A regulation promulgated by the Interstate Commerce Commission
under 18 U.S.C. § 835 provides that drivers of motor vehicles
transporting inflammables or explosives
"shall avoid, so far as practicable, . . . driving into or
through congested thoroughfares, places where crowds are assembled,
street car tracks, tunnels, viaducts, and dangerous crossings."
Under the statute, "whoever knowingly violates" any such
regulation is subject to fine and imprisonment. Petitioner was
indicted for having on three separate occasions operated through
the Holland Tunnel a truck carrying inflammable carbon bisulphide.
The indictment alleged that "there were other available and more
practicable routes" for the shipments, and that petitioner "well
knew" that the shipments were in violation of the regulation.
Held: the regulation was not void for vagueness, and
the District Court should not have dismissed the counts of the
indictment based thereon. Pp.
342 U. S.
338-343.
1. No more than a reasonable degree of certainty can be demanded
in the language of the prohibition contained in a criminal statute,
and it is not unfair to require that one who deliberately goes
perilously close to an area of proscribed conduct shall take the
risk that he may cross the line. P.
342 U. S.
340.
2. In order to convict, the Government must prove not only that
petitioner could have taken another route which was both
commercially practicable and appreciably safer, but also that
petitioner knew there was such a practicable, safer route and
deliberately took the more dangerous route through the tunnel, or
that petitioner willfully neglected to inquire into the
availability of such an alternative route. Pp.
342 U. S.
342-343.
188 F.2d 889, affirmed.
In a criminal prosecution of petitioner, the District Court, on
the ground of the invalidity of the regulation, dismissed the
counts of the indictment which were based upon alleged violations
of a regulation of the Interstate Commerce Commission. 90 F. Supp.
996. The Court
Page 342 U. S. 338
of Appeals reversed. 188 F.2d 889. This Court granted
certiorari. 342 U.S. 846.
Affirmed, p.
342 U. S.
343.
MR. JUSTICE CLARK delivered the opinion of the Court.
The petitioner is charged with the violation of a regulation
promulgated by the Interstate Commerce Commission under 18 U.S.C. §
835. [
Footnote 1] The
Regulation provides:
"Drivers of motor vehicles transporting any explosive,
inflammable liquid, inflammable compressed
Page 342 U. S. 339
gas, or poisonous gas shall avoid, so far as practicable, and,
where feasible, by prearrangement of routes, driving into or
through congested thoroughfares, places where crowds are assembled,
street car tracks, tunnels, viaducts, and dangerous crossings.
[
Footnote 2]"
The statute directs that "[w]hoever knowingly violates" the
Regulation shall be subject to fine or imprisonment or both.
[
Footnote 3]
The indictment, in counts 1, 3, and 5 charges that petitioner on
three separate occasions sent one of its trucks carrying carbon
bisulphide, a dangerous and inflammable liquid, through the Holland
Tunnel, a congested thoroughfare. In each instance, the truck was
en route from Cascade Mills, New York, to Brooklyn, New York. On
the third of these trips, the load of carbon bisulphide exploded in
the tunnel, and about sixty persons were injured. The indictment
further states that
"there were other available and more practicable routes for the
transportation of said shipment, and . . . the [petitioner] well
knew that the transportation of the shipment of carbon bisulphide .
. . into the . . . Holland Tunnel was in violation of the
regulations promulgated . . . by the Interstate Commerce
Commission. . . . [
Footnote
4]"
There is no allegation as to the feasibility of prearrangement
of routes, and petitioner is not charged with any omission in that
respect.
The District Court dismissed those counts of the indictment
which were based upon the Regulation in question,
Page 342 U. S. 340
holding it to be invalid on the ground that the words "so far as
practicable and where feasible" are "so vague and indefinite as to
make the standard of guilt conjectural." 90 F. Supp. 996, 998. The
Court of Appeals for the Third Circuit reversed, holding that the
Regulation, interpreted in conjunction with the statute,
establishes a reasonably certain standard of conduct. 188 F.2d 889.
We granted certiorari. 342 U.S. 846.
A criminal statute must be sufficiently definite to give notice
of the required conduct to one who would avoid its penalties, and
to guide the judge in its application and the lawyer in defending
one charged with its violation. [
Footnote 5] But few words possess the precision of
mathematical symbols, most statutes must deal with untold and
unforeseen variations in factual situations, and the practical
necessities of discharging the business of government inevitably
limit the specificity with which legislators can spell out
prohibitions. Consequently, no more than a reasonable degree of
certainty can be demanded. Nor is it unfair to require that one who
deliberately goes perilously close to an area of proscribed conduct
shall take the risk that he may cross the line. [
Footnote 6]
In
Sproles v. Binford, 286 U.
S. 374 (1932), these principles were applied in
upholding words in a criminal statute similar to those now before
us. Chief Justice Hughes, speaking for a unanimous court, there
said:
"'Shortest practicable route' is not an expression too vague to
be understood. The requirement of reasonable certainty does not
preclude the use of ordinary terms to express ideas which find
adequate interpretation in common usage and understanding. . .
.
Page 342 U. S. 341
The use of common experience as a glossary is necessary to meet
the practical demands of legislation. [
Footnote 7]"
The Regulation challenged here is the product of a long history
of regulation of the transportation of explosives and inflammables.
Congress recognized the need for protecting the public against the
hazards involved in transporting explosives as early as 1866.
[
Footnote 8] The inadequacy of
the legislation then enacted led to the passage, in 1908, of the
Transportation of Explosives Act, [
Footnote 9] which was later extended to cover
inflammables. [
Footnote 10]
In accordance with that Act, the Commission, in the same year,
issued regulations applicable to railroads. In 1934, the Commission
exercised its authority under the Act to promulgate regulations
governing moor trucks, including the Regulation here in question.
[
Footnote 11] In 1940, this
Regulation was amended to substantially its present terminology.
[
Footnote 12] That
terminology was adopted only after more than three years of study
and a number of drafts. The trucking industry
Page 342 U. S. 342
participated extensively in this process, making suggestions
relating to drafts submitted to carriers and their organizations,
and taking part in several hearings. The Regulation's history
indicates the careful consideration which was given to the
difficulties involved in framing a regulation which would deal
practically with this aspect of the problem presented by the
necessary transportation of dangerous explosives on the highways.
[
Footnote 13]
The statute punishes only those who knowingly violate the
Regulation. This requirement of the presence of culpable intent as
a necessary element of the offense does much to destroy any force
in the argument that application of the Regulation would be so
unfair that it must be held invalid. [
Footnote 14] That is evident from a consideration of the
effect of the requirement in this case. To sustain a conviction,
the Government not only must prove that petitioner could have taken
another route which was both commercially practicable and
appreciably safer (in its avoidance of crowded thoroughfares, etc.)
than the one it did follow. It must also be shown that petitioner
knew that there was such a practicable, safer route, and yet
deliberately took the more dangerous route through the tunnel, or
that petitioner willfully neglected to exercise its duty under the
Regulation to inquire into the availability of such an alternative
route. [
Footnote 15]
Page 342 U. S. 343
In an effort to give point to its argument, petitioner asserts
that there was no practicable route its trucks might have followed
which did not pass through places they were required to avoid. If
it is true that, in the congestion surrounding the lower Hudson,
there was no practicable way of crossing the River which would have
avoided such points of danger to a substantially greater extent
than the route taken, then petitioner has not violated the
Regulation. But that is plainly a matter for proof at the trial. We
are not so conversant with all the routes in that area that we may,
with no facts in the record before us, assume the allegations of
the indictment to be false. [
Footnote 16] We will not thus distort the judicial notice
concept to strike down a regulation adopted only after much
consultation with those affected and penalizing only those who
knowingly violate its prohibition.
We therefore affirm the judgment of the Court of Appeals
remanding the cause to the District Court with directions to
reinstate counts 1, 3, and 5 of the indictment.
Affirmed.
[
Footnote 1]
18 U.S.C. § 835:
"The Interstate Commerce Commission shall formulate regulations
for the safe transportation within the limits of the jurisdiction
of the United States of explosives and other dangerous articles,
including flammable liquids, flammable solids, oxidizing materials,
corrosive liquids, compressed gases, and poisonous substances,
which shall be binding upon all common carriers engaged in
interstate or foreign commerce which transport explosives or other
dangerous articles by land, and upon all shippers making shipments
of explosives or other dangerous articles via any common carrier
engaged in interstate or foreign commerce by land or water."
"
* * * *"
"Such regulations shall be in accord with the best known
practicable means for securing safety in transit, covering the
packing, marking, loading, handling while in transit, and the
precautions necessary to determine whether the material when
offered is in proper condition to transport."
[
Footnote 2]
49 CFR § 197.1(b).
[
Footnote 3]
"Whoever knowingly violates any such regulation shall be fined
not more than $1,000 or imprisoned not more than one year, or both,
and, if the death or bodily injury of any person results from such
violation, shall be fined not more than $10,000 or imprisoned not
more than ten years, or both."
18 U.S.C § 835 (sixth paragraph).
[
Footnote 4]
R. 2.
[
Footnote 5]
Lanzetta v. New Jersey, 306 U.
S. 451 (1939).
[
Footnote 6]
Nash v. United States, 229 U.
S. 373,
229 U. S. 377
(1913);
Hygrade Provision Co. v. Sherman, 266 U.
S. 497,
266 U. S.
502-503 (1925);
United States v. Petrillo,
332 U. S. 1,
332 U. S. 7-8
(1947).
[
Footnote 7]
Sproles v. Binford, 286 U. S. 374,
286 U. S. 393
(1932). The provision which was there challenged and upheld was
concerned basically with a requirement as to distance, a
requirement applying within necessary limits of practicability,
just as the Regulation here challenged is concerned basically with
avoidance of designated points of danger within like limits of
practicability.
[
Footnote 8]
14 Stat. 81.
[
Footnote 9]
35 Stat. 554, as amended, 35 Stat. 1134.
[
Footnote 10]
41 Stat. 1444.
[
Footnote 11]
49 CFR, 1938, § 85.34(b);
see Regulations for
Transportation of Explosives, 211 I.C.C. 351, 354 (1935).
[
Footnote 12]
49 CFR, 1940 Supp., § 197-7.3082:
"Drivers of motor vehicles transporting inflammable liquids
shall avoid, so far as practicable, driving into or through
congested thoroughfares, places where crowds are assembled, street
car tracks, tunnels, viaducts and dangerous crossings. So far as
practicable, this shall be accomplished by prearrangement of
routes."
The section was amended to its present form in 1942. 7 Fed.Reg.
2869.
[
Footnote 13]
Compare United States v. Petrillo, 332 U. S.
1,
332 U. S. 7
(1947);
Miller v. Strahl, 239 U.
S. 426,
239 U. S. 434
(1915);
Baltimore & Ohio R. Co. v. Interstate Commerce
Comm'n, 221 U. S. 612,
221 U. S. 620
(1911).
[
Footnote 14]
Screws v. United States, 325 U. S.
91,
325 U. S.
101-103 (1945);
United States v. Ragen,
314 U. S. 513,
314 U. S. 524
(1942);
Gorin v. United States, 312 U. S.
19,
312 U. S. 27-28
(1941);
Omaechevarria v. Idaho, 246 U.
S. 343,
246 U. S. 348
(1918).
[
Footnote 15]
The officers, agents, and employees of every motor carrier
concerned with the transportation of explosives and other dangerous
articles are required to "become conversant" with this and other
regulations applying to such transportation. 49 CFR § 197.02.
[
Footnote 16]
This case is here to review the granting of a motion to dismiss
the indictment. It should not be necessary to mention the familiar
rule that, at this stage of the case, the allegations of the
indictment must be taken as true.
MR. JUSTICE JACKSON, with whom MR. JUSTICE BLACK and MR. JUSTICE
FRANKFURTER join, dissenting.
Congress apparently found the comprehensive regulation needed
for the transportation of explosives and inflammables too intricate
and detailed for its own processes. It delegated the task of
framing regulations to the Interstate Commerce Commission and made
a knowing violation of them criminal. Where the federal
crime-making power is delegated to such a body, we are
Page 342 U. S. 344
justified in requiring considerable precision in its exercise.
Kraus & Bros. v. United States, 327 U.
S. 614,
327 U. S.
621-622.
This regulation does not prohibit carriage of explosives. It
presupposes that they must be transported, and therefore attempts
to lay down a rule for choice of routings. Petitioner was
admonished to avoid congested thoroughfares, places where crowds
are assembled, streetcar tracks, tunnels, viaducts, and dangerous
crossings. Nobody suggests that it was possible to avoid all of
these in carrying this shipment from its origin to its destination.
Nor does the regulation require that all of any one of them be
avoided, except "so far as practicable." I do not disagree with the
opinion of Chief Justice Hughes and the Court in
Sproles v.
Binford, 286 U. S. 374,
that, in the context in which it was used, "
shortest
practicable route' is not an expression too vague to be
understood." A basic standard was prescribed with definiteness --
distance. That ordinarily was to prevail, and, if departed from,
the trucker was to be prepared to offer practical
justifications.
But the regulation before us contains no such definite standard
from which one can start in the calculation of his duty. It leaves
all routes equally open, and all equally closed. The carrier must
choose what is "practicable," not, as in the
Sproles case,
by weighing distance against obstacles to passage. We may, of
course, take judicial notice of geography. Delivery of these goods
was impossible except by passing through many congested
thoroughfares and either tunnels, viaducts, or bridges. An
explosion would have been equally dangerous and equally
incriminating in any of them. What guidance can be gleaned from
this regulation as to how one could with reasonable certainty make
a choice of routes that would comply with its requirements?
It is said, however, that definiteness may be achieved on the
trial because expert testimony will advise the jury as to what
routes are preferable. Defects in that solution
Page 342 U. S. 345
are two-fold: first, there is no standard by which to direct,
confine and test the expert opinion testimony and, second, none to
guide a jury in choosing between conflicting expert opinions.
It is further suggested that a defendant is protected against
indefiniteness because conviction is authorized only for knowing
violations. The argument seems to be that the jury can find that
defendant knowingly violated the regulation only if it finds that
it knew the meaning of the regulation he was accused of violating.
With the exception of
Screws v. United States,
325 U. S. 91, which
rests on a very particularized basis, the knowledge requisite to
knowing violation of a statute is factual knowledge as
distinguished from knowledge of the law. I do not suppose the Court
intends to suggest that, if petitioner knew nothing of the
existence of such a regulation, its ignorance would constitute a
defense.
This regulation prescribes no duty in terms of a degree of care
that must be exercised in moving the shipment. The utmost care
would not protect defendant from prosecution under it. One can
learn his duty from such terms as "reasonable care" or "high degree
of care." Of course, one may not be sure whether a trier of fact
will find particular conduct to measure up to the requirements of
the law, but he may learn at least what he must strive for, and
that is more than he can learn from this regulation.
This question is before this Court on the indictment only. In
some circumstances, we might feel it better that a case should
proceed to trial and our decision be reserved until a review of the
conviction, if one results. But a trial can give us no better
information than we have now as to whether this regulation contains
sufficiently definite standards and definition of the crime. An
acquittal or disagreement would leave this unworkable, indefinite
regulation standing as the only guide in a matter that badly needs
intelligible and rather tight regulation. It
Page 342 U. S. 346
would remain, at least to some extent, as an incoherent barrier
against state enactment or enforcement of local regulations of the
same subject. Would it not be in the public interest, as well as in
the interest of justice to this petitioner, to pronounce this vague
regulation invalid, so that those who are responsible for the
supervision of this dangerous traffic can go about the business of
framing a regulation that will specify intelligible standards of
conduct?