Brolan v. United States

• Decision Date: 23 February 1915
• Docket Number: No. 645,645
• Citation: 35 S.Ct. 285,236 U.S. 216,59 L.Ed. 544
• Parties: J. J. BROLAN, Joseph McKenna, G. B. Balk, et al., Plffs. in Err., v. UNITED STATES
• Court: U.S. Supreme Court

236 U.S. 216

35 S.Ct. 285

59 L.Ed. 544

J. J. BROLAN, Joseph McKenna, G. B. Balk, et al., Plffs. in Err.,

v UNITED STATES.

No. 645.

Submitted January 5, 1915.

Decided February 23, 1915.

Messrs. Edward M. Cleary, John L. McNab, Bert Schlesinger, S. C. Wright, and P. S. Ehrlich for plaintiffs in error.

Assistant Attorney General Warren for defendant in error.

Mr. Chief Justice White delivered the opinion of the court:

The indictment against the plaintiffs in error contained two counts: The first charged a conspiracy to wrongfully import opium into the United States in violation of the first portion of § 2 of the act of February 9, 1909 (chap. 100, 35 Stat. at L. 614, Comp. Stat. 1913, § 8801). The second charged a conspiracy to unlawfully receive, conceal, and facilitate the transportation of opium which had been wrongfully imported into the United States with knowledge of such previous, illegal importation, in violation of the latter part of the section referred to. The first count was quashed on the ground that the overt acts alleged occurred after the illegal importation or smuggling which was counted on. On the second count there was a conviction and sentence, and this direct writ of error to the trial court is prosecuted to reverse the same. The right to a reversal rests upon two propositions: the one, that the clause of the section upon which the second count was based is repugnant to the Constitution of the United States because beyond the legislative power of Congress to enact, and because, moreover, its provisions intrinsically constitute a usurpation of the powers reserved to the states by the Constitution; and the other, the insistence that various material errors were committed by the trial court during the progress of the case aside from the constitutionality of the statute.

Our jurisdiction to directly review depends upon the constitutional question, since the other matters relied upon are, as a general rule, within the exclusive jurisdiction of the circuit court of appeals of the ninth circuit, although, if power to review attaches to the case because of the constitutional question, that authority gives rise to the duty to determine all the questions involved. Burton v. United States, 196 U. S. 283, 49 L. ed. 482, 25 Sup. Ct. Rep. 243; Williamson v. United States, 207 U. S. 425, 432, 52 L. ed. 278, 284, 28 Sup. Ct. Rep. 163; Billings v. United States, 232 U. S. 261, 276, 58 L. ed. 596, 603, 34 Sup. Ct. Rep. 42. Under these circumstances, to prevent a disregard of the distribution of appellate power made by the Judicial Code, and to see to it that there is something on which our jurisdiction to review can rest, it behooves us in this as in all other cases to see whether the question upon which our power depends is really presented, and if not, because, although in form arising, it is in substance so wholly wanting in merit as to be frivolous, to decline the exercise of jurisdiction. Farrell v. O'Brien (O'Callaghan v. O'Brien) 199 U. S. 89, 100, 50 L. ed. 101, 107, 25 Sup. Ct. Rep. 727; Goodrich v. Ferris, 214 U. S. 71, 79, 53 L. ed. 914, 917, 29 Sup. Ct. Rep. 580; Hendricks v. United States, 223 U. S. 178, 56 L. ed. 394, 32 Sup. Ct. Rep. 313.

Coming to that subject, the entire absence of all ground for the assertion that there was a want of power in Congress for any reason to adopt the provision in question is so conclusively foreclosed by previous decisions as to leave no room for doubt as to the wholly unsubstantial and frivolous character of the constitutional question based upon such contention. In Buttfield v. Stranahan, 192 U. S. 470, 48 L. ed. 525, 24 Sup. Ct. Rep. 349, in stating the previously settled doctrine on the subject, it was said, p. 492:

'The power to regulate commerce with foreign nations is expressly conferred upon Congress, and, being an enumerated power, is complete in itself, acknowledging no limitations other than those prescribed in the Constitution. Lottery Case (Champion v. Ames) 188 U. S. 321, 353-356, 47 L. ed. 492, 500, 501, 23 Sup. Ct. Rep. 321, 13 Am. Crim. Rep. 561; Leisy v. Hardin, 135 U. S. 100, 108, 34 L. ed. 128, 132, 3 Inters. Com. Rep. 36, 10 Sup. Ct. Rep. 681. Whatever difference of opinion, if any, may have existed or does exist concerning the limitations of the power, resulting from other provisions of the Constitution, so far as interstate commerce is concerned, it is not to be doubted that from the beginning Congress has exercised a plenary power in respect to the exclusion of merchandise brought from foreign countries; not alone directly by the enactment of embargo statutes,

Act March 3, 1911, c. 231, 36 Stat. 1087 (Comp. St. 1913, §§ 968-1278) but indirectly, as a necessary result of provisions contained in tariff legislation. It has also, in other than tariff legislation, exerted a police power over foreign commerce by provisions which, in and of themselves, amounted to the assertion of the right to exclude merchandise at discretion. This is illustrated by statutory provisions which have been in force for more than fifty years, regulating the degree of strength of drugs, medicines, and chemicals entitled to admission into the United States, and excluding such as did not equal the standards adopted. 9 Stat. at L. 237, chap. 70, Rev. Stat. § 2933, Comp. Stat. 1913, § 5622.' And see Oceanic Steam Nav. Co. v. Stranahan, 214 U. S. 320, 334, 335, 53 L. ed. 1013, 1020, 29 Sup. Ct. Rep. 671; The Abby Dodge, 223 U. S. 166, 176, 56 L. ed. 390, 393, 32 Sup. Ct. Rep. 310.

Nor is there any ground upon which to rest the contention that although, under this settled doctrine, it is frivolous to question the power of Congress to prohibit importations and punish a violation of such prohibition, it is open to controversy, and therefore not frivolous, to contend that there is a want of power to prohibit and punish the act of knowingly concealing or moving merchandise which has been successfully imported from a foreign country in violation of the prohibitions against such...