An information filed in a Federal District Court charged
appellees with having violated 19 U.S.C. § 1304 by removing from
ten violins imported from the Soviet Zone of Germany, after their
importation but prior to their sale to ultimate purchasers, labels
reading "Germany/USSR Occupied," with intent to conceal the
identity of the country of origin. The District Court dismissed the
information on the ground that removal of the labels did not
violate § 1304, because the applicable regulation appeared to
require the Soviet Zone marking for tariff purposes only, rather
than to apprise the ultimate purchasers of the place of origin, and
also that the regulation was not sufficiently clear and unambiguous
to justify a criminal prosecution. The Government appealed to the
Court of Appeals, which held that the order of dismissal was
appealable directly to this Court under 18 U.S.C. § 3731 because
(a) the District Court's interpretation of the regulation was
tantamount to a construction of the statute upon which the
information was founded, and (b) the effect of the dismissal was to
sustain a motion in bar. Accordingly, the Court of Appeals
certified the case to this Court.
Held:
1. The charges in the information are founded on § 1304 and the
regulations thereunder; the information was dismissed solely
because its allegations did not state an offense under § 1304, as
amplified by the regulations; the statute and regulations are so
inextricably intertwined that an interpretation of the regulations
necessarily is a construction of the statute, and the case was
properly certified to this Court by the Court of Appeals under 18
U.S.C. § 3731. Pp.
361 U. S.
434-438.
2. The regulation here involved appears to be aimed at the
collection of duties, rather than the protection of ultimate
purchasers in the United States; it is not sufficiently clear and
unambiguous to furnish a basis for a criminal prosecution for
violation of 19 U.S.C. § 1304; and the information was properly
dismissed. Pp.
361 U. S.
438-441.
Affirmed.
Page 361 U. S. 432
MR. JUSTICE CLARK delivered the opinion of the Court.
The Congress has provided in the Tariff Act of 1930, 46 Stat.
590, as amended, that imported articles be marked to indicate to an
ultimate purchaser in the United States the English name of the
country of origin. 19 U.S.C. § 1304. [
Footnote 1] Pursuant to the Act, the Secretary of the
Treasury adopted implementing regulations. This case tests the
application of these provisions to the importation of 10 violins
from the Soviet Zone of Germany. Appellees were charged with
removing the labels from the
Page 361 U. S. 433
violins with intent to conceal from the ultimate purchasers in
the United States the identity of the violins' country of origin.
The District Court dismissed the information, holding that the
changing of the labels did not violate the Act, because the
applicable regulation appeared to require the Soviet Zone marking
only for tariff purposes, rather than to apprise the ultimate
purchasers of the place of origin. In any event, the court found,
the intent of the regulation was not "manifested in a manner
sufficiently clear and unambiguous to justify a criminal
prosecution." On appeal by the Government, the Court of Appeals
held that the District Court's opinion, interpreting the
regulation, was tantamount to a construction of the statute upon
which the information was founded, and hence, under the Criminal
Appeals Act, 18 U.S.C. § 3731, the order of dismissal was
appealable directly to this Court, rather than to the Court of
Appeals. [
Footnote 2] It was
also of the opinion that the effect of the dismissal was to sustain
a motion in bar, which, under
Page 361 U. S. 434
§ 3731, likewise required appeal to this Court. Accordingly, it
certified the appeal, 261 F.2d 40, and we postponed the question of
jurisdiction to a hearing on the merits, 359 U.S. 951. We have
concluded to accept the certification of the Court of Appeals and,
on the merits, to affirm the District Court judgment dismissing the
information.
Appellees, dealers in musical instruments in the United States,
had purchased the violins from importers and thereafter sold them
to other dealers. Upon obtaining possession of the violins from the
importers, appellees replaced labels marked "Germany/USSR
Occupied," then on each of the violins, with others inscribed "Made
in Germany." After resale of the violins, an information was filed
against appellees, charging that they removed the original labels
attached to the violins with intent to conceal from the ultimate
purchasers the identity of the country of origin. [
Footnote 3] The Government's theory was that
the removal of the labels violated 19 U.S.C. § 1304, and its
implementing regulations.
I
Our first consideration is the jurisdictional issue. The
Criminal Appeals Act specifies several conditions, any one of which
permits a direct appeal by the Government to this Court, and makes
our jurisdiction in such cases exclusive. In the event that an
appeal which should have been taken here is erroneously effected to
a Court of Appeals, that court is directed to certify it here.
Prior to 1907, the date of the original Act, the United States had
no appeal whatever in criminal cases. As passed by the House, the
bill gave the Government "the same right of review by writ of error
that is given to the defendant." However, in the Senate, the bill
was amended so as to allow review
Page 361 U. S. 435
from judgments setting aside indictments, "where the ground for
such motion or demurrer is the invalidity or construction of the
statute upon which the indictment is founded." 41 Cong.Rec. 2819.
The final language emerged from the Conference Committee of the two
Houses.
See H.R.Conf.Rep. No. 8113, 59th Cong., 2d Sess.
As was stated by Senator Knox, one of the proponents of the
measure, a member of the Judiciary Committee and a former Attorney
General of the United States, the bill "only proposed to give it
[the Government] an appeal upon questions of law raised by the
defendant to defeat the trial. . . ." 41 Cong.Rec. 2752. The bill
was intended to create "the opportunity to settle important
questions of law," its "great purpose" being "to secure the
ultimate decision of the court of final resort on questions of
law." [
Footnote 4] The
situation sought to be remedied was outlined by Senator Patterson,
also of the Judiciary Committee and a proponent of the bill, in
these words:
"We have a district court in one jurisdiction holding that a law
is ineffective for one reason or another -- it may be that it is
unconstitutional, or for some other reason -- and we have a
district court in another jurisdiction holding the reverse; and, as
the cases multiply in the several sections of the country, we may
find one half of the courts of the country arrayed against the
other half of the courts of the country upon the same identical
law; one half holding that it is entirely constitutional, and the
other half holding that it is unconstitutional. So, Mr. President,
that confusion, that ridiculous condition, exists and must continue
to exist, because, as the law now stands, until a case involving
the question shall go to the Supreme Court and it is brought there
by the defendant,
Page 361 U. S. 436
there can be no adjudication by a court whose decision and
judgment is controlling. . . . The bill is intended to cure a
defect in the administration of justice. . . . [
Footnote 5]"
It therefore appears abundantly clear that the remedial purpose
of the Act was to avert
"the danger of frequent conflicts, real or apparent, in the
decisions of the various district or circuit courts, and the
unfortunate results thereof,"
and to eliminate "the impossibility of the government's
obtaining final and uniform rulings by recourse to a higher court."
20 Harv.L.Rev. 219. Moreover, the desirability of expedition in the
determination of the validity of Acts of Congress, which is pointed
to as a desideratum for direct appeal, applies equally to
regulations. In practical operation, correction of a regulation by
agency revision invariably awaits judicial action.
The information charged violations of 19 U.S.C. § 1304 "and the
regulations promulgated thereunder." This section requires imported
articles to be marked "to indicate to an ultimate purchaser . . .
the country of origin," and imposes criminal sanctions on anyone
who removes such a mark with intent to conceal the information
contained therein. The Secretary of the Treasury is authorized to
implement it by appropriate regulations. The term "country," as
used by the Congress in requiring the markings, was defined by
regulation to mean "the political
Page 361 U. S. 437
entity known as a nation." 19 CFR § 11.8. By Treasury Decision
51527, August 28, 1946, Germany was to be considered the country of
origin of articles manufactured or produced in all parts of
Germany. Following a change in duty rates applicable to Soviet Zone
products, T.D. 53210 was issued in 1953, providing that articles
from Eastern Germany should be "marked to indicate Germany (Soviet
occupied)." [
Footnote 6] The
issue posed to the District Court was whether this last regulation
carried with it the sanctions of § 1304. As we see it, a
construction of the regulation necessarily is an interpretation of
the statute.
An administrative regulation, of course, is not a "statute."
While, in practical effect, regulations may be called "little
laws," [
Footnote 7] they are,
at most, but offspring of statutes. Congress alone may pass a
statute, and the Criminal Appeals Act calls for direct appeals if
the District Court's dismissal is based upon the invalidity or
construction of a statute.
See United States v. Jones,
345 U. S. 377
(1953). This Court has always construed the Criminal Appeals Act
narrowly, limiting it strictly "to the instances specified."
United States v. Borden Co., 308 U.
S. 188,
308 U. S. 192
(1939).
See also United States v. Swift & Co.,
318 U. S. 442
(1943). Here the statute is not complete by itself, since it merely
declares the range of its operation, and leaves to its progeny the
means to be utilized in the effectuation of its command. But it is
the statute which creates the offense of the willful removal of the
labels of origin, and provides the punishment for violations. The
regulations, on the other hand, prescribe the identifying language
of the label itself, and assign the resulting tags to their
respective geographical areas. Once promulgated,
Page 361 U. S. 438
these regulations, called for by the statute itself, have the
force of law, and violations thereof incur criminal prosecutions,
just as if all the details had been incorporated into the
congressional language. The result is that neither the statute nor
the regulations are complete without the other, and only together
do they have any force. In effect, therefore, the construction of
one necessarily involves the construction of the other. The charges
in the information are founded on § 1304 and its accompanying
regulations, and the information was dismissed solely because its
allegations did not state an offense under § 1304, as amplified by
the regulations. When the statute and regulations are so
inextricably intertwined, the dismissal must be held to involve the
construction of the statute. This, we believe, gives recognition to
the congressional purpose to give the Government the right of
appeal upon "questions of law raised by the defendant to defeat the
trial." and thus promptly to "secure the ultimate decision" of this
Court, affording a desired "uniform enforcement of the law
throughout the entire limits of the United States." In view of this
conclusion, we need not pass upon the claim that the District Court
sustained, in effect, a "motion in bar." Our disposition requires
that the case come directly here, and accordingly we accept the
certificate of the Court of Appeals, and now turn to the
merits.
II
In 1946, the Treasury implemented the "country of origin"
provisions of § 1304 by issuance of T.D. 51527, which provided
that,
"For the purposes of the marking provisions of the Tariff Act of
1930, . . . Germany shall be considered the country of origin of
articles manufactured . . . in all parts of the German area subject
to the authority of the Allied Control Commission and the United
States, British, Soviet, and French zone Commanders. . . . "
Page 361 U. S. 439
Thus, the marking on articles produced in the Soviet Zone were
required to be labeled "Made in Germany."
In 1951, the Congress directed the President to suspend or
withdraw any reduction in the rates of custom duties or other
concessions then applicable to the importation of articles
manufactured in any areas dominated by the Soviet Union. 65 Stat.
73; 19 U.S.C. § 1362. In Proclamation No. 2935, 65 Stat. C25, the
President suspended any reduction in rates of duty applicable to
any articles manufactured in the Soviet Zone of Germany and the
Soviet Sector of Berlin. Treasury Decision 52788, issued the same
day, changed the rate of duty as provided in this proclamation. In
1953, the Secretary issued T.D. 53210, the regulation in
controversy. This Treasury Decision is headed: "Tariff status,
marking to indicate the name of the country of origin, and customs
valuation of products of Germany, Poland, and Danzig." The first
paragraph of T.D. 53210 refers to the presidential proclamation
changing the structure of the rates of duty. The second paragraph
specifies that, "For the purposes of the value provisions of
section 402, Tariff Act of 1930," Western Germany shall be treated
as one country, and "the Soviet Zone . . . shall be treated as
another "country." The third paragraph is the one crucial to this
prosecution: it provides that products of Western Germany shall be
"marked to indicate Germany as the "country of origin," but
products of the Soviet Zone . . . shall be marked to indicate
Germany (Soviet occupied) as the "country of origin." The District
Court concluded that T.D. 53210 was "issued primarily to establish
markings for purposes of the differences in the duties applicable";
thus the indication of Soviet Zone origin would not be required
beyond entry into this country, the stage at which duty is
payable.
Page 361 U. S. 440
We agree with the District Court. It appears that T.D. 53210,
unlike T.D. 51527, is aimed at the collection of duties, rather
than the protection of the ultimate purchaser in the United States.
Its caption indicates that it deals with "tariff status" and
"customs valuation," and the marking requirements are but aids
thereof. Taking up the body of the document, we note that the first
paragraph deals entirely with the fact that Soviet-dominated areas
"shall not receive reduced rates of duty," while Western Germany
and the Western Sectors of Berlin shall "continue to receive most
favored nation treatment." The second paragraph is introduced by
the phrase, "For the purposes of the value provisions" of the
Tariff Act, and provides that "the Soviet Zone . . . shall be
treated as another
country.'" This language, as well as the
makeup of the regulation, suggests that the third paragraph (the
one involved here), requiring distinctive marking for Soviet Zone
products, is but another step in the implementation of the tariff
changes. It contains no reference to the requirement of § 1304 that
the article be marked in a "conspicuous place," "legibly,
indelibly, and permanently," so that an "ultimate purchaser in the
United States" would be on notice. We note that appellees placed on
the violins the labels "Made in Germany" as required by T.D.
51527.
In the context of criminal prosecution, we must apply the rule
of strict construction when interpreting this regulation and
statute.
United States v. Halseth, 342 U.
S. 277,
342 U. S. 280
(1952);
United States v.
Wiltberger, 5 Wheat. 76,
18 U. S. 95-96
(1820). A reading of the regulation leaves the distinct impression
that it was intended to protect and expedite the collection of
customs duties. Certainly its emphasis on duties and its silence on
the protection of the public from deceit support the conclusion
that the old provisions were to continue insofar as markings
after
Page 361 U. S. 441
importation are concerned. [
Footnote 8] If the intent were otherwise, it should not
have been left to implication. There must be more to support
criminal sanctions: businessmen must not be left to guess the
meaning of regulations. The appellees insist that they changed the
labels in good faith, believing their actions to be permissible
under the law. There is nothing in the record to the contrary. A
United States district judge concurred in their reading of the
regulation. In the framework of criminal prosecution, unclarity
alone is enough to resolve the doubts in favor of defendants.
Accordingly, the judgment of the District Court is
Affirmed.
[
Footnote 1]
"19 U.S.C. § 1304. Marking of imported articles and
containers."
"(a) Marking of articles."
". . . [E]very article of foreign origin . . . imported into the
United States shall be marked in a conspicuous place as legibly,
indelibly, and permanently as the nature of the article (or
container) will permit in such manner as to indicate to an ultimate
purchaser in the United States the English name of the country of
origin of the article. The Secretary of the Treasury may by
regulations -- "
"(1) Determine the character of words and phrases or
abbreviations thereof which shall be acceptable as indicating the
country of origin . . . ;"
"(2) Require the addition of any other words or symbols which
may be appropriate to prevent deception or mistake as to the origin
of the article. . . ."
"
* * * *"
"(e) Penalties."
"If any person shall, with intent to conceal the information
given thereby or contained therein, deface, destroy, remove, alter,
cover, obscure, or obliterate any mark required under the
provisions of this chapter, he shall, upon conviction, be fined not
more than $5,000 or imprisoned not more than one year, or
both."
[
Footnote 2]
18 U.S.C. § 3731 provides in part:
"An appeal may be taken by and on behalf of the United States
from the district courts direct to the Supreme Court of the United
States in all criminal cases in the following instances:"
"From a decision or judgment setting aside, or dismissing any
indictment or information, or any count thereof, where such
decision or judgment is based upon the invalidity or construction
of the statute upon which the indictment or information is
founded."
"
* * * *"
"From the decision or judgment sustaining a motion in bar, when
the defendant has not been put in jeopardy."
"
* * * *"
"If an appeal shall be taken pursuant to this section to any
court of appeals which, in the opinion of such court, should have
been taken directly to the Supreme Court of the United States, such
court shall certify the case to the Supreme Court of the United
States, which shall thereupon have jurisdiction to hear and
determine the case to the same extent as if an appeal had been
taken directly to that Court."
[
Footnote 3]
In addition to the substantive charges, there was a count
alleging conspiracy so to alter the labels.
[
Footnote 4]
Senator Bacon, a member of the Judiciary Committee. 41 Cong.Rec.
2195-2196.
[
Footnote 5]
41 Cong.Rec. 2753.
See also comments of Senator Clarke,
who, after discussing the matter with Senator Nelson, the manager
of the bill on the floor, stated:
"[W]henever the validity of a statute has been adversely decided
by a trial court . . . , the Government ought to have the right to
promptly submit that to the tribunal having authority to dispose of
such questions in order that there may be a uniform enforcement of
the law throughout the entire limits of the United States."
41 Cong.Rec. 2820.
[
Footnote 6]
Several months later, T.D. 53281 was issued, providing
alternative wordings for the Soviet Zone labels.
[
Footnote 7]
Vom Baur, Federal Administrative Law, § 490 at 489.
[
Footnote 8]
Since we hold that T.D. 53210 deals only with the collection of
duties, its marking provisions supersede those of T.D. 51527 only
as the latter relate thereto.
MR. JUSTICE BRENNAN, concurring.
I join the opinion of the Court. But I think it plain under our
precedents that jurisdiction over this appeal also lies here on the
ground that the dismissal was one "sustaining a motion in bar, when
the defendant has not been put in jeopardy." Except that arguments
are made here in dissent which would unsettle what has been settled
by our precedents and reintroduce archaisms into federal criminal
procedure, I would have refrained from expressing my views.
The touchstone of what constitutes a "judgment sustaining a
motion in bar" is precisely what Judge Lumbard in the Court of
Appeals said it was -- whether the judgment is one which will end
the cause and exculpate the defendant.
United States v.
Hark, 320 U. S. 531,
320 U. S. 536;
United States v. Murdock, 284 U.
S. 141,
284 U. S. 147;
United States v. Storrs, 272 U. S. 652,
272 U. S. 654.
As established by these precedents, the focal point of inquiry is
not the form
Page 361 U. S. 442
of the defendant's plea, but the effect of the ruling of the
District Court. [
Footnote 2/1] "The
material question is not how the defendant's pleading is styled,
but the effect of the ruling sought to be reviewed. . . ."
United States v. Hark, supra, at
320 U. S.
536.
"Its [the judgment's] effect, unless reversed, is to bar further
prosecution for the offense charged. It follows unquestionably
that, without regard to the particular designation or form of the
plea or its propriety, this court has jurisdiction under the
Criminal Appeals Act."
United States v. Murdock, supra, at
284 U. S. 147.
To turn the thrust of these precedents around and focus on the
common law pigeonhole of the defendant's plea would be an anomaly
indeed, as is recognized, particularly 15 years after the Federal
Rules of Criminal Procedure swept away the old pleas.
See
Rule 12.
These cases establish criteria for judging the question that are
foreign to the technicalities of the old pleas. It is suggested,
however, that Justice Holmes' opinion in
United States v.
Storrs, supra, at
272 U. S. 654,
demonstrates that these technicalities still exist. A less
selective quotation of his opinion, however, makes it plain that he
was referring to one technical touchstone -- the very one that
Judge Lumbard applied below and which was followed in
Murdock and
Hark. Storrs involved the
dismissal of an indictment for irregularities committed in the
grand jury room. The statute of limitations had run at the time of
the dismissal, so that a new indictment could not be found. But the
nature of the Court's action itself was not to exculpate the
defendant, as the opinion explained:
"[It] cannot be that a plea filed a week earlier is what it
purports to be, and in its character is, but a week later becomes a
plea in bar because of the extrinsic circumstance that the statute
of limitations has run. The plea looks
Page 361 U. S. 443
only to abating the indictment, not to barring the action. It
has no greater effect in any circumstances. If another indictment
cannot be brought, that is not because of the judgment on the plea,
but is an independent result of a fact having no relation to the
plea, and working equally whether there was a previous indictment
or not. The statute uses technical words, 'a special plea in bar,'
and we see no reason for not taking them in their technical
sense."
272 U.S. at
272 U. S. 654.
Clearly, the point of the discussion was not whether the plea was
by way of "confession and avoidance" or the like, but whether the
judgment on it was, in itself, an exculpatory one -- the announced
test that subsequent decisions have followed. There is, then, no
inconsistency between
Storrs and
Hark -- both
turned on the same basic principle.
Whatever retrospective exegesis of the leading cases now
suggests, the one thing reading their own language discloses is
that none of them asserts the "confession and avoidance" rationale
now ascribed to them. Rather, they were conceived as turning on the
rationale that the Court of Appeals explained below. I would adhere
to the basic principles of
Hark, Murdock, and
Storrs here, and put the nineteenth century pleading books
back on the shelves. [
Footnote
2/2]
[
Footnote 2/1]
See Friedenthal, Government Appeals in Federal Criminal
Cases, 12 Stan.L.Rev. 71, 77-78.
[
Footnote 2/2]
It is suggested that this construction causes some overlap
between those judgments appealable here as sustaining motions in
bar and those appealable here as based on the construction or
invalidity of the statute under which prosecution is had. The
existence of such an overlap hardly would militate seriously
against the construction of the statute espoused here and in
Hark, Murdock, and
Storrs; where Congress has
decided to make two categories of cases appealable to this Court,
it is not a valuable guide to construction to assume that
congressional intent would be offended if some cases were
appealable as belonging to both categories. And it cannot be
maintained, as is suggested, that every judgment based on the
invalidity of a statute must also be one sustaining a motion in
bar. For an indictment may be dismissed because it does not allege
facts sufficient to indicate a constitutional application of the
statute under which the prosecution was brought, and if the
omission is not a pleading defect, and the statute was interpreted
by the District Court as covering the charge, the dismissal is
appealable here as from a judgment based on the invalidity of the
statute. Yet such a judgment would not necessarily exculpate the
defendant, and, thus, would not constitute the sustaining of a plea
in bar, for a new indictment for the same criminal offense might be
found by alleging sufficient additional facts to obviate the
constitutional defect.
Cf. United States v. Oppenheimer,
242 U. S. 85,
242 U. S.
87.
Memorandum of MR. JUSTICE WHITTAKER.
Although I agree with so much of the dissenting opinions of my
Brothers FRANKFURTER and STEWART as concludes that a "regulation"
is not embraced by the term "statute" as used in the Criminal
Appeals Act, 18 U.S.C. § 3731,
Page 361 U. S. 444
I also agree with so much of my Brother BRENNAN's concurring
opinion as would hold that the dismissal was one "sustaining a
motion in bar, when the defendant has not been put in jeopardy,"
and hence conclude that we have jurisdiction. On the merits, I join
the Court's opinion.
MR. JUSTICE FRANKFURTER, whom MR. JUSTICE HARLAN and MR. JUSTICE
STEWART join, dissenting.
The Criminal Appeals Act of 1907, 34 Stat. 1246, c. 2564,
provides that, in a criminal case, an appeal from a District
Court
"[f]rom a decision or judgment quashing, setting aside, or
sustaining a demurrer to, any indictment, or any count thereof,
where such decision or judgment is based upon the invalidity, or
construction of the statute upon which the indictment is
founded,"
"[f]rom a decision arresting a judgment of conviction for
insufficiency of the indictment, where such decision is based upon
the invalidity or construction of the statute upon which the
indictment is founded,"
and
"[f]rom the decision or judgment sustaining a special plea in
bar, when the defendant
Page 361 U. S. 445
has not been put in jeopardy, [
Footnote 3/1]"
cannot be taken by the Government to the Court of Appeals, but
must come to this Court directly. In this case, the indictment
rested upon a regulation of the Secretary of the Treasury,
violation of which constitutes an offense under 19 U.S.C. §
1304(e). The District Court decided against the Government, which
thereupon appealed to the Court of Appeals. That court certified
the case to this Court, 261 F.2d 40.
The question whether construction of a "statute," as that term
is used in the Act of 1907, includes construction of a regulation
promulgated under a statute is another variant of the recurring
problem of resolving an ambiguity of legal language. Here,
ambiguity inheres not only in the word "statute" as an English word
(
see "statute," Oxford English Dictionary), but also in
the word "statute" as a legal term. (
Compare the
construction of the term "statute" in two cases decided
contemporaneously,
King Mfg. Co. v. Augusta, 277 U.
S. 100 (1928), and
Ex parte Collins,
277 U. S. 565
(1928). In the former, "statute" was held to include a city
ordinance; in the latter, "statute" was held to exclude a class of
legislative enactments "[d]espite the generality of the language."
277 U.S. at
277 U. S.
568.) Judged by the dictionary, one meaning of "statute"
is, of course, an enactment made by the legislature of a country.
As a matter of English, it may also be respectably used to refer to
the enactment of a body subordinate to a legislature, or to the
governing promulgations of a private body, like a college. Thus,
the dictionary does not resolve our problem, wholly apart from
heeding the admonition, so frequently expressed by
Page 361 U. S. 446
Judge Learned Hand, that judges, in construing legislation,
ought not to imprison themselves in the fortress of the
dictionary.
The immediately relevant ambiguity of "statute" as a legal term
derives from the fact that it may mean either the enactment of a
legislature, technically speaking, that is, the Congress of the
United States or the respective legislatures of the fifty States,
or it may have a more comprehensive scope, to-wit, rules of conduct
legally emitted by subordinate lawmaking agencies such as city
councils or the various regulation -- emitting bodies of the
federal and state governments. Accordingly, whether the term
"statute," as used in the Criminal Appeals Act of 1907, should be
given the restrictive meaning,
i.e., enactments by
Congress, or the more extensive meaning,
i.e., Treasury
regulations, cannot be determined merely by reading the Criminal
Appeals Act of 1907. The answer will turn on the total relevant
environment into which that Act must be placed, including past
relevant decisions, the legislative history of the Act, and due
regard for the consequences resulting from a restrictive as against
a latitudinarian construction.
For the problem in hand, there is no controlling authority in
this Court, nor are there decisions under other statutes helpful
for decision; neither is there a body of practice reflected in
lower court decisions over a sufficient period of time,
unchallenged here, carrying the weight of professional
understanding. The case, therefore, must be decided on the balance
of considerations weighed here for the first time.
The origin of the legislation and the legislative history of its
enactment leave no doubt as to the direction of its aim. Between
the decision of this Court in
United States v. Sanges,
144 U. S. 310
(1892), and the enactment of the Criminal Appeals Act, the United
States had no
Page 361 U. S. 447
appellate remedy in criminal cases. (
See the story as
summarized in
United States v. Dickinson, 213 U. S.
92.) This
"left all federal criminal legislation at the mercy of single
judges in the district and circuit courts. This defect became all
the more serious because it became operative just at the beginning
of the movement for increasing social control through criminal
machinery."
Frankfurter and Landis, The Business of the Supreme Court
(1928), p. 114. Attorneys General had, since 1892, been emphasizing
the need for the legislation which became the 1907 Act.
See,
id., pp. 114-115. Attorney General (later Mr. Justice) Moody,
in 1906, put the situation to be remedied in these terms:
"It is monstrous that a law which has received the assent of the
Senate, the House of Representatives, and the President can be
nullified by the opinion of a single man not subject to review by
the court of appeals and the Supreme Court."
Atty.Gen.Ann.Rep. 4 (1906).
The particular incident which precipitated the legislation was
the
Beef-Trust case,
United States v. Armour &
Co., 142 F. 808 (1906), where a plea in bar, in its technical
sense, was sustained, thereby finally ending a Sherman Law
prosecution in which President Theodore Roosevelt was much
interested. In his message to the Congress which eventually enacted
the Act of 1907, the President thus expressed the need for
legislation:
"It seems an absurdity to permit a single district judge,
against what may be the judgment of the immense majority of his
colleagues on the bench, to declare a law solemnly enacted by the
Congress to be 'unconstitutional,' and then to deny to the
Government the right to have the Supreme Court definitely decide
the question."
41 Cong.Rec. 22. The concern of those in charge of the bill
throughout the debate upon the measure in the Senate, in which
alone there was full discussion, was to afford the Government
Page 361 U. S. 448
appellate review when a single judge had frustrated the formally
expressed will of Congress. [
Footnote
3/2]
The legislative history gives no hint of any concern over
misconstruction or invalidation of regulations to which statutes
might give rise. Regulations were not mentioned. It is significant,
however, that the measure which ultimately became law was one
deliberately narrower in scope than that originally proposed in the
Congress. The legislation originated in the House, which, in the
first session of the 59th Congress, passed a bill giving the United
States in all criminal prosecutions "the same right of review by
writ of error that is given to the defendant" provided that the
defendant not be twice put in jeopardy for the same offense. 40
Cong.Rec. 5408. In the Senate, a less general measure, in the
nature of a substitute for the House bill, was reported, giving the
United States the right to take a writ of error from decisions or
judgments
"quashing or setting aside an indictment . . . sustaining a
demurrer to an indictment . . . arresting a judgment of conviction
for insufficiency of the indictment . . . [or] sustaining a special
plea in bar. . . ."
40 Cong.Rec. 7589-7590; S.Rep. No. 3922, 59th Cong., 1st Sess.
This bill went over in the Senate to the second session of the
59th
Page 361 U. S. 449
Congress. The chief objection to it was its breadth. Although it
was amended to provide expressly for protection against double
jeopardy, 41 Cong.Rec. 2819, Senators objected to any unnecessary
extension of the number of situations in which defendants might,
contrary to what had been the practice, be subjected to government
appeals in criminal cases.
E.g., 41 Cong.Rec. 2192-2194,
2819.
In response to this objection, Senator Clarke introduced a
substitute bill providing only three categories of cases in which
the Government would be allowed to appeal:
"From a decision or judgment quashing, setting aside, or
sustaining a demurrer to any indictment or any count thereof where
the ground for such motion or demurrer is the invalidity or
construction of the statute upon which the indictment is
founded;"
"From a decision arresting a judgment of conviction for
insufficiency of the indictment, where the ground for the
insufficiency thereof is the invalidity or construction of the
statute upon which the same is founded;"
"From the decision or judgment sustaining a special plea in bar,
when the defendant has not been put in jeopardy."
41 Cong.Rec. 2823. The Clarke substitute, passed by the Senate
(41 Cong.Rec. 2825), was substantially adopted in its relevant
aspects by the House (
see H.R.Rep. No. 8113, 59th Cong.,
2d Sess.) and eventually became the Act of 1907. 41 Cong.Rec. 3994,
4128. In explaining the reason for his amendment, Senator Clarke
stressed the aim not to have the scope of the legislation greater
than necessary:
"[T]he object . . . is to limit the right of appeal upon the
part of the General Government to the validity or constitutionality
of the statute in which the prosecution is proceeding. It has been
enlarged by the addition of another clause, which gives the right
of appeal where the construction by the trial court is such as to
decide that there is no offense committed, notwithstanding the
validity of the statute, and in other respects the proceeding
Page 361 U. S. 450
may remain intact. . . . A case recently occurring has drawn
attention to the fact that, if a circuit judge or a district judge
holding the circuit should determine that a statute of Congress was
invalid, the United States is without means of having that matter
submitted to a tribunal that under the Constitution has power to
settle that question. I do not believe the remedy ought to be any
wider than the mischief that has been disclosed."
41 Cong.Rec. 2819.
It is manifest that the preoccupying thought of the primary
promoter of the legislation, President Roosevelt, and of Congress,
was to bar a single judge from destroying, either by way of
construction or invalidation, congressional enactments. Extension
of the range of the meaning of "statute" to include regulations to
which penal consequences attach was apparently nobody's thought,
and certainly on nobody's tongue. This was at a time when the
proliferation of regulations was not an unknown phenomenon in
lawmaking. It is certainly not fictional to attribute to the
preponderant profession represented in Congress knowledge of the
elementary difference between statutes, conventionally speaking,
and regulations authorized by statutes. Nor is this a formal or
minor distinction. It is one thing to strike down a statute or to
eviscerate its meaning; it is quite another thing to construe a
regulation adversely to the Government's desire. Legislation is
complicated and cumbersome business. Correction of erroneous
statutory construction, let alone invalidation of laws, is a
difficult, even a hazardous, process. Regulations are the products
of officials unhobbled by legislative procedure with its potential
opportunity for parliamentary roadblocking. In large measure, these
officials have the means of self-help for correcting judicial
misconception about a regulation.
Such being the practical differences between dealing with
regulations and dealing with the laws of Congress
Page 361 U. S. 451
as such, what is the bearing of these practical differences upon
our duty of construing the term "statute" in order to decide
whether the right of direct appeal to this Court should be
restricted to cases construing the formal enactments of Congress,
or whether it should include cases construing regulations referable
to such enactments? The answer to this question introduces a factor
of weighty importance in deciding whether cases are required to be
brought here in the first instance or may be brought here only by
leave after adjudication by a Court of Appeals. That factor
concerns due regard for the responsibility of this Court in
relation to the judicial business of major public importance and
the conditions necessary for its wise disposition. [
Footnote 3/3]
On more than one occasion, this Court has given controlling
consideration to the fact that, by a latitudinarian construction of
jurisdictional legislation, the business of this Court would be
"largely and irrationally increased."
American Security &
Trust Co. v. Commissioners, 224 U. S. 491,
224 U. S. 495.
Since the merely abstractly logical arguments permit "statute" to
be construed in either a restrictive or a broad sense, that is,
that appeals to this Court directly from an adjudication of a
District Court under the Criminal Appeals Act may appropriately be
confined to rulings under a statute as such, rather than to include
interpretations of regulations arising under a statute, I not only
feel free, but deem it incumbent, to oppose what is certainly a
needless, if not an irrational, increase in the class of cases
which can be brought directly to this Court from the District
Courts. I would deny the
Page 361 U. S. 452
right of the Government to appeal here every time one of the
vast number of regulations to which penalties are attached is
construed to its disfavor. I would leave the Government to revise
its regulation, as so often can easily and effectively be
accomplished by skillful drafting, to bring it within statutory
authority, or to go to a Court of Appeals for review.
The presence in the Criminal Appeals Act of 1907 of the
provision for an appeal by the Government from decisions or
judgments sustaining a "special plea in bar" when the defendant has
not been put in jeopardy, has an historical explanation, and its
scope presents a different problem of statutory construction than
that of giving meaning to "statute." Barring stimulation by this
Court, Congress seldom initiates judiciary legislation except when
a dramatic case stirs public interest. Such was the
Beef
Trust case,
United States v. Armour & Co., 142 F.
808. In that case, because of the then absence of the Government's
right of appeal in a criminal case, the Government's antitrust
prosecution was finally terminated by a successful plea in bar in
the District Court. The Congress was determined not to permit a
recurrence of that situation, and thus the inclusion in the Act of
1907 of a clause permitting appeals by the Government from
decisions sustaining a "special plea in bar" is easily accounted
for.
Regarding the meaning of this clause, I agree with the opinion
of my Brother STEWART. When Congress uses technical legal language,
the Court disregards the obvious guidance to meaning if it departs
from its technical legal connotation. There have been two cases
before the Court dealing with the matter, between which we have to
choose:
United States v. Storrs, 272 U.
S. 652, and
United States v. Hark, 320 U.
S. 531. In
Storrs, Mr. Justice Holmes, as
spokesman for the Court, applied his authoritative learning of the
common law to take "technical words" "in their technical sense." In
Hark, the Court
Page 361 U. S. 453
did not notice the
Storrs analysis, and gave a
colloquial meaning to the phrase. Having to choose between these
two decisions, I follow
Storrs because it applied the
appropriate criterion of construction.
[
Footnote 3/1]
Formal changes in this language have been made by the Act of May
9, 1942, c. 295, 56 Stat. 271, the 1948 Judicial Code, Act of June
25, 1948, c. 645, § 3731, 62 Stat. 844, and the Act of May 24,
1949, c. 139, § 58, 63 Stat. 97.
[
Footnote 3/2]
See, e.g., 41 Cong.Rec. 2757 (Senator Nelson, the
manager of the bill in the Senate):
"[T]he question now before us is whether we will allow a
nisi prius judge of an inferior court to render
ineffective our efforts in this behalf to protect the American
people against trusts and monopolies and other dangerous things;
whether we will allow ourselves to be handicapped and crippled by
the decision of an inferior
nisi prius judge."
See also id., 2192 (Senator Bacon):
"[A]nd a law of Congress is set aside, made absolutely null and
void and inoperative by the decision of one judge, without the
opportunity for the nine judges who sit in the Supreme Court to
pass upon the great question . . . affecting not simply that
accused, affecting not simply all others who may be accused, but
affecting the operation of the law of the land. . . ."
[
Footnote 3/3]
Apart from other vital factors, increase in the range and mass
of materials drawn upon in opinions during recent decades, and the
investigation and appraisal thereby involved, entail a considerable
increase in the burden of the Court's business compared with
earlier periods.
MR. JUSTICE STEWART, whom MR. JUSTICE FRANKFURTER and MR.
JUSTICE HARLAN join, dissenting.
I do not reach the merits of this case, because I think the
District Court's judgment was not of a kind which the Criminal
Appeals Act makes directly reviewable by this Court. It seems clear
to me that the dismissal of the information was not "based upon the
invalidity or construction of the statute," and equally clear that
the judgment was not one "sustaining a motion in bar." [
Footnote 4/1]
I
The District Court's decision was based solely upon the
interpretation of Treasury regulations, not upon the invalidity or
construction of an Act of Congress. The court found it doubtful
that the regulations in question were issued to implement the
"country of origin" marking requirements of 19 U.S.C. § 1304,
[
Footnote 4/2] and held that, in
any event, the intent of the regulations was not sufficiently
unambiguous to support a criminal prosecution. No contention was
made that the statute itself was invalid. The trial court did not
question that the statute validly and clearly confers power upon
the Secretary of the Treasury to issue a properly worded regulation
making the acts of the appellees unlawful. This is made apparent by
the district judge's statement that
"[t]he Secretary could very easily have indicated that East and
West Germany
Page 361 U. S. 454
should be considered two separate countries for all purposes
within the jurisdiction of the Treasury Department. . . ."
Thus, the decision we are asked to review in no way impinges
upon or construes the legislation which Congress enacted.
Compare United States v. Foster, 233 U.
S. 515,
233 U. S.
522-523.
Whether, under the Criminal Appeals Act, an appeal from an order
of dismissal based upon a District Court's construction of an
administrative regulation may be brought directly here is a
question which apparently has not been considered until now. The
Court's resolution of the question seems to me at odds with the
tradition of strict construction of the Criminal Appeals Act and
contrary to the policy, reflected notably in the Act of February
13, 1925, 43 Stat. 936, of narrowly limiting the appellate
jurisdiction of this Court. [
Footnote
4/3] "The exceptional right of appeal given to the Government
by the Criminal Appeals Act is strictly limited to the instances
specified."
United States v. Borden Co., 308 U.
S. 188,
308 U. S. 192.
See United States v. Dickinson, 213 U. S.
92,
213 U. S. 103.
Avoidance of prolonged uncertainty as to the validity or meaning
of a federal criminal law is obviously a desideratum in the
effective administration of justice. Moreover,
Page 361 U. S. 455
it is clearly desirable to bring to the attention of Congress as
promptly as possible any occasion for legislative clarification or
amendment. When a District Court holds a criminal statute invalid
or gives it a construction inconsistent with the understanding of
those in the Executive Branch charged with enforcing it, this
policy is well served by expediting ultimate determination of the
matter. But expedited review of the judgment in the present case
serves no such policy. [
Footnote
4/4] Uncertainty caused by the District Court's decision in
this case could have been laid to rest at any time simply by
issuance of a clearly worded Treasury regulation.
For these reasons, I would hold that an administrative
regulation such as is here involved is not a "statute" within the
meaning of this provision of the Criminal Appeals Act.
II
Even if the above views should prevail, the Court would still
have jurisdiction of this appeal if the District Court's judgment
was one "sustaining a motion in bar, when the defendant has not
been put in jeopardy." The motion which the court sustained was for
an order dismissing the information "on the ground that it does not
state facts sufficient to constitute an offense against The United
States." I think such a pleading is not "a motion in bar."
Page 361 U. S. 456
Until 1948, the Criminal Appeals Act provided for direct appeal
to this Court from a "decision or judgment sustaining a special
plea in bar, when the defendant has not been put in jeopardy."
[
Footnote 4/5] In 1948, the phrase
"motion in bar" was substituted for "special plea in bar." 62 Stat.
845. The sole purpose of the change was to bring the terminology of
the Criminal Appeals Act into conformity with Rule 12 of the
Federal Rules of Criminal Procedure, which abolished special pleas,
demurrers and motions to quash as such, and substituted motions to
dismiss or to grant appropriate relief. The statutory revision was
not intended to, and did not, expand the Government's right of
appeal.
See H.R.Rep. No. 304, 80th Cong., 1st Sess. A-177.
[
Footnote 4/6] That right is still
limited to a judgment sustaining a motion of a kind historically
considered a "special plea in bar."
The label which the defendant may have attached to his pleading
is of no great importance in this connection.
United States v.
Oppenheimer, 242 U. S. 85,
242 U. S. 86;
United States v. Goldman, 277 U.
S. 229,
277 U. S. 236.
As Mr. Justice Holmes remarked in
United States v. Storrs,
272 U. S. 652,
272 U. S. 654,
"[t]he question is less what it is called than what it is." But, in
deciding "what it is," the Court's opinion in
Storrs
underscores the essential point --
"The
Page 361 U. S. 457
statute uses technical words, 'a special plea in bar,' and we
see no reason for not taking them in their technical sense."
272 U.S. at
272 U. S. 654.
[
Footnote 4/7]
At common law, a plea in bar had to either "deny, or confess and
avoid the facts stated in the declaration." 1 Chitty, Pleading
(16th Am. ed. 1883), *551; Stephen, Principles of Pleading (3d Am.
ed. 1895) 89. Consequently, there were two types of pleas in bar --
pleas by way of traverse and pleas by way of confession and
avoidance.
Ibid. Shipman, Common Law Pleading (Ballantine
ed. 1923), 30. When a plea in bar was a plea other than the general
issue, it was a "special plea in bar." Shipman,
supra, at
337; Stephen,
supra, at 179. In civil cases, pleas of this
category included the specific traverse (equivalent to a special
denial), the special traverse (a denial preceded by introductory
affirmative matter), and the plea of confession and avoidance. In
criminal cases, special pleas in bar were primarily utilized by way
of confession and avoidance,
e.g., autrefois acquit, autrefois
convict, and pardon. 2 Bishop, New Criminal Procedure (2d ed.
1913), §§ 742, 805-818; Heard, Criminal Pleading (1879), 279-296; 1
Starkie, Criminal Pleading (2d ed. 1822), 316-338. The plea in
confession and avoidance did not contest the facts alleged in the
declaration, but relied on new matter which would deprive those
facts of their ordinary legal effect. Stephen,
supra, 89,
205-206; Shipman,
supra, 348; 1 Chitty,
supra,
*551-*552. It set up affirmative defenses which would bar the
prosecution.
This concept of a special plea in bar as a plea similar in
substance to confession and avoidance has been consistently
followed in the decisions of this Court. The
Page 361 U. S. 458
cases in which jurisdiction has been accepted on the ground that
the decision below sustained a special plea in bar have invariably
involved District Court decisions upholding an affirmative defense
in the nature of a confession and avoidance. [
Footnote 4/8] The motion to dismiss which was sustained
by the District Court in this case was clearly not the equivalent
of a special plea in bar as thus historically understood, but,
rather, the equivalent of a general demurrer. The judgment
sustaining that motion is therefore not directly reviewable
here.
This view is fully confirmed by an examination of the structure
of the Criminal Appeals Act itself. For if, as the Court of Appeals
thought, a "motion in bar" is any motion which, if sustained, would
exculpate the defendants, then a significant portion of the
provision of the Criminal Appeals Act discussed in
361 U.
S. Every motion based upon the invalidity of a statute
would, under the rough and ready definition of the Court of
Appeals, also be a "motion in bar," because a dismissal based upon
such a motion would, with equal effectiveness, "end the cause and
exculpate the defendants."
I would remand this case to the Court of Appeals.
[
Footnote 4/1]
The relevant provisions of the Criminal Appeals Act are
reproduced in the Court's opinion,
ante, p. 433,
note 2
[
Footnote 4/2]
The relevant provisions of this statute are reproduced in the
Court's opinion,
ante, p. 461,
note 1
[
Footnote 4/3]
The term "statute," as used in the jurisdictional legislation
which is now 28 U.S.C. § 1257(2), providing for an appeal to this
Court
"where is drawn in question the validity of a statute of any
state on the ground of its being repugnant to the Constitution,
treaties or laws of the United States, and the decision is in favor
of its validity,"
has from the beginning been given a broad interpretation,
consistent with the purpose of this legislation.
See Williams
v. Bruffy, 96 U. S. 176,
96 U. S.
182-183;
Reinman v. Little Rock, 237 U.
S. 171;
Live Oak Water Users' Ass'n v. Railroad
Commission of California, 269 U. S. 354,
269 U. S. 356.
But it is one thing to say that "statute" should be construed
broadly in cases involving allegedly unconstitutional state action,
and quite another to say that a similar construction should be
given to the term in cases involving simply the meaning of
regulations made pursuant to concededly valid federal
legislation.
[
Footnote 4/4]
The Court notes
"the remedial purpose of the Act was to avert 'the danger of
frequent conflicts, real or apparent, in the decisions of the
various [trial courts], and the unfortunate results thereof,' and
to eliminate 'the impossibility of the government's obtaining final
and uniform rulings by recourse to a higher court.'"
Ante, p.
361 U. S. 436.
This purpose has now to a large degree been fulfilled by the Act of
May 9, 1942, 56 Stat. 271, giving jurisdiction over government
appeals in criminal cases to the Courts of Appeals. Any conflict
between circuits could, of course, be resolved here.
See
Supreme Court Rule 19, par. 1(b).
[
Footnote 4/5]
This was the language of the original Criminal Appeals Act (Act
of March 2, 1907, c. 2564, 34 Stat. 1246), and the same wording was
continued in subsequent reenactments.
See 18 U.S.C. (1940
ed.) § 682; 18 U.S.C. (1946 ed.) § 682.
[
Footnote 4/6]
The 1948 revision supplemented Rule 54(c), Fed.Rules Crim.Proc.,
which provided that
"The words 'demurrer,' 'motion to quash,' 'plea in abatement,'
'plea in bar,' and 'special plea in bar,' or words to the same
effect, in any act of Congress shall be construed to mean the
motion raising a defense or objection provided in Rule 12."
The Notes of the Advisory Committee appended to Rule 54 make
clear that an intent of this provision was to insure that the scope
of the Government's right of appeal in criminal cases would remain
unchanged.
[
Footnote 4/7]
The opinion in
United States v. Hark, 320 U.
S. 531, upon whose generalized language the Court of
Appeals and my Brother BRENNAN here so heavily rely, did not cite
Storrs. To the extent that the two opinions reflect
divergent approaches,
Storrs seems the more carefully
considered, and I would follow it.
[
Footnote 4/8]
See, e.g., United States v. Celestine, 215 U.
S. 278 (motion alleging special facts which showed that
defendant was not subject to prosecution by the United States for
the crime charged);
United States v. Oppenheimer,
242 U. S. 85
(motion alleging that
res judicata barred the action);
United States v. Thompson, 251 U.
S. 407 (motion raising the affirmative defense that the
charges contained in the indictment had been submitted to a
previous grand jury which had refused to make a presentment
thereon);
United States v. Goldman, 277 U.
S. 229 (motion alleging that the statute of limitations
barred prosecution);
United States v. Murdock,
284 U. S. 141
(motion raising defense of privilege);
United States v.
Hark, 320 U. S. 531
(motion raising affirmative defense of revocation of pertinent
provisions of regulation which appellees were charged with
violating).