United States v. A. & P. Trucking Company/Dissent Douglas

Mr. Justice DOUGLAS, with whom Mr. Justice BLACK, Mr. Justice FRANKFURTER, and Mr. Justice WHITTAKER concur, dissenting in part.

18 U.S.C. § 835, 18 U.S.C.A. § 835, unlike the Motor Carrier Act, has not explicitly subjected partnerships to criminal liability, and I do not think that such liability should be implied, for we are dealing with a penal statute which should be narrowly construed.

As Chief Justice Marshall wrote in United States v. Wiltberger, 5 Wheat. 76, 95, 5 L.Ed. 37, 'The rule that penal laws are to be construed strictly, is perhaps not much less old than construction itself. It is founded on the tenderness of the law for the rights of individuals; and on the plain principle that the power of punishment in vested in the legislative, not in the judicial department.'

With that approach we would not allow this criminal sanction to attach under 18 U.S.C. § 835, 18 U.S.C.A. § 835. A corporation is an artificial, legally created entity that can have no 'knowledge' itself and it said to have 'knowledge' only through its employees. On the other hand a partnership means A, B, and C the individuals who compose it. In this country the entity theory has not in general been extended to the partnership. Judge Learned Hand summarized the history in Helvering v. Smith, 2 Cir., 90 F.2d 590, 591-592. If Dean Ames had had his way, the mercantile or entity theory of the partnership would have prevailed. But those who took up the drafting of the Uniform Partnership Act after his death adhered to the common-law attitude toward a partnership-that it is an aggregation of individuals. That is to say, the Act adopted the aggregate rather than the entity theory. And that Act is in force in about three-fourths of the States. One who combs the reports today can find cases espousing the entity theory. But they are in the minority and consciously reject the other theory. As Professor Williston has shown, the main stream of American partnership law follows the British course of treating the partnership in the pluralistic sense. The Uniform Partnership Act, 63 U. of Pa.L.Rev. 196, 208. We should therefore assume that this criminal statute, written against that background, reflects the conventional aggregate, not the exceptional entity, theory of the partnership.

We are dealing with a statute where liability depends on 'culpable intent,' as stated in Boyce Motor Lines, Inc., v. United States, 342 U.S. 337, 342, 72 S.Ct. 329, 331, 96 L.Ed. 367. The partners could not be held criminally responsible for the acts of their employees. Gordon v. United States, 347 U.S. 909, 74 S.Ct. 473, 98 L.Ed. 1067. The partnership, being no more than the aggregate of the partners, should stand on the same footing, unless Congress explicitly provides otherwise. Title 1 U.S.C. § 1,1 U.S.C.A. § 1 defines 'person' in any Act of Congress to include a partnership, 'unless the context indicates otherwise.' The context of 18 U.S.C. § 835, 18 U.S.C.A. § 835 does indicate otherwise for the Act punishes only those who knowingly violate it. The aggregate theory of partnership law teaches that there can be no vicarious criminal liability where no partner is culpable

If the rule of strict construction of a criminal statute is to obtain, 18 U.S.C. § 835, 18 U.S.C.A. § 835 must be read narrowly to reflect the prevailing view of partnership law. If the entity theory is to be applied for the purpose of imposing criminal penalties on partnership assets, where the partners are wholly innocent of any wrongful act, it should be done only on the unequivocal command of Congress, as is the case under the Motor Carrier Act.