United States v. Lamson

BROWN, District Judge. The indictment charges the defendant,-a wholesale dealer in oleomargarine, with failure to make returns required by section 6 of the act of May 9, 1902 (Act May 9, 1902, c. 784, 32 Stat. 197 [U. S. Comp. St. Supp. 1907, p. 641]), known as the “Oleomargarine Act,” and by regulations made under said act. Section 6 provides: “That wholesale dealers in oleomargarine, process, renovated or adulterated butter shall keep such books and render such returns in relation thereto as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulation, require; and such books shall be open at all times to the inspection of any internal-revenue officer or agent. And any person who willfully violates any of the provisions of this section shall for each such offense be fined not less than fifty dollars and not exceeding five hundred dollars, and imprisoned not less than thirty days nor more than six mouths.” By regulation of December, 1904, wholesale dealers were required to make monthly returns— “showing in detail the number of packages and number of pounds of oleomargarine received direct from manufacturers and other wholesale dealers, also the quantity disposed of, with the name and address of each person to whom sold or consigned. These returns will be rendered on the first day of the month succeeding that for which the return was made, or within ten days thereafter, in duplicate, to the collector, who will forward one copy to the Commissioner of Internal Revenue.” [675] The indictment is based wholly upon the failure to make return:; required by the regulation. The first point in support of the motion to quash is that, by the provisions of section 6 of the oleomargarine act, the returns which may be required are explicitly confined to the books, and that, as the regulations go beyond this, they are not authorized by the statute. This point was raised in United States v. Lamson (C. C.) 162 Fed. 165-168, and was decided adversely to the defendant’s present contention. The sufficiency of the returns depends upon their conformity with the facts, and not upon their conformity with the hooks. Roth hooks and returns are to be a correct record of the facts. A construction which would lead to the conclusion that the returns were in conformity with the statute if correctly taken from the books, though the books were false, is artificial and unreasonable, and would serve no other purpose than to afford a violator of the regulation a ground of defense that is without substantial merit. The regulation requires returns of the quantity of goods disposed of with the name and address of eacli person to whom sold or consigned. It is urged that such a return was not contemplated by the statute. It is contended that the requirement of the names and addresses of purchasers is an unnecessary and unreasonable interference with the personal and property rights of both the seller and the purchaser. It is said that: “To require him to act without salary as a government agent for the detection of crime and to warrant the accuracy of the information furnished by him under pain of heavy fine and imprisonment is not a burden which should be placed upon a citizen by a Department regulation, unless it is unmistakably authorized by the provisions of the statute.” Apparently the object of this regulation is to trace the oleomargarine to the hands of others. As it has been decided by the Supreme Court that the oleomargarine act is justifiable as a revenue law, it is not clear that a regulation designed to assist in the tracing of property subject to a tax is unauthorized. It is further argued that as section 6 of the oleomargarine act is applicable, not only to wholesale dealers in oleomargarine, but also to dealers in process, renovated, or adulterated butter, the regulation, which is confined to wholesale dealers in oleomargarine, and does not apply to dealers in process, renovated, or adulterated butter, is not in conformity with the statute. If, however, the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasuty, is authorized to require, returns as to both, I see no reason why a failure to do so as to dealers in process, renovated, or adulterated butter should render invalid the requirement as to dealers in oleomargarine. It is further argued that, so far as appears in the first eleven counts of the indictment, the defendant lias complied with the regulations therein set forth. The first three counts allege that certain sales of oleomargarine reported in the return as made to certain persons had not, in fact, been made to such persons. Assuming that the whole amount: reported as sold ivas actually sold; hut that it had not been sold to the persons whose names arc reported, it follows that it was sold to persons not reported in respect of their names and addresses. Ac [676] cording to the statement of the attorney for the United States, this is the theory upon which the indictment is drawn. If it is correct to hold that the regulation properly requires that the names and addresses of the persons to whom oleomargarine is sold be given, the defendant’s argument upon this point is unsound. The defendant argues that the regulation is complied with if only the quantity disposed of is given,, though the names of the persons to whom sold or disposed of are wholly or partly fictitious or erroneous. Only if the requirement of names and addresses is invalid is there force in the defendant’s argument on this point. The twelfth, thirteenth, and fourteenth counts are in very general' language, and are objected to for uncertainty. Each of these counts-charges a failure to make a return for a particular month, and in this-respect is not objectionable for uncertainty. In each count is charged the failure to make a return showing the quantity of oleomargarine disposed of during the month, with the name and address of each person to whom the same was sold or consigned. Each of the last three counts seems to be sufficient to charge a total failure to make any return for a particular month. Whether either of these counts can be supported merely by evidence that a return actually made was in some particular .false or incomplete is a question which cannot properly be considered on the motion to quash. The motion to' quash is denied as to each and every count. Footnotes [1] ♦For other eases see same topic & § number in Dec. & Am. Digs. 1907 to date, & Rep’r Indexes