Page:Harvard Law Review Volume 32.djvu/882

846 HARVARD LAW REVIEW sale, by reason of possession, because the estate is preserved and with it the lien.^^ The tax Hen is superior to all other liens, but must attach to the land itself, or it may be lost by limitation. Federal Encroachment on the Police Power: Harrison Anti- Narcotic Act. — Strict constructionist and states' rights exponents have received a fresh defeat in the decision of the Supreme Court/ up- holding as constitutional section 2 of the Harrison Anti-Narcotic Act.^ The act in addition to laying an annual tax of one dollar on all registered "dealers" contains in section 2 regulations and restrictions governing the sale, dispensing and distribution of opium and its derivatives, and provides in section 9 a heavy penalty for the violation of the act. The defendant, a physician, was indicted for violation of the act in selling heroin, "not in pursuance of a written order," and "not in the regular course of his professional practice." Upon demurrer to the indictment " Pratt V. Pratt, 96 U. S. 704 (1877). 1 United States v. Doremus, U. S. Sup. Ct., Oct. Term, 1918, No. 367. It is in- teresting to note that four of the justices dissented, adopting the opinion of the court below. 2 38 Stat, at L. 785. Section 2 provides in part: "It shall be unlawful for any person to sell, barter, exchange, or give away any of the aforesaid drugs except in pursuance of a written order of the person to whom such article is sold, bartered, exchanged, or given, on a form to be issued in blank for that purpose by the Commissioner of Internal Revenue. Every person who shall accept any such order, and in pursuance thereof shall sell, barter, exchange or give away any of the aforesaid drugs, shall preserve such order for a period of two years in such way as to be readily accessible to inspection by any officer, agent, or employee of the Treasury Department duly authorized for that purpose, and the State, Territorial, District, municipal, and insular officials named in section five of this Act. Every person who shall give an order as herein provided to any person for any of the afore- said drugs shall, at or before the time of giving such order, make or cause to be made a duphcate thereof on a form to be issued in blank for that purpose by the Commis- sioner of Internal Revenue, and in case of the acceptance of such order, shall preserve said duplicate for a period of two years in such a way as to be readily accessible to inspection by the officers, agents, or employees and officials hereinbefore mentioned. Nothing contained in this section shall apply — " (a) To the dispensing or distribution of any of the aforesaid drugs to a patient by a physician, dentist, or veterinary surgeon regularly registered under this Act in the course of his professional practice only: Provided, That such physician, dentist, or veterinary surgeon shall keep a record of all such drugs dispensed or distributed, showing the amount dispensed or distributed, the date, and the name and address of the patient to whom such drugs are dispensed or distributed, except such as may be dispensed or distributed to a patient upon whom such physician, dentist, or veteri- nary surgeon shall personally attend; and such record shall be kept for a period of two years from the date of dispensing or distributing such drugs, subject to inspection, as provided in this Act. "(b) To the sale, dispensing or distribution of any of the aforesaid drugs by a dealer to a consmner under and in pursuance of a written prescription issued by a physician, dentist, or veterinary surgeon registered under this Act: Provided, how- ever. That such prescription shall be dated as of the day on which signed and shall be signed by the physician, dentist, or veterinary surgeon who shall have issued the same: And provided further. That such dealer shall preserve such prescription for a period of two years from the day on which such prescription is filled in such a way as to be readily accessible to inspection by the officers, agents, employees, and officials hereinbefore mentioned."