Sims v. Rives (84 F.2d 871, 1936)

STEPHENS, Associate Justice.

This is an appeal from a judgment in the Supreme Court of the District of Columbia discharging a writ of habeas corpus and dismissing the petition upon which the writ had been issued.

The facts are as follows: On December 19, 1934, the appellant was convicted in the United States Police Court of the District of Columbia, on an information charging violation of the District of Columbia. Alcohol Beverage Control Act, approved and- effective January 24, 1934, 48 Stat. 319, as amended by the Act approved April 30, 1934, 48 Stat. 654. The petition for the writ asserted that the information charged “transportation of two cases of untaxed whisky.” It Was agreed by counsel at the bar and stipulated for the record that the actual offense involved was violation of subparagraph (c) of Section 17 of the Liquor Regulations prescribed under the Act referred to. The subparagraph provided:

“(c) Whenever alcohol, spirits, or wines shall be transported in quantities in excess of 12 quarts, or beer in excess of 48 quarts, the person in charge of such transportation shall have in his possession a bill or memorandum from the seller to the purchaser, showing the names and addresses of the seller and of the purchaser, and the quantity and character o.f the beverage sold and transported, or a permit from the Board. Upon the demand of any police officer or duly authorized inspector of the Board, the person in charge of such transportation shall exhibit the bill, memorandum, or permit.”

A sentence of four months’ imprisonment was imposed upon the appellant for violation of this regulation. This sentence has been executed, and the appellant raises no question herein concerning this conviction or the sentence thereunder. The general purpose of the District of Columbia Alcohol Beverage Control Act (hereinafter referred to as the Beverage Control Act) was, as indicated by the title, “To control the manufacture, transportation, possession, and sale of alcoholic beverages in the District of Columbia.” Under Section 4, the Alcohol Beverage Control Board was created, with members to be appointed by the Commissioners of the District of Columbia. By Section 7, the Commissioners were authorized to prescribe such rules and regulations not inconsistent with the Act as they might deem necessary to carry out the purposes thereof and to make rules and regulations for the issuance, transfer, and revocation of licenses, and to facilitate and insure the collection of taxes. By Section 23 it was provided that “There shall be levied and collected by the District of Columbia on all beverages, except beer, manufactured by a holder of a manufacturer’s license and on all beverages, except beer, purchased by the holder of a wholesaler’s or retailer’s license, except such beverages as may have been purchased from a licensee under this Act” certain taxes.

At the outset the act provided:

“That the National Prohibition Act, as amended and supplemented, insofar as it affects the manufacture, sale, and possession in the District of Columbia, and the transportation in, into, and from the District of Columbia, of alcoholic beverages, is hereby repealed, with the exception of title III, and section 4 of title II insofar as it affects denatured alcohol.”

On January 11, 1934, there had been passed, and on the same date approved, effective, however, as to Title 1 on the day following and as to Title 2 thirty days thereafter, the “Liquor Taxing Act of 1934,” 48 Stat. 313. The main purpose of this Act, as indicated by its title, was “To raise revenue by taxing certain intoxicating liquors * * It was a general revenue statute stipulating the amount of tax on various types of intoxicating liquors and containing assessment and collection provisions. Section 201 of Title 2 (26 U.S.C.A. § 1152a) provided in part:

“No person shall * * * transport, possess, buy, sell, or transfer any distilled spirits, unless the immediate container thereof has affixed thereto a stamp denoting the quantity of distilled spirits contained therein and evidencing payment of all internal-revenue taxes imposed on such spirits.”

By section 207 of Title 2 (26 U.S.C.A. § 1152g) violators:

“shall on conviction be punished by a fine not exceeding $1,000, or by imprisonment at hard labor not exceeding five years, or by both.”

On August 15, 1934, appellant was indicted, under two indictments in the Supreme Court of the District of Columbia charging violation of the Liquor Taxing Act of 1934. The specific nature of the charge does not appear from the record, but it was again agreed by counsel at the bar and stipulated for the record that the offense was the transportation of liquor without having affixed to the container thereof the stamp required by Section 201, and that the transportation and the liquor in question were identical with those concerned in the conviction under the Beverage Control Act as above set forth. Under these two indictments, the appellant was convicted. Under one, he was on January 10, 1935, sentenced to a penitentiary for a period of not less than one nor more than three years, and under the other, on March 14, 1935, for a period of not less than one year nor more than fifteen months, the second sentence to run concurrently with the first. These sentences were imposed, however, not according to the terms of the Liquor Taxing Act of 1934, but under the Act of July IS, 1932, “To establish a Board of Indeterminate Sentence and Parole for the District of Columbia and to determine its functions, and for other purposes,” 47 Stat. 696, as amended by the Act of June S, 1934, 48 Stat. 880. This Act established in the District of Columbia “a board of Indeterminate Sentence and Parole for the penal institutions for said District,” whose duty it shall be: "“to examine into the physical, mental, and moral records of the prisoners committed to the penal institutions of the District; receive reports of wardens and other officials, including the psychiatrist; recommend the treatment which, in their opinion, is most conducive to the prisoners’ reformation; and provide for a system of determining the proper time of release and the rehabilitation of the ex-prisoner in the community.” Section 1. Subject to the approval of the Commissioners of the District -of Columbia, the Board was by the Act authorized to adopt rules and regulations for its procedure and to appoint parole officers. Section 3 provided, so far as here pertinent:

. “That hereafter, in imposing sentence on a person convicted in the District of Columbia of a felony, the justice or judge of the court' imposing such sentence shall sentence the person for a maximum period, not exceeding the maximum fixed by law, and for a minimum period not exceeding one-fifth of the maximum period fixed by law, and any person so convicted and sentenced may be released on parole as herein provided at any time after having served the minimum sentence * *

The Act further provided:

“Sec. 4. That whenever, within the limitations of section 3 of this Act, it shall appear to the Board of Indeterminate Sentence and Parole, from the reports of the prisoner’s work and conduct which may be received in accordance with the rules and regulations prescribed, and from the study and examination made by the board itself, that any prisoner serving an indeterminate' sentence is fitted by his training for release, that there is a reasonable probability that such a prisoner will live and remain at liberty without violating the law, and in the opiaion of the board such release is not incompatible with the welfare of society, said Board of Indeterminate Sentence and Parole may, in its discretion, authorize the release of such prisoner on parole, and he shall be allowed to go on parole, outside of said prison, and in the discretion of the board to return to his home upon such terms and conditions, including personal reports from said paroled prisoner, as said Board of Indeterminate Sentence and Parole shall prescribe, and to remain, while on parole, in the legal custody and under the control of the superintendent of the institution from which the prisoner may have been paroled, until the expiration of the maximum of the term or terms specified in his sentence, less such good-time allowance as is, or may hereinafter be, provided by law; and the said board shall in every parole fix the limits of the residence of such person paroled, which limits, however, may be thereafter changed in the discretion of the board.

“Sec. 5. If said Board of Indeterminate Sentence and Parole, or any member thereof, shall have reliable information that a prisoner has violated his parole, said board, or any member thereof, at any time within the term or terms of the prisoner’s sentence, may issue a warrant to any officer hereinafter authorized to execute the same for the ' retaking of such prisoner. Any officer of the penal institution from which such prisoner shall have been paroled or any Federal officer authorized to serve criminal process within the United States to whom such warrant shall be delivered is authorized and required to execute such warrant by taking such prisoner and returning him to said penal institution.

“Sec. 9. Upon the appointment of the members of said board, the powers of the existing parole board [the Federal Parole Board] over prisoners confined in the penal institutions of the District of Columbia shall cease and determine and all the powcrs of said existing parole board under the authority of the Act of Congress approved June 25, 1910, entitled ‘An Act to parole United States prisoners, and for other purposes,’ as amended, over said prisoners confined in the penal institutions of the District of Columbia shall be transferred to and vested in said Board of Indeterminate Sentence and Parole * *

Under the foregoing and by virtue of his assignment of errors, the appellant raises three points: I. That the Liquor Taxing Act of 1934 was repealed by the Beverage Control Act for the District of Columbia; II. That contrary to the Fifth Amendment of the Constitution, he has for the same offense between twice put in jeopardy; III. That his sentences under the Indeterminate Sentence Act are void because (a) that Act is not applicable to offenses against general laws of the United States and (b) if it is, it is unconstitutional as a deprivation of liberty without due process of law contrary to the Fifth Amendment, and also as violative of that clause of the Fourth Amendment providing that “no warrants shall issue, but upon probable cause, supported by oath or affirmation * * and also as delegating judicial power to the executive branch of the Government.

I. Was the Liquor Taxing Act of 1934 repealed by the Beverage Control Act? The foundation of the appellant’s argument on this point is the language above quoted in the Beverage Control Act, “That the National Prohibition Act, as amended and supplemented * * * is hereby repealed * * Appellant asserts that the Liquor Taxing Act is an amendment of or a supplement to the National Prohibition Act, and is therefore expressly repealed by the Beverage Control Act. This point we think is without merit. The Liquor Taxing Act is not, and indeed does not at all purport to be, either an amendment of or a supplement to the National 'Prohibition Act in any legal sense. It is a revenue law, not a prohibition law. That a law taxing liquor and a prohibition law are different has been recognized by the Supreme Court. United States v. Rizzo, 297 U.S. 530, 56 S.Ct. 580, 80 L.Ed. 844, decided March 9, 1936. Moreover, the Liquor Taxing Act can hardly be regarded as either an amendment of or a supplement to that which had itself at the time of the going into effect of the Liquor Taxing Act lost its constitutional foundation. The Twenty-First Amendment to the Constitution became effective after ratification by three-fourths of the states December 5, 1933; the Liquor Taxing Act, as above pointed out, not until January, 1934.

The Beverage Control Act cannot be said to operate as an implied repeal of the Liquor Taxing Act because, as' appears from the statement of the two acts above, their purposes are different, the one being a revenue measure of a general nature, the other a regulatory statute' with such tax features as apply only within the District of Columbia. “It is * * * necessary to the implication of a repeal that the objects of the two statutes are the same, in the absence of any repealing clause. If they are not, both statutes will stand, though they may refer to the same subject.” United States v. Claflin, 97 U.S. 546, 552, 24 L.Ed. 1082.

II. Has the appellant been twice put in jeopardy? In support of an affirmative answer to this question, the appellant relies on Grafton v. United States, 206 U.S. 333, 27 S.Ct. 749, 51 L.Ed. 1084, 11 Ann. Cas. 640, holding that a soldier in the United States Army, tried for homicide before a general court martial, could not, because of the double jeopardy provision of the Fifth Amendment, be also tried for the crime of assassination under the penal code of the Philippines in a court of the province of Iloilo, the facts underlying the two charges being the same, i.