# Defendants Brief — Felsenheld v. United States

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Defendants Brief
- **Published:** January 1, 1902
- **Citation:** 186 U.S. 126

## Text

Fane,

Gnthe Supreme Court of the Gnited States,

Ocroser Tzrm, 1901.

FELSENHELD, CLAIMANT OF 288 )
P of “Merry World Tobacco,”
aintiff in error, ;

v.
Tae Unirep States or AMERICA, DEFEND-
ant in error. ;

ON A. CERTIFICATE FROM THE UNITED STATES CIRCUIT —
COURT OF AP 7EALS FOR THE FOURTH CIPCUIT.

BB‘EF FOR DEFENDANT IN ERROR,
BY

JAMES M. BECK, ASSISTANT ATTORNEY-GENERAL, AND CHARLES J.
FAULKNER, SPECIAL COUNSEL FOR THE GOVERNMERT.

Inthe Supreme Court of the United States.

OctTosperR TERM, 1901.

EMANUEL FELSENHELD, CLAIMANT OF 288
packages of “Merry World Tobacco,”
Jaintiff in error y r
] ’ . No. 205.

Tue Unrrep SraTes oF AMERICA, DEFEND-

ant in error.

ee

BRIEF FOR DEFENDANT IN ERROR,
BY

JAMES M. BECK, ASSISTANT ATTORNEY-GENERAL, AND CHARLES J.
FAULKNER, SPECIAL COUNSEL FOR THE GOVERNMENT.

STATEMENT OF THE CASE.

Prior to the 4th of November, 1891, it had been
the practice and custom of the manufacturers of smok-
ing tobacco to include in sealed packages of tobacco
articles of weight and value (Record, 4), which, by
circular No. 371 issued by Commissioner of Internal
Revenue Mason, was prohibited (Record, 4). Between
1891 and 1897 the manufacturers of smoking tobacco,
under circular No. 371, ceased to include such articles
in said packages, but substituted for them coupons, which
were included in these sealed packages, similar to

17733—02——1

2

those set forth in the information (Record, 2 and 3), a:
shown by the statement of facts (Record, 9 and 10),
This practice seems to have been permitted by the
Department, as there was no provision of law prohib-
iting it.

The attention of Congress being called to this prac-
tice (the only one then existing where anything was
included in the sealed packages of smoking tobacco),
on the 24th day of July, 1897, in what is known as
the “Dingley bill,” passed a law which will be found
as the third clause of the tenth section of said act,
amending section No. 3394 of the Revised Statutes of
the United States, as amended, as follows:

None of the packages of smoking tobacco or
fine-cut chewing tobacco and cigarettes pre-
scribed by law shall be permitted to have packed
in, or attached to, or connected with, them any
article or thing whatsoever, other than the manu-
facturers’ wrappers and labels, the internal-
revenue stamp and the tobacco or cigarettes,
respectively, put up therein, on which tax is re-
quired to be paid under the internal-revenue
laws; nor shall there be affixed thereto, or
branded, stamped, marked, written, or printed
upon said packages or their contents, any
promise or offer of, or any order or certificate
for, any gift, prize, premium, payment, or re-
ward,

On the 24th day of July, 1897, Commissioner For-
man issued a Department circular, No. 106, Internal
Revenue No. 477, instructing the collectors of internal
revenue in the several districts, among other things, to

208

3

notify manufacturers of tobacco of the provisions of
the statute heretofore cited, and that a violation of
the same would subject the property to seizure. (Rec-
ord, 5 and 6.)

Commissioner Forman, on August 2, 1897, issued
Department circular No. 115, Internal Revenue No.
479, for reasons not stated, modifying his instructions
in the previous Departmental circular No. 106, direct-
ing that before seizure of the property for violations
of this provision of the law the matter should be re-
ferred to his office for instructions. (Record, 6).

Commissioner Forman, in his report made to the
Secretary of the Treasury, 1897, recommended that
this law be amended so as to authorize the Commis-
sioner of Internal Revenue to prescribe, by regulations,
what such packages may contain. (Record, 7.)

In February, 1898, Commissioner Scott recom-
mended that this clause of section 10 be amended by
authorizing the inclosure in packages of tobacco of
coupons similar to the one set out in the information,
stating that, under the existing law, the office of the
internal revenue did not permit the same to be in-
closed (Record, 8), and, subsequently, on the 20th of
May, he addressed a letter to a member of the Senate
suggesting a further amendment permitting such
coupons to be put in packages of tobacco, subject to
such regulations as the Commissioner of Internal
Revenue, with the approval of the Secretary of the
Treasury, may prescribe (Record, 9). No action was
taken by Congress modifying the statute as suggested
by Commissioner Scott.

4

On August 6, 1898, Commissioner Scott addressed a
letter to the Secretary of the Treasury reviewing this

matter, alleging that some of the manufacturers had
continued the practice, and suggesting that a test case
be brought to determine the legal questions involved.
€Record, 10.) Accompanying said letter was a “pro-
posed circular” prepared by the manufacturers them-
selves, in which they provided, by regulation, the weight
of the article or thing that could be packed in a package
of tobacco. (Record, 10 and 13.) The letter of Com-
missioner Scott was referred by the Secretary of the
Treasury to the Attorney-General, and on August 19,
1898, the Assistant Attorney-General, James EK. Boyd,
forwarded his opinion to the Secretary of the Treasury
in which he expressed the opinion, “this legislation un-
doubtedly involved several important legal questions
which I think should be passed upon by the courts”
(Record, 14), and concluded his opinion by the follow-
ing suggestion: “I would suggest, therefore, that the
Commissioner of Internal Revenue cause to be insti-
tuted through some one of the collectors, a proceeding
by which the validity and scope of this law can be
tested by the courts.” (Record, 15.)

In pursuance to the suggestion of the Attorney-
General's Office, on October 17, 1898, the district
attorney filed information against 288 packages of
“Merry World Tobacco” and monition issued upon
such information, and the property seized by A. B.
White, collector of internal revenue for the district of
West Virginia, in said district, was attached and taken

2

5

into posession by the marshal of said district, April,
1899 (Record, 2).

At the time of the seizure of the said tobacco by the
said White, there was in each of said packages a small
slip of paper called a coupon, with printed words and
figures on both sides thereof, which coupon had been
placed within such package at the time when it was
packed in the manufactory and prepared for sale
(Record, 2.)

At the October term, Emanuel Felsenheld appeared
in open court and claimed the said property (Record, 9),
and in open court admitted the value of the same to be :
$54, agreeing that it might be considered of that value
for all purposes, and prayed leave to enter into bond in
accordance with the practice in such cases (Record, 3).

TE Se Te

It was—

en Ma te

further agreed that for a considerable time
before the institution of the present case
there had been frequent complaints made to the
Government by private persons or corporations,
who were interested in the DISCONTINUANCE BY
THE DEFENDANT and others of the USE OF SAID
coupons (Record, 15).
And further—

it was because of said complaints that the above
entitled case was instituted and being prose-
cuted, and also because of the insistence by pri-
vate persons or corporations, who were inter-
ested in the CONTINUANCE BY THE DEFENDANT and
others, in the UsE oF saID coupons (Record, 15),

which admission was that the defendant, as a manufac-
turer, had packed in said packages said coupons.

6

That if admissible evidence, the record shows, that
in the opinion of Commissioner Mason (Record, 4),
Commissioner Forman (Record, 8), Commissioner
Scott (Record, 10), and the manufacturers of smoking
tobacco (Record, 13), they regarded that it was neces-
sary in the interest of the Government, either by law or
departmental regulations, that this subject should be
controlled and regulated.

But as to the several documents and expres-
sions of opinion by departmental officers herein-
before contained, the genuineness of said docu-
ments and the fact that such expressions of
opinion were made, is admitted, and not the
relevancy of said documents and expressions, nor
the truth of any fact stated in them nor the correct-
ness of any such opinions (Record, 12), and:

On the 4th of April, 1899, an order was entered by
which it was agreed between the United States and
Emanuel Felsenheld to “waive any and all formalities
and omissions, should any such be found in these proceed-
ings on either side.” In April, 1900, the case, by agree-
ment of parties waiving a jury, was submitted to the
court for its decision and issue joined on the informa-
tion. At the same time an agreed statement of facts,
in writing, signed by the United States district attorney
and the attorney for the said defendant, was filed and
made a part of the record (Record, 1-14), and the
judge, acting in lieu of a jury, rendered his opinion,
holding that “the tenth section of the act of July 24,
1897, under which this information was filed, is a con-
stitutional exercise of legislative power by Congress;

7

that the claimant and defendant willfully and know-
ingly violated the provisions of said statute by packing
in the 288 packages of tobacco seized the coupons de-
scribed in the record; and that the seizure and attach-
ment for the violation of the provisions of the statute
was legal and valid,” and judgment of forfeiture was
thereupon rendered (Record, 15).

Exception was taken to the ruling of the court and
petition filed for a writ of error (Record, 15).

After argument before the circuit court of appeals
for the fourth circuit, the court indicated to counsel
that in its judgment certain questions should be certi-
fied to this court for its determination. Thereupon the
following questions were certified (Record, 16):

First. Whether the third clause of the tenth section of
the act of Congress of July 24, 1897, if the prohibition of
that statute be applied to the cuupons described in the
foregoing statement of facts, was in sccordance with or in
conflict with the Constitution of the United States.

Sec nd. Whether, if the said section be properly con-
strued, the coupons described in the foregoin statement
of facts are within its prohibition.

Third. Upon the facts stated, was the seizure set forth
in the information of the packages of Merry World tobacco
therein described, or was the judgment of forfeiture ren-
dered in this case justified under section 3453 of the
Revised Statutes?

Fourth. Upon the facts stated, was the seizure set forth
in the information of the packages of Merry World tobacco
therein described, or was the judgment of forfeiture ren-
dered in this case justified under section 3456 of the
Revised Statutes.

Before entering into the discussion of the questions
certified by the circuit court of appeals, it is deemed

8

proper, that the attention of the court should be di-
rected to several suggestions which are apparently
relied upon by the plaintiff in error, the solution of
which will tend to abreviate the discussion of the ques-
tions certified.

It is submitted to the court, that the expressions of opinion by
the officers of the Internal Revenue Bureau, as to the wisdom
or necessity of the enactment ef the third clause of the tenth
section of the act of 1897, are not relevant testimony in con-
sidering the constitutionality of that enactment.

In determining the constitutionality of the act, the
only rule which we are aware of that would justify the
court in considering the acts of executive officials is,
that which holds, that in cases where the construction
of the act is doubtful,

That a long continued construction of the statute adopted
and acted upon by executive officers is persuasive on the court
in construing the same.

This rule refers to the acts of such executive officials
upon whom is devolved the duty of acting under such
statute, but not to any expression of opinion as to the
wisdom or necessity of the enactment; such evidence
is clearly irrelevant.

The Government, when it agreed to permit the ex-
pressions of opinion of certain officers of the Internal
Revenue Bureau to be included in the facts agreed,
made the following reservation:

But as to the several documents and expres-
sions of opinion by the Department officers here-
inafter contained, the genuineness of said
documents and the fact that said expressions of

9

opinion were made is admitted, and not the rel-

evancy of said documents nor the truth of any

facts stated in them nor the correctness of any

such opinions (Record, 2).

And on page 15 the following reservation is made:

The right is reserved to either party to object

at the hearing to the relevancy of anything con-

tained in this statement.

The constitutional right of the Congress to enact a
provision of law, can not be made to rest upon the
fluctuating opinions of Commissioners of Internal Rev-
enue, as to the necessity for the regulations, which, in
the judgment of Congress, are deemed essential in the
enforcement of the collection of the revenue of the
Government. No better illustration of the weakness
of this position of the plaintiff in error could be shown
than in the case at bar. The record shows, that Com-
missioner Miller approved a provision substantially the
same as feund in the tenth section. It shows that
Commissioner Mason, without authority of law, was
compelled to intervene and prohibit the inclosure of
articles in packages of tobacco to prevent fraud in the
collection of the revenue (Record, 4). On the other
side, it tends to show that Acting Commissioner For-
man, at one time, was in favor of the repeal of this pro-
vision so far as it affected the use of coupons (Record,
6 and 7), and Commissioner Scott was in favor of the
amendment of the law permitting coupons of certain
weight to be included in said packages, provided,

that in determining the weight of these pack-
ages for purposes of taxation, the weight of

10

inclosed labels, advertisements, and vouchers
shall be included (Record, 9).

But no expression of opinion was given by Com-
missioner Wilson as to his judgment in re‘erence to
this matter, although he was at the time this suit was
instituted, and when it was submitted the head of the
Internal Revenue Department of the Government.

It must be recognized by the court as an unsound
position, that such testimony should be introduced as
relevant upon the question submitted for its decision:
Had Congress the constitutional power to enact this
provision?

If such evidence is relevant to the inquiry submit-
ted to the court for its adjudication, the question would
arise in every case in which the constitutionality of a
custom or revenue regulation was raised, not whether
the act upon its face is constitutional and within the
granted powers of the Congress, but whether in the
judgment of a subordinate executive official, such regu-
lations were “not absolutely necessary, but appro-
priate and not prohibited, but really calculated to
effect the objects intrusted to the Government,” which
in this case involves the weight of the package (Hep-
burn v. Griswold, 8 Wallace, 615), or, as expressed in a
different form by Justice Peckham, in 173 U. S., 524:

Whether the means adopted were the best and
most convenient to accomplish that purpose was
a question for the judgment of Congress, and its
decision must be conclusive in that respect.

Justice Peckham, in this quotation, recognizes the
distinct proposition of law, that if Congress has the con-

239

11

stitutional power to enact regulations regulating and
protecting ihe collection of the revenue of the Govern-
ment over a particular subject-matter, that the ‘‘means
adopted” by the Congress is “conclusive” upon the
courts. This decision, one of the latest rendered, cuts
up by the roots the proposition of the claimant, that in
this case, he can introduce testimony as to the “degree
of necessity” (12 Wallace, 539) ior the enactment of
this provision, based upon the judgment of an execu-
tive official.

Mr. Russell on page 13 and Mr. Warner on page 25
of their briefs, virtually admit the constitutional power
of Congress to exclude from tobacco packages “articles
or things,” such as, in their construction of this statute,
it applies to; and Commissioner Scott, as heretofore
quoted, regards it important, if this statute is modified
so as to prevent the use of coupons, that the weight of
the coupons should be included as a part of the pack-
age and taxed as tobacco.

These admissions of the plaintiff in error, through
his counsel, that Congress had the right to prohibit
certain articles or things from being included in pack-
ages of tobacco, in our judgment, surrenders the entire

contention made in their briefs on this point, as under
the decisions of 12 Wallace, 589; 173 U. S., 524; 8
Wallace, 615; and, as stated by Chief Justice Mar-
shall in McCullough v. State of Maryland (4 Wheaton,
423):

To undertake here to inquire into the degree
of its necessity would be to pass the line which
circumscribes the judicial department and to

12

tread on legislative ground. This court dis-
claims all pretensions to such a power.

This doctrine of Marshall’s is fully sustained in 165
U. S., 537, where, in speaking of the oleomargarine
law, the court says:

Protection to purchasers in respect of getting
the real and not the spurious article can not be
held to be the primary object in either instance,
and the identification of dealer, substance, quan-
tity, ete., by marking and branding must be re-
garded as means to effectuate the objects of the
act in respect of revenues.

Tobacco is taxed by weight and is put up in pack-
ages in quantities prescribed by law.

Can the latter paragraph of the third clause of the tenth sec-
tion influence the issues presented by the record?

Counsel for plaintiff in error devote much time to
the discussion of the constitutionality, and the relation
of the last paragraph in the third clause of the tenth
section, which reads as follows:

Nor shall there be affixed thereto, or branded,
stamped, marked, written, or printed upon said
packages or their contents any promise, or offer
of, or any order or certificate for, any gift, prize,
premium, payment, or reward.

Although admitting that the Government has always
insisted that a judgment of forfeiture of the property
described in the information rests upon the violation
of the first clause of said section, which reads as
follows:

None of the packages of smoking tobacco and
fine-cut chewing tobacco prescribed by law

13

shall be permitted to have packed in, or at-
tached to, or connected with them, any article
or thing whatsoever, other than the manufac-
turer’s wrappers and labels, the internal revenue
stamp and the tobacco or cigarettes, respec-
tively, put up therein, on which tax is required
to be paid under the internal-revenue laws.

We will examine the contention made by the plain-
tiff in error—

First. As to the proper construction to be given to the third
clause of the tenth section of the act of 1897; and

Second. Whether the two paragraphs of said clause are so
dependent one upon the other that both must stand or fall .
together.
An examination of this third clause will convince the
mind of the court that the Congress, in the enactment
of it, had two distinct objects in view, which they ex-
pressed in the two paragraphs of said clause:
First. What is the true construction of the first paragraph
of the third clause of the tenth section?
An analysis of the first paragraph will show the pur-
pose of Congress to define clearly and explicitly what
should constitute a package of smoking or chewing
tobacco, which is accomplished by both negative and
affirmative provisions.
Three distinct offenses are denounced by the first
paragraph of this clause:
1, packing in,
2, attaching to, and
3, connecting with
any
package of smoking tobacco or fine-cut chewing

tobacco * * * any article or thing what-
soever.

lat a

14

The Congress, recognizing the necessities growing
out of the character of the business they were legisla-
ting in reference to, and that the language used, as
above quoted, was sufficiently broad and comprehen-
sive to exclude everything except tobacco, which would
have necessarily interfered with the packing of said
tobacco in many of the kinds of coverings that were
then used in the business, declared affirmatively in
the same paragraph what, in its judgment, should con-
stitute such a package, both as to its contents and as
to the exterior wrapper:

1, the manufacturer's wrapper,

2, the manufacturer’s labels,

3, the internal-revenue stamp, and
4, the tobacco or cigarettes.

The court will observe that this affirmative declara-
tion of what should constitute a package of tobacco
limited the comprehensive term used in this para-
graph. This paragraph determines clearly and defi-
nitely what shall constitute a LAWFUL PACKAGE of
tobacco or cigarettes if Congress had the constitu-
tional power to enact the provision.

This paragraph is complete in itself and effectual in
carrying out the purposes and objects of the Congress.
It is capable of being executed and enforced in accord-
ance with the legislative intent, wholly independent of
the second paragraph of said clause.

The first count found in the information rests upon
this first paragraph (Record, 1), and the evidence

15

found in the case agreed, sustains the allegation of the
first count, to wit:

There was in each of said packages a small
slip of paper called a coupon, * * * which
had been placed within such package at the
time when it was packed in the manufactory and
prepared for sale. (Record, 2.)

What is the true construction of the second paragraph
of the third clause of the tenth section?

We can not agree with the views expressed by the
counsel for the plaintiff in error in their construction
of the second paragraph of the third clause of the
tenth section of this act. It provides—

Nor shall there be affixed thereto, or branded,
stamped, marked, written, or printed upon said
packages, or their contents, any promise or
offer of, or any order or certificate for, any gift,
prize, premium, payment, or reward.

The Congress having determined by the first para-
graph what shall constitute a lawful package of tobacco,
proceeds to define a new and distinct offense, not in

any way linked to or connected with the first para-

graph, but entirely independent of it.

When this paragraph is analyzed, no doubt of the
purpose or intention of the Congress, in its enactment,
will embarrass the court. Whatever may be thought
as to its constitutionality, which, in our judgment, is
not involved in the decision of the questions certified
to this court, its meaning and purpose is not involved
in doubt.

16

No “promise or offer of, or any order or certificate
for any gift, prize, premium payment, or reward”
shall be—

1, attached to the package;

2, or branded, stamped, marked, written, or
printed upon said package;

3, or branded, marked, stamped, written, or
printed on their contents.

The violation of any of these prohibited acts would,
if that provision is constitutional, constitute a distinct
offense entirely independent of any provision found in
the first paragraph.

In the argument submitted by the counsel for plain-
tiff in error it is only necessary to meet their construc-
tion of this paragraph, to refer to the third offense
defined by it. It is suggested, why has Congress in
the second paragraph provided that “no promise or
offer, ete., of any gift, prize, premium payment or
reward shall be branded, stamped, marked, written
or printed on their contents,” if the first paragraph
prohibits “any article or thing whatsoever” from being
placed in said packages. If the Congress deemed it
wise to enact a provision prohibiting such a promise
or offer as is described in the statute from being con-
nected with or included in packages of tobacco, and it
had the constitutional right to do so, it was necessary

to pass this provision constituting this offense, as it had

in the first section authorized the packing of the man-
ufacturers’ wrapper in said tobacco packages, it would
not have been in violation of the first paragraph to
have printed upon the manufacturers’ wrapper, author-

17

ized by the first paragraph, the contents found upon
the coupons which were packed in the packages seized
in this case. The printing upon said wrapper, could
not, under any construction, have been construed as
violating the provision prohibiting packing in such
packages ‘‘any article or thing whatsoever.”

This illustration draws the clear distinction between
the first and second paragraphs, and must satisfy the
court that the case at bar falls only within the influ-
ence of the first paragraph.

In addition to the manufacturers’ wrapper which is
permitted under the first paragraph to be placed in the
package of tobacco, that paragraph also provides for
packages of cigarettes (which are usually wrapped with
paper), and this provision of the second paragraph
would have prohibited the “branding, printing, stamp-
ing, ete., of any promise or offer of any gift, premium,
or reward,” etc., upon the wrappers of which these ciga-
rettes are made. It might be suggested that this illus-
tration of the legislative purpose could not be true, as
printing or stamping a promise or offer upon the pa-
per in which cigarettes are wrapped would be con-
sumed in the use. Those who framed this paragraph
were more familiar with the details of the tobacco

business than the layman in the methods of the manu-
facture of cigarettes. Such a promise or offer could
have been printed upon said paper to deliver an article
based upon the number of empty cigarette boxes or
trade-marks of a particular company, when returned
to that company.
17733—02——2

18

Second. Are these two paragraphs of said clause so de-

pendent one upon the other that they both must stand or
Jall together?

We contend that the question of the constitutionality

of the offenses described in the second paragraph, will
not be passed upon by the court in a case, in which the
record shows that the judgment rendered of forfeiture
of this property, comes alone within the influence of
the first paragraph; that the offense denounced in the
first paragraph, is not affected by any provision con-
tained in the second paragraph; that the offense de-
fined in the first paragraph is in no way dependent
upon, nor is it modified or controlled by, any provision
found in the second paragraph; that the court could,
if it deemed right and proper, hold the second para-
graph to be an unconstitutional exercise by the Con-
gress of the powers granted to it, and yet it would in
no way affect the enforcement of the provisions of the
first paragraph, if the court should be of the opinion
that it was a constitutional exercise of legislative power.
It is immaterial how closely the valid and invalid pro-
visions are shown in the act, if distinct and separable.
(Commonwealth v. Hitchins, 5 Gray (Mass.), 482.)
These two paragraphs not being dependent, condi-
tional, or connected, but being wholly independent of
each other, must each be separately tested as to its
constitutionality. (Allen v. Louisiana, 103 U. S., 80;
Pollock v. Farmers’ Loan and Trust Co., 158 U.S., 601.)
We understand the purpose of Congress in the
enactment of the first paragraph, was to protect the

19

Government in the collection of its revenue, laid upon
an article in which it had determined that the weight
of the article taxed, should determine its rate.

We assume that the purpose of the Congress in the
enactment of the second paragraph, was to prohibit
the instrumentalities, which it deemed necessary to
employ in the collection of a tax on tobacco, from
being made the vehicle or channel ‘“‘to assist in the dis-
semination of matter condemned by its judgment.” (In re
Rapier 143, U. S., 145.)

In the discussion of the questions certified by the
circuit court of appeals for the fourth circuit to your
hovorable court for its opinion, we will ask the indul-
gence of the court to change the order, in which the
same were certified, and discuss first the second ques-
tion asked by said court:

Whether if the said section (referring to the third clause of
the tenth section of the act of Congress of July 24, 1897) be
properly construed, the coupons described in the foregoing
statement of facts, are within its prohibition.

We understand this question to present the inquiry
whether, assuming the third clause of the tenth section
to be constitutional, it is the opinion of the court that,
if properly construed, it would exclude from packing
in said packages of tobacco, coupons of the character
described in the information.

To sustain the contention of the plaintiff in error,
that the proper construction of the first paragraph of the
third clause of the tenth section, was not intended by
Congress to exclude the packing in packages of tobacco

20

“coupons or vouchers,” counsel have referred to the
circulars found in the agreed statement of facts from
the Commissioners of Internal Revenue, giving expres-
sion to their opinion of the necessity for such legisla-
tion, the relevancy of which we have previously
discussed.

They further rely upon the case of Platt v. Union
Pacific R. R. Co. (99 U.S., 48), in which the court
uses this language:

All will concede in construing the act of 1863
we are to look at the state of things existing,
and in the light then appearing seek for the
purposes and objects of Congress in using the
language it did. And we are to give such con-
struction to that language, if possible, as will
carry out the Congressional intentions.

They also rely upon the case of Maxwell v. Dow
(176 U.8., 581), in which the court in speaking of the
construction of a constitutional amendment uses the
following language:

The language of a constitutional amendment
should be read in connection with the new con-
dition of affairs out of which the occasion for its
adoption may have arisen and then construed
* * * so far as it is reasonably possible to
forward the known purpose or object.

There is another principle, applied by the courts in

the construing of statutes, and which has been fully

sustained and acted upon by your honorable court in
the case of Thornley v. United States (113 U.S., 118):
Where the meaning of the statute is plain it

is the duty of the courts to enforce it according

21

to its obvious terms. In such a case there is no
necessity for construction.

We shall attempt to answer the second question cer-
tified, first, by showing that the cases of Platt v. Union
Pacific R. R. Co. and Maxwell v. Dow are not applica-
ble in the consideration of this question, but that it is
controlled by the principle announced in Thornley v.
United States, and, secondly, that if the court looks
into—

“the state of things existing” at the date of the
enactment of this law or “to the condition of
affairs out of which the occasion for its adoption
may have arisen”—
it will be satisfied, that it was the intention of Con-
gress to include “coupons and vouchers” in its prohi-
bition.
Is not the meaning of the statute perfectly plain?
Is the language used susceptible of two constructions?
Does it not prohibit the packing in with smoking
tobacco or cigarettes “ any article or thing whatsoever?”
No doubt can exist that the “coupon or voucher” is
an “article or thing.” Congress, however, to avoid
any possibility of misunderstanding upon the part of
the executive officers, or the court, if it was necessary
to pass upon it, was not satisfied to permit its intention
to rest upon a negative prohibition, but deemed it wise
to declare affirmatively, the particular “article or
thing” which should be included in a sealed package of
tobacco—first, manufacturers’ wrappers, and, secondly,
the tobacco or cigarettes inclosed therein. The lan-
guage of this section leaves nothing for construction.

22

By providing the articles that may be included, it ex-
cludes by necessary intendment, all “articles or things”
not mentioned therein.

Should the court, however, not agree with the con-
tention of the Government, that the language of the
paragraph is so clear that there is “‘no necessity for
construction,” and shall deem it proper in ascertaining
the intention of Congress, to “look at the state of
things existing” at the date of the enactment of this
law, to determine the ‘purposes and objects of Congress
in using the language” referred to, it will find that the
facts certified, will demonstrate that the “state of things
existing” when this statute was enacted will sustain the
position taken by the Government, that the main pur-
pose of Congress in its passage was, to exclude from
said packages “coupons or vouchers” which are the
subject of investigation under this information.

The court will observe that prior to the 4th of
November, 1891, it was the practice of manufacturers
of smoking tobacco to include in sealed packages many
foreign articles (Record, 4) such as pocketknives, pho-
tographs, or other similar things (Record, 11); that on
that date, Commissioner Mason, realized the importance
of excluding such “ foreign articles” from sealed pack-
ages of tobacco, that the weight provided by law
should correspond with the stamp required to be
placed upon the package, directed the collectors to
notify the manufacturers of that ruling. This action
of the Commissioner was taken without any direction
from Congress. An abuse had grown up which, in his

23

judgment, it was necessary to correct under the implied
authority that a package of tobacco means a package
containing tobacco and nothing else. The circular he
issued was as follows:

Manufacturers of tobacco, in marking the
gross, tare, and net weight of packages of to-
bacco, should include in the gross the full
weight of the package and all its contents.
The tare should include the weight of the pail,
lining, covering, etc., so that the tare subtracted
from the gross will give the net weight of the
tobacco contained therein and expressed by the
stamp. Great care should be exercised by
the collectors to prevent foreign articles of any
kind being included in any of the packages.
A practice has grown up, which seems to be on
the increase, by which manufacturers have
included in statutory packages many foreign
articles. This practice should be discontinued.
A PACKAGE OF TOBACCO MEANS A PACKAGE CON-
TAINING TOBACCO AND NOTHING ELSE.

This circular, which at that time struck at the only
evil existing, which was packing in these sealed pack-
ages knives, photographs, and similar articles, was suf-
ficiently broad, however, in its language to exclude
“coupons and vouchers.” A short period after issuing
this circular No. 371, Commissioner Mason modified its
language, as the counsel for plaintiff in error says
(Mr. Warner's brief, p. 24), by interpreting the word
“article” to embrace “articles of merehandise” (Rec-
ord, 11). From 1891 to the passage of this act, in
1897, the manufacturers ceased to include “articles of

24

merchandise” in said packages, substituting coupons
(Record, 2-3, 9-10). This practice was permitted by
the Department during six years, there being no provision
of the statute prohibiting it. The purpose of Congress in
the original enactment is further shown by its refusal
to yield to the suggestion of an amendment limiting
the language used in the act (Record, 8 to 13, inclusive).
Four sessions of Congress have passed, since its enact-
ment, and yet it remains undisturbed as passed in July,
1897. The construction of this statute by the Com-
missioner of Internal Revenue is shown by circular
106, Internal Revenue No. 477, to be in accord with
the contention of the Government (Record, 6), and
this action of the Department, as to its construction
of the law, has never been withdrawn by it (Record, 8).

The facts agreed present to the court this condition
of affairs as existing on the 24th of July, 1897, when
this law was passed: First, that the only “articles or

things” then included in a sealed package of smoking

tobacco or cigarettes were “coupons or vouchers”
similar to those set up in this information; second,
that the word “article,” as used in circular No. 371,
issued by Commissioner Mason November 4, 1891, had
been construed by the Department to prohibit the pack-
ing in said packages of tobacco “ articles of merchan-
dise;” and, third, explains the reason for the additional
words used by Congress, “or things whatsoever,” thus
leaving the construction of the Commissioner of the
word ‘‘article” to stand, and broadening his ruling to
remove the abuse then existing of packing “ coupons
or vouchers” in the sealed packages.

25

The wisdom and necessities for this action of Congress is fully
sustained by the agreed statement of facts contained in the
record.

The question of difference, if any, between Con-
gress and the Internal Revenue Bureau has not been,
as to the necessity of having a law or regulations to
control the packing in of sealed packages of tobacco
extraneous articles or things, but only the extent to
which that law or regulation should go. Should it, as
provided by Congress, exclude all extraneous “articles
or things whatsoever,” or should it be limited, by per-
mitting “articles or things” of inappreciable weight to
be included in a sealed package of tobacco? If Con-
gress had adopted the latter view, and not excluded all
things except such as were necessary in carrying on
the trade, the counsel for plaintiff in error (Mr. Rus-
sel, on p. 13, and Mr. Warner, on p. 25, of their
briefs), would have admitted the constitutionality of
this enactment. Congress, however, must have been
of the opinion, that the proper means to reach the evil
and protect the revenue was, not by classifying the
foreign articles or things that should be included in a
package, but prohibiting all such articles not necessary
in carrying on the trade in smoking tobacco.

Commissioners Scott and Foreman who did not fully
agree with Congress as to the necessity of this provi-
sion of the statute, recognized, however, its validity,
and concurred in the opinion, that it was necessary to
enact a law, or to promulgate a regulation, that should
govern and control the subject (Record, 8, 9). Com-
missioner Scott, in a communication to the Secretary

26

of the Treasury recommended that certain regulations
should be issued by the Department to regulate the
use of coupons and vouchers. Under what authority
he suggested these regulations we are unable to state,
but that in his judgment such regulations were neces-
sary to protect the revenue, should “coupons or
vouchers” be permitted to be inelosed in such pack-
ages, there can be no doubt (Record, 9).

The difficulty of regulating this subject by law is
shown by the recommendations made by the Commis-
sioner. He recommended, first, that nothing should
be contained in the package that appreciably increased
the size of the package, or that weighed more than one
one-thousandth of a pound; second, that no advertise-
ments, or anything in any way in aid of any lottery or
other scheme involving chance or hazard; third, any-
thing of a pictoral nature, except manufacturers’ trade-
marks, labels now permitted on the outside of pack-
ages, and, fourth, that the weight of coupons should be
taxed as part of the weight of the tobacco.

This illustration of the views of the Commissioner
shows, that in the opinion of the Department, there ex-
isted a necessity for the regulation of this subject, with
a view of protecting the Government in the collection
of its revenue. Even the manufacturers of tobacco, in
their proposed circular (Record, 9, 11, 13), fully agreed
with the Commissioner as to the necessity for a regu-
lation of “coupons and vouchers” if permitted to be
inclosed in said packages (Record, 13).

We therefore find that Congress, the Internal Rev-
enue Bureau, and the manufacturers of smoking to-

27

bacco and cigarettes, all concur in the opinion, that it
was necessary and proper in the public interest, and
that this subject-matter should be controlled by law or
administrative regulations.

The judgment of Congress, however, as shown by
its enactment, was that as the article was taxed by
weight, the only safe and proper means by which the
revenue could be protected, was to exclude all extra-
neous matters except the manufacturer’s wrapper, which
was allowed as incident to the putting up of the tobacco
in the character of packages prescribed by law.

We conclude, therefore, that Congress in passing the
first paragraph of the third clause of the tenth section in-
tended its prohibition to inclide the “coupons or vouchers”
set forth in the information and the agreed statement of
facts; that no other construction under the language of the
law and the conditions surrounding the subject at the date
of its enactment can be given to said paragraph.

Having presented the view of the Government, in
reference to the purpose and intention of Congress to
include, as within the prohibitions of the first paragraph
of the third clause of the tenth section of the act of
July 24, 1897, “coupons or vouchers,” we will proceed
to discuss the first question submitted by the certificate
of the circuit court of appeals for the determination
of this court:
1. “Whether the third clause of the tenth section of the act
of Congress of July 24, 1897, if the prohibition of that statute
be applied to the coupons described in the foregoing statement of

facts, was in accordance with or in conflict with the Constitution
of the United States.”

28

The information filed by the district attorney of the
United States for the district of West Virginia rests
upon the following provisions of the statute:

None of the packages of smoking tobacco
and fine-cut chewing tobacco prescribed by
law shall be permitted to have packed in, or
attached to, or connected with them, any
article or thing whatsoever, other than the
manufacturer’s wrappers and labels, the internal-
revenue stamp and the tobacco or cigarettes,
respectively, put up therein, on which tax is
required to be paid under the internal-revenue
laws.

A brief statement of the history of this enactment by
Congress may not be inappropriate. Embodying this

provision as an amendment to section 3394 of the Re-
vised Statutes was not the result of a sudden whim or
caprice upon the part of the legislature. The necessity
for its enactment had been brought to its attention, and
especially to the consideration of the Ways and Means
Committee, first, by a joint resolution presented by
Mr. Evans, and, secondly, by a bill offered by Mr.
Cummings during the first session of the F ifty-fourth
Congress, which joint resolution and bill, upon inspec-
tion, will be found to contain in substance similar pro-
hibitions.
Delicate duty of the court.

In exercising the delicate constitutional duty of pass-
ing upon the validity of an act of a coordinate branch
of the Government, the court can not be influenced in
its action by the questions whether or not the act, in

29

the opinion of the judge, is one which will operate
according to natural justice, nor, as stated in Ex Parte
McCardell (7 Wallace, 574), is the “court at liberty
to inquire into the motives of the legislature?” We
can only examine its power under the Constitution.
Cooley’s Cons. Limitations, chap. 7, secs. 4,5, 6.
Commonwealth v. McCloskey, 2 Rawle, 374.
Fletcher v. Peck, 6 Cranch, 87.
8 Wallace, 548.
In the latter case Chief Justice Chase uses the lan-
guage:

The power to tax may be exercised oppres-
sively upon persons, but the responsibility of
the legislature is not in the courts, but to the
people by whom its members are elected.

Nor can the court overlook that other important rule
of constitutional interpretation, sustained so fully in all
our adjudications, that it becomes the duty of the judge
in construing the laws of Congress, wherever consis-
tent with their context and language, to uphold their
constitutionality.

Presser v. Illinois, 116 U.S., 252.

Parsons v. Bedford, 3 Pet., 433.

United States v. Coombe, 13 Pet., 72.

Grenade Co. v. Brown, 112 U.S., 261.

Is the third clause of the tenth section, if construed to
embrace coupons or vouchers, constitutional ?

It is admitted as an undisputed proposition of con-
stitutional law, that the Government of the United
States is one of enumerated and defined powers, whose

30

limits are prescribed and whose powers are distributed
between the three coordinate departments. To the
Congress has been committed, by its terms, all legisla-
tive power. When a law of Congress is assailed, we
must therefore look to the National Constitution, to see
if the grant of power is broad enough to embrace it.
But, as stated by the Chief Justice, in Hepburn y,
Griswold (8 Wallace, 613):

It is not necessary, however, in order to prove
the existence of a particular authority to showa
particular and express grant. The design of
the Constitution was to establish a government
competent to the direction and administration
of the affairs of a great nation, and, at the same
time, to mark, by sufficiently definite lines, the
sphere of its operations. To this end it was
needful only to make express grants of general
powers, coupled with a further grant of such
incidental and auxiliary powers as might be
required for the exercise of the powers expressly

granted.

The only limitation to the exercise of the “incidental
and auxiliary powers,” expressed by the Constitution
itself, is found in that clause which provides, the
“power to make all laws necessary and proper for car-
rying into execution the powers expressly granted to
Congress or vested by the Constitution in the Govern-
ment, or any of its departments or officers.”

Although, under our constitutional system, each of
the coordinate branches of the Government are en-
tirely separate and independent of the other, yet it has
frequently been necessary for the judicial department

31

to review the action of the Congress, as its action
affected the right of the citizen, and, if repugnant, to
declare that action in conflict with the grant of power.
This has never been done, however, in doubtful cases,
or unless upon clear and strong convictions upon the
part of the courts, that the act was beyond the powers
conferred. Even then it has been done with great re-
luctance. As stated by Chief Justice Marshall, in the
case of Fletcher v. Peck (6 Cranch, 128):

The question, whether a law be void for its
repugnancy to the Constitution, is, at all times,
a question of much delicacy, which ought sel-
dom, if ever, to be decided in the affirmative
in adoubtful case. * * * The opposition
between the Constitution and the law should be
such that the judge feels a clear and strong
conviction of their incompatibility with each
other.

And Justice Strong, in announcing the opinion in the
Legal Tender Cases (12 Wallace, 531), approving the
quotation just given, adds:

It is incumbent, therefore, upon those who
affirm the unconstitutionality of an act of Con-
gress to show clearly that it is in violation of
the provisions of the Constitution. It is not
sufficient for them that they succeed in raising
a doubt.

The same view has been taken Ly Chief Justice
Chase, in the well-considered opinion of Veazie Bank
v. Fenno (8 Wallace, 548), where, in discussing the
tax of 10 per cent on State banks, he answers this
question: “Is the tax so excessive as to indicate the

32

purpose on the part of Congress to destroy the fran-
chise of the bank, and is, therefore, unconstitutional?”
He replies:

The first answer to this is that the judicial can
not prescribe to the legislative departments of
the Government limitations upon the exercise of
its acknowledged powers. The power to tax
may be exercised oppressively upon persons,
but the responsibility of the legislature is not in
the courts, but to the people by whom its mem-
bers are elected.

All the decisions of the Supreme Court, when treat-
ing of the duty of the judiciary, in considering the con-
stitutionality of an act of Congress, rest their reasoning
upon the application of the principle announced by
Chief Justice Marshall in the case of McCulloch v. State
of Maryland (4 Wheaton, 423), from an examination of
which it is easy to see that in the discussion of the sub-
ject he had in mind both the express grants as well as
the “incidental and auxiliary” grants of power:

Where the law is not prohibited, and is really
calculated to effect any of the objects intrusted
to the Government, to undertake here to in-
quire into the degree of its necessity, would be to
pass the line which circumscribes the judicial
department, and to tread on legislative ground.
This court disclaims all pretensions to such a
power.

and (4 Wheaton, 421):

Let the end be legitimate, and within the
scope of the Constitution, and all means which

33

are appropriate, which are plainly adapted to
that end, and which are not prohibited.
may constitutionally be employed to carry it into
effect. .

This latter quotation is but a different way of stat-
ing the same proposition by the same distinguished
judge, as found in the case of United States v. Fisher
(2d Cranch, 396), in which he says:

Any means which are in fact conducive to
the exercise of a power granted by the Consti-
tion.

and again in the case of McCulloch v. The State of
Maryland, he enlarges the language made in the quo-
tation from that case by using the language, “any
means calculated to produce the end.”

No clearer announcement of this principle has been
made than that found in the civil rights case (p. 51,
109 U.S.) by Justice Harlan:

But it is for Congress, not the judiciary, to
say that legislation is appropriate—that is, best
adapted to the end to be obtained. The judi-
ciary may not, with safety to our institutions,
enter the domain of legislative discretion and
dictate the means which Congress shall employ
in the exercise of its granted powers. That
would be sheer usurpation of the functions of a
coordinate department, which, if often repeated
and permanently acquiesced in, would work a
radjcal change in our system of government.

17733—02——3

34

This but reiterates in different language the doctrine
as declared by Marshall in 4 Wheaton, 421, in which
he says:

The sound construction of the Constitution
must allow to the national legislature that dis-
cretion, with respect to the means by which the
powers which it confers are to be carried into exe-
cution, which will enable that body to perform
the high duties assigned to it in the manner
most beneficial to the people.

This principle was further approved by the court in
its exact language (12 Wallace, 539), and the éourt in
that case concluded the discussion of the principles
that would affect the constitutionality of the act, and
of its duty under such circumstances, in the following
language :

Before we hold the legal-tender act unconsti-
tutional, we must be convinced that they were
not appropriate means or means conducive to
the execution of any or all of the powers of
Congress, or of the Government, not appropri-
ate in any degree (for we are not judges of the
degree of appropriateness), or we must hold that
they were prohibited.

This extract from the opinion of the court in the
legal-tender cases is but a reaffirmation found in the
case of Hepburn v. Griswold (8 Wallace, 615), in which
the court in construing the language found in the Con-
stitution, “All laws necessary and proper for carrying
into execution,” uses this emphatic language :

It must be taken, then, as finally settled, so
far as judicial decisions can settle anything, that

35

the words ‘all laws necessary and proper for
carrying into execution’ powers expressly
granted or vested have, in the Constitution, a
sense equivalent to the words, laws not abso-
lutely necessary indeed, but appropriate, plainly
adapted to constitutional and legitimate ends;
laws not prohibited, but consistent with the let-
ter and spirit of the Constitution; laws really
calculated to effect the objects intrusted to the
Government.

In the opinion delivered by Justice Peckham (173
U.S., p. 314):

It is always an exceedingly grave and delicate
duty to decide upon the constitutionality of an
act of the Congress of the United States. The
presumption, as has frequently been said, is in
favor of the validity of the act, and it is only
when the question is free from any reasonable
doubt that the court should hold an act of the
law-making power of the nation to be in viola-
tion of that fundamental instrument upon which
all the powers of the Government rest. This
is particularly true of a revenue act of Congress.
The provisions of such an act should not be
lightly or inadvisedly set aside, although they
be plainly antagonistic to the Constitution it is
the duty of the court to so declare. ‘The power
to tax is the one great power upon which the
whole national fabric is based. It is as neces-
sary to the existence and prosperity of a nation
as is the air which he breathes to the natural
man. It is not only the power to destroy, but
it is also the power to keep alive.

36
And further, on page 524, he says:

Instead of a memorandum, Congress might
have required a sworn report, with the proper
amount of stamps thereon, to be made at certain
regular intervals, of all sales made subject to the
tax. Other means might have been resorted to for
the same purpose. Whether the means adopted
were the best and most convenient to accomplish
that purpose was a question for the judgment of
Congress, and its decisions must be conclusive in
that respect.

The means actually adopted do not legally
interfere with or obstruct the internal commerce
of the States, nor are such means a restraint
upon that commerce so far as to render the
means adopted illegal. That Congress might
have adopted some other means of collecting the
tax which would prove less troublesome or annoying
to the taxpayer can surely be no reason for holding
that the method set forth in the act renders the tax
invalid. As it has the power to impose the tax,
the means to be adopted for its collection within
reasonable and rational limits must be a question
Sor Congress alone.

Principles applied to the facts of the case.

In considering these authorities and applying the
principles which they lay down, the court should re-
member that in the 3362 section of the Revised Statutes
as amended, all smoking tobacco is required to be put
up and prepared “in packages containing 2, 4, 8, and 16

ounces each ;” that by an amendment in the war-revenue
aw of 1898 the packages were reduced in weight to

1%, 24, 34, and a new provision made for a 1-ounce
package. That smoking tobacco is taxed by package
according to its weight, and that the stamp of the Gov-
ernment is evidence of the weight of the tobaceo—not
the weight of the package, but the weight of the tobacco
contained in it. Had the Government the right, in the
administration of this law and for its efficient enforce-
ment, to prevent any article from being inclosed within
a sealed package, which would have increased the
weight of the package containing the taxable subject?
Had it the right to provide that no article of greater
weight than one-tenth of an ounce, or of any other
weight, should be inclosed within the sealed package?

If it had the right to legislate against increasing the

weight of the contents of a package, so as to exclude
articles of a given weight being packed therein, can
there be a question that it had the right to exclude all
substances, except that which was the subject of taxa-

tion from being placed therein?
If the Government was under the necessity, in sus-

taining the constitutional power of Congress to enact
this provision, to rely upon the “incidental and auxil-
iary powers” found in the Constitution, and not upon
an express grant of power, it seems to us, we should
have little difficulty in convincing the court that the
question presented by this record is not one of power,
but one of policy or expediency. To declare this law
unconstitutional, the court must hold that it was not
“necessary or proper” in carrying into execution any
grant of power to Congress. It must be prepared to
say that the “means” employed by Congress were not

38

“adapted to the end” which Congress had in view, the
efficient administration of a constitutional impost; that
the ‘‘means” adopted were not “means calculated to
produce the end,” to wit, the true weight of the subject of
taxation.

The personal opinion of the individual composing

the court, as to its appropriateness to accomplish the
purpose of Congress, can not be substituted for the
express judgment of Congress.

Congress has the right to select the means.

Is the court prepared to say, in the language of
Marshall, that it ‘feels a clear and strong conviction”
that as an administrative measure it was not within
the power of Congress to consider this means, among
others, to enforce the correct weight of the contents of the
subject to be taxed contained within the sealed packages?
Weight, and that alone, is the basis on which the tax
of the Government is determined. Has it not the
right to guarantee the correctness of this basis? Is
the court prepared to say that the method adopted by
Congress should not have been considered by it as a
“means calculated to produce the end”—to prevent
the fraudulent underweight of the subject of taxation
contained in these sealed packages—and therefore it is
repugnant to the Constitution? If the court can not
hold that the “‘means” adopted by Congress as an
administrative measure to effectuate the exercise of a
constitutional power, was not excluded from its considera-
tion, it must admit the right of Congress to select
this means for the enforcement of the exercise of a

39

constitutional power. Within this limitation the legis-
lature is certainly supreme. It is, then, not a question
of power, but, as I have stated, of selection, of policy, of
expediency. To urge the courts to enter this field is to
request that it shall do that which so early in our his-
tory was repudiated by Chief Justice Marshall when
he stated that it would be to “pass the line which cir-
cumscribes the judicial department and tread on leg-

islative ground.”
As decided by Justice Peckham (173 U. S., p. 524):

Instead of a memorandum, Congress might
have required a sworn report, with the proper
amount of stamps thereon, to be made at cer-
tain regular intervals, of all sales made subject
to the tax. Other means might have been
resorted to for the same purpose. Whether the
means adopted were the best and most conven-
ient to accomplish that purpose was a question
for the judgment of Congress, and its decisions
must be conclusive in that respect.

The means actually adopted do not legally
interfere with or obstruct the internal commerce
of the States, nor are such means a restraint
upon that commerce so far as to render the
means adopted illegal. That Congress might
have adopted some other means of collecting
the tax which would prove less troublesome or
annoying to the taxpayer can surely be no
reason for holding that the method set forth in
the act renders the tax invalid. As it has the
power to impose the tax, the means to be
adopted for its collection within reasonable and
rational limits must be a question for Congress
alone.

a

40
The object and purpose of the act.

The “purpose and end” of this statute is to raise
revenue for the support of the National Government
by imposing a tax upon smoking and other tobacco,
and to provide such regulations as in the judgment of
Congress will protect the revenue and enforce the col-
lection of the taxes levied. This being the object, the
power of Congress is found in the first article, section
8, of the Constitution, which provides: “The Congress
shall have the power to lay and collect taxes, duties,
imposts, and excises.” This is an express grant of
power. There is no limitation upon this grant of
power that can affect the case at bar, nor is there any
question raised by the defendant as to the right of
Congress to tax the contents of these packages. The
sole and only defense offered is, that in providing the
regulations for the enforcement of this grant of power,
Congress has employed ‘“ means” which, in the judg-
ment of the defendant, are repugnant to the Constitu-
tion. But, as Chief Justice Chase said in the case of
Hepburn v. Griswold, that in carrying out the powers
conferred upon Congress it did not depend upon
whether the law was “absolutely necessary, but appro-
priate,” and “not prohibited,” but a law really calcu-
lated to effect the object intrusted to the Government.

Chief Justice Fuller, in the case of In re Kollock
(165 U.S., pp. 536, 537), said:

The act before us is on its face an act for

levying taxes, and although it may operate in
so doing to prevent deception in the sale of

41

oleomargarine as and for butter, its primary
object must be assumed to be the raising of
revenue. And considered as a revenue act the
designation of the stamps, marks, and brands is
merely in the discharge of an administrative
function and falls within the numerous instances
of regulations needful to the operation of the
machinery of particular laws, authority to make
which has always been recognized as within
the competency of the legislative power to
confer.

Protection to purchasers in respect of getting
the real and not the spurious article can not be
held to be the primary object in either instance,
and the identification of dealer, substance, quan-
tity, ete., by marking and branding must be re-
garded as means to effectuate the objects of the act
in respect of revenue.

Illustrations of the necessity, in the judgment of Congress,
for stringent regulations similar to those enacted in the
first paragraph of the third clause of the tenth section
of the act of 1897, made with the object of facilitating
the collection of the tax imposed, and to prevent frauds
upon the revenue.

By an examination of the questions hereinafter re-
ferred to, the court will realize at once that the enact-
ment of the law under discussion was not a departure
in revenue legislation. It will be found to follow in
the beaten track that has been marked by many similar
statutes:

Act of August 27, 1894, section 68; the fol-
lowing sections of the Revised Code; sections
3362, 3363, 3364, 3381, 3384, 3387, 3392.

42

An act passed by Congress after the fullest discus-
sion found in the 29th Statutes at Large, 604, entitled
“An act to allow the bottling of distilled spirits in
bond,” illustrates the case at bar, and the views which
Congress had of its power over these taxable subjects.
The prohibitions found in that act are equally as
effective as those found in the tenth section.

Some adjudicated cases.

The Revised Statutes require that before any pack-
age of either liquor, cigars, chewing or smoking tobacco
are sold there shall be placed upon them the stamp pro-
vided by law. In the case of United States v. Keys (10
Fed. Rep., 876), the court held that the payment of that
tax without putting the stamp upon the package was
not a compliance with the law, and in discussing the
statute used this language:

The Government has imposed a tax on all
kinds of manufactured tobacco, even refuse,
scraps, and sweepings; having required it to be
put up in a particular way or ways, and to be
stamped with stamps for the payment of the tax,
and the stamps canceled; and have imposed this
penalty, not for having in possession manufac-
tured tobacco on which the tax had been paid,
but manufactured tobacco on which stamps have
not been placed and canceled. Congress has as
much power to say the tax shall be paid in a
particular way—that is—as it has to impose any
tax, and all its requirements in that behalf must
be complied with.

In the case of United States v. Jacobi (12 Blatch., 491),

43

the court, in passing upon section 3397 Revised Stat-
utes, which prohibits the putting on of any “stamp in
the similitude or likeness of any other stamp required
to be used, * * * whether the same be a custom
or internal-revenue stamp,” held that the indictment
for this offense did not involve the question whether
the tax was paid or not, but the question of fraud upon
the public.

Justice Caldwell, in delivering the opinion in the
case of United States v. 133 Packages of Spiritous Liquors
and Wines (22 C. C. A., 228), in passing upon section
3449 Revised Statutes, “prohibiting the shipment, trans-
ferring, or receiving of liquors or wines under any than
the proper name or brand known to the trade as designat-
ing the kind or quality of the contents of the packages,”
said:

The contention of the learned counsel for
the claimant, that this section is nothing but a
trade-mark regulation, is not tenable. It is one
of the numerous regulations prescribed by the
internal revenue law, intended to prevent frauds
on the revenue in the manufacture, removal,
shipment, and sale of distilled spirits and other
liquors, and to aid in the detection of such
frauds. The regulations for this purpose are
very extensive and extremely minute. They
embrace every step in connection with the
manufacture and handling of spirits, from the
introduction of the raw material into the dis-
tillery down to the rectification of the product
and its removal, shipment, and sale. * * *

Before any court would be authorized to hold

44

an act of Congress obsolete and inoperative it
would have to appear conclusively that it was
totally inoperative for any lawful or useful pur-
pose. When the statute relates to a subject-matter
within the constitutional competency of Congress to
legislate upon, the presumption is that it serves a
useful purpose. When a statute is susceptible of
two constructions, one which would render it
valid and operative, and the other to press it
beyond the constitutional competency of Con-
gress to enact, or render it inoperative, the
former construction will be adopted. The sec-
tion is none the less a revenue regulation because
its enforcement may tend to discourage the piracy
of trade-marks, and prevent frauds upon those who
consume the contents of the packages. These are
mere incidents of the statute and not its primary
object. Congress has an undoubted right to
legislate to prevent frauds upon the public
revenue, and the validity of such legislation is
not affected by the fact that it incidentally tends
to the discovery or suppression of private frauds.

Should the court sustain the principle upon which
rests the contention of the plaintiff in error, its decision
would tend to render uncertain and doubtful many of
the provisions of the custom and internal-revenue laws
which are regarded as necessary in the collection of
the revenue.

After a full review of the authorities to which I have
referred, bearing on the constitutionality of an act of
Congress, the object of which is to put in force and
give effect to an express grant of power, and applying
the well-recognized rules of constitutional interpretation

45

as to what are “proper and necessary laws” which, as
stated by Marshall, is the exercise of discretionary
power by Congress in the employment “of means not
prohibited, but which are really calculated to effect
the objects intrusted to the Government,” we can not
perceive how the law, now under consideration, could
be other than valid. Under our complicated system
of internal taxation, the rights of the third party would
be most seriously affected unless Congress was at lib-
erty to make stringent provisions for their administra-
tion and enforce strict compliance with the same. All
similar provisions, when submitted to the test of judicial
criticism, have been upheld. Should the contention of
the plaintiff in error be sustained in this cause, the
principle upon which the court’s decision must rest
would necessarily throw into chaos and confusion the
administration of both the internal-revenue and the cus-
tom laws of the country. We are at a loss to perceive
upon what theory the court would base a decision that
this clause of the tenth section of the act of July 24,
1897, was unconstitutional and void.

Packages of smoking tobaceo, under the law of
Congress, are taxed by weight, and the stamp of the
Government is intended, and, in fact, does, in the mind
of the public, fix and determine that question. Being
sealed, to allow extraneous substances, of whatever
character, to be included within the package, and thus
by negligence or fraud reduce the weight of the con-
tents, would make the Government a particeps criminis
in the fraud perpetrated upon the public. Having a

46

right to tax the subject-matter; having the right to
prescribe the size and weight of contents; having the
right to provide that no sale shall be made except in
original and full packages, as put up under the pro-
visions of law; having the right, as decided in the case
of In re Rapier (143 U. S., 110), to prevent the facili-
ties furnished by any of its departments from being
used for improper purposes, can there be any question
in the mind of the court that the prohibition contained
in the first part of the third clause of the tenth section
is a constitutional exercise of the powers conferred
upon the Congress, and is, therefore, valid?

The illustrations which we have given show, that
when the Government has once taken possession of a
subject for the purpose of exercising its grant of power
to tax the same, that its policy, as manifested by its
enactments, has been, first, to execute its powers of
taxation; second, to guard against frauds upon the
revenue, and third, to prevent any possibility of its
being made a participant in a fraud upon the public
through the use of the “means” which it has found
necessary to employ in carrying out those powers.

The third question asked of your honorable court is:

3. Upon the facts stated, was the seizure set forth in the infor-
mation of the packages of Merry World tobacco therein described,

or was the judgment of forfeiture rendered in this case justified
under section 3453 of the Revised Statutes?

In answer to this question the Government would

submit:

1. That the agreement of counsel removed this question from
the consideration of the court below;

47

2. That under the proceedings in the case, the question of seiz-
ure could not have been considered by the court below and will
not be by this court;

3. That section 3453 denounced against the offense the penalty
of forfeiture; and

4. That the seizure was properly made under said section.

First. That the agreement of counsel removed this question
Srom the consideration of the court below.

The following consent agreement was entered in this
case of the Ist day of July, 1899:

And the said district attorney and the said
claimant, by his counsel, respectively, waive
any and all informalities and omissions, should
any such be found in these proceedings on
either side.

The Government had been liberal with those who
had been violating this law, anxious not to enforce its
penalty until its validity and extent was passed upon
by the judicial department of the Government. For
that reason it did not seek to seize all of the tobacco
that was forfeited by reason of this statute, but selected
a manufacturer who had a small amount, that a test
case could be made with as little inconvenience to the
citizen as possible. We have understood that for this
reason this consent order was entered; that the merits
of the case could, without legal quibble or technical
reliance, be brought before the court for its considera-
tion and judgment.

———

48

Second. That under the proceedings in this case, the
question of seizure could not have been considered by the
court below and will not be by this court.

This was a proceeding in rem, to subject to forfeiture
the property, the subject of taxation, which had been
packed in fraud of the provisions of the internal-rey-
enue law.

As decided by Justice Swain, in the case of Cliquot’s
Champagne (3 Wallace, 145):

Revenue laws are not penal laws in the sense
that requires them to be construed with great
strictness in favor of the defendant. They are
rather to be regarded as remedial in their char-
acter, and intended to prevent fraud, suppress
public wrong, and promote the public good.
They should be so construed as to carry out the
intention of the legislature in passing them and
most effectually accomplish these objects.

Justice Story, discussing a similar statute, in the
case of Wood v. The United States (16 Peters, 359),
after approving the instructions of the district judge,
“that no question in relation to the mere seizure of the
goods is in issue, or material under the pleadings in
this case,” proceeds to observe:

It is of no consequence whatsoever what were
the original grounds of seizure, whether they
were well founded or not, if, in point of fact, the
goods are by law subject to forfeiture; for the
the United States are not bound by the acts of
the seizors to the causes which influenced them
in making the seizure, nor by any irregularity

49

on their part in conducting it, if, in point of fact,
the seizure can now be maintained, as founded
upon an actual forfeiture thereof at the dime of
seizure.

Third. That section 3453 denounced against the offense
the penalty of forfeiture; and

Fourth. That the seizure was properly made under said
section.

We will discuss the third and fourth propositions
together, as they involve the construction of the same
statute. It is as follows:

All goods, wares, merchandise, articles, or
objects, on which taxes are imposed, which
shall be found in the possession or custody, or
within the control of any person for the purpose
of being sold or removed by him in fraud of the
internal-revenue laws, or with design to avoid
payment of said taxes, may be seizgd by the
collector or deputy collector of the proper district
or by such other collector or deputy collector as
may be specially authorized by the Commissioner
of Internal Revenue for that purpose, and shall
be forfeited to the United States. The proceed-
ings to enforce such forfeitures shall be in the
nature of a proceeding in rem in the circuit
court or district court of the United States for
the district where such seizure is made.

The facts, as shown in the case agreed, are that
these packages containing the “coupons or vouchers”
were packed by the Merry World Tobacco Company,
of Wheeling, W. Va., in the “manufactory and pre-

17733—02——4

50

pared for sale;” that the promise was made that the
purchaser had bouglit a definite share in any of
the articles mentioned on the voucher (Record, 2); that
Emanuel Felsenheld claimed the ownership of said
tobacco which had been seized.

These facts being established, there was shown upon
the part of the United States, if the first paragraph of
the third clause of the tenth section is constitutional,
probable cause for the present prosecution, and Judge
Story, in deciding the case of Wood v. The United States
(16 Peters, 366), observes that—

probable cause must, in this connection, mean
reasonable ground or presumption that the
charge is, or may be, well founded.

If, therefore, the plaintiff in error relied upon any
defense, in reference either to forfeiture or seizure of
these goods, the burden of proof was upon him — This
view is fully sustained in Cliquot’s Champagne (3 Wal-
lace, 343-344), the court closing the discussion of
the question of the onus probandi with the following
remarks:

The applicability of the rule alike in cases
arising under all the revenue laws was assumed
by the eminent counsel concerned and by the
court. * * * This tacit recognition is equiva-
lent to an express declaration.

In the case of the United States v. 580 Barrels of Dis-
tilled Spirits (5 Blatch., 410), the court, in discussing
this question, says:

We are inclined to think that upon the seiz-
ure of the goods for an alleged violation of law,

51

if the complainant relies upon a conformity with
it as a defense, he is bound to establish the af-
firmative by proof; that it would be unreason-
able and not consistent with the rules of evidence
to call on the Government to establish a nega-
tive. The means of furnishing the evidence are
in the possession of the claimant. * * *
The adoption of the seizure by the Government
cures any defect in this respect.

If the contention of the Government is correct, that
the Congress had the right to prohibit, under the pen-
alty of seizure and forfeiture, the packing in these
packages of tobacco the “‘coupons or vouchers” set out
in the information; that in the exercise of that consti-
tutional power, the Congress expressed its judgment by
this enactment; that the packages of tobacco put up in
fraud of the revenue law were in possession or custody or
within the control of any person; that they were not
claimed by the Merry World Tobacco Company, but
by one Emanuel Felsenheld, the conclusion under the
decisions as to the onus probandi rests upon the de-
fendant, the facts agreed were sufficient to show that

they were removed in fraud of the internal-revenue

law, and the right of seizure and forfeiture, under sec-
tion 3453 of the Revised Statutes, can not be questioned.

4. Upon the facts stated, was the seizure set forth in the infor-
mation of the packages of Merry World tobacco therein described,
or was the judgment of forfeiture rendered in this case justified
under section 3456 of the Revised Statutes?

If for any reason that might be suggested to the
mind of the court, the seizure and forfeiture of this
property is not valid under section 3453, which we

52

have discussed, can there be a doubt of the forfeiture
of the property under section 3456 of the Revised
Statutes and the right to seize such forfeited property,
under section 3166 and 3460 of the Revised Statutes,
Why the circuit court of appeals should have limited

the question as to seizure (if such is the true construc-
tion of its language) to section 3456, which provides
for the forfeiture when the right of seizure is sustained
by other sections referred to, we are at a loss to under-
stand. Nor can we see the relevancy of the request
for an answer, from this honorable court, as to the
question of seizure under the decisions hereinbefore
referred to of Wood v. The United States (16 Peters,
359), and United States v. 508 Barrels of Distilled
Liquor (3 Blatch., 410), as under these decisions, the
court, acting by consent in lieu of a jury, could not
have been called on to pass upon the question of
seizure.

Clause 3 of paragraph 10 of the act of 1897 provides
no penalty for its violation. This frequently occurs in
the legislation of Congress, but it has seldom given rise
to any difficulty as there have been found general pro-
visions to meet such omissions. The penalty in this
case would have been determined by section 3368 of
the Revised Statutes but for the limitation contained
in that section. It provides:

No manufactured tobacco shall be sold or
offered for sale unless put up in packages and
stamped as prescribed by law.

The limitation found in the latter part of the section,
however, limits the penalty to offenses of violations of

538

the provision found in chapter 6 of title “35, internal
revenue.” The amendment made in the act of 1897
(now spoken of as the third clause of the tenth section)
amends section 3394 of the Revised Statutes found in
“title 35, internal revenue, chapter 7.” For this rea-
son the Government has relied upon the penalty of for-
feiture as coming within the spirit and language of
section 3456, which imposes a penalty for doing any-
thing by this title prohibited, which language embraces
all violations of the provisions of the statute included
within the “title 35, internal revenue.” It provides as
follows:

If any distiller, rectifier, wholesale liquor
dealer, or manufacturer of tobacco or cigars
shall knowingly or willfully omit, neglect, or

refuse to do or cause to be done any of the
things required by law in the carrying on or
conducting of his business, or shall do anything
by this title prohibited, if there be no specific
penalty or punishment imposed by any other
section of this title for the neglecting, omitting,
or refusing to do or causing to be done the
thing required or prohibited, he shall pay a pen-
alty of one thousand dollars; and if the person
so offending be a distiller, rectifier, or wholesale
liquor dealer, all distilled spirits or liquors owned
by him or in which he has an interest as owner,
and if he be a manufacturer of tobacco or cigars,
all tobacco or cigars found in his manufactory,
shall be forfeited to the United States.

The agreed statement of facts shows that these
“coupons or vouchers” were packed in each of the

54

packages seized “when it was packed in the manu-
factory and prepared for sale” (Record, 2); that it had
been the practice and custom of manufacturers of
smoking tobacco to include such coupons in said
packages (Record, 2, 3); that there had been “fre-
quent complaints made to the Government by private
persons or corporations who were interested in the dis-
continuance by the defendant and others of the use of
said coupons” (Record, 15); that “because of the in-
sistence by private persons or corporations who were
interested in the continuance by the defendant and others
of the use of said coupons” this seizure of property and
information was made (Record, 15); that the defendant
claimed to be the owner of the tobacco seized (Record,
1); that the collector was specially authorized by the
Commissioner of Internal Revenue to seize the articles
or things mentioned in the information.

It needs no argument to show that, under the law,
no one but a manufacturer could pack within these
sealed packages the coupons set out in the information;
nor could interested parties desire the ‘discontinuance
by the defendant of the use of said coupons” unless he
was a manufacturer; nor could other persons or cor-
porations be interested in the continuance by the ‘‘de-
fendant in the use of the coupons” unless he was the
manufacturer of the tobacco seized.

The facts admitted in the case agreed bring the case
clearly within section 3456, which declares the penalty
of forfeiture of this tobacco. The property being for-
feited, the right to seize the same is found in sections
3166 and 3460 of the Revised Statutes.

55

The principle decided in the case of United States
v. Two Hundred Barrels of Whisky (95 U. S., 571), in
which the court was passing upon a similar statute en-
acted in 1868, will be found to govern and control the
penalties for a violation of section 3394, as amended by
the third clause of the tenth section of the act of 1897.
Chief Justice Waite, in delivering the opinion of the
court, on page 574, in speaking of what was then sec-
tion 96 of the act above referred to, said:

Section 96 was, however, undoubtedly in-
tended to impose upon rectifiers and wholesale
liquor dealers the duty of doing, or causing to
be done, everything pertaining to their respec-
tive occupation which was necessary, in order to
enable others acting under the iaw to do what
was required of them. If they feiled in this,
and there was no other penalty provided for
the neglect, they were subjected to the provi-
sions of that section. If, however, by any other
section a specific duty was imposed upon them,
which, if performed, would enable the other
parties to act in the proper manner, and a pen-
alty was prescribed for the omission to perform
such duty, they were not to be proceeded
against under section 96. It was not intended
by Congress to add, in that section, to the
already existing penalties for an offense, but to
provide for omitted cases only.

The court in the case cited, clearly announces the

principle which should control in the case now before

the court: That where no specific penalty is prescribed
for the doing or the omission to do a particular thing,

56

the punishment should be controlled by the general
provision. In this case Congress has affixed no spe-
cific penalty for the violation of section 10. Section
3363, we believe, can not be relied upon, as the of-
fense is not included in the sixth chapter of the thirty-
fifth title. Section 3456, found under the head of title
35, internal revenue, embraces in its scope section
3394, as amended by the tenth section of act of 1897,
it being part of said “ title.”

The evidence hereinbefore referred to certainly pre-
sents a case of probable cause, and sufficient on which
to rest the judgment of the court if not contradicted
by any evidence in the record. And if such evidence
existed it was the duty of the plaintiff in error to pre-
sent it to the court below. This has not been done.

Wood v. The United States, 16 Peters, 336;
Cliquot’s Champagne, 3 Wallace, 148, 4;
United States v. 508 Barrels Distilled Spirits,
5 Blatch., 410.

James M. Beck,
Assistant Attorney-General.
CuarLes J. FAULKNER,
Special Counsel for Government.

O

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386019_0078%3A2. Public record. Not legal advice.