In a case from the district court, if the power to review
attaches because of a constitutional question, that authority gives
rise to the duty of determining all the questions involved,
including those that otherwise are within the exclusive
jurisdiction of the district court, but if the constitutional
question asserted as the basis for jurisdiction of this Court is
frivolous, this Court has no power to review it or any of the other
questions involved. The writ of error must be dismissed.
The absolute power expressly conferred upon Congress to regulate
foreign commerce involves the existence of power to prohibit
importations and to punish the act of knowingly concealing or
moving merchandise which has been imported in successful violation
of such prohibition.
Keller v. United States, 213 U.
S. 138, distinguished.
The contention in this case that § 2 of the Act of February 9,
1909, c. 100, 35 Stat. 614, regulating the importation of opium is
unconstitutional as beyond the power of Congress has been so
foreclosed by prior decisions of this Court that it is frivolous,
and affords no basis for jurisdiction of this Court under § 238,
Judicial Code.
The facts, which involve the jurisdiction of this Court under §
238, Judicial Code, are stated in the opinion.
Page 236 U. S. 217
MR. CHIEF JUSTICE WHITE delivered the opinion of the Court.
The indictment against the plaintiffs in error contained two
counts: The first charged a conspiracy to wrongfully import opium
into the United States in violation of the first portion of § 2 of
the Act of February 9, 1909, c. 100, 35 Stat. 614. The second
charged a conspiracy to unlawfully receive, conceal, and facilitate
the transportation of opium which had been wrongfully imported into
the United States with knowledge of such previous illegal
importation, in violation of the latter part of the section
referred to. The first count was quashed on the ground that the
overt acts alleged occurred after the illegal importation or
smuggling which was counted on. On the second count, there was a
conviction and sentence, and this direct writ of error to the trial
court is prosecuted to reverse the same. The right to a reversal
rests upon two propositions: the one, that the clause of the
section upon which the second count was based is repugnant to the
Constitution of the United States because beyond the legislative
power of Congress to enact, and because, moreover, its provisions
intrinsically constitute a usurpation of the powers reserved to the
states by the Constitution, and the other, the insistence that
various material errors were committed by the trial court during
the progress of the case aside from the constitutionality of the
statute.
Our jurisdiction to directly review depends upon the
constitutional question, since the other matters relied upon are,
as a general rule, within the exclusive jurisdiction of the Circuit
Court of Appeals of the Ninth Circuit, although, if power to review
attaches to the case because of the constitutional question, that
authority gives rise to the
Page 236 U. S. 218
duty to determine all the questions involved.
Burton v.
United States, 196 U. S. 283;
Williamson v. United States, 207 U.
S. 425,
207 U. S. 432;
Billings v. United States, 232 U.
S. 261,
232 U. S. 276.
Under these circumstances, to prevent a disregard of the
distribution of appellate power made by the Judicial Code, and to
see to it that there is something on which our jurisdiction to
review can rest, it behooves us in this, as in all other cases, to
see whether the question upon which our power depends is really
presented, and if not, because, although in form arising, it is in
substance so wholly wanting in merit as to be frivolous, to decline
the exercise of jurisdiction.
Farrell v. O'Brien,
199 U. S. 89,
199 U. S. 100;
Goodrich v. Ferris, 214 U. S. 71,
214 U. S. 79;
Hendricks v. United States, 223 U.
S. 178.
Coming to that subject, the entire absence of all ground for the
assertion that there was a want of power in Congress for any reason
to adopt the provision in question is so conclusively foreclosed by
previous decisions as to leave no room for doubt as to the wholly
unsubstantial and frivolous character of the constitutional
question based upon such contention. In
Buttfield v.
Stranahan, 192 U. S. 470, in
stating the previously settled doctrine on the subject, it was
said, p.
192 U. S.
492:
"The power to regulate commerce with foreign nations is
expressly conferred upon Congress, and, being an enumerated power,
is complete in itself, acknowledging no limitations other than
those prescribed in the Constitution.
Lottery Case,
188 U. S.
321,
188 U. S. 353-356;
Leisy
v. Hardin, 135 U. S. 100,
135 U. S.
108. Whatever difference of opinion, if any, may have
existed or does exist concerning the limitations of the power,
resulting from other provisions of the Constitution, so far as
interstate commerce is concerned, it is not to be doubted that,
from the beginning, Congress has exercised a plenary power in
respect to the exclusion of merchandise brought from foreign
countries, not alone directly by the enactment of embargo
statutes,
Page 236 U. S. 219
but indirectly as a necessary result of provisions contained in
tariff legislation. It has also, in other than tariff legislation,
exerted a police power over foreign commerce by provisions which in
and of themselves amounted to the assertion of the right to exclude
merchandise at discretion. This is illustrated by statutory
provisions which have been in force for more than fifty years
regulating the degree of strength of drugs, medicines, and
chemicals entitled to admission into the United States and
excluding such as did not equal the standards adopted. 9 Stat. 237,
c. 70, Rev.Stat. § 2933."
And see Oceanic Steam Navigation Co. v. Stranahan,
214 U. S. 320,
214 U. S.
334-335;
The Abby Dodge, 223 U.
S. 166,
223 U. S.
176.
Nor is there any ground upon which to rest the contention that,
although, under this settled doctrine, it is frivolous to question
the power of Congress to prohibit importations and punish a
violation of such prohibition, it is open to controversy, and
therefore not frivolous, to contend that there is a want of power
to prohibit and punish the act of knowingly concealing or moving
merchandise which has been successfully imported from a foreign
country in violation of the prohibitions against such importations.
This conclusion is inevitable, since it is obvious that to concede
that the wrongful and successful evasion of the prohibition against
bringing in imported merchandise, or of knowingly, in violation of
a further prohibition, dealing with such merchandise, was beyond
the scope of the complete power to prohibit importation, would be
in substance to deny any power whatever. Indeed, it is evident that
a power to prohibit which is operative and effective only as long
as its prohibitions are not disobeyed is not an absolute power, but
is scarcely worthy of being denominated a relative one. But, the
authority being absolute, it follows that the right to assert it
must endure and reach beyond the mere capacity of persons to evade
its commands
Page 236 U. S. 220
to the control of those things which are essential to make the
power existing and operative -- a conclusion the truth of which
cannot be escaped in the light of the doctrine on that subject so
luminously stated in
Gibbons v.
Ogden, 9 Wheat. 1, and which has been the guide by
which the Constitution has been successfully interpreted and
applied from that day to this.
While these considerations demonstrate that the attempted
distinction is but a denial of the existence of a power which it is
conceded it would be frivolous to deny, we briefly refer to the
legislative history from the beginning for the purpose of showing
that the authority which it is now insisted was not included in the
right to prohibit importation has at all times been considered to
be and treated as within the scope of such authority. Thus, in
1799, the Customs Act of that year (March 2, 1799, § 69, c. 22, 1
Stat. 678) contained a provision for a seizure and forfeiture of
merchandise imported in violation of its terms, and imposed
penalties upon any person who should "conceal or buy any goods,
wares, or merchandise, knowing them to be liable to seizure by this
act." And by the Act of March 3, 1823 (c. 58, 3 Stat. 781),
amending the Act of March 2, 1821 (c. 14, 3 Stat. 616), a like
authority was asserted, and penalties and forfeitures were imposed
for violations. Again, in 1866, in an act to prevent smuggling (§
4, Act of July 18, c. 201, 14 Stat. 179), the identical provisions
found in the section here in question were made applicable
generally to all importations, and were sanctioned by making
violations thereof criminal. And these provisions passed into the
Revised Statutes (§ 3082), and are in force today, the particular
provision here involved concerning opium being part of the Act of
1909, prohibiting the importation of that article. In the face of
this unbroken legislative interpretation of the extent of the power
to prohibit, covering a period of more than one hundred and
Page 236 U. S. 221
fifteen years, of the constant exertion of administrative
authority under such legislation, and of the assumption that such
power undoubtedly obtained, manifested by a multitude of judicial
decisions too numerous to refer to, although many of them are cited
in the argument of the government, we can discover no possible
ground upon which the contention to the contrary here relied upon
can rest, and therefore the conclusion that it is wholly
unsubstantial and frivolous cannot possibly be escaped.
In the argument it is, however, suggested that some support for
the view relied upon results from the ruling in
Keller v.
United States, 213 U. S. 138,
wherein a provision of the act known as the White Slave Act (Feb.
20, 1907, c. 1134, 34 Stat. 898) was held to be beyond the power of
Congress to enact. In fact, the provisions of that statute are
printed in a parallel column with the statute here assailed, and
the conclusion is drawn that the identity between them is perfect,
and therefore, despite the considerations involved in the review
which we have made, it has come to pass not only that the assertion
of the want of power in Congress here relied upon is not frivolous,
but that it is well founded, and must be upheld if the
Keller case is not to be overruled. But the contention is
itself frivolous, since it is based upon a mere failure to observe
the broad line which separates the ruling in the
Keller
case from the question here involved. Nothing can make this plainer
than the mere statement that while, in the
Keller case, it
is true there was a prohibition against the importation for immoral
purposes of the persons whom the statute enumerated, the act
punished not the harboring of persons for immoral purposes who had
been brought into the United States in violation of the prohibition
against importation, but its provisions also embraced the harboring
of persons for immoral purposes if they were aliens, even although
they had come into the United States lawfully. The basis upon which
the
Keller case proceeded
Page 236 U. S. 222
was so manifest that Congress amended the act by making the
penal clause which was held unconstitutional applicable only to
those immoral aliens who had come into the United States in
violation of the prohibitions of the act (March 26, 1910, § 2, c.
128, 36 Stat. 264). In the argument, reference is made to decisions
of this Court dealing with the subject of the power of Congress to
regulate interstate commerce, but the very postulate upon which the
authority of Congress to absolutely prohibit foreign importations
as expounded by the decisions of this Court rests in the broad
distinction which exists between the two powers, and therefore the
cases cited and many more which might be cited, announcing the
principles which they uphold, have obviously no relation to the
question in hand. In fact, it is true to say of the citation of
these cases as well as of the reference to the
Keller case
that a proposition which is so wholly devoid of merit as to be
frivolous is not given a substantial character by an attempt to
support it by contentions which are themselves wholly devoid of all
merit and frivolous.
There being no possible ground upon which to attribute even
semblance of foundation for the constitutional question relied
upon, it follows that it affords no basis for our jurisdiction to
directly review, and the writ of error is dismissed for want of
jurisdiction.