United States v. Lazzaro

255 F. 237, 1918 U.S. Dist. LEXIS 695

• Court: District Court, W.D. Washington
• Decided: November 5, 1918
• Docket: No. 4265
• Status: Published

Opinion

NETERER, District Judge.

The defendant is charged with violating the Act of February 8, 1875, c. 36, § 16, 18 Stat. 310 (U. S. Comp. Stat. § 5966).

[1,2] Counsel challenge the sufficiency of the indictment. It is contended by the defendants that the laws of the state of Washington declare the public policy of the state, and, since the sale of intoxicating liquor is prohibited, the government of the United States would not issue a permit or license in contravention of this law, becoming thereby a party to this violation.

The provisions of section 5970, U. S. Comp. Stat., requiring the payment of special tax, does not authorize the carrying on of the business in violation of state laws. The contention that effect must be given to the license against the law of the state must’ fail. McGuire v. Massachusetts, 3 Wall. (70 U. S.) 387, 18 L. Ed. 164.

Where Congress has power to regulate trade, of course it may do so by license, and, when so regulated, the license carries with it authority to do what its terms provide. This would apply to interstate commerce, etc., and “every other power of Congress to the exercise of which the granting of licenses may be incident.” License Tax Cases, 5 Wall. (72 U. S.) 462, 18 L. Ed. 497.

The state has exclusive power over domestic trade of the states. The Webb-Kenyon Act March 1, 1913, c. 90, 37 Stat. 699 (section 8739, U. S. Comp. Stat.), merely reinforces the state statute with relation to illicit liquor dealers, and the Reed Amendment of March 3, 1917, c. 162, 39 Stat. 1069 (Comp. St. 1918, §§ 8739a, 10387a-10387c), gives federal cognizance and fixes a penalty for the violation.

These acts are merely cumulative and not out of harmony with the Revenue Act, supra, whose primary purpose is to raise revenue.

This act, as stated, does not grant a right to carry on business, but fixes a penalty for engaging in business without having paid the tax, and this applies uniformly to all the states and territories.

The demurrer is overruled.

The following cases are cited by defendants: Ledbetter v. U. S., 170 U. S. 610, 18 Sup. Ct. 774, 42 L. Ed. 1162; U. S. v. Rennecke (D. C.) 28 Fed. 847; U. S. v. Jackson, Fed. Cas. No. 15,455, 1 Hughes, 531; U. S. v. Logan, Fed. Cas. No. 15,624; U. S. v. Bonham (D. C.) 31 Fed. 808; U. S. v. Angell (C. C) 11 Fed. 34.