Circuit Court of Appeals, Seventh Circuit. Nov.
Rehearing Denied Dec. 2, 1936.
Appeal from the District Court of the United States
for the Eastern District of Illinois.
Max Sonzinsky was convicted of violation of the
National Firearms Act, 26 U.S.C.A. §§ 1132-1132q, and he
Affirmed in part and reversed in part.
John M. Karns, of East St. Louis, Ill., and Harold
J. Bandy, of Granite City, Ill., for appellant.
Arthur Roe, U.S. Atty., and Grendel F. Bennett, Asst. U.S. Atty.,
both of Danville, Ill., for the United States.(p.487)
Before EVANS, Circuit Judge, and LINDLEY and
BRIGGLE, District Judges.
BRIGGLE, District Judge.
The defendant (appellant here) stands convicted in the lower court on
two counts of an indictment, charging violation of the National
Firearms Act, 26 U.S.C.A. §§ 1132-1132q.
The first count charged that defendant, on April 9, 1936, unlawfully
carried on the business of a dealer in firearms at 453 Collinsville Avenue, East
St. Louis, Ill., without having paid the special tax therefor as required by
section 2 of the act (26 U.S.C.A. § 1132a).
The second count charged that defendant unlawfully received and had
in his possession a certain firearm, to wit, a sawed-off shotgun with a 15 7/8
inch barrel, which had come into his possession not in pursuance of a written
order from the said defendant on application upon a blank, in duplicate, issued
by the Commissioner of Internal Revenue.
The sections of the act particularly pertinent to the inquiry at
hand are sections 1 (a), 2, 4, and 6 (26 U.S.C.A. §§ 1132 (a),
1132a, 1132c, 1132e), and are appended in a footnote.
The errors assigned challenge the sufficiency of the evidence to
support the (p.488)charges in the indictment
and assert the unconstitutionality of the act.
Sufficiency of the Evidence. The entire evidence submitted to
the jury consisted of the testimony of four witnesses and the introduction in
evidence of the gun in question. The testimony of witnesses Le Grand and Dowling
concerned their visit to defendant's store on April 9, 1936, at the address
indicated in the indictment, a place where defendant had for sale various items
of hardware, heaters for automobiles, tools, light fixtures, guns, and other
items usually carried in a small store. Upon inquiry he showed witnesses
different shotguns and later inquired if they would be interested in a
Winchester, sawed-off pump gun. Upon advice that they would, he produced such
gun which was sold to witness for $10 (this was the gun on which count 2 was
predicated). The witness Hart testified that the length of the barrel of this
gun was 15 5/8 inches. The only other witness was L. J. Wahl whose entire
testimony as shown by the record was as follows:
"My name is L. J. Wahl. I live in Springfield, Illinois, I am a
clerk in the Internal Revenue Department and have been for seventeen years. I
have charge of the registration of firearms in this State. We receive all
applications for registration, all applications for special taxes from dealers
and pawn-brokers and for the transfer of firearms. Max Sonzinsky is not
registered in my office as a dealer in firearms. There is no one registered
from 453 Collinsville Avenue, East St. Louis. Max Sonzinsky has not obtained
application blanks for the transfer of sawed-off shot guns. Max Sonzinsky has
not ever filed a certificate of registration with the Collector of Internal
Revenue of this particular sawed-off shot gun, marked Government's Exhibit 'A'
or any sawed-off shot gun. This is the Eighth Internal Revenue District, and
it includes St. Clair County."
While the evidence bearing upon the question of whether defendant
was a dealer in firearms within the meaning of the act was meager, yet we think
that, under the careful and accurate instructions given by the court on this
question, there was competent evidence for the jury to consider and upon which
they might properly conclude that defendant was a dealer in firearms within the
meaning of the act, and that he had not paid the tax as provided in section 2,
as charged in the first count of the indictment.
The charge in the second count was laid under section
6 of the act (26 U.S. C.A. § 1132e), making it unlawful for defendant to
receive or possess the gun in question if it had been transferred in violation
of sections 3 or 4 (26 U.S.C.A. §§ 1132b, 1132c). The
charge in this count, however, is narrower than the terms of section 6, in that
it only charges that he possessed a gun in violation of section 4, that is, that
the same "had come into his possession not in pursuance of a written order from
the said (defendant) on application upon a blank, in duplicate, issued by the
Commissioner of Internal Revenue." The only possession of the gun that the
evidence supports was the possession of defendant on April 9, 1936 (this appears
to be conceded), and consequently any "transfer" of the gun antedating that
time, without a written order from the defendant in violation of section 4,
would constitute an offense under the second count. The important inquiry then
is, whether the evidence supports the charge that the gun had been transferred
without a written order and in violation of section 4. The only evidence in the
record, even remotely relating to this question, is the testimony of the witness
Wahl wherein he says, "Max Sonzinsky has not obtained application blanks for the
transfer of sawed-off shot guns."
Surely it cannot be concluded that, because the defendant had not
obtained from (p.489)the collector "application
blanks" for the transfer of sawed-off shotguns, therefore the gun was
transferred without a written order. It must be borne in mind that it was his
possession as a transferee that was alleged to be unlawful and he was charged
with no violation of the act as a transferor of the gun. Subdivision (a) of
section 4 does not in terms place any burden upon either the transferor or
transferee to obtain "application forms." It provides that "It shall be unlawful
for any person to transfer a firearm except in pursuance of a written order from
the person seeking to obtain such article, on an application form issued in
blank in duplicate for that purpose by the Commissioner." It also provides for
proper identification, and later subdivisions provide that the Commissioner
shall furnish suitable forms to be distributed to the collectors, provides for
details in filling out such orders and for forwarding a copy to the Commissioner
and the original to the applicant.
The "written order" contemplated by the act is an order to be given
by the prospective transferee to the transferor. Such "order" form is to be made
up in part from information to be furnished by the transferee and part from
information to be supplied by the transferor, and, when completed, the burden is
placed upon the transferor to forward the same to the Commissioner. This is
completely borne out by Regulations 88 issued by the Commissioner of Internal
Revenue pursuant to section 12 of the act (26 U.S.C.A. §
1132k). No great significance can be attached to the proof that defendant
"had not obtained application blanks for the transfer of sawed-off shot
We assume that it might well be that the person who had such
articles for sale would provide the necessary implements for effecting a lawful
transfer of the same, including the blank for the "written order" from the
prospective purchaser. In any event the mere proof that defendant had not
obtained blanks from the collector fell far short of proof that such firearm had
been transferred "not in pursuance of a written order," as charged in the second
count of the indictment. We think, therefore, that the proof fails to support
the conviction under the second count.
The Constitutional Question. In view of our disposition of
the fact question and its controlling application to count 2 of the indictment,
our consideration of the constitutional question will be limited in its scope to
the first count of the indictment. This count charges in simple language the
violation of section 2 of the act in that defendant is charged with carrying on
the business of a dealer in firearms without payment of the special tax of $200
per annum therefor.
The entire argument in support of the asserted invalidity of the act
is directed at the act as a whole without regard to the well-recognized
principle that courts will, if possible, sustain the valid portions of an act
without striking down the legislation as a whole, if such a result may be
reached without destroying the purpose of the act and without doing violence to
the legislative intention. The argument is advanced also without consideration
of section 16 of the act (26 U.S.C.A. § 1132o),
which provides that, "If any provision of sections 1 to 18
[sections 1132 to 1132q], or the application thereof to any person or
circumstance, is held invalid, the remainder of sections 1 to 18
[sections 1132 to 1132q], and the application of such provision to other
persons or circumstances, shall not be affected thereby."
Upon the facts before us we may safely assume that, if the
constitutional validity of the act is to be sustained, the congressional
authority must be found in the taxing power of Congress under article 1, § 8, of the Constitution. The authority of Congress to
levy taxes is a broad one and has from the earliest time been a much
controverted question before the court of last resort. The legal principles
surrounding the exercise of such authority have found expression in a long line
of cases. The congressional power has been sustained in the following leading
cases: Veazie Bank v. Fenno, 8 Wall. 533, 548, 19 L.Ed.
482; In re Kollock, 165 U.S. 526, 17 S.Ct. 444, 41 L.Ed.
813; McCray v. U.S., 195 U.S. 27, 24 S.Ct. 769, 49 L.Ed.
78, 1 Ann.Cas. 561 ; Flint v. Stone Tracy Co., 220 U.S.
107, 31 S.Ct. 342, 55 L.Ed. 389, Ann.Cas. 1912B, 1312; U.S.
v. Doremus, 249 U.S. 86, 39 S.Ct. 214, 63 L.Ed. 493.
The acts of Congress were held to be outside the constitutional
authority in the following cases: Bailey v. Drexel Furniture Co.,
259 U.S. 20, 42 S.Ct. 449, 66 L.Ed. 817, 21 A.L.R. 1432; Linder v. U.S., 268 U.S. 5, 45 S.Ct. 446, 69 L.Ed. 819, 39 A.L.R.
229; U.S. v. LaFranca, 282 U.S. 568, 51 S.Ct. 278, 75 L.Ed.
551; Schecter Poultry Corp. v. U.S., 295 U.S. 495, 55
(p.490)S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R.
947; U.S. v. Butler, 297 U.S. 1, 56 S.Ct. 312, 80 L.Ed.
477, 102 A.L.R. 914; Hammer v. Dagenhart, 247 U.S. 251, 38
S.Ct. 529, 62 L.Ed. 1101, 3 A.L.R. 649, Ann.Cas. 1918E, 724; Carter v. Carter Coal Co., 298 U.S. 238, 56 S.Ct. 855, 80 L.Ed.
1160; U.S. v. Constantine, 296 U.S. 287, 56 S.Ct. 223, 80
It is alleged that the only real purpose of the act before us is the
suppression of crime and that the imposition of a tax is but a pretended
purpose; that it clearly invades the police power of the states and as a tax
measure is but a sham and a subterfuge; that, conceding its beneficent aims, its
purpose is purely penal and aimed at suppression of crime and not the raising of
The early case of Veazie Bank v. Fenno, supra, recognized the
principle that "the judicial cannot prescribe to the legislative departments of
the government limitations upon the exercise of its acknowledged powers," even
though they may be exercised oppressively, adding that "the responsibility of
the legislature is not to the courts, but to the people by whom its members are
elected. So if a particular tax bears heavily * * * it cannot, for
that reason only, be pronounced contrary to the Constitution." This principle
was recognized by former Chief Justice Taft in denying the legislative power to
tax a factory 10 per cent. of its net profits if it employed children under 14
years of age in the Child Labor Tax Case, Bailey v. Drexel
Furniture Company, supra.
Justice Taft distinguishes Veazie v. Fenno, Flint v. Stone Tracy
Co., McCray v. United States, and United States v. Doremus by concluding that
each of the prior acts, superficially, at least, was nothing but a tax measure.
The language used, and the method of administration provided, created no doubt
but that Congress intended to collect a bona fide tax. While in the Child Labor
Tax Case he finds it apparent from the face of the act that prohibition and
regulation were the prime considerations which prompted enactment. The Supreme
Court has not retracted this stand in its recent decisions in Schecter v. United
States, United States v. Butler, and Carter v. Carter Coal Co., supra.
The consensus of opinion to be gained from all of the decisions
hereinbefore referred to, is that courts are not at liberty, by reason of the
supposed excessiveness of the tax alone, to invalidate taxing statutes but,
where the end sought was plainly regulation of a business outside the
congressional authority, as it was in the Child Labor Tax Case and many
subsequent cases, no matter how worthy, the court's duty to prevent encroachment
upon the Constitution is plain.
The act in question is entitled "An Act To provide for the taxation
of manufacturers, importers, and dealers in certain firearms and machine guns,
to tax the sale or other disposal of such weapons, and to restrict importation
and regulate interstate transportation thereof," and thus evidences no announced
purpose outside the constitutional authority. Section 2 is unusually free from
regulative provisions, merely providing for a tax in varying amount
upon different classifications of persons and requiring such persons to register
their names and addresses and making it unlawful for them to engage in or
continue such business without having registered or paid such tax.
The tax thus imposed under section 2 can reasonably be said to be
for the purpose of producing revenue--it cannot even be said to be unreasonable
in requiring a dealer to register and pay a tax of $200 per annum. It is
unimportant, under such circumstances, that such levy may at the same time
impose a degree of regulation.
Section 2, when read in connection with section 1, giving meaning to
the terms employed, is complete and not dependent upon other succeeding sections
of the act. See discussion in Carter v. Carter Coal Co.,
"A statute must be construed if fairly possible, so as to avoid not
only the conclusion that it is unconstitutional but also grave doubts upon that
score." U.S. v. Jin Fuey Moy, 241 U.S. 394, 36 S.Ct. 658, 60 L.Ed.
1061, Ann.Cas.1917D, 854; U.S. v. Standard Brewery, 251
U.S. 210, 40 S.Ct. 139, 64 L.Ed. 229; Baender v. Barnett,
255 U.S. 224, 41 S.Ct. 271, 65 L.Ed. 597; U.S. v. LaFranca,
282 U.S. 568, 51 S.Ct. 278, 75 L.Ed. 551.
On the authority of United States v. Doremus, supra, the District
Court of Florida held the act constitutional in the case of United
States v. Adams et al., 11 F.Supp. 216.
We hold that section 2 of the act upon which count 1 of the
indictment is based is valid. As to the constitutionality of (p.491)other sections of the act we express no opinion.
The judgment upon count 1 is affirmed, and the judgment upon count 2
 Sec. 1(a) The term "firearm" means a shotgun or rifle having a
barrel of less than eighteen inches in length, or any other weapon, except a
pistol or revolver, from which a shot is discharged by an explosive if such
weapon is capable of being concealed on the person, or a machine gun, and
includes a muffler or silencer for any firearm whether or not such firearm is
included within the foregoing definition. * * *
Sec. 2(a) Within fifteen days after the thirtieth day after June 26,
1934, or upon first engaging in business, and thereafter on or before the 1st
day of July of each year, every importer, manufacturer, and dealer in firearms
shall register with the collector of internal revenue for each district in which
such business is to be carried on his name or style, principal place of
business, and places of business in such district, and pay a special tax at the
following rates: Importers or manufacturers, $500 a year; dealers, other than
pawnbrokers, $200 a year; pawnbrokers, $300 a year. Where the tax is payable on
the 1st day of July in any year it shall be computed for one year; where the tax
is payable on any other day it shall be computed proportionately from the 1st
day of the month in which the liability to the tax accrued to the 1st day of
(b) It shall be unlawful for any person required to register under
the provisions of this section to import, manufacture, or deal in firearms
without having registered and paid the tax imposed by this section.
* * *
Sec. 4(a) It shall be unlawful for any person to transfer a firearm
except in pursuance of a written order from the person seeking to obtain such
article, on an application form issued in blank in duplicate for that purpose by
the Commissioner. Such order shall identify the applicant by such means of
identification as may be prescribed by regulations under sections
1 to 18 [sections 1132 to 1132q]: Provided, That, if the applicant is an
individual, such identification shall include fingerprints and a photograph
(b) The Commissioner, with the approval of the Secretary, 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.
(c) Every person so transferring a firearm shall set forth in each
copy of such order the manufacturer's number or other mark identifying such
firearm, and shall forward a copy of such order to the Commissioner. The
original thereof with stamps affixed, shall be returned to the applicant.
(d) No person shall transfer a firearm which has previously been
transferred on or after the thirtieth day after June 26, 1934, unless such
person, in addition to complying with subsection (c), transfers therewith the
stamp-affixed order provided for in this section for each such prior transfer,
in compliance with such regulations as may be prescribed under sections 1 to 18 [sections 1132 to 1132q] for proof of payment of
all taxes on such firearms.
(e) If the transfer of a firearm is exempted from the provisions of
sections 1 to 18 [sections 1132 to 1132q] as provided in
section 13 [section 1132l], the person transferring such firearm shall
notify the Commissioner of the name and address of the applicant, the number or
other mark identifying such firearm, and the date of its transfer, and shall
file with the Commissioner such documents in proof thereof as the Commissioner
may by regulations prescribe.
(f) Importers, manufacturers, and dealers who have registered and
paid the tax as provided for in section 2(a) [section 1132a
(a)] shall not be required to conform to the provisions of this section
with respect to transactions in firearms with dealers or manufacturers if such
dealers or manufacturers have registered and have paid such tax, but shall keep
such records and make such reports regarding such transactions as may be
prescribed by regulations under sections 1 to 18 [sections 1132 to
Sec. 6. It shall be unlawful for any person to receive or possess
any firearm which has at any time been transferred in violation of section 3 or 4 [section 1132b or 1132c].
witness' statement that defendant had not filed a certificate of registration
with the collector of this gun was in support of count 3 of the indictment which
charged a failure to register in violation of section 5, and which count was
taken from the jury. This statement had no bearing upon the charge in count