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“The important purposes for which the operation of the Coast Guard was temporarily transferred to the Navy under the Act approved January 28, 1915, entitled 'An act to create the Coast Guard by combining therein the existing Life Saving Service and Revenue Cutter Service,' having been accomplished, and, it being for the best interest of the government and for the efficient service of the Coast Guard in connection with the collection of the revenue that the Coast Guard be under the supervision of the Treasury Department, it is hereby directed that the Coast Guard shall on and after this date operate under the Treasury Department."

The act of May 20, 1918, known as the Overman Act (Comp. St. 1918. Comp. St. Ann. Supp. 1919, 283a, 283, 283f), so far as here applicable reads as follows:

“That for the national security and defense, for the successful prosecution of the war, for the support and maintenance of the Army and Navy, for the better utilization of resources and industries, and for the more effective exercise and more efficient administration by the President of his powers as Commander in Chief of the land and naval forces the President is hereby authorized to make such redistribution of functions among executive agencies as he may deem necessary, including any functions, duties, and powers hitherto by law conferred upon any executive department, commission, bureau, agency, office, or officer, in such manner as in his judgment shall seem best fitted to carry out the purposes of this act, and to this end is authorized to make such regulations and to issue such orders as he may deem necessary, which regulations and orders shall be in writing and shall be filed with the head of the department affected and constitute a public record; Provided, that this act shall remain in force during the continuance of the present war and for six months after the termination of the war by proclamation of the treaty of peace, or at such earlier time as the President may designate: Provided further, that the termination of this act shall not affect any act done or any right or obligation accruing or accrued pursuant to this act and during the time that this act is in force: Provided further, that the authority by this act granted shall be exercised only in matters relating to the conduct of the present war.

“Sec. 2. That in carrying out the purposes of this act the President is authorized to utilize, coordinate, or consolidate any executive or administrative commissions, bureaus, agencies, offices, or officers now existing by law, to transfer any duties or powers from one existing department, commission, bureau, agency, office, or officer to another, to transfer the personnel thereof or any part of it either by detail or assignment, together with the whole or any part of the records and public property belonging thereto.

“Sec. 6. That all laws or parts of laws conflicting with the provisions of this act are to the extent of such conflict suspended while this act is in force.

“Upon the termination of this act all executive or administrative agencies, departments, commissions, bureaus, offices, or officers shall exercise the same functions, duties, and powers as heretofore or as hereafter by law may be provided, any authorization of the President under this act to the contrary not. withstanding."

*

A mere reading of the act shows that the President was clothed with the widest measure of discretion, so far as concerned "matters relating to the conduct of the present war.” “Upon the termination” of this act means, of course, upon the termination of “the present war.” When the "present" war shall have been terminated, then (but not until then) “all executive

agencies *

shall exercise the same functions

as heretofore or hereafter may be provided, any authorization of the President under this act to the contrary notwithstanding."

*

*

(273 F.)

The President, by his order of August 28, 1919, exercised his discretion in respect of subject matter over which, by the act of May 20, 1918, he had full power and authority, and the discretion, so exercised, is not reviewable.

The order dismissing the writ is affirmed.

BARBOT v. UNITED STATES.
(Circuit Court of Appeals, Fourth Circuit. May 5, 1921.)

No. 1838.
Poisons 4-Defrauding revenue not essential to conviction for violation

of Narcotic Act.

In the prosecution of a physician for prescribing or dispensing drugs in violation of Harrison Narcotic Act § 2 (Comp. St. 8 6287h), it is not a defense that his acts were not intended, and did not tend, to violate or defeat the revenue provisions of the act but the only issue is whether he acted in good faith in prescribing drugs to patients for maladies requiring administration of the drug, or whether he dispensed or prescribed them generally to persons seeking his professional aid merely to procure the drugs.

In Error to the District Court of the United States for the Eastern District of South Carolina, at Columbia; Henry A. Middleton Smith, Judge.

Criminal prosecution by the United States against Louis D. Barbot. Judgment of conviction, and defendant brings error. Affirmed.

John P. Grace, of Charleston, S. C., for plaintiff in error.

J. Waties Waring, Asst. U. S. Atty., of Charleston, S. C. (Francis H. Weston, U. S. Atty., of Columbia, S. C., on the brief), for the United States.

Before KNAPP and WOODS, Circuit Judges, and WADDILL, District Judge.

WADDILL, District Judge. Louis D. Barbot, the plaintiff in error, hereinafter called the defendant, is and was a physician, and prior to the commission of the offense of which he stands indicted had long practiced his profession in the city of Charleston. He was for some years professor of anatomy at the South Carolina Medical College, of high standing in the community, a member of the leading medical societies, accomplished in his profession, and enjoyed a large practice. On the 2d of December, 1919, he was indicted by the grand jury of the United States District Court at Columbia, charged with the violation of the Harrison Anti-Narcotic Drug Act of the 17th of December, 1914 (38 Stat. 786; Comp. St. $$ 62878-6287q). The indictment contained 16 counts. The first 2 related to failure to keep proper records as a licensed physician under that act, and the remaining 14 covered sales of morphine and cocaine to divers persons named in the several counts, not in the course of his professional practice. Upon his trial, the jury

For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes

returned a verdict of not guilty as to the first 2 counts, and guilty on the remaining 14 counts. Judgment was entered, and the defendant fined and imprisoned under the said 14 counts on which he was convicted, from which action of the court this writ of error was sued out.

Three assignments of error were made—the first relating to the admission of testimony on the trial; the second, to the charge of the court interpreting the Harrison Act; and the third, to the portion of che court's charge relating to the same subject. At the hearing, and in the defendant's briefs, the second assignment alone was relied upon as ground for reversal of the lower court's action. Defendant excepted to the refusal to charge that

“The jury are instructed that the primary object of this law is not a police one; it is a revenue law; it is only secondarily a police measure; it could not be maintained as constitutional, if it were regarded as primarily a police measure. The jury are instructed that they must find that the defendant had an intention to violate, or that his conduct reasonably would lead to the violation of the revenue object of the law, in order to find him guilty."

The facts in the case—that is to say, that the defendant prescribed, sold, and distributed drugs and narcotics as charged in the indictment, in large quantities—are not in dispute. Indeed, the defendant insists upon his right, as a licensed physician, so to do, and that he was acting from a humanitarian standpoint, and that, in so far as it inhibited him from so doing, the act was in contravention of his constitutional rights. The extent of the defendant's business is worthy of mention. It appears from his own records that from July 1, 1918, to October 16, 1919, he purchased 92,950 one-quarter grain tablets of morphine, 200 one-half grain morphine tablets, 329 drachms of powdered morphine, and 10 drachms of cocaine; and further that for a considerable time the defendant was the chief source from which narcotic drugs were obtained in Charleston, and his own record disclosed that most of the habitual users of drugs were in almost daily attendance upon him, and that the dosages furnished them, if, indeed, that feature is at all material, were not given in decreasing quantities, but frequently in larger and sometimes steadily increasing doses; and by his own handwriting it was shown that he was accustomed to give some addicts as much as a drachm of cocaine or morphine at one time, and to others he furnished 500 and 600 quarter grain morphine tablets at one time.

A number of local physicians were called, who testified as to the method of treatment of drug addicts, and physicians from Charleston, Columbia, and New York, called as experts, were in accord that the defendant's manner of furnishing morphine and cocaine did not constitute treatment of a drug addict, such as would cure him. The government's testimony established that the defendant's method of treatment was not a bona fide attempt to cure patients afflicted by the drug habit, but merely a way of selling and dispensing to them such drugs as they wanted. It seems quite manifest from the testimony that the defendant, in what he did, proceeded in plain violation of the Harrison Act; and he cannot for a moment set up the defense of his conduct that, from his viewpoint, what he had done, though in

(273 F.) the teeth of the law, was in the interest of humanity. An excuse for violating every law would be readily found, if such a defense could be interposed. The meaning and purpose of the act, as respects physicians, is manifest, namely, not that they may not in a proper case, in good faith, prescribe drugs for a patient whose malady is such that in their professional judgment the drug is necessary, but only that they may so prescribe in good faith to their patients in the course of their professional practice; and, of course, this does not contemplate prescribing drugs for persons who merely desire the same to gratify their appetites or desires, or because of their unfortunate habit of the use of the same.

The defendant's instruction in effect involves the constitutionality of the act, in that it insists that in order to legally convict under the same it is necessary to establish, not only improper prescribing of the drug, but that in so doing the government was defrauded of its revenue. The constitutionality of the act has been settled, and is no longer open to discussion. United States v. Doremus, 249 U. S. 86, 39 Sup. Ct. 214, 63 L. Ed. 493; Webb v. United States, 249 U. S. 96, 39 Sup. Ct. 217, 63 L. Ed. 497. Under these decisions, and the cases therein cited, it is clear that, while it is necessary for the constitutionality of the act of Congress that the same should come within the scope of the taxing power of Congress, yet that the reason and purpose of Congress, and the real effect of the act, may properly be for a moral end, wholly different from the mere collection of revenue. The Circuit Court of Appeals of this circuit, speaking through Judge Woods, aptly answered this suggestion as follows:

"The Supreme Court has answered such objections by holding that in a revenue statute the Congress may make any rule or regulation which is not in itself unreasonable, although its effect on the revenue be only remote or incidental, and its effect on the public health or morals direct and obvious." Foreman v. United States, 255 Fed. 621, 166 C. C. A. 655.

A careful review of the decisions as they exist at the present time make clear the fact that, when a physician is charged with unlawfully selling or prescribing drugs under the Harrison Act, the case turns largely upon his good faith in prescribing drugs to his regular patients, for maladies requiring the administration of the drug, or whether he prescribed for persons seeking his professional aid merely to procure the drug. In the latter case the physician might, perhaps, in a single instance afford temporary relief for one whose condition demanded immediate treatment. To go further than this would enable every doctor to do just what the defendant did here--furnish the drug to addicts, or afford opportunity to them to procure all the narcotics they desired; as, unrestrained, they would go from one physician to another, and quickly destroy the whole purpose of the act in question.

The case of Thompson v. United States, 258 Fed. 196, 169 C. C. A. 264, a decision of the Circuit Court of Appeals for the Eighth Circuit, thus refers to this subject :

“The good faith of the defendant treating these persons as a physician, for the purpose of curing them from the narcotic babit, is the main and only issue involved in this case. The object of the act although enacted under the taxing power of Congress, was no doubt intended to prevent the growing use of these narcotics, deemed a menace to the nation by Congress.

If physicians and the others mentioned in the exceptions can sell and dispense these narcotics, regardless of the fact whether it is done in good faith for the relief of a patient, then the moral object of the act is entirely defeated. It certainly cannot be claimed that a physician selling these narcotics, not in good faith, for the purpose of securing a cure of one suffering from an illness, or to cure him from the morphine habit, is doing so 'in the course of his professional practice only,' as prescribed by the express language of the act."

In the Trader Case, 260 Fed. 923, a decision of the Circuit Court of Appeals for the Third Circuit, the subject is likewise considered; the court using the following language:

"It is next urged that the trial judge was not justified in stating as he did in his charge, that, while the Harrison Act is a revenue measure, 'its clear purpose

is to restrict the distribution and use of opium and its derivatives to medicinal purposes only. It is assuredly within the discretion of a trial judge, in charging a jury, to state the purpose, as he conceives it, that Congress had in passing any given act. If an erroneous statement of such a purpose may be considered reversible error in any case, we are entirely clear that, although the Harrison Act was passed pursuant to the taxing power of Congress and is clothed in the garb of a revenue act, the learned trial judge did not misconceive or misstate the broad underlying purpose which Congress had in passing it (United States v. Jin Fuey Moy, 241 U. S. 394-402, 36 Sup. Ct. 658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854), and therefore that no harm was done the defendant by the statement in question."

From this decision a writ of certiorari was taken to the Supreme Court, and there denied. 251 U. S. 555, 40 Sup. Ct. 119, 64 L. Ed. 412. This would seem to be conclusive of the subject.

Since the last-named decision, the Supreme Court at the October term, 1920 (December 6, 1920), in the case of Jin Fuey Moy v. United States, 254 U. S. 189, 41 Sup. Ct. 98, 65 L. Ed. - (a second decision under that name), rendered a far-reaching and most important opinion as respects the subject of this class of case, namely, as to what constitutes a sale under the Harrison Act, on the part of a physician, and the court held that the unlawful issue of a prescription by a doctor, was a selling of the prescribed drug, and an aiding and abetting therein, within the meaning of section 2 of the Harrison Act, and the provisions of section 332 of the Criminal Code (Comp. St. § 10506). In this decision, Mr. Justice Pitney, citing Webb v. United States, 249 U. S. 96, 39 Sup. Ct. 217, 63 L. Ed. 497, supra, speaking for the Supreme Court, said:

“Manifestly the phrases to a patient' and 'in the course of his professional practice only' are intended to confine the immunity of a registered physician, in dispensing the narcotic drugs mentioned in the act, strictly within the appropriate bounds of a physician's professional practice, and not to extend it to include a sale to a dealer or a distribution intended to cater to the appetite or satisfy the craving of one addicted to the use of the drug. A prescription' issued for either of the latter purposes protects neither the physician who issues it nor the dealer who knowingly accepts and fills it."

The assignments of error in this case are without merit, and the decision of the lower court will be affirmed.

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