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collector was in excess of the power of the Secretary. The statute clearly includes animals of all classes. The regulation seeks to confine its operation to animals of 'superior stock.' This is manifestly an attempt to put into the body of the statute a limitation which Congress did not think it necessary to prescribe. Congress was willing to admit, duty free, all animalş specially imported for breeding purposes; the Secretary thought this privilege should be confined to such animals as were adapted to the improvement of breeds already in the United States. opinion, the object of the Secretary could only be accomplished by an amendment of the law. That is not the office of a treasury regulation.”
8 781. Penal Ordinances.
The courts scrutinize with especial care those cases in which a criminal action is based upon the violation of an administrative order. It is not questioned that the legislature may attach a criminal liability to the violation of an administrative order, but in each case it must clearly appear that the order is one which falls within the scope of the authority conferred. Thus, while. there are many cases in which it has been held that the delegation of an ordinance-making power to the executive is not a delegation of legislative power, there are comparatively few cases in which has been sustained the right of an administrative officer to establish an ordinance the violation of which will be punished criminally. In United States v. Maid the court say:
“A department regulation may have the force of law in a civil suit to determine property rights,
and yet be ineffectual as the basis of a criminal prosecution. The obvious ground of distinction is that to make an act a criminal offense is essentially an exercise of legislative power, which cannot be delegated, while the prescribing by the President or head of a department, thereunto duly authorized, of a rule, without penal sanctions, to carry into effect what Congress has enacted, although such rule
17 116 Fed. Rep. 650.
may be as efficacious and binding as though it were a public law, is not a legislative, but ministerial function.”
In United States v. Eaton" was involved the authority of a regulation of the commissioner of internal revenue, directing wholesale dealers in oleomargarine to keep book accounts and to make certain monthly returns. This regulation had been made in pursuance of an act of Congress regulating the sale of oleomargarine, which, besides making certain specific requirements, provided that the commissioner, with the approval of the Secretary of the Treasury, might “make all needful regulations for the carrying into effect of this act.” The court held that this provision did not enable the commissioner to render criminal the failure to conform to additional requirement with reference to books and reports which his regulations had sought to impose. The court said: “It is a principle of criminal law that an act which may be the subject of criminal procedure is an act committed or omitted · in violation of a public law, either forbidding or commanding it.' 19 It would be a very dangerous principle to hold that a thing prescribed by the Commissioner of Internal Revenue, as a needful regulation .under the Oleomargarine Act, for carrying it into effect, could be considered as a thing 'required by law' in the carrying on or conducting of the business of a wholesale dealer in oleomargarine, in such manner as to become a criminal offense punishable under sec. 18 of the Act; particularly when the same Act, in sec. 5, requires a manufacturer of the article to keep such books and render such returns as the Commissioner of Internal Revenue, with the approval of the Secretary of the Treasury, may, by regulation, require, and does not impose, in that section or elsewhere in the Act, the duty of keeping such books and rendering such returns upon a wholesale dealer in the article.
"It is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offense; and we do not think that the statutory authority in the present case is sufficient. If Congress intended to make it an offense for wholesale dealers in oleomargarine to omit to keep books and render returns as required by regulations to be made by the Commissioner of Internal Revenue, it would have done so distinctly, in connection with an enactment such as that above recited, made in sec. 41 of the Act of October 1, 1890.
18 144 U. S. 677; 12 Sup. Ct. Rep. 784; 36 L. ed. 591, 19 4 Am. and Eng. Enc. Law, 642; 4 BI. Com. 5.
“ Regulations prescribed by the President and by the heads of departments, under authority granted by Congress, may be regalations prescribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing required by them is a thing so required by law as to make the reglect to do the thing a criminal offense in a citizen, where a statute does not distinctly make the neglect in question a criminal offense.”
In United States v. Bailey20 the following facts were involved: The Secretary of the Treasury, in order to carry into effect the authority given him by act of Congress to liquidate and pay certain claims, had, though not expressly empowered so to do by the act, authorized, by a regulation, affidavits to be made before any justice of the peace of a State. An indictment for false swearing in one of these affidavits having been brought, the question was raised as to the Secretary's power to make the regulation. The court held that he had the authority, saying: “It is a general principle of law, in the construction of all powers of this sort, that where the end is required, the appropriate means are given. Thus in this case, though express statutory authority was not given, the Secretary was held competent not only to make the regulation in question, but to make that regulation effective to sustain a prosecution for perjury under an act of Congress (Mch. 1, 1825), which provided that if any person shall swear or affirm falsely touching the expenditure of money, or in support of any claim against the United States, he or she shall, upon conviction thereof, sufier as for wilful and corrupt perjury.''
20 9 Pet. 238; 9 L. ed. 113.
The position here taken is not in conflict with that assumed by the court in United States v. Eaton. In both cases the question was whether, from the circumstances of the case, Congress might properly be construed to have granted, implicitly, the ordinancemaking power that was exercised. It is to be conceded, however, that in the Bailey case the powers of the commissioner were very liberally construed.21
In Ex parte Kollock22 there was involved the same statute as in the case of Eaton. Here, under the general terms of the act, the commissioner was authorized to prescribe rules regulating the forms and markings of packages of oleomargarine, the violations of which rules should constitute a criminal offense. This was held to be not a delegation of legislative power, and an indictment based upon the rules issued was sustained. The court say: “ The Act before us is on its face an act for levying taxes, and although it may operate in so doing to prevent deception in the sale of oleomargarine as and for butter, its primary object must be assumed to be the raising of revenue. And, considered as a revenue act, the designation by the stamps, marks, and brands is merely in the discharge of an administrative function and falls within the numerous instances of regulations needful to the operation of the machinery of particular laws, authority to make which has always been recognized as within the competency of the legislative power to confer.23
In the recent case of Oceanic Steam Navigation Co. v. Stranahan24 the court upheld the validity of a statutory provision authorizing the Secretary of Commerce and Labor to levy and collect a money penalty from the steamship companies for bringing into the United States aliens affected with loathsome or dangerous contagious diseases. This the court did, however, upon the theory, based, it must be admitted, upon a very liberal interpretation, that the fines authorized to be collected were not penal in character, but an administrative means " to secure the efficient performance by the steamship company of the duty to examine (the immigrants] in the foreign country, before embarkation, and in carrying out the policy of Congress.”
21 Upon this topic see the article “ To What Extent Have Rules and Regu. lations of the Federal Departments the Force of Law," by Morris M. Cohn, in the American Law Review, XLI, 343.
22 105 U. S. 526; 17 Sup. Ct. Rep. 444; 41 L. ed. 813.
23 Citing United States v. Symonds, 120 U. S. 46; 7 Sup. Ct. Rep. 411; 30 L. ed. 557; Ex parte Reed, 100 U. S. 13; 25 L. ed. 538; Smith v. Whitney, 116 U. S. 167; 6 Sup. Ct. Rep. 570; 29 L. ed. 601; Wayman v. Southard, 10 Wh. 1; 6 L, ed. 253.
24 214 U. S. 320; 29 Sup. Ct. Rep. 671; 53 L. ed. 1013.
That the exaction of a penalty by an administrative officer is necessarily governed by the rules controlling the prosecution of criminal offenses, is denied. The doctrine declared in Wong Wing v. United States25 was, therefore, held not to apply. .
In Fong Yue Ting v. United States26 it had been held that the right to exclude or to expel aliens, absolutely or upon conditions, being an inherent and inalienable right of a sovereign and independent nation, Congress had the power to expel as well as to exclude undesirable immigrants, and that this power might be exercised entirely through executive officers. A substantially similar position was taken by the court in Lem Moon Sing v. United States.27 In the Wong Wing case, however, the court held that Chinese persons might not be imprisoned at hard labor upon order without trial by jury, of an administrative officer acting under the authorization of the provision of the law of 1892 that
any such Chinese person or persons of Chinese descent convicted and adjudged to be not lawfully entitled to be or remain in the United States, shall be imprisoned at hard labor for a period not exceeding one year, and thereafter removed from the United States.” The court, while holding that the detention or temporary confinement of alien immigrants at the instance of administrative agents might be necessary and was allowable as a means for giving effect to the policy of Congress as established by law, declared that imprisonment at hard labor is an infamous punishment which may be constitutionally ordered only after indictment and trial
25 163 U. S. 228; 16 Sup. Ct. Rep. 977; 41 L. ed. 140. 26 149 U. S. 698; 13 Sup. Ct. Rep. 1016; 37 L. ed. 905. 27 158 U. S. 538; 15 Sup. Ct. Rep. 967; 39 L. ed. 1082.