overruled. See United States v. Mc- upon which the several counts in the indietConnell et al. (D. C.) 285 F. 164.

ment now before us are based was in The main question discussed upon the de- issue in the former indictment, and that murrers was whether the indictment charged the prosecution failed to produce any eviwas a general conspiracy among the defend- dence of guilty knowledge of the three deants named or an attempt to join as a single fendants now under indictment concerning conspiracy a number of separate conspira- any of the permits mentioned in the present cies. It was there held that “The question indictment, whether the conspiracy charged in the in- Count 1 of the present indictment charges dictment to be a general one among the de- the unlawful issuing of permit No. 44051, fendants named, which is to be executed which was charged as overt acts 20 and 21 through different parties to the general con- of the former indictment and in the bill of spiracy by different acts, at different times, particulars. Permit No. 24052, which is the and in different places, is indeed a single subject of count 2 of the present indictment, conspiracy, is a question of fact, and, if was also the subject of overt act 1 in the the indictment sufficiently charges such a gen- former indictment. Permit No. 41603, which eral conspiracy formed knowingly, willful- is the subject of count 3 of the present inly, and unlawfully, it should not be held void dictment, was the subject of overt act 10 of because of the mere division of the entire the former indictment. Permits No. 41601, class of conspirators into several groups hav- 41602, and 41604, which are the subjects of ing respectively different acts and functions count 4 of the present indictment, were reto perform.” It was also said “that each de- spectively the subjects of overt acts 6, 8, and fendant knew of the general conspiracy is 12 of the former indictments Permit No. sufficiently averred. The question of whether 43389, which is the subject of count 5 of the or not the evidence will develop a knowledge present indictment, was not the subject of a on the part of all the defendants of the plan charge in the former indictment, but was the of the general conspiracy, and privity in subject of paragraph 137 of the bill of parthe manner and means by which it was to be ticulars. accomplished, does not concern us upon the The prosecution, moreover, put the unlawdemurrer. Neither does it concern us for ful issuance of this permit in issue through the present purpose whether the prosecution an attempt to prove guilty knowledge therewill be able to show that what is charged to of on the part of McConnell through evibe a general conspiracy was not in fact the dence of a letter sent to him. The connecdoing of things having similar unlawful pur- tion of the defendants with that permit, poses in view by separate groups, connected through knowledge of its unlawful use, thereonly at one end of the state through Wolfe fore, became an issue at the trial of the forwith McConnell, and at the other end of mer indictment. The fact of knowingly and the state through Slater and Benner with unlawfully issuing the several permits was McConnell. Those are purely trial ques- as to each permit a fact to be proved in the tions."

case,

and fact essential to the offense The defendants charged in the present charged.

а

10 F.(2d) 977 (1,2] A motion to quash is, in substance, & lated thus: The judgment of a court of conplea in bar. United States v. Barber, 219 current jurisdiction, directly upon the point, U. S. 72, 31 S. Ct. 209, 55 L. Ed. 99; Unit- is as a plea a bar, or as evidence conclusive, ed States v. Oppenheimer, 242 U. S. 85, 37 between the same parties, upon the same matS. Ct. 68, 61 L. Ed. 161, 3 A. L. R. 516. ter, directly in question in another court, The argument on behalf of the government and the judgment of a court of exclusive juand the cases cited in the briefs would be risdiction, directly upon the point, is in like persuasive of the government's position, if manner conclusive upon the same matter bethe effect of the previous acquittal were sole- tween the same parties, coming incidentally ly based upon the guaranty of the Fifth in question in another court for a different Amendment that a person shall not be sub- purpose. , In the present case, the court is ject for the same offense to be twice put in the same court, and had jurisdiction, and the jeopardy. But counsel for the defendant judgment was directly on the point now intake their stand upon the doctrine of res volved, and between the same parties.” adjudicata, rather than upon the endeavor to And in Frank v. Mangum, 237 U. S. 309, show that the offense charged in the prior in- 35 S. Ct. 582, 59 L. Ed. 969, the rule was dictment was substantially that charged in broadly stated by Mr. Justice Pitney as folthe present one, and are not invoking that lows: doctrine in the "modified form" of the Fifth "It is a fundamental principle of jurisAmendment. The doctrine of res adjudicata prudence, arising from the very nature of has been repeatedly held to apply to criminal courts of justice and the objects for which as well as civil cases.

they are established, that a question of fact In the case of Coffey v. United States, or of law distinctly put in issue and directly 116 U. S. 436, 6 S. Ct. 437, 29 L. Ed. 684, determined by a court of competent jurisdican information in rem was filed against cer

tion cannot afterwards be disputed between tain property of Coffey as being forfeited to the same parties. Southern Pacific Railroad the United States for frauds under the in- v. United States, 168 U. S. 1, 48 (18 S. Ct. ternal revenue laws. He set up by answer

18, 42 L. Ed. 355). The principle is as apprior judgment of acquittal on a criminal plicable to the decisions of criminal courts as information against him by the United States to those of civil jurisdiction.” in the same court, alleging that the criminal

The res adjudicata rule is thus stated in

Southern Pacific Railroad v. United States, information contained charges of all the violation of law alleged in the information in supra (168 U. S. 1, 18 S. Ct. 18, 42 L. Ed. the proceeding in rem. In holding that the res adjudicata doctrine applied, Mr. Justice merous cases is that a right, question, or fact

“The general principle announced in nuBlatchford said:

distinctly put in issue and directly deter“This doctrine is peculiarly applicable to mined by a court of competent jurisdiction, a case like the present, where, in both pro

as a ground of recovery, cannot be disputed ceedings, criminal and civil

, the United States in a subsequent suit between the same parties are the party on one side and this claim

or their privies; and even if the second suit ant the party on the other. The judgment of is for a different cause of action, the right, acquittal in the criminal proceeding ascer

question, or fact once so determined must, as tained that the facts which were the basis of between the same parties or their privies, be that proceeding, and are the basis of this taken as conclusively established, so long as one, and which are made by the statute the the judgment in the first suit remains unfoundation of any punishment, personal or modified. This general rule is demanded by pecuniary, did not exist. This was ascer

the very object for which civil courts have tained once for all, between the United States been established, which is to secure the peace and the claimant, in the criminal proceeding, and repose of society by the settlement of so that the facts cannot be again litigated matters capable of judicial determination. between them, as the basis of any statutory Its enforcement is essential to the maintepunishment denounced as a consequence of nance of social order; for the aid of judithe existence of the facts. This is a neces- cial tribunals would not be invoked for the sary result of the rules laid down in the unan- vindication of rights of person and property, imous opinion of the judges in the case of if, as between parties and their privies, conRex v. Duchess of Kingston, 20 Howell's clusiveness did not attend the judgments of State Trials, 355, 538, and which were formu- such tribunals in respect of all matters prop

355):

own answer.

erly put in issue and actually determined by

in re LACKIDES. them.”

(District Court, s. D. New York. October 9, In applying the res adjudicata doctrine to

1925.) a criminal case, where there had been a prior Aliens em 53—Alien seaman, having entered beacquittal upon the ground that the offense fore the requirement of immigration visa, held was barred by the statute of limitations, Mr.

not subject to deportation solely because of

lack thereof (Immigration Aots Feb. 5, 1917, Justice Holmes said in United States v. Op

$ 34, 39 Stat. 896 [Comp. St. 1918, Comp. penheimer, 242 U. S. 87, 37 S. Ct. 68, 61

St. Ann. Supp. 1919, § 42891/48]; May 26, L. Ed. 161, 3 A. L. R. 516 :

1924, 88 20, 25, 31(c), 43 Stat. 164, 166, 169 “Upon the merits the proposition of the [Comp. St. Supp. 1925, $$ 428934), 42893411,

428934n]). government is that the doctrine of res judicata does not exist for criminal cases, ex

Alien seaman unlawfully in United States is

not subject to deportation under Immigration cept in the modified form of the Fifth Act Feb. 5, 1917, § 34 (Comp. St. 1918, Comp. Amendment, that a person shall not be sub- St. Ann. Supp. 1919, $ 4289448), solely because ject for the same offense to be twice put in he has no immigration visa required by the Imjeopardy of life or limb, and the conclusion migration Act of 1924, where his entry was

before such requirement, in view of sections is drawn that a decision upon a plea in bar 20, 25, and 31 (c) of latter act (Comp. St. Supp. cannot prevent a second trial when the de- 1925, $8 4289343, 428934 U, 428934n). fendant never has been in jeopardy, in the sense of being before a jury upon the facts

In the matter of the petition of George of the offense charged. It seems that the Lackides, alien. Writ sustained, and petimere statement of the position should be its tioner discharged.

It cannot be that the safe- John D. Stephanidis, of New York City, guards of the person, so often and so right for the alien. ly mentioned with solemn reverence, are The United States Attorney, for the Comless than those that protect from a liability missioner of Immigration. in debt.

The safeguard provided by the Constitution against the gravest abuses THACHER, District Judge. The petihas tended to give the impression that when tioner herein, on June 21, 1922, entered the it did not apply in terms, there was no other United States contrary to the provisions of principle that could. But the Fifth Amend- the Immigration Act of February 5, 1917 ment was not intended to do away with what (Comp. St. 1918, Comp. St. Ann. Supp. 1919, in the civil law is a fundamental principle of $S 959, 960, 428944a-428944u), and within justice (Jeter v. Hewitt, 22 How. 352, 364 three years from such entry was taken into (16 L. Ed. 345]), in order, when a man custody and brought before a Board of Speonce has been acquitted on the merits, to cial Inquiry for examination pursuant to enable the government to prosecute him a sec- section 34 of the Act of February 5, 1917 ond time."

(section 4289145). From the return herein In order to determine the facts, without it appears that the only possible objection proof of which the charges in the present in- to his admission at this time is the fact dictment cannot be sustained at the trial, that he does not now possess an immigration it is only necessary to examine the record visa as required by the Immigration Act of of the prior case to show that the foundation 1924 (Comp. St. Supp. 1925, SS 428934– of proof of the conspiracy charged therein 428934nn). was the fact that McConnell, Slater, and Ben- U. S. ex rel. Waltonen v. Commissioner ner, as officials having authority so to do, of Immigration (no opinion), in which a

, unlawfully and knowingly issued certain per- writ was dismissed by Judge A. N. Hand on mits, and that, in the present indictment, the September 23, 1924, did not involve any of gist of the conspiracy is that the same de- the provisions of the Immigration Act of fendants in their official capacity knowing- 1924. The seaman in that case was given ly and unlawfully issued the same permits. a hearing under the Act of February 5, The unlawful issuing of these permits by 1917, and was excluded upon the ground McConnell, Slater, and Benner was there- that the quota provided in the Act of May fore a question of fact. Those facts were 19, 1921 (Comp. St. Ann. Supp. 1923, $$ distinctly put in issue and determined in an 42891/2-428912dd), for immigrants of his adjudication of this court, and cannot, there- nationality, had been exhausted. The alien fore, be now disputed between the same par- in that case arrived in the United States on ties.

August 1, 1921, after the passage of the The motion to quash is granted.

Quota' Act of May 19, 1921, and it was

а

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