Evening star. [volume] (Washington, D.C.) 1854-1972, 1920-08-01

II ment in case now before the United
States Court of Appeals is upheld by
that body certain sections of the
United States Revised Statutes in
force long before enactment of the
national prohibition law will be con-
sidered invalid, is the opinion of a
prominent attorney.
The case is that of the United
States VS.. Windham," and pertains to
| the violation of provisions for the en-
forcement of internal revenue taxes
upon intoxicating liquors, and prose-
cution of persons charged with trans
porting and concealing distilled
spirits contrary to the Revised
statutes of the United States. under
acts committed after the eighteenth
| am ndment became effective. 4
A motion to quaSh the indictment
against Jack Windham, who was
tried at Florence, S. c.. March 16.
| 1920, for violation of these sections,
was granted by District Judge Smith.
| Counsel for the defendant based
their motion on the ground that the
acts charged were committed after
the 18th of January, 1920. when the
| eighteenth amendment of the Con-
stitution of the United States, and
! the statute of October IS. 1919, enforc-
| ing the amendment. took effect.
Part of Statutory Plan.
They showed that the sections of
| the Revised Statutes of the United
States under which the defendant
was indicted were part of a general
statutory plan enacted many years
| ago for the purpose of protecting
and collecting the revenue of the gov
eminent
! Under that plan heavy taxes were
| imposed on the manufacture, vending
a nd a, CT farn1antp H
! liquors containing alcohol as an in
gredient. and heavy penalties pre-
scribed for the violation of the pro-
visions for the collection of these
taxes, as well as for the transporta-
! ton or concealment of such liquors
! before the tax levied had been paid.
1t was argued, therefore, that since
| the time when it was evident the
| policy of the country would appear
| to have encouraged the production
| of such taxable products. this policy
had changed. and that in lieu OF en-
couraging or permitting the produc-
ton and vending such liquors. such
production and use for beverage pur-
poses had been wholly prohibited,
which abrosated the entire system
of deriving revenue from taxes i'm
posed on such production and use
for beverage purposes.
Counsel pointed out that the gen.
eral rule for the construction of
statutes Is lHdl NHeIl Sldlttc
| is enacted inconsistent with a pre-
ceding statute and covering the en-
i tire ground of the Subject-matter, it
supersedes and implicitly repeats the
| preceding statute. Especially is this
| the case when the later statute i'm
poses penalties of less severity for
| the same offense; the rule in favor
! of clemency being that. where differ
! ent penalties are imposed for the
same offense, the lighter penalty,
4 IL LOT -tof tc
| presumed to supersede the earlier
| and heavier.
| Law Would Be Conflicting.
| 1t was then claimed that under GER
| tain sections of the Revised Statutes
| punishment is imposed for the fail
| ure to perform an act required by
! law, but that by the act of October
/ %, 1919, all these acts are prohibited,
! and to hold these sections still in
[ force would be to hold that man
could be punished for failing to do
| that which he is prohibited from do
| ing. and~would not be allowed to do
| if he offered to.
| Therefore the question arose
| whether, the statute of October %.
| 1919, expressly continues of force and
refuses to repeal those sections of the
| Revised Statutes.
In constituting section 35 of title
| of the statute of October 2S, 1919.
| counsel said it must be assumed that
| Congress had in mind the existing
| rules of law, as well as the statutory
| construction. Under the provisions
| of the fifth amendment to the Con-
| stitution of the United States, pro-
| hibiting the placing of party twice
| in jeopardy and similar constitu-
, tional provisions it has been held
! that the constitutional inhibition ap-
plies to any attempt to try a man
! twice and to punish him twice for
| the same offense. To such extent,
| therefore, as the last statute of Oc-
| tober %, 1919, would appear to cover
and include the same ofeenses men
| toned in the previous sections of
| the Revised Statutes of the United
| States. and to provide a punishment
for them, it would be the imposing
| of different penalties and different
| punishments for the same offense
against the constitutional inhibition.
Question of Revised Statutes.
| The question further arose whether
| the section of the Revised Statutes
of the United States and the prohibit
| lions contained in the last statute
of October %, 1919, cover the same
| offenses. inasmuch as the prohibition
/ of the sections of the Revised Statutes
! is against doing the things required
| with an intent to defraud the United
States, or with intent to evade the
! tax. or when the tax has not been
| paid, while the provisions of the last
! statute are to prohibit their being
| done at all.
! On behalf of the government it. was
| claimed that these sections of the