United States v. Casey

• Decision Date: 11 January 1918
• Docket Number: 976.
• Citation: 247 F. 362
• Parties: UNITED STATES v. CASEY et al.
• Court: U.S. District Court — Southern District of Ohio

247 F. 362

UNITED STATES v. CASEY et al.

No. 976.

United States District Court, S.D. Ohio, Eastern Division.

January 11, 1918

Stuart R. Bolin, U.S. Dist. Atty., of Columbus, Ohio.

C. D Saviers, of Columbus, Ohio, for defendants.

SATER District Judge.

The indictment charges that Casey and others, on or about July 31, 1917, knowingly, willfully, unlawfully, and feloniously entered into a conspiracy, which continued down to November 5th, to violate section 13 of the Selective Service Act of May 18, 1917, and the regulation of the Secretary of War promulgated in pursuance of that section, by keeping and setting up a house of ill fame, bawdyhouse, and brothel within five miles of the military post or station used for military purposes and known as the Columbus Barracks, and by receiving and permitting to be received at such house for immoral purposes various named persons. Six overt acts are alleged to have been committed to effect the object of such conspiracy. Motions to quash have been filed, and, that the court may consider at one time all the objections raised to the indictment, demurrers also have been tendered, to be filed after the order on the motions to quash has been entered, should such motions be overruled.

It is not necessary, as claimed by the defendants, that the regulation promulgated by the Secretary of War should be set forth in the indictment. Byrne, Fed. Crim. Proc. Sec. 147 and cases cited. A regulation of that character receives judicial notice, and each of the defendants was chargeable with knowledge of it.

The statute and the Secretary's regulation make it an offense either to set up or to keep a house of ill fame, brothel, or bawdyhouse within the prohibited zone. The contention that the indictment is duplicitous, in that the language 'keeping and setting up' charges two offenses, and the use of the words 'house of ill fame, bawdyhouse, and brothel' amounts to a charge of committing three offenses, must be decided adversely to the defendants, for the reason that a conspiracy is an offense entirely distinct from the crimes the parties intended to commit thereby. 4 Ency.Pl. & Pr. 719; John Gund Brewing Co. v. United States, 206 F. 386, 124 C.C.A. 268; State v Sterling, 34 Iowa, 443, 444; State v. Kennedy, 63 Iowa, 197, 200, 18 N.W. 885; Noyes v. State, 41 N.J.Law, 418, 420, 421. The offense charged is not that the defendants set up and kept such places, but that of conspiracy to set them up and keep them, and the commission of overt acts in furtherance of that conspiracy. The fallacy in the defendants' position is that it confounds the crime, which is the conspiracy, with the objects of the conspiracy. A combination to commit several crimes is a single offense, and the offense can always be laid according to the truth. If, therefore, it is a fact that the defendants conspired to violate the law in question in two or more distinct particulars with respect to such combination, the criminal act was single, and such it appears to be on the face of the indictment. According to the decisions of the courts, the lexicographers and text-writers on the law, the terms 'house of ill fame,' 'bawdyhouse,' and 'brothel' are synonymous. State v. Boardman, 64 Me. 523, 529; State v. Smith, 29 Minn. 195, 12 N.W. 524; Worcester's Dict.; Century Dict.; Bouvier's Law Dict.; Wharton, Crim. Law (11th Ed.) Sec. 1720. See also cases cited in Words and Phrases Jud. Def., vol. 4, First Series, 3359, and vol. 1, New Series, 507. The only distinction between 'bawdyhouse' and 'house of ill fame' is that the former term has no reference to the fame of the place, but denotes the fact that it is a resort for the purposes of prostitution. State v. Smith; Wharton, Crim. Law (11th Ed.) Sec. 1720, note.

The insistence that the act is unconstitutional, as delegating legislative power to the Secretary of War as the head of an executive department of the government, is unavailing. The applicable rule is thus stated in Field v. Clark, 143 U.S. 649, 694, 12 Sup.Ct. 495, 505 (36 L.Ed. 294):

'The Legislature cannot delegate its power to make a law; but it can make a law to delegate a power to determine some fact or state of things upon which the law makes, or intends to make, its own action depend. To deny this would be to stop the wheels of government. There are many things upon which wise and useful legislation must depend, which cannot be known to the law-making power, and must, therefore, be a subject of inquiry and determination outside of the halls of legislation.'

The Secretary did not make the law under consideration. He was the mere agent of Congress to ascertain and declare the zone within which the statute, which expresses the will of Congress, should take effect. The prosecution would fail, if the law empowered and directed the Secretary of War by regulation to make the keeping of a house of ill fame within five miles of a military station criminal. All that he was empowered and directed to do was to make the regulation. The regulation promulgated by him does not declare its violation a punishable offense. It is the act of Congress which declares that the violation of such regulation after its promulgation shall constitute a misdemeanor by the person transgressing it, and that he shall be fined or imprisoned, or both, as a penalty therefor. United States v. Breen, (C.C.) 40 F. 402; Railroad Co. v. Commissioners, 1 Ohio St. 77, 88, 89; Union Bridge Co. v. United States, 204 U.S. 364, 27 Sup.Ct. 367, 51 L.Ed. 523; Dastervignes v. United States, 122 F. 30, 58 C.C.A. 346 (C.C.A. 9); United States v. Ormsbee (D.C.) 74 F. 207.

It is charged that the act is unconstitutional, as an assumption of and an attempt to interfere with the police power of the state to regulate the morals of its citizens, and as an invasion of the reserved powers of the state. That the state in the exercise of its police power has the right to legislate, and in pursuance of that right has legislated, to control the morals of its citizens, and may prosecute the keepers of bawdyhouses, is freely conceded; but their conviction and sentence for that offense in the state court, had action been taken against them there, would not bar their prosecution in this court. Cross v. North Carolina, 132 U.S. 131, 139, 10 Sup.Ct. 47, 33 L.Ed. 287; Sexton v. California, 189 U.S. 319, 323, 23 Sup.Ct. 543, 47 L.Ed. 833; Byrne, Fed. Crim. Proc. Sec. 211. The attitude of the government is that Congress, not in the exercise of the police power, but in the exercise of the war power conferred upon it by the federal Constitution, may also, as a matter of right, prohibit the presence of such places within the prescribed territory without encroaching on the jurisdiction of the state. The extent of such war power is therefore the interesting and important question for decision. If the statute is a valid exercise of that power, then it is a part of the supreme law of the land, and all persons are subject to it.

The war power resides in the nation's right of self-preservation--the preservation not only of itself, but of all of its citizens. Vattel, Law of Nations (Chitty's Ed.) star pp. 5, 6, 154, 291; United States v. Pierce (D.C.) 245 F. 878, 883; Tod v. Fairfield Common Pleas, 15 Ohio St. 377, 390. The federal Constitution specifically confers the right of national self-preservation and intrusts the means of enforcing such right to the discretion of Congress. Article 1, Sec. 8, empowers Congress 'to declare war' (clause 11), 'to raise and support armies' (clause 12), 'to provide and maintain a navy ' (clause 13), and 'to make rules for the government and regulation of the land and naval forces' (clause 14). The execution of these unrestricted powers falls within the line of duties of the national government, its control over all matters pertaining to war being plenary and exclusive. Tarble's Case, 13 Wall. 397, 408, 20 L.Ed 597; Tod v. Fairfield Common Pleas, 15 Ohio St. 389. The power to declare and wage war carries with it the power to conduct it successfully. The business of the United States, as a warrior, is to conquer, to restore peace and to maintain the government. Mechanics' & Traders' Bank v. Union Bank. 25 La.Ann. 387. It is not necessary, in order to prove the particular authority to enact the specific statutory provisions against vice, which are now under consideration, to show a particular and express constitutional grant. The design of the Constitution was to establish a government to direct and administer the affairs of a great and growing nation and at the same time to fix by sufficiently distinct lines the sphere of its operations. To accomplish this purpose it was only necessary to make express grants of general powers, coupled with the grants of such incidental and auxiliary powers as might be necessary or proper in the exercise of the powers expressly granted. These necessarily extensive incidental or implied powers, to which a large part of our existing national legislation is due, are found in clause 18 of article 1, Sec. 8, which confers on Congress the authority 'to make all Laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this Constitution in the government of the United States, or in any department or officer thereof. ' The word 'necessary,' occurring in such clause, was held in McCulloch v. Maryland, 4 Wheat. 316, 4 L.Ed. 579, not to be used in the strict and rigorous sense of indispensably necessary, but in the more mitigated sense...