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In Regina v. Boulton, 12 Cox, Cr. Cas. 93, Chief Justice Cockburn says:
"I am clearly of the opinion that when the proof intended to be submitted to a jury is proof of the actual commission of crime it is not the proper course to charge the parties with conspiracy to commit it; for that course operates, it is manifest, unfairly and unjustly against the parties accused. The prosecutors are thus enabled to combine in one indictment a variety of offenses, which if treated individually, as they ought to be, would exclude the possibility of giving evidence against one defendant to the prejudice of others."
In United States v. Dietrich and Fisher (C. C.) 126 Fed. 664, the indictment charged that the defendants entered into a conspiracy to commit an offense against the United States by agreeing that Dietrich, a member of Congress, should procure the appointment of Fisher as postmaster, and that Fisher should pay to Dietrich therefor a certain sum of money as a bribe. The court held that the indictment was bad, and in the opinion said:
"The making of such an agreement is not a conspiracy, within the terms of section 5440, but is a several and substantive offense, under section 1781 [U. S. Comp. St. 1901, p. 1212], upon the part of each of the parties, and this without the doing of any overt act in pursuance thereof. * As the tranaction is stated in the indictment, it was Dietrich who agreed to accept the bribe, not Dietrich and Fisher, and it was Fisher who agreed to give the bribe, not Fisher and Dietrich. The charge is not that two or more persons agreed among themselves to corruptly obtain the aid of another, a member of Congress, in securing the appointment of some aspirant to a federal office, nor is it that two or more members of Congress agreed among themselvse to obtain from another person a reward or compensation for their services, or aid in securing such an appointment. * The agreement or transaction stated
in the indictment was immediately and only between two persons, one charged with the intended taking, and the other with the intended giving, of the same bribe. Concert and plurality of agents in such an agreement or transaction are, in a sense, indispensable elements of the substantive offenses defined in section 1781 of agreeing to receive a bribe and of agreeing to give one. A person cannot agree with himself, receive from himself, or give to himself. The concurrent and several acts of two persons are necessary to the act of acquiring, receiving, or giving. * * * Because concert and plurality of agents, in the sense we have hereinbefore shown, are essential to each of the offenses-there are two, not one-the commission of which is charged to have been the object of this so-called conspiracy, and because no other concert and plurality of agents are here charged, we are of opinion that the acts described in this indictment do not constitute a conspiracy under section 5440."
And see Chadwick v. United States (C. C. A.) 141 Fed. 225, 236, where the Dietrich Case is cited with approval.
The counsel for the government assert that the Dietrich Case is to be distinguished from this case because in the Dietrich Case but two persons the giver and taker of the bribe-were charged with the conspiracy in the indictment, while in the case at bar the indictment charges that seven persons named and others to the jurors unknown were parties to the conspiracy. But only four of the seven persons named are indicted, and of those four Guilford and Pomeroy represent simply the giver, and Edgar and Earle simply the receiver, of the rebate. The government's counsel also claims that the bribery statute makes agreeing to give or receive a bribe an offense, while the statutes prohibiting rebates does not, in terms, prohibit an agreement to give or
receive a rebate. But they do But they do prohibit an offer of a rebate or the solicitation of a rebate, and when such an offer or solicitation is acceded to by the opposite party, which the indictment alleges occurred in this case, an agreement is entered into. In short, the Dietrich Case seems to me, in its essential nature, strictly analogous to this case. The facts alleged in the indictment in the case at bar as steps taken to effect the object of the conspiracy are the same facts which it would be necessary to prove to sustain an indictment for giving and receiving rebates. On the trial of such an indictment the government would not make out a cause by simply proving the payment of the check. It would have to prove that the check was given in payment of a rebate. To establish that proposition it would be necessary to prove the agreement to give a rebate, the shipment of sugars, the payment of the full scheduled rates of freight, the filing of the claims for rebate, and the payment of such claims as rebate. Without proof of these facts these defendants could not be convicted of the crime of giving or taking rebates; with such proof, they could. They would thereupon be liable to be punished by the fines prescribed by the Elkins act, and by no other punishment, and especially not by imprisonment, which penalty for such a crime is specifically abolished by the Elkins act. In my opinion, it is not in the power of the government, by calling the same acts a conspiracy, to indict these defendants for a different crime, and to thereby subject them to the liability of imprisonment for acts for which such punishment was expressly abolished by the Elkins act.
Since writing this opinion my attention has been called to an act to amend the act to regulate commerce and all acts amendatory thereof, which was approved on June 29, 1906, the day on which these demurrers were argued. That act amends section 1 of the Elkins act by striking out the provisions abolishing the punishment of imprisonment for offenses under the acts to regulate commerce, and inserting in lieu thereof a provision:
"That any person, or any officer or director of any corporation subject to the provisions of this act or the act to regulate commerce and the acts amendatory thereof, or any receiver, trustee, lessee, agent, or person acting for or employed by any such corporation, who shall be convicted as aforesaid, shall in addition to the fine herein provided for, be liable to imprisonment in the penitentiary for a term of not exceeding two years, or both such fine and imprisonment, in the discretion of the court."
This provision, upon general principles and by the express terms of the 10th section of the act, is not retrospective, and does not make any person liable to the punishment of imprisonment for such offenses committed before the passage of the recent act; but it authorizes the inference that in the opinion of Congress, without such an amendment, no punishment by imprisonment for such offenses could be imposed.
My conclusion is that the demurrers to the three indictments for giving or receiving rebates should be overruled, and the demurrer to the indictment for conspiracy should be sustained.
UNITED STATES v. MATTHEWS.
(District Court, E. D. Washington, S. D. May 7, 1906.)
OF LEGISLATIVE POWER-CREATION
The provision of the sundry civil appropriation act of June 4, 1897, c. 2, 30 Stat. 34 [U. S. Comp. St. 1901, p. 1540], making it a criminal offense to violate any rule or regulation which should thereafter be made by the Secretary of the Interior, under the power therein conferred (since transferred to the Secretary of Agriculture), for the protection of forest reservations, is void as an attempted delegation of legislative power to an administrative officer, and an indictment will not lie for the pasturing of sheep on a forest reservation without a permit, in violation of a regulation made by the secretary, but which is not prohibited by any statute of the United States.
[Ed. Note.-For cases in point, see vol. 10, Cent. Dig. Constitutional Law, 88 96-99.]
On Demurrer to Indictment.
A. G. Avery, U. S. Atty.
H. J. Snively, for defendant.
WHITSON, District Judge. The defendant was indicted for having on the 11th day of September, 1905, "wrongfully, unlawfully, and without the permit required by law and the regulations made by the Secretary of Agriculture," grazed sheep on the Mount Rainier Forest Reserve. The indictment was framed under the act approved June 4, 1897, entitled "An act making appropriations for sundry civil expenses of the government for the fiscal year ending June 30, 1898, and for other purposes" (chapter 2, 30 Stat. 11 [U. S. Comp. St. 1901, p. 3768]), and the act approved February 1, 1905, entitled "An act providing for the transfer of forest reserves from the Department of the Interior to the Department of Agriculture" (chapter 288, 33 Stat. pt. 1, p. 628 [U. S. Comp. St. Supp. 1905, p. 343]). The latter act simply transfers from the Secretary of the Interior to the Secretary of Agriculture the authority to execute or cause to be executed all laws affecting public lands theretofore or thereafter reserved under the provisions of section 24 of the act approved March 3, 1891 (chapter 561, 26 Stat. 1103 [U. S. Comp. St. 1901, p. 1537]), entitled "An act to repeal the timber culture laws and for other purposes," while we must look to the former for a definition of the crime. That part of the act under which it is sought to sustain the indictment reads:
"The Secretary of the Interior shall make provisions for the protection against destruction by fire and depredations upon the public forests and forest reservations which may have been set aside or which may be hereafter set aside under the said act of March third, eighteen hundred and ninetyone, and which may be continued; and he may make such rules and regulations, and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forests thereon from destruction; and any violation of the provisions of this act or such rules and regulations shall be punished as is provided for in the act of June fourth, eighteen hundred and eighty-eight, amending section fiftythree hundred and eighty-eight of the Revised Statutes of the United States." Act June 4, 1897, c. 2, 30 Stat. 34 [U. S. Comp. St. 1901, p. 1540].
The Secretary of Agriculture has made rules and regulations which apply to the "occupancy and use" of the Mount Rainier Forest Reserve, and those alleged to have been violated are set out in full in the indictment, as follows:
"Reg. 9. All persons must secure permits before grazing any stock in a forest reserve, except the few head in actual use by prospectors, campers, and travelers, and milch cows and work animals not exceeding a total of six head owned by bona fide settlers, which are excepted and require no permit. Any person responsible for grazing stock without a permit is liable to punishment for violation of the law."
"Reg. 11. The Secretary of Agriculture will determine the number of stock to be allowed in a reserve for any year. The period during which grazing will be allowed is determined by the forester. The supervisor is authorized to issue grazing permits in accordance with the instruction of the forester." "Reg. 14. Permits will be granted only to the actual owners of stock and for their exclusive use and benefit, and will be forfeited if sold or transferred in any manner or for any consideration without the written consent of the forester."
The sufficiency of the indictment has been challenged by demurrer, upon the ground that the provision above quoted, making it an offense to violate rules and regulations made by the Secretary of Agriculture, is an attempt by Congress to delegate its legislative power. The United States Attorney relies upon the case of Dastervignes v. United States (Ninth Circuit) 122 Fed. 30, 58 C. C. A. 346, to sustain the indictment, and he has called attention to Dent v. United States (decided by the Supreme Court of Arizona) 76 Pac. 455, as fortifying his position that the Circuit Court of Appeals had in view criminal offenses as well as civil actions when the decision was made. That case will therefore be first examined to ascertain whether the rule has been so declared in this circuit. To avoid confusion it is necessary to bear in mind the subject-matter of the suit. It arose out of a controversy between the government and certain persons who were herding and grazing sheep on the Stanislaus forest reservation in the Northern district of California, the complainant praying for an injunction. The holding was that the right to make rules, expressly granted by Congress, to regulate the occupancy and use of forest reservations, "and to preserve the forests thereon from destruction," did not involve the delegation of legislative power as applied to the property of the government, but, on the contrary, that the making of such rules was a proper exercise of administrative authority delegated for the control of that portion of the public domain embraced within the provisions of the act. Undoubtedly it was in that sense, and with that thought in view, that the language of Chief Justice Marshall, in Wayman v. Southard, 10 Wheat. 1-43, 6 L. Ed. 253, was quoted, namely: "Congress may certainly delegate to others powers which the Legislature might rightfully exercise itself" for those words are immediately preceded by the following: "It will not be contended that Congress can delegate to the courts, or to any other tribunals, powers which are strictly and exclusively legislative."
The recent decision of the same court in Stratton v. Oceanic Steamship Company (C. C. A.) 140 Fed. 829, makes the matter, if possible, all the more apparent. In addition to the cases already noted
the following have been cited as upholding the indictment: Van Lear v. Eisele (C. C.) 126 Fed. 823; United States v. Slater (D. C.) 123 Fed. 115; È. A. Chatfield Company et al. v. City of New Haven et al. (C. C.) 110 Fed. 788; United States v. Breen (C. C.) 40 Fed. 402; United States v. Ormsbee (D. C.) 74 Fed. 207; United States v. Williams (Mont.) 12 Pac. 851; In re Huttman (D. C.) 70 Fed. 699; United States v. City of Moline (D. C.) 82 Fed. 592; Buttfield v. Stranahan, 192 U. S. 470, 24 Sup. Ct. 349, 48 L. Ed. 525; Butte City Water Co. v. Baker (Mont.) 72 Pac. 617; Id., 196 U. S. 119, 25 Sup. Ct. 211, 49 L. Ed. 409; Field v. Clark, 143 U. S. 649, 12 Sup. Ct. 495, 36 L. Ed. 294; United States v. Reder (D. C.) 69 Fed. 965; United States v. Price Trading Co., 109 Fed. 239, 48 C. C. A. 331. It is claimed that these cases, either directly or by analogy of reasoning, sustain the contention of the government. Without undertaking to review them at length, or to discuss the applicability of each particular case, it may be remarked with assurance that they do not do so.
It is fundamental that the citizen has the right to rely upon the statutes of the United States for the ascertainment of the acts which constitute an infraction of its laws. This principle was expressed by the Supreme Court in Re Kollock, 165 U. S. 533, 17 Sup. Ct. 444, 41 L. Ed. 813, as follows:
"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."
A citizen desiring to obey the laws would search the acts of Congress in vain to find that grazing sheep upon a forest reserve without the permit of the Secretary of Agriculture is a criminal offense. It has been suggested that the acts under which the indictment is drawn give notice that the Secretary may make rules and regulations, and that the search would not be complete and the inquiry concluded until it be ascertained whether he has made such rules and regulations, the violation of which it is expressly declared shall be a criminal offense. But here we are led back to the delegation of legislative power. The rules prescribed by the heads of the departments are not necessarily promulgated. While they may be procured, they are not as easily available as are the statutes of the United States; nor does our system contemplate an examination of those rules for the ascertainment of that which may or may not be a crime, for the right to prohibit a given thing under penalty belongs to Congress alone.
In Re Kollock, supra, regulations made by the Secretary of the Treasury relating to packages of oleomargarine to be marked and branded were sustained, because the law in terms prohibited the sale of packages not so marked and branded. An excerpt from that case reads:
"The regulation was in execution of, or supplemental to, but not in conflict with, the law itself, and was specially authorized thereby in effectuation of the legislation which created the offense."
In Morrill v. Jones, 106 U. S. 467, 1 Sup. Ct. 423, 27 L. Ed. 267, it was said: