In re Kollock/Opinion of the Court

By the terms of the act, manufacturers of oleomargarine are required to pack it in wooden packages, 'marked, stamped, and branded as the commissioner of internal revenue, with the approval of the secretary of the treasury, shall prescribe,' and all sales by manufacturers and wholesale dealers must be in 'original stamped packages.'

Retail dealers are required to 'pack the oleomargarine sold by them in suitable wooden or paper packages, which shall be marked and branded as the commissioner of internal revenue, with the approval of the secretary of the treasury, shall prescribe.'

And fine and imprisonment are denounced on 'every person who knowingly sells or offers for sale, or delivers or offers to deliver, any oleomargarine in any other form than in new wooden or paper packages as above described, or who packs in any package any oleomargarine in any manner contrary to law, or who falsely brands any package or affixes a stamp on any package denoting a less amount of tax than that required by law.'

Kollock was convicted as a retail dealer in oleomargarine of knowingly selling and delivering one-half pound of that commodity which was not packed in a wooden or paper package bearing thereon any or either of the marks or characters provided for by the regulations and set forth in the indictment. It is conceded that the stamps, marks, and brands were prescribed by the regulations, and it is not denied that Kollock had the knowledge, or the means of knowledge, of such stamps, marks, and brands. But it is argued that the statute is invalid because it 'does not define what act done or omitted to be done shall constitute a criminal offense,' and delegates the power 'to determine what acts shall be criminal' by leaving the stamps, marks, and brands to be defined by the commissioner.

We agree that the courts of the United States, in determining what constitutes an offense against the United States, must resort to the statutes of the United States, enacted in pursuance of the constitution. But here the law required the packages to be marked and branded, prohibited the sale of packages that were not, and prescribed the punishment for sales in violation of its provisions; while the regulations simply described the particular marks, stamps, and brands to be used. The criminal offense is fully and completely defined by the act, and the designation by the commissioner of the particular marks and brands to be used was a mere matter of detail. The regulation was in execution of, or supplementary to, but not in conflict with, the law itself, and was specifically authorized thereby in effectuation of the legislation which created the offense. We think the act not open to the objection urged, and that it is disposed of by previous decisions. U.S. v. Bailey, 9 Pet. 238; U.S. v. Eaton, 144 U.S. 677, 12 Sup. Ct. 764; Caha v. U.S., 152 U.S. 211, 14 Sup. Ct. 513.

In the last case, Caha had been convicted of perjury, under section 5392 of the Revised Statutes, in a contest in a local land office in respect of the validity of a homestead entry, the oath having been administered by one of the land officers before whom the contest had been carried on. It was contended that the indictment alleged no offense, because the statute made no provision for such a contest before those officers, and therefore it could not be said that the oath was taken in a 'case in which a law of the United States authorized an oath to be administered.'

But it was held by this court-in view of the general grant of authority to the land department to prescribe appropriate regulations for the disposition of the public lands, the rules and regulations prescribed by that department for contests in all cases of such disposition, including homestead entries, and the frequent recognition by acts of congress of contests in respect to that class of entries-that the local land officers, in hearing and deciding upon a contest as to a homestead entry, constituted a competent tribunal, and the contest so pending before them was a case in which the laws of the United States authorized an oath to be administered.

As bearing on the case in hand, we cannot do better than to quote at length from Mr. Justice Brewer, delivering the opinion, as follows:

'This is not a case in which the violation of a mere regulation of a department is adjudged a crime. U.S. v. Bailey, 9 Pet. 238, is in point. There was an act of congress making false testimony in support of a claim against the United States perjury, and the defendant in that case was indicted for making a false affidavit before a justice of the peace of the commonwealth of Kentucky in support of a claim against the United States. It was contended that the justice of the peace, an officer of the state, had no authority, under the acts of congress, to administer oaths, and that, therefore, perjury could not be laid in respect to a false affidavit before such officer. It appeared, however, that the secretary of the treasury had established, as a regulation for the government of his department and its officers in their action upon claims, that affidavits taken before any justice of the peace of any of the states should be received and considered in support of such claims. And upon this the conviction of perjury was sustained, Mr. Justice McLean alone dissenting. It was held that the secretary had power to establish the regulation, and that the effect of it was to make the false affidavit before the justice of the peace perjury, within the scope of the statute, and this notwithstanding the fact that such justice of the peace was not an officer of the United States. Much stronger is the case at bar, for the tribunal was composed of officers of the government of the United States. It was created by the land department in pursuance of express authority from the acts of congress. This perjury was not merely a wrong against that tribunal or a violation of its rules or requirements; the tribunal and the contest only furnished the opportunity and the occasion for the crime, which was a crime defined in and denounced by the statute.

'Nor is there anything in the case of U.S. v. Eaton, 144 U.S. 677, 688, 12 Sup. Ct. 764, conflicting with the views herein expressed. In that case the wrong was in the violation of a duty imposed only by a regulation of the treasury department. There was an act entitled 'An act defining butter; also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine,' which contained several sections forbidding particular acts, and imposing penalties for violation thereof. And in addition there was a general provision in section 18 that 'if a party shall knowingly, or wilfully, omit, neglect, or refuse to do, or cause to be done, any of the things required by law in the carrying on or conducting of his business, or shall do anything by this act prohibited, * *  * he shall pay a penalty,' etc. There was authority given to the commissioner of internal revenue to make all needful regulations for carrying into effect the act. In pursuance of that authority, the commission required the keeping of a book in a certain form, and the making of a monthly return, matters which were in no way referred to in the various sections of the statute prescribing the duties resting upon the manufacturer or dealer in oleomargarine, although subsequently to this statute, and subsequently to the offense complained of, and on October 1, 1890, congress passed an act by section 41 of which wholesale dealers in oleomargarine were required to keep such books and render such returns in relation thereto as the commissioner of in revenue should require. It was held by this court that the regulation prescribed by the commissioner of internal revenue, under that general grant of authority, was not sufficient to subject one violating it to punishment under section 18. It was said by Mr. Justice Blatchford, speaking for the court:

"It is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offense, and we do not thing that the statutory authority in the present case is sufficient. If congress intended to make it an offense for wholesale dealers in oleomargarine to omit to keep books and render returns as required by regulations to be made by the commissioner of internal revenue, it would have done so distinctly, in connection with an enactment such as that above recited, made in section 41 of the act of October 1, 1890.

"Regulations prescribed by the president and by the heads of departments, under authority granted by congress, may be regulations prescribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing required by them is a thing so required by law as to make a neglect to do the thing a criminal offense in a citizen, where a statute does not distinctly make the neglect in question a criminal offense.'

'This, it will be observed, is very different from the case at bar, where no violation is charged of any regulation made by the department. All that can be said is that a place and an occasion and an opportunity were provided by the regulations of the department, at which the defendant committed the crime of perjury, in violation of section 5392. We have no doubt that false swearing in a land contest before the local land office in respect to a homestead entry is perjury, within the scope of said section.'

The act before us is on its face an act for levying taxes, and, although it may operate in so doing to prevent deception in the sale of oleomargarine as and for butter, its primary object must be assumed to be the raising of revenue. And, considered as a revenue act, the designation of the stamps, marks, and brands is merely in the discharge of an administrative function, and falls within the numerous instances of regulations needful to the operation of the machinery of particular laws, authority to make which has always been recognized as within the competency of the legislative power to confer. U.S. v. Symonds, 120 U.S. 46, 7 Sup. Ct. 411; Ex parte Reed, 100 U.S. 113; Smith v. Whitney, 116 U.S. 181, 6 Sup. Ct. 570; Wayman v. Southard, 10 Wheat. 42.

We concur with the court of appeals that this provision does not differ in principle from those of the internal revenue laws which direct the commissioner of internal revenue to prepare suitable stamps to be used on packages of cigars, tobacco, and spirits, to change such stamps when deemed expedient, and to devise and regulate the means for affixing them. Rev. St. §§ 3312, 3395, 3445, 3446, et seq.

By section 3446, the secretary and the commissioner were empowered to alter or renew or change the form, style, and device 'of any stamp, mark or label used under any provision of the laws relating to distilled spirits, tobacco, snuff and cigars, when in their judgment necessary for the collection of revenue taxes and the prevention or detection of frauds thereon; and may make and publish such regulations for the use of such mark, stamp, or label as they find requisite'; and by the act of March 1, 1879 (20 Stat. 327, c. 125, § 18), the section was amended so as to provide that the commissioner, with the approval of the secretary, might 'establish and, from time to time, alter or change the form, style, character, material, and device of any stamp, mark, or label used under any provision of the laws relating to internal revenue.' The oleomargarine legislation does not differ in character from this, and the object is the same in both, namely, to secure revenue by internal taxation, and to prevent fraud in the collection of such revenue. Protection to purchasers in respect of getting the real, and not a spurious, article, cannot be held to be the primary object in either instance; and the identification of dealer, substance, quantity, etc., by marking and branding, must be regarded as means to effectuate the objects of the act in respect of revenue.

And we are of opinion that leaving the matter of designating the marks, brands, and stamps to the commissioner, with the approval of the secretary, involved no unconstitutional delegation of power.

Writ denied.