CHIN SING v. UNITED STATES, 227 F. 397

,. KOHLSAAT, Circuit Judge (after stating the facts as above). ,. The crime charged in the first count is the manufacture of opium for smoking purposes by appellant without giving the bond required by law for such manufacture. The statute calls for “the bond required by the Commissioner of Internal Revenue.” It does not appear from the indictment or in the evidence that the Commissioner had required any such bond. At tire date of the offense charged, less than 60 days had elapsed since the passage of the act under which the indictment was found.

The authority of the United States to «prohibit or regulate the manufacture of smoking opium within a state, when that act is not otherwise unlawful, must rest upon the right to exercise its taxing power as to matters within the states. Those coming within the operation of such powers of the government are entitled to have the duties and obligations thereby imposed made so clear and certain that they can be readily complied with, and the penalties avoided. It does not appear that this has been done in the present instance.

If no such bond had been required by the Commissioner of Internal Revenue, appellant was not in default in not giving the bond set out in the indictment. The government was bound to show that the Commissioner had by regulation required a bond and what it called for. This it has not done. We are unable to see how appellant could be held for failure to comply with regulations which had never been promulgated.

The offénse of count 2 is the failure of appellant to give “the bond required by law to be given by a manufacturer of opium, to wit, a bond with sureties satisfactory to the collector of internal revenue and in a penal sum of not less than $100,000.” By the statute this' bond must be such as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may by regulation require. No such regulation is either alleged or shown, and therefore, so far as the record discloses, there was no means whereby appellant could have complied with the statute.

The offense charged in count 3 is the failure of appellant to file with the collector of internal revenue of his district the notices, inventories, and bonds, and his failure to keep such books and to- render such returns of material and product, and' to put up such signs and affix such number to his factory, and conduct his business under such surveillance of officers and agents as required by the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, by regulations made by said Commissioner of Internal Revenue under authority of law.

That any such regulations had been made was neither xharged nor proven. Appellant was convicted of failure to comply with regulations Which, so far as is disclosed in the record, never existed. The burden was upon the government to show what these regulations were and the infraction thereof by appellant. The crime set out in the fourth count of the indictment was the failure to stamp the said opium in such a permanent manner as to' denote the payment of the internal revenue tax thereon. The failure to stamp is a different offense from the failure to pay the tax.

The indictment does not allege, nor does the record disclose, that there existed any stamp or that the Commissioner of Internal Revenue with the approval of the Secretary of the Treasury had by regulation required any stamp for such purpose. Appellant could not be held for the failure to apply and cancel a stamp which never existed. If it did exist, it rested upon the government to show that fact. The fifth and sixth counts are not supported by any proof whatever tending to show that the opium referred to in these counts was imported contrary to law.

There is absolutely no evidence to otherwise sustain either of them. While the evidence would, in our judgment, sustain the charge that before and at the time of the seizure of the plant appellant was a manufacturer of opium within the meaning of

section 1 of the act of 1914, it entirely fails to establish any of the offenses charged in the indictment. The judgment of the District Court is therefore reversed, with direction to sustain appellant’s motion for a new trial. <&wkey; For other cases see same topic & KEY-NUMBER in all Key-Numbered Digests & Indexes