This is an appeal from a judgment of conviction under an indictment charging a conspiracy to violate the National Prohibition Act. The principal assignment of error challenges the sufficiency of the evidence to support the verdict and judgment.
The record discloses an interesting chapter in the history of vice and crime in Northern Idaho during the period covered by the indictment, and, if we were privileged to administer justice on general principles, without regard to the orderly, established rules of law, the conviction of many of the appellants might well be sustained, because, without doubt, they openly and habitually violated the National Prohibition Act during the period in question. But we have no such license or liberty, and the judgment of the court below cannot be sustained unless the eharge laid in the indictment is supported by some substantial evidence. The eharge is that a large number of persons, including the municipal officers of the city of Wallace, in the state of Idaho, and the sheriff of Shoshone county, in the same state, together with certain of his deputies, conspired and agreed to possess, transport, sell, and manufacture intoxicating liquor in violation of the National Prohibition Act. It will thus be seen *2that the municipal officers are charged with a conspiracy to commit an offense against the United States, that is, to possess, transport, sell, and manufacture intoxicating liquor in violation of law.
As we view it, there is not a particle of evidence in the record tending even remotely to establish or prove any such conspiracy. There is no evidence of any kind that any of such officers agreed with any person or persons that intoxicating liquor should be possessed, transported, sold, or manufactured, and there is no evidence that any of such officers aided, abetted, counseled, commanded, induced, or procured the commission of any such crimes. The case made against the municipal officers was simply, this, and nothing more: From time to time these officers collected tribute from bootleggers, gamblers, prostitutes, and perhaps other law violators within the city, sometimes openly and sometimes by subterfuge, but always for the benefit of the municipality.
From such a course of conduct, an agreement on their part not to prosecute the persons so contributing might be inferred; but there was no evidence of any agreement, express or implied, on the part of the officers to protect any offender from prosecution for violating the National Prohibition Act. With the federal government the offenders took their chances. No obligation rested upon the municipal or county officers to prosecute offenses against the United States, and they were guilty of no crime by merely refraining from so doing. In other words, inaction on their part was not an offense against the United States.
In this connection it is well to remember that the object of the conspiracy, if any existed, was largely accomplished, and that, if the municipal or county officers are guilty of the offense charged in the indictment, they are likewise guilty of the offenses of possessing intoxicating liquor, of transporting intoxicating liquor, of selling intoxicating liquor, of manufacturing intoxicating liquor, of maintaining common nuisances, of running gambling resorts, and of keeping bawdy houses. Some of these, nf course, are not offenses against the United States, but they are offenses none the less. And to say that municipal officers who demand or accept tribute from lawbreakers within the city, in the form of a tax, for the benefit of the municipality, are parties to every offense committed within the city, is a non sequitur, a conclusion we are unwilling to adopt.
Again, to say that you aid or promote a business by merely taxing it is a novel proposition, to say the least. The power to tax involves the power to destroy, and, if pressed far enough, will accomplish that result. Furthermore, it is not a crime to tax what is forbidden. As said by Mr. Justice Holmes in United States v. Stafoff, 260 U. S. 477, 480, 43 S. Ct. 197, 199, 67 L. Ed. 358: “Of course Congress may tax what it also forbids.” And again, by the same learned judge, in United States v. Sullivan, 274 U. S. 259, 263, 47 S. Ct. 607, 71 L. Ed. 1037, 51 A. L. E. 1020: “We see no reason to doubt the interpretation of the Act, or any reason why the fact that a business is unlawful should exempt it from paying the taxes that if lawful it would have to pay.” And, if Congress may tax what it also forbids, we know of no reason why a state or municipality may not do the same. Whether such a tax was authorized by the laws of the state, or whether the collection of such a. tax was a mere usurpation of authority on the part of the municipal officers, does not concern us, because we have nothing to do with the violation of state laws.
For the reasons thus briefly stated, we are of opinion that the charge of conspiracy against the municipal officers utterly failed for want of proof; and to say that all the numerous, independent competing bootleggers in that section were conspiring together for any purpose, lawful or unlawful, is a perversion of the facts, a mere figment of the imagination.
There was an entire failure of proof to connect the sheriff with Any conspiracy, even if one existed, for the reason stated in Weniger v. United States, 47 F.(2d) 692, decided by this court February 24, 1931, where the same testimony was relied on to connect him with another conspiracy in a different part of his county.
For error in refusing to direct a verdict of not guilty at the close of all the testimony, the judgment of the court below is reversed, and the cause is remanded for a new trial.