stitutional, also exempts from tax express receipts issued in this country for goods or merchandise to be transported to a foreign country.

In reply, you are advised that the decision of the Supreme Court was expressly confined to export bills of lading. The question of express receipts was not considered by the court. It is, therefore, ruled that express receipts given in the United States for goods to be transported to a foreign country are still required to be stamped.

Respectfully,

Mr. A. R. PROUTY, Eagle Pass, Tex.

(335.)

J. W. YERKES, Commissioner.

Indictments against parties charged with violation of the oleomargarine laws. The regulations prescribed by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, in regard to marks and brands on packages of oleomargarine, are authorized by law. The provisions of section 6, act of August 2, 1886, are within the constitutional power of Congress. Where the indictment, under that section, charged that the defendant unlawfully packed, unlawfully sold, and unlawfully delivered oleomargarine, and the question being whether the counts contained enough to describe the offense punishable under the section, it was held that the counts were sufficient.

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER OF INTERNAL REVENUE,

Washington, D. C., April 27, 1901.

To collectors of internal revenue and others concerned:

The appended decision of the United States circuit court of appeals for the third circuit, relative to indictments against parties indicted for violations of the oleomargarine laws, is promulgated for the information of collectors of internal revenue and others concerned.

J. W. YERKES, Commissioner.

UNITED STATES CIRCUIT COURT OF APPEALS FOR THE THIRD CIRCUIT.-Nos. 15, 17, AND 23.-SEPTEMBER TERM, 1900.

Daniel E. Dougherty, plaintiff in error, v. United States of America, defendant in error. James P. Farraher, plaintiff in error, v. United States of America, defendant in error. Michael F. Lavin, plaintiff in error, v. United States of America, defendant in error.

Error to the district court of the United States for the eastern district of Pennsylvania.

Before DALLAS and GRAY. circuit judges, and BRADFORD, district judge.

BRADFORD, district judge:

Daniel E. Dougherty, James P. Farraher, and Michael F. Lavin, the plaintiffs in error, were severally indicted, tried, and convicted and sentenced in the district court of the United States for the eastern district of Pennsylvania, for the violation of section 6 of the act of Congress of August 2, 1886, entitled "An Act defining butter, also imposing a tax upon and regulating the manufacture, sale, importation and exportation of oleomargarine" (24 Stat., 209). That section is as follows:

"Sec. 6. That all oleomargarine shall be packed by the manufacturer thereof in firkins, tubs, or other wooden packages not before used for that purpose, each containing not

less than ten pounds, and marked, stamped and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe; and all sales made by the manufacturers of oleomargarine, and wholesale dealers in oleomargarine shall be in original stamped packages. Retail dealers in oleomargarine must sell only from original stamped packages, in quantities not exceeding ten pounds, and shall pack the oleomargarine sold by them in suitable wooden or paper packages, which shall be marked and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe. Every person who knowingly sells or offers for sale, or delivers or offers to deliver, any oleomargarine in any other form than in new wooden or paper packages, as above described, or who packs in any package of oleomargarine in any manner contrary to law, or who falsely brands any package or affixes a stamp on any package denoting a less amount of tax than that required by law, shall be fined for each offence not more than one thousand dollars, and be imprisoned not more than two years."

Pursuant to this section, the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, promulgated certain regulations, which, so far as material in this connection, provided that each retailer's wooden or paper package should have the name and address of the dealer printed or branded thereon, and also the word "Pound" and "Oleomargarine" in letters not less than one-quarter of an inch square, and the quantity written, printed, or branded thereon in figures of the same size, substantially according to the form set forth in such regulations. Dougherty and Farraher severally demurred to the indictments against them. The demurrers having been overruled, the demurrants and Lavin, who did not demur, went to trial on the plea of not guilty, and thereafter each of them moved in arrest of judgment. The motions in arrest were denied and sentence pronounced. Writs of error having been taken, the three cases have for convenience been argued and considered together.

on.

There are substantially only two questions raised by the assignments of error relied They are, first, whether section 6, above quoted, in so far as it provides for marking and branding packages used by retail dealers in oleomargarine, is not merely a police regulation, and as such unconstitutional, and, secondly, whether the indictments sufficiently charge any offense punishable under that section. Whatever might be our opinion on the former question were it res integra, we feel concluded by the language employed by the Supreme Court in the case of in re Kollock (165 U. S., 526). Kollock had been convicted and imprisoned for the violation of the section in question under an indictment charging that he, being a retail dealer in oleomargarine, knowingly sold and delivered half a pound of it, which was not at the time of such sale and delivery packed in a new wooden or paper package printed or branded as required by the regulations prescribed by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury.

The defendant filed his petition for a writ of habeas corpus on the ground that it was not within the constitutional power of Congress "to delegate to the Commissioner of Internal Revenue or the Secretary of the Treasury of the United States, or any other person, authority or power to determine what acts shall be criminal, and the said act of Congress aforesaid does not sufficiently define, or define at all, what acts done or omitted to be done within the supposed purview of the said act shall constitute an offense or offenses against the United States." The writ was denied, the court holding that the authority conferred on the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, to prescribe how packages of oleomargarine should be marked, stamped, and branded did not involve an unconstitutional delegation of power. It is true that the point there decided is not in dispute before us.

The court, however, 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 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. * We concur with the court of appeals, that this provision does not differ in principle from those of the internal-revenue laws, which direct the Commissioner of Internal Revenue to prepare suitable stamps to be used on packages of cigars, tobacco, and spirits, to change such stamps when deemed expedient, and to devise and regulate the means for affixing them. (Rev. Stat., secs. 3312, 3395, 3445, 3446, etc.)

*

*

"By section 3446 the Secretary and the Commissioner were empowered to alter or renew or change the form, style, and device of any stamp, mark or label used under any provision of the law relating to distilled spirits, tobacco, snuff, and cigars, when in their judgment necessary for the collection of revenue taxes and the prevention or detection of frauds thereon; and may make and publish such regulations for the use of such mark, stamp, or label as they find requisite, and by the act of March 1, 1879 (20th Stat. 327, 351, ch. 125, par. 18), the section was amended so as to provide that the Commissioner, with the approval of the Secretary, might establish and, from time to time, alter or change the form, style, character, material, and device of any stamp, mark, or label used under any provision of the laws relating to internal revenue. The oleomargarine legislation does not differ in character from this, and the object is the same in both, namely, to secure revenue by internal taxation and to prevent fraud in the collection of such revenue. Protection of purchasers in respect of getting the real and not a spurious article can not be held to be the primary object in either instance, and the identification of dealer, substance, quantity, etc., by marking and branding must be regarded as means to effect the objects of the act in respect of revenue."

We feel bound by the views thus expressed. The marking, stamping, and branding required by the regulation must, therefore, be regarded as "means to effect the objects of the act in respect of revenue," and, so regarded, the provisions of section clearly were within the constitutional power of Congress. We are now brought to the inquiry whether any offense punishable under that section is charged or sufficiently charged in the indictments. Each of the indictments charges in different counts that the defendant therein named unlawfully packed, unlawfully sold, and unlawfully delivered oleomargarine. A general verdict of guilty having been returned in each case, if any of the counts in any case be sufficient to support such a judgment as was rendered in that case, the judgment so rendered must be affirmed.

The second count in the indictment against Dougherty charges that he "then and there, a retail dealer in oleomargarine, * * * did knowingly, wilfully, and unlawfully sell and offer for sale a certain amount of oleomargarine, to wit, 1 pound of oleomargarine, packed in a plain wrapper, and not in a new and suitable wooden or paper package, or packages, as then and there required by the act of Congress approved August 2, A. D. 1886, defining butter and imposing a tax upon and regulating the manufacture and sale of oleomargarine, and. which said plain wrapper in which said oleomargarine so sold and offered for sale as aforesaid, was packed, was not then and there marked and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, had theretofore, to wit, on June 18, 1895, in certain regulations prescribed." The second count in the indictment against Farraher and the corresponding count in the indictment against Lavin contained mutatis mutandis the above phraseology, save that the quantity of oleomargarine alleged to have been sold is half a pound instead of a pound.

The plaintiffs in error contend on two grounds that the counts in the several indictments similar to them can not support the judgment complained of. They urge, first, that section 6 does not provide any penalty against retail dealers, under any circum

* * *

* * *

stances, for selling or offering for sale oleomargarine in packages other than those prescribed for their use, and, secondly, that even on the assumption that it does, such counts do not contain a sufficient description of any offense punishable under the section. The section relates to three classes of persons dealing in oleomargarine, namely, manufacturers, wholesale dealers, and retail dealers. Manufacturers are required to pack oleomargarine "in firkins, tubs, or other wooden packages not before used for that purpose, each containing not less than ten pounds, and marked, stamped and branded as the Commissioner of Internɛ 1 Revenue, with the approval of the Secretary of the Treasury, shall prescribe." Sales of oleomargarine by manufacturers and wholesale dealers are required to be "in original stamped packages." Retail dealers are permitted to sell only from original stamped packages in quantities not exceeding 10 pounds, and are required to pack the oleomargarine sold by them "in suitable wooden or paper packages, which shall be marked and branded as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall prescribe." The penal clause of the section provides, among other things, that "every person who knowingly sells or offers for sale any oleomargarine in any other form than in new wooden or paper packages as above described shall be fined," etc. It is argued that, while the earlier portion of the section restricts manufacturers and wholesale dealers, in selling oleomargarine, to the use of original stamped packages, or packages not before used, for that commodity, it requires the retail dealer to pack, not in "new" but in "suitable" packages, which may or may not be new, and that, therefore, the penal clause of the section, in denouncing the sale of oleomargarine by any person in any other form than in new packages, is inapplicable to retail dealers. It is further urged in support of this contention that there is no reason why retail dealers should not be permitted to use old packages, provided they are "suitable" and marked and branded as prescribed. This position we think is untenable. We are not prepared to say that it is unimportant for the purposes of the act that retail dealers should be restricted to the use of new packages. But if the intent of the section as gathered from the language employed is clear, the question whether there is any or sufficient reason for requiring retail dealers to use only new packages is not one for judicial determination, however, it may address itself to legislative discretion. Careful examination of the section as a whole has satisfied us that the penal clause applies as well to retail dealers as to wholesale dealers and manufacturers. The words "every person who knowingly sells or offers for sale any oleomargarine" are broad enough to include all of the three classes of persons with whom the section deals. Further than this, by the earlier portion of the section manufacturers and wholesale dealers are restricted to the use of wooden packages, while retail dealers are permitted to use either" wooden or paper packages." The penal clause in denouncing the sale of oleomargarine otherwise than in "new wooden or paper packages" clearly has reference to sales by retail dealers as well as by others, unless the words "or paper" are to be wholly disregarded. But there is no sufficient reason why those words should be ignored. On the contrary, the general intent of the section imperatively requires that they should have their full and natural force. The remaining inquiry is whether the counts in question respectively contain a sufficient description of the offense sought to be charged. Each of them alleges that the defendant therein named, being a retail dealer, knowingly, wilfully, and unlawfully sold oleomargarine "packed in a plain wrapper, and not in a new and suitable wooden or paper package, or packages," as required by the act of Congress, and that the wrapper was not "marked and branded" as presecribed by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury.

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The section requires that packages used by retail dealers shall be " new wooden or paper packages, as above described," and the packages "above described" are "suitable wooden or paper packages," marked and branded as prescribed. A retail dealer

violates the section who sells oleomargarine in a "plain wrapper" which is not a "new" wooden or paper package, or which is not a "suitable" package, or which is not "marked and branded” as required. Each of these three counts contains enough, and indeed more than enough, fully to describe an offense punishable under the section, and to sustain the judgment. It is alleged that the defendant sold oleomargarine in a wrapper which was not a new and suitable package and was not marked and branded. It was unnecessary to charge in each count more than was required to constitute a single offense, but the joinder therein of several offenses was not calculated to confuse or prejudice the defendant, nor was it, under the rules of criminal pleading, a fatal defect. The judgment below in each case is affirmed.

(336.) Legacy tax.

Section 29, act of June 13, 1898, as amended by act of March 2, 1901, imposing a tax on legacies, applies only where the testator or intestate died after the act was passed. Taxes collected prior to the amendatory act can not be refunded, pending decision of the courts.

TREASURY DEPARTMENT,

OFFICE OF COMMISSIONER OF INTERNAL REVENUE,

Washington, D. C., April 30, 1901. SIR: Inquiries have been received at this office in regard to the effect of the amendment made by the act of March 2, 1901, to section 29 of the war-revenue act, relative to tax on legacies, which is as follows:

That the provisions of this Act and of the Act hereby amended shall not be held to apply to any estate where the testator or intestate died before June thirteenth, eighteen hundred and ninety-eight.

If taxes of this character have been paid since the passage of the amendatory act, claims for refund will be considered. The act is not retroactive in its effect, and no taxes collected under the law as it existed prior to the passage of the act of March 2, 1901, can be refunded unless the courts decide that they were illegally collected.

I would state that there is a case pending in the United States circuit court of appeals in Philadelphia in which this question is involved, viz, McClain v. Pennsylvania Company, etc., and this office is awaiting its decision.

Parties who have paid taxes in such cases can file claims for refund and save their rights in case there should be a final authoritative decision adverse to the position taken by this office, as claims are barred unless presented within two years after the cause of action accrues. The cause of action accrues at the time of the payment of the tax. Respectfully, J. W. YERKES, Commissioner. Mr. P. A. McCLAIN, Collector First District, Philadelphia, Pa.