Appeal from the District Court of the United States for the Western District of Kentucky; Elwood Hamilton, Judge. Action to recover taxes by C.H. Smith against Selden R. Glenn, individually and as Collector of Internal Revenue for the Collector's District of Kentucky. From a judgment ( 16 F. Supp. 83) for plaintiff, defendant appeals. Affirmed.
PARKER, Circuit Judge. This is an appeal from a judgment for plaintiff in an action instituted against a collector of internal revenue to recover the sum of $314.32, taxes collected pursuant to the Kerr-Smith Tobacco Act, 48 Stat. 1275, amended 49 Stat. 778. The only question in the case is as to the constitutionality of the statute, since the sale of tobacco and the collection of the amount stated pursuant to its provisions are admitted. It has been held unconstitutional by Judge Dawson in Penn v. Glenn (D.C.) 10 F. Supp. 483 and by Judge Hamilton in Smith v. Glenn (D.C.) 16 F. Supp. 83, as well as by the court below in the decision appealed from ( 16 F. Supp. 801). The statute in question, which was repealed by Congress February 10, 1936 ( 49 Stat. 1106), shortly after the decision of the Supreme Court of the United States in United States v. Butler, 297 U.S. 1, 56 S.Ct. 312, 328, 80 L.Ed. 477, 102 A.L.R. 914, holding the Agricultural Adjustment Act ( 7 U.S.C.A. § 601 et seq.) unconstitutional, was intended to supplement the provisions of that act. Counsel for the collector, in their brief, thus comment upon its history: "At the time when the Kerr-Smith Tobacco Act was enacted, the Agricultural Adjustment Act had been in effect for well over one year and the tobacco program for almost nine months.
Since the decision in the Butler Case a number of lower courts have followed it in the construction of the Agricultural Adjustment Act and similar legislation holding all such acts void and interpreting the Butler decision as holding the act void in its entirety rather than as merely applied to the processing tax provisions thereof. Such cases are United States v. David Buttrick Co. (D.C.) 15 F. Supp. 655; Ganley v. Wallace (D.C.) 17 F. Supp. 115; Franklin Township v. Tugwell, 66 App.D.C. 42, 85 F.2d 208, 220-222; Burco Co. v. Whitworth, 81 F.2d 721-739 (C.C.A.4); Smith v. Glenn (D.C.) 16 F. Supp. 83; Taylor v. Robertson (D.C.) 16 F. Supp. 801. The decision of the Fifth Circuit Court of Appeals in the case of Speh v. Bullard, 83 F.2d 809 is also in accord for the court there applied the doctrine of a trust ex maleficio, Pomeroy (4th Ed.) § 1053, and impliedly at least recognized that the Supreme Court in the Butler Case held the Agricultural Adjustment Act void in its entirety.