1. Section 8 of the Immigration Act of 1917 does not make it a
punishable offense to conceal or harbor aliens not entitled to
enter or reside in the United States, in view of the ambiguity in
the statute as to the scope of the offense and as to the penalty
which Congress intended to prescribe. Pp.
333 U. S.
483-495.
2. Although Congress intended by § 8 to make criminal and to
punish concealing or harboring of aliens, the uncertainty as to the
nature of the offense or offenses and as to the applicable penalty
poses a problem which is outside the bounds of judicial
interpretation, and can be solved only by Congressional action. P.
333 U. S.
495.
Affirmed.
Respondent was indicted for concealing and harboring aliens, in
alleged violation of § 8 of the Immigration Act of 1917. The
District Court granted a motion to dismiss the indictment. The
United States appealed directly to this Court under the Criminal
Appeals Act.
Affirmed, p.
333 U. S.
495.
MR. JUSTICE RUTLEDGE delivered the opinion of the Court.
Section 8 of the Immigration Act of 1917 provides:
"That any person . . . who shall bring into or land in the
United States [or shall attempt to do so]
Page 333 U. S. 484
or shall conceal or harbor or attempt to conceal or harbor, or
assist or abet another to conceal or harbor, in any place . . . any
alien not duly admitted by an immigrant inspector or not lawfully
entitled to enter or to reside within the United States, under the
terms of this Act, shall be deemed guilty of a misdemeanor, and
upon conviction thereof shall be punished by a fine not exceeding
$2,000 and by imprisonment for a term not exceeding five years
for each and every alien so landed or brought in or attempted
to be landed or brought in."
(Emphasis added.) 39 Stat. 880, 8 U.S.C. § 144.
Appellee and another were indicted for concealing and harboring
five named aliens in alleged violation of § 8. Before trial,
appellee moved that the indictment be dismissed on the ground that
it did not charge a punishable offense. He argued that, although
the statute provided for two different crimes, one landing or
bringing in unauthorized aliens and the other concealing or
harboring such aliens, punishment was prescribed in terms only for
the former crime. The District Court accepted this argument and
granted the motion to dismiss. The Government appealed directly to
this Court pursuant to the Criminal Appeals Act, 28 U.S.C. § 345,
and we noted probable jurisdiction.
The case presents an unusual and a difficult problem in
statutory construction. It concerns not so much Congress' intention
to make concealing or harboring criminal as it does the penalty to
be applied to those offenses including attempts. The choice, as
might appear on glancing at the statute, is not simply between no
penalty, at the one extreme, and, at the other, fine plus
imprisonment up to the specified maxima for each alien concealed or
harbored. The problem is rather one of multiple choice, presenting
at least three, and perhaps four, possible yet
Page 333 U. S. 485
inconsistent answers on the statute's wording. Furthermore, as
will appear, the legislative history is neither clear nor greatly
helpful in ascertaining which of the possibilities calling for
punishment was the one Congress contemplated.
Before discussing specifically the alternatives, we note that
the Government rests primarily on the clarity with which § 8
indicates Congress' purpose to make concealing or harboring
criminal, rather than upon any like indication of legislative
intent concerning the penalty. [
Footnote 1] Because the purpose to proscribe the conduct
is clear, it is said, we should not allow that purpose to fail
because of ambiguity concerning the penalty. Rather, we are asked
to make it effective by applying that one of the possibilities
which seems most nearly to accord with the criminal proscription
and the terms of the penalizing provision.
On the other hand, appellee does not really dispute that
Congress meant, by inserting the amendment prohibiting concealing
or harboring, [
Footnote 2] to
make those acts criminal. But he denies that it is possible, either
from the section's wording or from the legislative history, to
ascertain with any fair degree of assurance which one of the
possible penal consequences Congress may have had in mind. From
this, he falls back upon the conclusion indicated by the premise --
namely, that the task of resolving the difficulty goes beyond
dispelling ambiguity in the usual sense
Page 333 U. S. 486
of judicially construing statutes [
Footnote 3] and, if attempted, would require this Court to
invade the legislative function and, in effect, fix the penalty.
The argument is therefore not merely that a rule of strict
construction should be applied in petitioner's favor. It is,
rather, that the choice the Government asks us to make is so broad
and so deep, resting among such equally tenable though inconsistent
possibilities, that we have no business to make it at all.
Even in criminal matters a strong case would be required to
bring about the result appellee seeks. For, where Congress has
exhibited clearly the purpose to proscribe conduct within its power
to make criminal and has not altogether omitted provision for
penalty, every reasonable presumption attaches to the proscription
to require the courts to make it effective in accord with the
evident purpose. This is as true of penalty provisions as it is of
others.
United States v. Brown, 333 U. S.
18.
But strong as the presumption of validity may be, there are
limits beyond which we cannot go in finding what Congress has not
put into so many words or in making certain what it has left
undefined or too vague for reasonable assurance of its meaning. In
our system, so far at least as concerns the federal powers,
defining crimes and fixing penalties are legislative, not judicial,
functions. [
Footnote 4] But,
given some legislative edict, the margin between the necessary and
proper judicial function of construing statutes
Page 333 U. S. 487
and that of filling gaps so large that doing so becomes
essentially legislative, is necessarily one of degree.
We turn, then, to consider whether the Government is asking that
we do too much when it puts forward a preferred reading of the
penal provision, perhaps suggests another as a permissible
alternative, and is prepared to accept a third, though disavowing
its complete consistency with Congress' intent, if neither of the
others is adopted.
The Government's preferred reading would impose the same penalty
for concealing or harboring as for bringing in or landing,
notwithstanding the "for each and every alien" clause is limited
expressly to aliens "so landed or brought in or attempted to be
landed or brought in." Under this interpretation, the effect of
that clause would be to provide additional punishment, as stated in
the brief, "where the crime of landing or bringing in aliens
or
the crime of concealing or harboring aliens involves more than
one alien brought into the country illegally." (Emphasis
added.)
This construction is admittedly ungrammatical, and the failure
to integrate the wording of the "each and every alien" clause with
the language of the 1917 amendment adding the concealing and
harboring offenses is conceded to have been possibly due to
oversight.
If only imperfect grammar stood in the way, the construction
might be accepted. But we agree with appellee that more is
involved. The Government, in effect, concedes that, in terms, the
section prescribes no penalty for concealing or harboring. But it
argues that inclusion of them as offenses becomes meaningless
unless the penalty provision, in spite of its wording, is construed
to apply to them as well as to bringing in or landing. In other
words, because Congress intended to authorize punishment, but
failed to do so, probably as a result of oversight, we should plug
the hole in the statute.
Page 333 U. S. 488
To do this would be to go very far indeed, upon the sheer
wording of the section. For it would mean, in effect, that we would
add to the concluding clause the words which the Government's
reading inserts, "and for each and every alien so concealed or
harbored." It is possible that Congress may have intended this.
But, for more than one reason, we cannot be sure of that fact.
In the first place, the section as originally enacted was
limited to acts of smuggling. And there is some evidence in the
legislative history that the addition of concealing or harboring
was meant to be limited to those acts only when closely connected
with bringing in or landing, so as to make a chain of offenses
consisting of successive stages in the smuggling process. [
Footnote 5]
But that evidence is not conclusive. [
Footnote 6] And the section's wording is susceptible to
much broader constructions. On the language, it is possible not
only to treat concealing or harboring as offenses distinct and
disconnected from smuggling operations; it is also possible to
regard them as separate and distinct from each other. And, on the
broadest possible interpretation, giving independent effect to the
words "or not lawfully entitled . . . to reside within the United
States," [
Footnote 7] the
section could be taken
Page 333 U. S. 489
to apply to concealing or harboring of aliens lawfully admitted
but unlawfully remaining within the country.
In that event an innkeeper furnishing lodging to an alien
lawfully coming in, but unlawfully overstaying his visa, would be
guilty of harboring, if he knew of the illegal remaining. And, with
him, one harboring an alien known to have entered illegally at some
earlier, even remote, time would incur the penalties provided for
smuggling, if the Government's position giving implied extension of
the penalty provision were accepted.
We do not mention these possibilities to intimate opinion
concerning the reach of the statute with reference to covering
them, for no such question is squarely before us. But we point them
out because they are relevant to the problem of assurance or
reasonable certainty in asserting that Congress by necessary
implication intended to extend the penalties originally and still
clearly provided for smuggling to all offenses covered by the
language defining the crimes.
The very real doubt and ambiguity concerning the scope of the
acts forbidden, if any, beyond those clearly and proximately
connected with smuggling raise equal or greater doubt that Congress
meant to encompass all those acts within the penal provisions for
smuggling. If acts disconnected from that process are forbidden,
the separate offenses of concealing and more particularly of
harboring,
Page 333 U. S. 490
if the two are distinct, might require, in any sound legislative
judgment, very different penalties from those designed to prevent
or discourage smuggling in its various phases. That is essentially
the sort of judgment legislatures, rather than courts, should
make.
The position the Government asks us to take involves, therefore,
a major task in two respects, not merely one. The first is to
expand the penal language beyond the explicit limitation "for each
and every alien so landed or brought in," so as to apply the
penalties designed for smuggling to all offenses covered by the
section. The second is to do this blindly in reference to the scope
and quality of the forbidden acts to which the extension is to be
made -- that is, without resolving beforehand the questions we have
noted as arising on the face of the section in relation to its
reach in defining the offenses of concealing or harboring. The
Government does not ask us to undertake now to say how far the
section may or may not go in these numerous aspects of defining
coverage. [
Footnote 8] We are
not willing to undertake extension of the penalty provision
blindfold, without knowing in advance to what acts the penalties
may be applied. Nor are we any more willing to decide wholesale
among the various possibilities of coverage. That problem, squarely
presented in concrete instances, might be resolved step by step,
were there no difficulty over the penalty. But to resolve it
broadside now for all cases the section may cover, on this indirect
presentation, would be to proceed in an essentially legislative
Page 333 U. S. 491
manner for the definition and specification of the criminal
acts, in order to make a judicial determination of the scope and
character of the penalty.
Beyond the difficulties arising on the section's wording, the
legislative history is sufficient in one respect, when added to the
other obstacles, to make them insuperable for accepting the
Government's preferred reading. It discloses that, both before
[
Footnote 9] and after
[
Footnote 10] and 1917
amendment, the immigration authorities, and particularly the
Commissioner General, repeatedly sought from Congress the specific
penal wording the Government now asks us
Page 333 U. S. 492
to insert. These efforts were made as conflicting judicial
decisions demonstrated that the courts were very much at sea,
[
Footnote 11] and their
floundering was brought to congressional attention. [
Footnote 12] In each instance,
nevertheless, the effort was unsuccessful.
It may well be, as the Government infers, that this only
increases the mystery of Congress' failure to include explicit
penalties when it added the new offenses. It is possible that
Congress may have thought none was needed. But that view hardly
explains satisfactorily the subsequent repeated failures to clarify
the matter after experience had shown that need. We cannot take
them as importing clear direction to the courts to do what Congress
itself either refused or failed on notice to do upon so many
occasions and importunities.
We are not entirely sure that the Government intends to put
forward as an alternative suggestion the reading,
Page 333 U. S. 493
already discussed, which would extend the smuggling penalties to
the section's broadest possible construction in relation to
definition and coverage of criminal acts,
i.e., to
concealing or harboring of aliens lawfully admitted but unlawfully
remaining. But appellee regards this as a tendered possibility, and
specified statements in the Government's brief appear to sustain
his view. [
Footnote 13]
Whether appellee is correct in taking the statements as suggesting
an independent alternative or, on the other hand, they were made,
though not accurately phrased for the purpose, in support of the
Government's preferred position is not greatly material. For, in
any event, what has been said about extending the penalty to
include the narrower range of forbidden acts applies to the broader
one with even greater force as calling for the extension's
rejection.
There is, finally, the third possible interpretation, which the
Government concedes not wholly consistent with the statutory
purpose, but says nevertheless is clearly authorized "if a strictly
grammatical construction of Section 8 is employed." This would read
the "for each and every alien" clause out of the section insofar as
offenses of concealing or harboring are concerned, while leaving it
effective for bringing in or landing. In other words, the reading
would differentiate the two classes of offenses for applying the
penalty provision. The prescribed maximum penalties would be made
effective for concealing or harboring, but without augmenting them
according to the number of aliens concealed or harbored, even
though previously landed or brought in at the same time. That
Page 333 U. S. 494
increase, however, would continue in force for bringing in or
landing. [
Footnote 14]
The wording of § 8 can be made to support this interpretation
only by treating the "for each and every alien" clause as
ambivalently separable in relation to the two classes of offenses.
Nothing on the face of the section suggests such a reading. The
comma preceding the final clause is not equal to the burden of
supporting the construction. The clause was part of the section
before the concealing and harboring offenses were added.
Previously, there could have been no possible intent or purpose to
apply the clause to some of the offenses, but not to others. The
clause's function was solely to augment the penalty when more than
one alien was involved. That function was not changed when the new
offenses were added. [
Footnote
15] Neither the amendment's wording nor its history evinces any
purpose to increase punishment, proportionately
Page 333 U. S. 495
to the number of aliens involved, for one class of offenders,
but not for the other. The construction, like the preferred one, is
a construction of necessity, to be justified, if at all, only by
the fact that, without it, the statute becomes unenforceable for
the offenses of concealing or harboring.
If there were less inconsistency among the tentative
possibilities put forward, or greater consistency with the
section's wording implicit in one, resolution of the difficulty by
judicial action would involve a less wide departure from the common
function of judicial interpretation of statutes than is actually
required by this case. But here, the task is too large. With both
of the parties, we agree that Congress meant to make criminal and
to punish acts of concealing or harboring. But we do not know -- we
can only guess with too large a degree of uncertainty -- which one
of the several possible constructions Congress thought to apply.
The uncertainty extends not only to the inconsistent penalties said
to satisfy the section, either grammatically or substantively, if
not grammatically. It also includes within varying ranges at least
possible, and we think substantial, doubt over the section's reach
to bring in very different acts which conceivably might be held to
be concealing or harboring. The latter ambiguity affects the
former, and their sum makes a task for us which, at best, could be
only guesswork.
This is a task outside the bounds of judicial interpretation. It
is better for Congress, and more in accord with its function, to
revise the statute than for us to guess at the revision it would
make. That task it can do with precision. We could do no more than
make speculation law.
The judgment is
Affirmed.
[
Footnote 1]
Since the issues arise on dismissal of the indictment, which
charges both concealing and harboring, as well as attempt to
conceal and harbor, we are not asked to determine whether "conceal
or harbor" as used in § 8 specifies only one offense or two
distinct ones, or, if the latter, the difference between the two.
Cf. notes
7 and 8
infra, and text.
[
Footnote 2]
Section 8 as enacted originally in 1907, 34 Stat. 900, covered
only bringing in or landing and attempts to bring in or land. The
prohibition of concealing or harboring and of attempting to conceal
or harbor was added by amendment in 1917. 39 Stat. 880.
[
Footnote 3]
Indeed, appellee asserts that the words of § 8 are unambiguously
to the effect that fine and imprisonment are to be imposed "for
each and every alien so landed or brought in . . . ," not "for each
and every alien so concealed or harbored." This view regards the
concluding "for each and every alien" clause as an integral and
inseparable part of the penalty provision for all offenses
punishable under the section.
[
Footnote 4]
United States v. Hudson and
Goodwin, 7 Cranch 32;
United States v.
Britton, 108 U. S. 199;
United States v. Eaton, 144 U. S. 677;
Viereck v. United States, 318 U.
S. 236,
318 U. S. 241,
318 U. S.
243-244.
[
Footnote 5]
The Senate Report accompanying the 1917 amendment stated
that
"such new provisions as are included are merely to complete the
definition of the crime of smuggling aliens into the United States
and related offenses. . . ."
Sen.Rep. No. 352, 64th Cong., 1st Sess. 9.
[
Footnote 6]
There is no indication of the degree or character of the
relation suggested by the words "and related offenses,"
see the preceding note, with reference to the proximity of
the acts proscribed, in time and place, to smuggling
operations.
[
Footnote 7]
This possibility apparently is not comprehended by the
indictment in this case, which substitutes "and" for the "or" given
by the statutory wording in describing the aliens charged to have
been concealed and harbored,
viz.,
"which said alien persons then and there were aliens not duly
admitted to the United States by an immigrant inspector
and not lawfully entitled to enter or reside in the United
States. . . ."
(Emphasis added.)
Even if this use of the conjunctive in place of the statutory
disjunctive,
see text of § 8 quoted at the beginning of
this opinion, would prevent applying this indictment to a case
involving no illegal entry, but only illegal remaining, that fact
would not prevent the drafting of other indictments to cover such
cases or perhaps amending this one to give it the disjunctive
effect. These possibilities are as pertinent to whether the
suggested penal extension should be made as if actually presented
on the indictment in its present form.
[
Footnote 8]
The indictment not only conjoins illegal remaining with illegal
entry,
cf. note 7 but
charges that petitioner concealed and harbored aliens "not duly
admitted . . . and not lawfully entitled to enter or reside. . . ."
Thus, the specific charge in this case cannot be said to be limited
to smuggling, for no wording of the statute relating to bringing in
or landing is included. Such a limitation could be read into the
indictment only by now declaring the statute to be limited as a
whole to acts constituting part of the smuggling process.
[
Footnote 9]
The bills proposed by the Commissioner General would have
clearly prescribed the same penalty for concealing or harboring as
for landing or bringing in. The penalty provision of one draft
stated that the penalty should apply
"for each and every alien so landed or brought in or attempted
to be landed or brought in, or so concealed or harbored, or with
respect to whom there has been such an attempt to conceal or
harbor, or assisting or abetting another to conceal or harbor."
See Annual Report for 1909 of the Commissioner General
of Immigration, 168. The simple clause "for each and every alien to
whom this section is applicable" was substituted in the bill
proposed in the annual report for 1910. (P. 170.) In 1911, a bill
incorporating many of the Commissioner General's suggested
amendments to the Act was introduced, but the penalty provisions of
§ 8 were not made applicable to concealing or harboring. S. 3175,
62d Cong., 2d Sess. This omission was not corrected in the
subsequent drafts that eventually resulted in the 1917 statute.
See H.R. 6060, 63d Cong., 2d sess.; H.R. 10384, 64th
Cong., 1st Sess.
[
Footnote 10]
In his 1931 and 1932 annual reports, the Commissioner General
specifically pointed out that an amendment to § 8 was necessary
because it had been interpreted to provide no penalty for the
offense of concealing and harboring. A bill introduced in the House
of Representatives in 1934, but not enacted, included an amendment
to § 8 to make the penalty apply "for each and every alien in
respect to whom any of the foregoing offenses have occurred." H.R.
9366, 73d Cong., 2d Sess. At the hearings on this bill, the Deputy
Commissioner expressly pointed out that the amendment was designed
"to make sure that there will be no question that we can inflict
this penalty for concealing a smuggled alien." Hearings before the
House Committee on Immigration and Naturalization on H.R. 9366, 73d
Cong., 2d Sess. 22.
In 1940, the general problem was again before Congress when it
was made unlawful to stow away in order to facilitate entry into
the United States or to aid or abet a stowaway, 54 Stat. 306, and
again when the Act was amended to authorize the deportation of any
alien who, knowingly and for gain, encouraged, induced or assisted
another alien to effect an unlawful entry. 54 Stat. 671.
[
Footnote 11]
[
Footnote 12]
See hearings before the House Committee on Immigration
and Naturalization on H.R. 9366, 73d Cong., 2d Sess. 22.
[
Footnote 13]
Illustrative is the statement,
"We submit, therefore, that a proper reading of Section 8 in the
light of the legislative history can leave no doubt of Congress'
intention that the penal provisions should apply to the offense of
concealing or harboring an alien
not duly admitted or not
lawfully entitled to enter or reside within the United
States."
(Emphasis added.)
[
Footnote 14]
This was the view taken in
Mediros v. Keville, 63 F.2d
187, by the Circuit Court of Appeals for the First Circuit, which
appears to be the only appellate decision on the matter. The
Government successfully opposed the granting of certiorari in that
case, although consistently with its present preferred position it
now asserts that, contrary to the ruling, the congressional intent
to punish concealing and harboring proportionately to the number of
aliens involved is "equally as clear as the intent to make those
offenses punishable at all."
In response to petitioner's suggestion of inconsistency between
that position and the one now taken, the Government points out that
its brief in opposition also urged that the
Medeiros
decision was, in any event, correct on other grounds.
[
Footnote 15]
Indeed, it was in effect reinforced by the 1917 amendment. For
that amendment not only added the new offenses, but substantially
increased the maxima of the authorized fine and imprisonment.
Congress thus gave specific attention to the penal provision in
addition to expanding the criminal acts, and, in this respect,
followed the Commissioner General's recommendation. Yet it declined
at the same time to alter the "for each and every alien" clause,
which he also asked to have changed.