1. After certification of a question by the circuit court of
appeals, the entire record was ordered up. Plaintiff in error filed
no statement
Page 276 U. S. 506
of points or specification of errors to be relied on, nor any
brief other than one filed after the certification, dealing with
the question certified.
Held that review would be confined
to that question. Rule 25, Par. 2(e), Par. 4; Rule 11, Par. 9. P.
511.
2. The general clause of § 29, Title II of the Prohibition Act
providing that any person who
"violates any of the provisions of this Title for which offense
a special penalty is not prescribed shall be fined for the first
offense not more than $50,"
etc., applies to a prohibition director who, having knowledge
that a person has possessed and transported intoxicating liquor
contrary to the Act, violates his duty under § 2 by intentionally
failing to report the case to the United States Attorney. P.
276 U. S.
511.
3. The rule that penal statutes are to be strictly construed in
favor of persons accused is not violated by allowing the language
to have its full meaning where that construction is in harmony with
the context and supports the policy and purposes of the enactment.
P.
276 U. S.
512.
4. Public officers are not attended by any special presumption
that general language in disciplinary measures does not extend to
them. P.
276 U. S.
516.
District court affirmed.
Review of a judgment of the District Court for the District of
Nevada sentencing Donnelley, a prohibition director, for willful
failure to report a violation of the Prohibition Act. The case came
here first on a question certified by the circuit court of appeals.
The whole record was then ordered up.
Page 276 U. S. 510
MR. JUSTICE BUTLER delivered the opinion of the Court.
Defendant was the prohibition director for Nevada. An
information filed in the United States court for that district
charged that he, having knowledge of the unlawful possession and
transportation of intoxicating liquor by one Curran, did willfully
and unlawfully fail to report such violations to the United States
attorney. The jury found him guilty, and the court imposed a fine
of $500. Alleging various grounds for reversal, he took the case to
the circuit court of appeals. That court, acting under § 239 of the
Judicial Code, certified to this Court a question concerning which
it desired instruction. Defendant submitted the question upon a
brief. Later we required the entire record to be sent up, and so
brought
Page 276 U. S. 511
the case here for decision. The United States filed additional
briefs. Oral arguments were made for the respective parties. But
defendant failed to submit any other brief or to file any statement
of points or specification of errors intended to be urged here.
Rule 25, par. 2(e), par. 4.
And see Rule 11, par. 9. We
confine our consideration to the question argued in his brief.
Southeastern Express Co. v. Robertson, 264 U.
S. 541;
Home Benefit Association v. Sargent,
142 U. S. 691,
142 U. S.
694-695. The substance of the contention is that
intentional failure of a prohibition director or other enforcement
officer, having knowledge of crimes and offenders against the Act,
to report them to the United States Attorney is not a punishable
offense.
§ 2, Title II, of the National Prohibition Act (c. 85, 41 Stat.
305, 308; U.S.C. Tit. 27, § 11), provides:
"The Commissioner of Internal Revenue, his assistants, agents,
and inspectors shall investigate and report violations of this Act
to the United States attorney for the district in which committed.
. . ."
The Act does not specifically fix punishment for a violation of
that provision. But § 29 provides that:
"Any person . . . who . . . violates any of the provisions . . .
for which offense a special penalty is not prescribed shall be
fined for a first offense not more than $500. . . ."
As there are no common law crimes against the government
(
United States v. Eaton, 144 U. S. 677),
each case involves the construction of a statute to determine
whether the acts or omissions of the accused are denounced as
punishable. And regard is always to be had to the familiar rule
that one may not be punished for crime against the United States
unless the facts shown plainly and unmistakably constitute an
offense within the meaning of an Act of Congress.
United States
v. Lacher, 134 U. S. 624,
134 U. S. 628;
Todd v. United States, 158 U. S. 278,
158 U. S. 282;
Fasulo v. United States, 272 U. S. 620,
272 U. S.
629.
Page 276 U. S. 512
The evidence showed, and the verdict, when read in the light of
the court's charge, means, that the jury found that Curran was
discovered transporting ten barrels of intoxicating liquor, and
that plaintiff in error, with actual knowledge of that violation,
intentionally failed to report the crime and offender for
prosecution. Plainly that was a violation of duty imposed on him by
§ 2. And § 29 declares that violators of any provision shall be
punished. Taken according to their ordinary meaning, the words used
are sufficient to make the facts alleged and found a punishable
offense. The rule that penal statutes are to be strictly construed
in favor of persons accused is not violated by allowing the
language to have its full meaning where that construction is in
harmony with the context and supports the policy and purposes of
the enactment.
United States v.
Hartwell, 6 Wall. 385,
73 U. S. 395;
United States v.
Wiltberger, 5 Wheat. 76,
18 U. S. 95. § 3
forbids a narrow or strict construction of the Act, and directs
that all its provisions "shall be liberally construed to the end
that the use of intoxicating liquor as a beverage may be
prevented."
Diligence and good faith on the part of enforcement officers are
essential. The great difficulties always attendant upon efforts to
suppress the liquor traffic have been noticed and cited in a number
of decisions of this Court.
Crane v. Campbell,
245 U. S. 304,
245 U. S. 307;
Jacob Ruppert v. Caffey, 251 U. S. 264,
251 U. S. 282,
251 U. S. 297;
Everard's Breweries v. Day, 265 U.
S. 545,
265 U. S. 560;
Lambert v. Yellowley, 272 U. S. 581,
272 U. S. 595.
The failure to enforce laws of the states passed to regulate or
prohibit the sale of intoxicating liquor was one of the principal
reasons for the adoption of the Eighteenth Amendment. Violations of
such enactments were open and notorious. Connivance and cooperation
between officers and offenders frequently existed. Those who
drafted and passed the enforcement act knew that national
prohibition would be assailed by
Page 276 U. S. 513
influences more powerful than those that had embarrassed earlier
and less sweeping state laws. Experience had shown that it would
not do to leave prohibition enforcement officers free to determine
what cases should be prosecuted and what ignored, and that mere
imposition of duty to report offenders would not be enough. The
infliction of punishment for their intentional violations is an
appropriate measure to hold them to the performance of their
duties.
The Act is comprehensive, and discloses a legislative purpose
fully to enforce the prohibition declared by the Eighteenth
Amendment.
National Prohibition Cases, 253 U.
S. 350;
Corneli v. Moore, 257 U.
S. 491;
Vigliotti v. Pennsylvania, 258 U.
S. 403;
Grogan v. Hiram Walker & Sons,
259 U. S. 80;
Everard's Breweries v. Day, supra; Lambert v. Yellowley,
supra. The forfeitures, fines, and imprisonments
unquestionably provided for show an intention to compel obedience.
Congress was not content to impose duties and merely direct their
performance; it diligently provided means for enforcement. An
abridged reference to the things denounced as unlawful or expressly
forbidden and those by the Act commanded to be done will be
sufficient to indicate how thoroughly Congress intended to enforce
this article. The Act prohibits beverages having as much as
one-half of one percent of alcohol by volume. § 1. It declares that
no person shall manufacture, sell, barter, transport, import,
export, deliver, furnish or possess such liquor except as
authorized by the Act. § 3. Denatured alcohol, medicinal, toilet,
and other preparations unfit for beverage purposes are not
forbidden if they correspond with the descriptions and limitations
specified. Purchase and possession of liquor to make such articles
are allowed, but manufacturers are required to procure permits,
give bonds, keep records, and make reports. § 4. No person is
allowed without a permit to manufacture, sell, purchase,
transport,
Page 276 U. S. 514
or prescribe liquor, but one may purchase and use it for
medicinal purposes when prescribed by a physician. § 6. No one but
a physician holding a permit may issue a prescription for liquor.
And no physician is allowed to prescribe it unless, upon an
examination or the best information obtainable, he believes its use
as a medicine is necessary and will afford relief from some known
ailment. No more than a pint of spirituous liquor shall be
prescribed for the same person within ten days, and no prescription
shall be filled more than once. Every physician is required to keep
a record showing the date of every prescription, the amount
prescribed, to whom issued, the purpose or ailment for which it is
to be used, the amount and frequency of the dose. No physician may
prescribe liquor, and no pharmacist may fill any such prescription,
except on blanks furnished by the Commissioner, and pharmacists are
required to keep records of prescriptions filled. §§ 7 and 8. No
person is allowed to manufacture, purchase for sale, sell, or
transport liquor without making a permanent record showing
prescribed details. § 10. Copies of permits to purchase must be
preserved by the seller. § 11. Manufacturers are required to attach
labels showing details concerning liquor made and sold by them. §
12. It is unlawful for any person to procure the transportation of
liquor without giving the carrier notice of the character of the
shipment. No carrier is permitted to transport and no person may
receive liquor from a carrier unless there is shown upon the
package specified information as to consignor and consignee, and
also the number of the permit allowing the transportation. § 14. It
is unlawful for any consignee to receive or any carrier to deliver
any liquor in a container on which appears any statement known to
be false. § 15. It is unlawful to advertise liquor or to permit a
sign advertising it to remain on one's premises, § 17, or to
advertise or to
Page 276 U. S. 515
possess for sale any utensil, substance, or recipe intended for
use in its unlawful manufacture, § 18, or to give any information
as to how liquor may be obtained in violation of law. § 19. Every
place where liquor is made, kept, or sold in violation of the law
is declared to be a nuisance, and the person who maintains it is
liable to specified punishment. § 21. It is declared that any
violation on leased premises by the lessee or occupant shall work a
forfeiture of the lease at the option of the lessor. § 23. When an
officer shall discover one transporting liquor in any vehicle in
violation of law, it is his duty to seize the liquors, take
possession of the vehicle, arrest and proceed against the person in
charge of it. § 26.
A conservative analysis of the provisions of the title is
contained in one of the briefs filed by the government. It shows
eight provisions declaring specified things to be unlawful,
eighteen prohibiting others, and fifteen commanding the performance
of various obligations imposed. Except for nuisance, §§ 21-23,
cf. §§ 24, 25, all punishments to be imposed on offenders
are prescribed by § 29. Its substance follows: "Any person who
manufactures or sells liquor in violation of this title shall for a
first offense be fined . . . or imprisoned. . . ." Second and
subsequent offenses are more severely to be punished.
"Any person violating the provisions of any permit, or who makes
any false record, report, or affidavit required by this title, or
violates any of the provisions of this title, for which offense a
special penalty is not prescribed shall be fined for a first
offense not more than $500;"
and heavier penalties are prescribed for second and subsequent
offenses. Obviously Congress intended to provide for the punishment
of the things declared to be unlawful and those specifically
prohibited. And it is plain that there was no failure to provide
measures for the enforcement of its commands. Undoubtedly the
general clause of this
Page 276 U. S. 516
section covers unauthorized transportation, importation,
exportation, delivery, possession, and the advertising or
possession for sale of anything intended for use in its unlawful
manufacture. The clause is broad enough -- and it is the only one
-- to make punishable violations of the provisions governing
manufacturers, pharmacists, shippers and carriers. Undoubtedly
Congress intended to penalize their violation of the duties imposed
on them. And, unless it is to be restricted by implication in favor
of enforcement officers, the general language used also covers
violations of the provisions enacted to govern their official
conduct.
But there is no support for a construction so restrained. It
always has been deemed necessary to enact laws to compel
performance of duty and to prevent corruption on the part of public
officers. They are not attended by any special presumption that
general language in disciplinary measures does not extend to them.
Neglect of official duty is a misdemeanor at common law. Russell
Crimes and Misdemeanors (7th ed.) p. 601;
People v.
Herlihy, 72 N.Y.S. 389, and cases cited. Intentional failure
of enforcement officers to report violations is doubly injurious to
the public. It encourages offenders and disgraces the law.
Performance of duty by prohibition agents is quite as important as
compliance with law by authorized manufacturers, physicians,
pharmacists, and carriers. The general clause in question applies
to the latter. With equal reason, it may be held to cover failures
of enforcement officers to report for prosecution violations and
offenders known to them. And that construction is consistent with
the established policy of Congress. Similar neglect of duty has
long been punishable. The Act of July 18, 1866, [
Footnote 1] imposes penalties upon collectors
of customs and other officers for failure to make required
Page 276 U. S. 517
reports. An Act of July 20, 1868, [
Footnote 2] provides that any revenue officer or agent
who, having knowledge or information of the violation of the
revenue laws, fails to report the same to his superior officer and
the Commissioner of Internal Revenue shall be punished by fine and
imprisonment. The duties of prohibition officers and revenue
officers overlap. They are in the same department, and directed by
the same head. They are under like duty to report.
Cf.
R.S. § 3164, as amended; U.S.C. Tit. 26, § 26. Treasury regulations
require that the reports of prohibition agents shall include
statements of infringements of internal revenue laws also involved.
Regulations 12, Art. 35. They are entitled to like protection
against prosecution in state courts for acts done under color of
their office.
Maryland v. Soper (No. 1), 270 U. S.
9, 19 [argument of counsel -- omitted]. And the policy
of Congress is further shown by the Prohibition Act for the
District of Columbia, which makes it an offense for any officer to
fail to report violations to the corporation counsel. [
Footnote 3] These and other Acts
[
Footnote 4] prescribing
punishment for neglect of official duty strongly support the
contention that Congress intended to make prohibition officers
punishable for failure to make the reports required by § 2.
Defendant argues that, if the failure of enforcement officers to
report violations be held punishable,
"they cannot . . . determine what classes or character of
violators it is most advantageous, for the purpose of real
enforcement, to investigate and report."
But there is
Page 276 U. S. 518
nothing to indicate that any such determinations are to be made.
Congress intended that prohibition officers should not
intentionally fail to report violations and that the law should be
enforced against all offenders. The general clause covers all
violations except the relatively few specifically dealt with. And
it reasonably may be held to apply to violations of official duties
and to safeguard against connivance between officers and offenders.
He also argues that the imposition of heavier penalties for second
and subsequent offenses shows that the clause was not intended to
apply to offending officers because, as it was said they would not
be in office after conviction. But that suggestion has little, if
any, weight when it is remembered that the clause is aimed at so
many violations and nonoffice-holding offenders. There is no rule
requiring every part of the provision to apply to all classes
covered by it.
Cf. United States v. Union Supply Co.,
215 U. S. 50,
215 U. S. 55.
Moreover, it is not impossible that an enforcement officer may be
in office subsequent to a conviction for such an offense.
The construction contended for by defendant unduly restrains the
language of the clause in question, is inconsistent with the
context and contrary to the purposes of the Act and the policy of
Congress. It is without substantial support, and cannot be
sustained.
Judgment affirmed.
MR. JUSTICE SUTHERLAND and MR. JUSTICE SANFORD dissent.
[
Footnote 1]
§ 42, c. 201, 14 Stat. 178, 188; R.S. § 1780, as amended by Act
of March 4, 1909, § 101, c. 321, 35 Stat. 1088, 1106; U.S.C. Tit.
18, § 188.
[
Footnote 2]
§ 98, c. 186, 15 Stat. 125, 165; R.S. § 3169; U.S.C. Tit. 26, §
64.
And see Act of February 8, 1875, § 23, c. 36, 18 Stat.
307, 312; U.S.C. Tit. 26, § 68.
[
Footnote 3]
Act of March 3, 1917, § 21, c. 165, 39 Stat. 1123, 1129.
[
Footnote 4]
Neglect of duty by employee in the census. § 22, c. 2, 36 Stat.
1, 8, reenacted as § 22, c. 97, 40 Stat. 1291, 1299; U.S.C. Tit.
13, § 44. Neglect of duty imposed by Alaska Game Commission Act, §
15, c. 75, 43 Stat. 739, 747; U.S.C. Tit. 48, § 202. Failure of
guide to report violation of Alaska Game Law, § 5, c. 162, 35 Stat.
102, 104; U.S.C. Tit. 48, § 202.