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10 F.(2d) 977

"In view of recent decisions of the Supreme Court (see Lipke v. Lederer [259 U. S. 557] 42 S. Ct. 549, 66 L. Ed. 1061), it seems clear that the National Prohibition Act is not a revenue law, and it follows that prohibition agents are not 'appointed or acting by authority of any revenue law of the United States.'

It is concluded that the National Prohibition Act is not a revenue law, that term being applied only to laws having for their purpose the raising of revenue, and not to those in which the raising of revenue is incidental only to the main purpose of the law; that the main purpose of the act in question is, as clearly expressed in its title and in its entire text, the carrying into effect and enforcement of the Eighteenth Amendment; that section 35 is not a revenue provision of the act, its purpose being the imposition of penalties for criminal offenses and not the imposition of taxes. None of the other sections, in which provision is made concerning the application of existing tax laws to liquor subject to the purposes of the act, attempts to impose any tax not already imposed. As the term "revenue provisions of a law" must be construed necessarily in the same sense as the term "revenue law," there are no revenue provisions contained in the act within the meaning of the Act of June 8, 1875.

The defendant, as prohibition director for the state of Pennsylvania, appointed and acting under the provisions of the National Prohibition Act, was not, therefore, as set out in the indictment, an officer or agent appointed and acting under the authority of a revenue law, or revenue provision of a law, of the United States, and therefore cannot, for the acts alleged, be prosecuted for offenses arising under section 3169 of the Revised Statutes, as extended by the Act of February 8, 1875.

The demurrer is sustained.

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THOMPSON, District Judge. The indictment contains five counts, each charging a separate conspiracy of the several defendants to commit an offense against the United States, in violation of the National Prohibition Act (Comp. St. Ann. Supp. 1923, 8 101384 et seq.), "to wit, to unlawfully withdraw, transport, sell, and deliver intoxicating liquors, in violation of the National Prohibition Act." McConnell is charged as federal prohibition director for the state of Pennsylvania, Slater as federal prohibition agent, and Benner as federal prohibition inspector.

Each count charges a conspiracy as part of the general charge to issue and deliver certain permits for the withdrawal of liquor to persons not lawfully entitled as permittees 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 permit No. 43389.

The third reason assigned for quashing the indictment is: "Because the defendant cannot be convicted under any of the counts⚫ of the present indictment, unless it is shown that he had knowledge of the unlawful withdrawal, transportation, sale, or delivery of liquor following the issue of permits respectively mentioned in the counts, and in the previous case it has been determined in

a prosecution by the United States against this same defendant, where such knowledge was one of the issues of the case, that he did not have knowledge of the withdrawal, transportation, sale, or delivery, following the issue of any of the permits specified in the present indictment."

"The previous case" referred to in the motion to quash was a prosecution under an indictment in this court as of March term, 1922, No. 14. To that indictment, charging a conspiracy of the present defendants and 44 others to defraud the United States in issuing and causing to be issued fraudulent permits by McConnell, Benner, and Slater to be used by others in obtaining liquor from vendors for unlawful sale, delivery, and transportation, demurrers were filed which were overruled. See United States v. McConnell et al. (D. C.) 285 F. 164.

The main question discussed upon the demurrers was whether the indictment charged was a general conspiracy among the defendants named or an attempt to join as a single conspiracy a number of separate conspiracies. It was there held that "The question whether the conspiracy charged in the indictment to be a general one among the defendants named, which is to be executed through different parties to the general conspiracy by different acts, at different times, and in different places, is indeed a single conspiracy, is a question of fact, and, if the indictment sufficiently charges such a general conspiracy formed knowingly, willfully, and unlawfully, it should not be held void because of the mere division of the entire class of conspirators into several groups having respectively different acts and functions to perform." It was also said "that each defendant knew of the general conspiracy is sufficiently averred. The question of whether or not the evidence will develop a knowledge on the part of all the defendants of the plan of the general conspiracy, and privity in the manner and means by which it was to be accomplished, does not concern us upon the demurrer. Neither does it concern us for the present purpose whether the prosecution will be able to show that what is charged to be a general conspiracy was not in fact the doing of things having similar unlawful purposes in view by separate groups, connected only at one end of the state through Wolfe with McConnell, and at the other end of the state through Slater and Benner with McConnell. Those are purely trial questions."

indictment, together with other defendants were brought to trial under the prior indictment in this court, and upon the failure of the prosecution in any manner to connect the several groups with the general conspiracy charged, and the failure to prove knowledge upon the part of MeConnell, Slater, or Benner, that the permits, upon which the indictment was based were unlawfully issued for the withdrawal of liquor in amounts and character other than those to which the permittees were lawfully entitled, or to persons not permittees, or in the names of permittees who had not made applications for permits, the defendants were acquitted upon a directed verdict. It appears conclusively that guilty knowledge concerning each of the permits upon which the several counts in the indictment now before us are based was in issue in the former indictment, and that the prosecution failed to produce any evidence of guilty knowledge of the three defendants now under indictment concerning any of the permits mentioned in the present indictment.

Count 1 of the present indictment charges the unlawful issuing of permit No. 44051, which was charged as overt acts 20 and 21 of the former indictment and in the bill of particulars. Permit No. 24052, which is the subject of count 2 of the present indictment, was also the subject of overt act 1 in the former indictment. Permit No. 41603, which is the subject of count 3 of the present indictment, was the subject of overt act 10 of the former indictment. Permits No. 41601, 41602, and 41604, which are the subjects of count 4 of the present indictment, were respectively the subjects of overt acts 6, 8, and 12 of the former indictment. Permit No. 43389, which is the subject of count 5 of the present indictment, was not the subject of a charge in the former indictment, but was the subject of paragraph 137 of the bill of particulars.

The prosecution, moreover, put the unlawful issuance of this permit in issue through an attempt to prove guilty knowledge thereof on the part of McConnell through evidence of a letter sent to him. The connection of the defendants with that permit, through knowledge of its unlawful use, therefore, became an issue at the trial of the former indictment. The fact of knowingly and unlawfully issuing the several permits was as to each permit a fact to be proved in the case, and a fact essential to the offense

The defendants charged in the present charged.

10 F.(2d) 977

[1, 2] A motion to quash is, in substance, a plea in bar. United States v. Barber, 219 U. S. 72, 31 S. Ct. 209, 55 L. Ed. 99; United States v. Oppenheimer, 242 U. S. 85, 37 S. Ct. 68, 61 L. Ed. 161, 3 A. L. R. 516. The argument on behalf of the government and the cases cited in the briefs would be persuasive of the government's position, if the effect of the previous acquittal were solely based upon the guaranty of the Fifth Amendment that a person shall not be subject for the same offense to be twice put in jeopardy. But counsel for the defendant take their stand upon the doctrine of res adjudicata, rather than upon the endeavor to show that the offense charged in the prior indictment was substantially that charged in the present one, and are not invoking that doctrine in the "modified form" of the Fifth Amendment. The doctrine of res adjudicata has been repeatedly held to apply to criminal as well as civil cases.

In the case of Coffey v. United States, 116 U. S. 436, 6 S. Ct. 437, 29 L. Ed. 684, an information in rem was filed against certain property of Coffey as being forfeited to the United States for frauds under the internal revenue laws. He set up by answer a prior judgment of acquittal on a criminal information against him by the United States in the same court, alleging that the criminal information contained charges of all the violation of law alleged in the information in the proceeding in rem. In holding that the res adjudicata doctrine applied, Mr. Justice Blatchford said:

"This doctrine is peculiarly applicable to a case like the present, where, in both proceedings, criminal and civil, the United States are the party on one side and this claimant the party on the other. The judgment of acquittal in the criminal proceeding ascertained that the facts which were the basis of that proceeding, and are the basis of this one, and which are made by the statute the foundation of any punishment, personal or pecuniary, did not exist. This was ascertained once for all, between the United States and the claimant, in the criminal proceeding, so that the facts cannot be again litigated between them, as the basis of any statutory punishment denounced as a consequence of the existence of the facts. This is a necessary result of the rules laid down in the unanimous opinion of the judges in the case of Rex v. Duchess of Kingston, 20 Howell's State Trials, 355, 538, and which were formu

lated thus: The judgment of a court of concurrent jurisdiction, directly upon the point, is as a plea a bar, or as evidence conclusive, between the same parties, upon the same matter, directly in question in another court, and the judgment of a court of exclusive jurisdiction, directly upon the point, is in like manner conclusive upon the same matter between the same parties, coming incidentally in question in another court for a different purpose. In the present case, the court is the same court, and had jurisdiction, and the judgment was directly on the point now involved, and between the same parties."

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And in Frank v. Mangum, 237 U. S. 309, 35 S. Ct. 582, 59 L. Ed. 969, the rule was broadly stated by Mr. Justice Pitney as follows:

"It is a fundamental principle of jurisprudence, arising from the very nature of courts of justice and the objects for which they are established, that a question of fact or of law distinctly put in issue and directly determined by a court of competent jurisdiction cannot afterwards be disputed between the same parties. Southern Pacific Railroad v. United States, 168 U. S. 1, 48 [18 S. Ct. 18, 42 L. Ed. 355]. The principle is as applicable to the decisions of criminal courts as to those of civil jurisdiction."

The res adjudicata rule is thus stated in Southern Pacific Railroad v. United States, supra (168 U. S. 1, 18 S. Ct. 18, 42 L. Ed. 355):

"The general principle announced in numerous cases is that a right, question, or fact distinctly put in issue and directly determined by a court of competent jurisdiction, as a ground of recovery, cannot be disputed in a subsequent suit between the same parties or their privies; and even if the second suit is for a different cause of action, the right, question, or fact once so determined must, as between the same parties or their privies, be taken as conclusively established, so long as the judgment in the first suit remains unmodified. This general rule is demanded by the very object for which civil courts have been established, which is to secure the peace and repose of society by the settlement of matters capable of judicial determination. Its enforcement is essential to the maintenance of social order; for the aid of judicial tribunals would not be invoked for the vindication of rights of person and property, if, as between parties and their privies, conclusiveness did not attend the judgments of such tribunals in respect of all matters prop

erly put in issue and actually determined by them."

In applying the res adjudicata doctrine to a criminal case, where there had been a prior acquittal upon the ground that the offense was barred by the statute of limitations, Mr. Justice Holmes said in United States v. Oppenheimer, 242 U. S. 87, 37 S. Ct. 68, 61 L. Ed. 161, 3 A. L. R. 516:

"Upon the merits the proposition of the government is that the doctrine of res judicata does not exist for criminal cases, except in the modified form of the Fifth Amendment, that a person shall not be subject for the same offense to be twice put in jeopardy of life or limb, and the conclusion is drawn that a decision upon a plea in bar cannot prevent a second trial when the defendant never has been in jeopardy, in the sense of being before a jury upon the facts of the offense charged. It seems that the mere statement of the position should be its own answer. It cannot be that the safeguards of the person, so often and so rightly mentioned with solemn reverence, are less than those that protect from a liability in debt. The safeguard provided by the Constitution against the gravest abuses has tended to give the impression that when it did not apply in terms, there was no other principle that could. But the Fifth Amendment was not intended to do away with what in the civil law is a fundamental principle of justice (Jeter v. Hewitt, 22 How. 352, 364 [16 L. Ed. 345]), in order, when a man once has been acquitted on the merits, to enable the government to prosecute him a second time."

In order to determine the facts, without proof of which the charges in the present indictment cannot be sustained at the trial, it is only necessary to examine the record of the prior case to show that the foundation of proof of the conspiracy charged therein was the fact that McConnell, Slater, and Benner, as officials having authority so to do, unlawfully and knowingly issued certain permits, and that, in the present indictment, the gist of the conspiracy is that the same defendants in their official capacity knowingly and unlawfully issued the same permits. The unlawful issuing of these permits by McConnell, Slater, and Benner was therefore a question of fact. Those facts were distinctly put in issue and determined in an adjudication of this court, and cannot, therefore, be now disputed between the same parties.

The motion to quash is granted.

In re LACKIDES.

(District Court, S. D. New York. October 9, 1925.)

Aliens

53-Alien seaman, having entered before the requirement of immigration visa, held not subject to deportation solely because of lack thereof (Immigration Acts Feb. 5, 1917, § 34, 39 Stat. 896 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 42894s]; May 26, 1924, §§ 20, 25, 31(c), 43 Stat. 164, 166, 169 [Comp. St. Supp. 1925, §§ 4289341, 42893⁄43⁄4ll, 428934n]).

Alien seaman unlawfully in United States is not subject to deportation under Immigration Act Feb. 5, 1917, § 34 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 428948), solely because he has no immigration visa required by the Imbefore such requirement, in view of sections migration Act of 1924, where his entry was 20, 25, and 31 (c) of latter act (Comp. St. Supp. 1925, §§ 42893⁄4j, 42893⁄4, 42893⁄41⁄4n).

In the matter of the petition of George Lackides, alien. Writ sustained, and petitioner discharged.

John D. Stephanidis, of New York City, for the alien.

The United States Attorney, for the Commissioner of Immigration.

THACHER, District Judge. The petitioner herein, on June 21, 1922, entered the United States contrary to the provisions of the Immigration Act of February 5, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 959, 960, 42891⁄4a-42891⁄4u), and within three years from such entry was taken into custody and brought before a Board of Special Inquiry for examination pursuant to section 34 of the Act of February 5, 1917 (section 42894s). From the return herein it appears that the only possible objection to his admission at this time is the fact that he does not now possess an immigration visa as required by the Immigration Act of 1924 (Comp. St. Supp. 1925, §§ 428934428934nn).

U. S. ex rel. Waltonen v. Commissioner of Immigration (no opinion), in which a writ was dismissed by Judge A. N. Hand on September 23, 1924, did not involve any of the provisions of the Immigration Act of 1924. The seaman in that case was given a hearing under the Act of February 5, 1917, and was excluded upon the ground that the quota provided in the Act of May 19, 1921 (Comp. St. Ann. Supp. 1923, §§ 42892-42892dd), for immigrants of his nationality, had been exhausted. The alien in that case arrived in the United States on August 1, 1921, after the passage of the Quota Act of May 19, 1921, and it was

10 F.(2d) 981

decided that his status with reference to the quota was to be determined as of the date of the hearing.

No other authorities have been cited except Ex parte Marchant (D. C.) 3 F.(2d) 695, which is referred to hereafter.

mission within the meaning of section 34 of the Act of February 5, 1917, although it may be indispensable evidence thereof under the act of 1924, and the requirement of the latter statute that persons arriving in the United States after July 1, 1924, shall possess such evidence is certainly not retroactive in the sense that those arriving before that date should be similarly equipped. In section 31 (c) of the Immigration Act of 1924 (Comp. St. Supp. 1925, § 428934n), Congress was careful to provide: "(c) If any alien arrives in the United States before July 1, 1924, his right to admission shall be determined without regard to the provisions of this act, except section 23." Thus, so far as the right to admission is concerned, the statute not only was not retroactive, but its operation was carefully limited to persons arriving on or after July 1, 1924.

Reference was made upon the argument to the case of Ex parte Marchant (D. C.) 3 F.(2d) 695. The question here presented does not seem to have been raised in that case, for it appears from the opinion that upon the argument it was in effect admitted that if the petitioners were unlawfully in the United States they were subject to arrest and deportation. Section 34 of the Immigration Act of 1917, affording such petitioners, although unlawfully in the United States, the right to an examination as to their qualifications, was not mentioned in the opinion, and the questions raised in the case at bar were not presented or considered.

It is quite apparent that the provisions of section 34 of the Act of February 5, 1917, granting to alien seamen unlawfully in the United States because of entry in violation of that act an examination as to their qualifications for admission, and providing for deportation only if they shall not be admitted after hearing, inhibits deportation for the unlawful entry, which by the statute is made merely ground for the arrest to be followed by examination with a view to admission. Undoubtedly the examination accorded is with respect to qualification at the time of the examination as such qualification may then be defined by law. It is therefore contended that since the Immigration Act of 1924 requires as a prerequisite of admission the possession of an immigration visa issued abroad by a consular or diplomatic officer of the United States, alien seamen who arrived in this country before such visas could be issued can no longer be admitted after examination under section 34 of the Act of February 5, 1917, although fully qualified for admission in every other respect. There is no question here of an exhausted quota. Deportation is justified sole ly upon the absence of a visa. If the government's contention is sound, the salutory provisions of the Immigration Act of 1924, primarily designed to prevent the departure from foreign lands of inadmissible aliens by requiring the issuance of immigration visas abroad, have completely nullified the provisions of section 34 of the Act of February 5, 1917. That no repeal of that section was intended is clear not only from section 25, but from section 20 of the Immigration Act of 1924 (Comp. St. Supp. 1925, §§ 428934, 428934), the latter section relating particularly to alien seamen, and making no change in section 34 of the Act of February Shipping 138-Stranding of vessel without 5, 1917. It seems absurd to impute to Congress the intention to afford alien seamen unlawfully within the United States the right to an examination as to their qualifications for admission, and at the same time to deny them admission when fully qualified merely because not in possession of a paper which the law makes it impossible for them to have obtained without leaving the country. No such construction is necessary. The possession of a visa is not "a qualification" for ad- Trading Company of New Orleans against

Since there is no evidence to warrant exclusion upon any ground except the absence of a visa, the writ in this case must be sustained and the petitioner discharged.

AMERICAN TRADING CO. OF NEW
ORLEANS v. FAIRHAVEN CO.
(District Court, N. D. California, Third
Division. July 18, 1923.)

No. 17332.

negligence is "peril of sea" within Harter Act.

Stranding of vessel, in absence of unseaworthiness, improper manning, or negligence, is a "peril of the sea" within Harter Act, § 3 (Comp. St. § 8031).

[Ed. Note. For other definitions, see Words and Phrases, First and Second Series, Perils of the Sea.]

In Admiralty. Libel by the American

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