In view of United States v. Jin Fuey Moy, 241 U. S. 394, 36 Sup. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854, it is no longer open to question that the Harrison Act is to be construed as a revenue law and considered as a revenue measure, and not as in any sense a regulation of commerce, whether foreign or interstate.

[1] If an act is in fact a revenue law, it is beyond the province of the courts to inquire into its wisdom, justice or efficiency, the motives that led to its enactment, or its incidental effect as a police measure. The regulation of private morals, the suppression of frauds upon the public, or the protection of industry that may result from a revenue law, will not change in character or invalidate it, if it be otherwise constitutional. McCray v. U. S., 195 U. S. 27, 24 Sup. Ct. 769, 49 L. Ed. 78, 1 Ann. Cas.. 561. And in the exercise of a power granted to it, whether it be that of taxation as in Felsenheld v. U. S., 186 U. S. 126, 22 Sup. Ct. 740, 46 L. Ed. 1085, sustaining the constitutionality of the italicized section of the clause of the Dingley Tariff Act (Act July 24, 1897, c. 11, § 10, 30 Stat. 206) copied as footnote,2 or

or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue.

Nothing contained in this section shall apply

(a) To the dispensing or distribution of any of the aforesaid drugs to a patient by a physician, dentist, or veterinary surgeon registered under this act in the course of his professional practice only: Provided, that such physician, dentist, or veterinary surgeon shall keep a record of all such drugs dispensed or distributed, showing the amount dispensed or distributed, the date, and the name and address of the patient to whom such drugs are dispensed or distributed, except such as may be dispensed or distributed to a patient upon whom such physician, dentist or veterinary surgeon shall personally attend; and such record shall be kept for a period of two years from the date of dispensing or distributing such drugs, subject to inspection, as provided in this act.

(d) The Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, shall cause suitable forms to be prepared for the purposes above mentioned, and shall cause the same to be distributed to collectors of internal revenue for sale by them to those persons who shall have registered and paid the special tax as required by section one of this act in their districts, respectively. * The price at which such forms shall be sold by said collectors shall be fixed by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, but shall not exceed the sum of $1 per hundred.

* *

It shall be unlawful for any person to obtain by means of said order forms any of the aforesaid drugs for any purpose other than the use, sale, or distribution thereof by him in the conduct of a lawful business in said drugs or in the legitimate practice of his profession.

2 None of the packages of smoking tobacco and fine-cut chewing tobacco and cigarettes 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; nor shall there be affixed to, 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.

that of regulating commerce, as in Hoke v. U. S., 227 U. S. 308, 33 Sup. Ct. 281, 57 L. Ed. 523, 43 L. R. A. (N. S.) 906, Ann. Cas. 1913E, 905, sustaining the constitutionality of the White Slave Traffic Act of June 25, 1910, c. 395, 36 Stat. 825 (Comp. St. §§ 8812-8819), or in Hipolite Egg Co. v. U. S., 220 U. S. 45, 31 Sup. Ct. 364, 55 L. Ed. 364, sustaining the constitutionality of the Pure Food Act (Act June 30, 1906, c. 3915, 34 Stat. 768 [Comp. St. §§ 8717-8728]), Congress may adopt "not only means necessary but convenient to its exercise and the means may have the quality of police regulations."

And in the Felsenheld Case it was held to be within the power of Congress to keep the package of tobacco to which a stamp was affixed to indicate payment of the federal tax on the tobacco, free from extraneous articles, such as prize or premium coupons, because, as Justice Brewer said, the government has the

"power to prescribe that the packages which it stamps, upon which it collects a tax, shall contain the very articles and only the articles which it purports to tax and which its stamp certifies that it has taxed."

[2] It does not, however, follow from any of these cases or from the principles underlying them, that because Congress may tax any article regardless of whether or not it be a legitimate article of interstate commerce, it may enact an intrastate prohibition law as to any such article. Its power under article 8, cl. 1, of the Constitution, is only to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defense and general welfare of the United States; not to regulate taxation throughout the land. And while a power to regulate interstate commerce may include the right to prohibit such interstate commerce as may be deemed harmful (Lottery Case, 188 U. S. 321, 23 Sup. Ct. 321, 47 L. Ed. 492; Hoke Case, supra [but see Hammer v. Dagenhart (June 3, 1918), 247 U. S. 251, 38 Sup. Ct. 529, 62 L. Ed. 1101]), the power to lay taxes on an article includes no right to make any specific use of such taxpaid article unlawful.

This, however, is the sole purpose and intent of the last clause in section 2. No question of tax or revenue or the protection or security thereof is involved; under this clause, it is declared unlawful for a physician who has paid the required license fee and has bought the order form essential to obtaining the drug, to consume it himself as a drug addict or to give it away or to sell it except in the legitimate exercise of his profession. In our judgment, this prohibition has no relation whatsoever to the taxing power of Congress; it is exclusively an attempt, in the guise of an incidental tax regulation, to exercise the police powers reserved to the states.

We pass only upon the question raised under this indictment and express no opinion upon the power of Congress to limit the sale of order forms to those entitled to registration, thereby excluding the mere consumer from the right to obtain the drug otherwise than as a patient of a physician.

[3] 2. While the act does not, in express words, require a separate registration and payment of tax as dealer and as physician, there is a clear differentiation between them as to the obligations imposed

upon them respectively under the act. They represent distinct classes; each class is required to pay the tax. And the combination of both occupations in one individual does not exempt him from payment of a separate tax as a dealer and as a physician. Revised Statutes, § 3236 (Comp. St. § 5959), copied as footnote, as a provision of existing law relating to special taxes, is expressly made applicable to the special tax imposed under section 1.

Furthermore, in accordance with the power vested in him under this section 1, the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, made a regulation to the same effect (copied as footnote). Wallace v. U. S., 243 Fed. 300, 156 C. C. A. 80.

"A sale, dispensing or distribution" is permitted to a dealer for a customer on a written prescription; but only "a dispensing or distribution" is allowed to a physician treating a patient, and then only in the course of his professional practice.

The evidence abundantly justified the verdict that the transaction with Dean was a sale by defendant as a dealer in drugs.

It follows, therefore, that the judgment and sentence must be reversed as to the first 12 counts, and affirmed as to count 14, and the cause remanded for further proceedings in accordance herewith.

NOTE.-Judge Kohlsaat concurred in the foregoing conclusions, but died before the opinion was prepared.

On Petition for Rehearing.

In the petition for rehearing as to the fourteenth count, plaintiff in error, in addition to restating matters heretofore considered and as to which we find no occasion for further discussion, calls attention for the first time to a portion of article 10 of the Revised Regulations of the Treasury Department as of May 4, 1916, contained in Internal Revenue Regulations, No. 35, and reading as follows:

"A physician, dentist, or veterinary surgeon may not engage in the business of selling narcotic drugs unless he is a registered dealer, authorized by the state laws to engage in such business. Additional registration is not required, however, when narcotic drugs are sold to a patient upon whom a physician, dentist, or veterinary surgeon is in personal attendance."

These sentences, however, are to be construed in the light both of article 1 and of that part of article 10 immediately preceding the quoted sentences, and reading as follows:

"Under the exempting provisions of section 2 of the act, no written order is required for the 'dispensing or distribution of any of the aforesaid drugs to a $ Whenever more than one of the pursuits or occupations hereinafter described are carried on in the same place by the same person at the same time, except as hereinafter provided, the tax shall be paid for each according to the rates severally prescribed.

4 Every person conducting more than one class or place of business or practicing more than one profession, or at more than one place, in which the narcotic drugs are sold, dispensed or given away, must register and pay the special tax for each profession and business separately, even though conducted at the same address, and separate records must be kept under each registration.

255 F.-22

patient by a physician, dentist or veterinary surgeon registered under this act in the course of his professional practice only.' A record, however, is required to be kept of all such drugs dispensed, distributed or administered in his office, and of all such drugs left with any person or patient to be taken in his absence, only such drugs as are personally administered by a physician, dentist or veterinary surgeon when away from his office are exempt from the records."

So construed, the regulations clearly require a physician who acts as a dealer to register as such; but a sale to one in the course of his personal attendance upon him as physician does not necessitate registration as a dealer.

The sale here contemplated is a sale by him not as a dealer but as a physician; instead of "dispensing, distributing or administering" a dose of the narcotic as a part of his medical service, without a separate charge therefor, it may be that in some places physicians are accustomed to charge specifically therefor. While this might well be deemed a dispensing, yet as it could be held to be sale, the regulations out of abundant caution provide that in such a case, doubtless because the physician is not then acting as a dealer, no additional registration is required.

In the instant case, however, the indictment charges and the evidence abundantly proves that, though the purchaser was registered as a patient, the sale was made to him by defendant acting as a dealer, and not as a physician in personal attendance, administering or dispensing the drug as part of the professional service.

That the same form of stamp or receipt is issued by the department to all persons, reciting that the money is for "Special Tax on Manufacturer, Distributor, etc., of Opium, etc., under Act of December 17, 1914," in no manner modifies the specific requirement under article I of the regulations, of double registration for one acting both as physician and as dealer.

Rehearing denied.

UNITED STATES v. DENKER et al.

SAME V. BERNSTEIN et al.

(District Court, E. D. New York. August 16, 1918.)

1. POISONS 2-HARRISON NARCOTIC ACT-CONSTRUCTION.

Harrison Narcotic Act, § 8 (Comp. St. § 6287n), making it unlawful for any person who has not registered and paid the special tax to have in his possession any of the drugs named, applies only to the classes of persons required by the act to register and pay the tax.

2. POISONS 2-HARRISON NARCOTIC ACT-CONSTITUTIONALITY.

Harrison Narcotic Act (Comp. St. §§ 6287g-6287q) is constitutional.

Criminal prosecutions by the United States against Morris Denker and Hyman Morganstein and against Samuel Bernstein and Nathan Horowitz. On demurrer to indictments. Demurrers overruled, except as to one charge in second case, which is sustained.

Melville J. France, U. S. Atty., and Charles J. Buchner, Asst. U. S. Atty., both of Brooklyn, N. Y., for the United States.

K. Henry Rosenberg, of New York City, for defendants.

GARVIN, District Judge. These two cases were argued at the same time and may be disposed of together.

[1] The defendants have demurred to the indictments, claiming that Act Dec. 17, 1914, 38 Stat. 785, c. 1 (Comp. St. §§ 6287g-6287q), known as the Harrison Drug Law, is unconstitutional. The defendants Denker and Morganstein are charged in one indictment with having violated sections 1 and 2 of the act. The defendants Bernstein and Horowitz by a second indictment are charged with violating sections 1, 2, and 8. The demurrer of the defendants Bernstein and Horowitz to the second charge (a violation of section 8) must be sustained. United States v. Jin Fuey Moy, 241 U. S. 394, 36 Sup. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854.

[2] The defendants all claim that the entire Harrison Law is unconstitutional, under the authority of United States v. Doremus (D. C.) 246 Fed. 958, a decision of the District Court for the Western District of Texas. Subsequently the law has been declared constitutional by the District Court for the Southern District of New York. United States v. Jacob Rosenberg (decided July 17, 1918) 251 Fed. 963. A decision has also been rendered by the United States Circuit Court of Appeals for the Seventh Circuit in Arthur L. Blunt v. United States of America, 255 Fed. 332, C. C. A., by which the last. paragraph of section 2 has been held unconstitutional, but the first part of that section has been held constitutional. To the same effect are United States of America v Hoyt, 255 Fed. 927, United States District Court, Southern District of New York, November 9, 1917, and United States v. Jin Fuey Moy, 253 Fed. 213, United States District Court, Western District of Pennsylvania, November term,

1917.

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