Minor v. United States/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK concurs, dissenting in No. 189.

The guilt of petitioner on this record seems plain. Two counts charge sales of heroin on two different dates in 1967 'not in pursuance of a written order * *  * form.' He was found guilty on each count by the District Court, a trial by jury having been waived. The basis of his attack upon his conviction in this Court is that the requirement of an order form violates his privilege against self-incrimination. But that is not the end of the matter for me. Mr. Justice Holmes used to say that one dealing with the Government should turn square corners. See Rock Island, A. & L.R. Co. v. United States, 254 U.S. 141, 143, 41 S.Ct. 55, 56, 65 L.Ed. 188. When the present all-powerful, all-pervasive Government moves to curtail the liberty of the person, it too should turn square corners.

The statute involved in this case, 26 U.S.C. § 4705(a), was derived from the Anti-Narcotic Act of December 17, 1914, 38 Stat. 785, commonly called the Harrison Narcotics Act. This Act, as amended, imposes an occupational tax on registered dealers in narcotics, 26 U.S.C. §§ 4721-4722, and also imposes a commodity excise tax on narcotics sold or removed for consumption or sale, 26 U.S.C. § 4701. Under § 4705(a), with certain exceptions not relevant here, all transfers of narcotics mut be made pursuant to an official order form given to the transferor by the transferee. The order form can be obtained only by persons properly registered to deal in narcotics. It was conceded by the Government on oral argument, however, that 'it is impossible to secure an order form for the purchase of heroin. * *  * The order forms may only be used to purchase a lawful drug for a lawful purpose. Heroin is an unlawful drug for which there is no lawful purpose.'

The Federal Government does not have plenary power to define and punish criminal acts. Its power in this regard derives from other powers specifically delegated to it by the Constitution, as the Tenth Amendment provides:

'The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.' Section 4705(a) derives from the power to 'lay and collect Taxes.' Art. I, § 8. Its constitutionality on this basis was sustained in United States v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493-a five-to-four decision. It was there said that the 'order form' requirement tended 'to keep the traffic aboveboard and subject to inspection by those authorized to collect the revenue,' and also tended 'to diminish the opportunity of unauthorized persons to obtain the drugs and sell them clandestinely without paying the tax imposed by the federal law.' Id., at 94, 39 S.Ct. at 216.

As I view this case, the Government is punishing an individual for failing to do something that the Government has made it impossible for him to do-that is, obtain an order form from the prospective purchaser prior to making a sale of heroin. Petitioner did, of course, have the option not to sell the heroin, and in that sense his compliance with the statute was indeed quite possible. This argument, however, overlooks the fact that the statute does not simply outlaw all sales of heroin. The critical interest of the Government is necessarily in the collecting of the tax imposed by the Act, and it is the order form which provides the crucial link to this proper constitutional purpose. In Nigro v. United States, 276 U.S. 332, 341, 48 S.Ct. 388, 390, 72 L.Ed. 600, Chief Justice Taft, speaking for the Court, said:

'In interpreting the Act we must assume that it is a taxing     measure, for otherwise it would be no law at all. If it is a     mere act for the purpose of regulating and restraining the      purchase of the opiate and other drugs, it is beyond the      power of Congress and must be regarded as invalid *  *  * .'

Thus it is the order form-not the mere sale-that constitutes the heart of the offense for which this petitioner was convicted. I do not see how the Government can make a crime out of not receiving an order form and at the same time allow no order forms for this category of sales.

Nor is it relevant to suggest, as does the majority opinion, ante, at 98 n. 13, that a statute imposing a flat ban on sales of heroin might be sustainable under the Commerce Clause. We are concerned in this case with what the Congress did, not with what it might have done or might yet do in the future. It is clear that what Congress did in § 4705(a) was to enact a taxing measure. And the crime charged was not selling heroin, but selling it 'not in pursuance of a written order * *  * form,' as prescribed in § 4705(a).

I would reverse this judgment of conviction.