United States v. Hicks

• Citation: 256 F. 707
• Parties: UNITED STATES v. HICKS
• Decision Date: 03 April 1919
• Court: U.S. District Court — Western District of Kentucky

256 F. 707

UNITED STATES v. HICKS

United States District Court, W.D. Kentucky.

April 3, 1919

Harry Hicks was convicted of operating a house of ill fame. On motions for arrest of judgment and new trial. New trial granted.

Perry B. Miller, Dist. Atty., and S.M. Russell, Asst. Dist. Atty both of Louisville, Ky., for the United States.

Clem W Huggins and Joseph E. Conkling, both of Louisville, Ky., for defendant.

WALTER EVANS, District Judge.

The indictment in this case charges:

"That heretofore, to wit, on the 7th day of December, December in the year of our Lord 1918, at Louisville, in said district and within the jurisdiction of this court, one Harry Hicks, late of said district, unlawfully did then and there receive and permit to be received for immoral purposes certain persons into a place used for the purpose of lewdness, assignation, and prostitution, within the distance of a military cantonment designated by the Secretary of War; that is to say, that said Harry Hicks did then and there receive and permit to be received for immoral purposes both men and women, whose names are to the grand jurors unknown, into a place operated as a house of ill fame, designated as 401 Seventh street, Louisville Ky., and within five miles of a military cantonment, to wit, Camp Zachary Taylor, and used for the purpose of lewdness, assignation and prostitution, and did then and there keep and set up a house of ill fame as aforesaid, in violation of section 13 of the act of May 18, 1917, and the order, rule, and regulation of the Secretary of War, issued to carry out the object and purpose of said section of said act."

The defendant entered a plea of not guilty and also a and also a plea that he had previously been convicted of the offense charged in this indictment on a similar indictment therefor in a state court in Louisville, and had paid the fine imposed by the judgment rendered in that case. The latter plea not being regarded as sufficient in law--the jurisdiction of the two courts being conferred by separate governments which had made separate and distinct laws upon the subject--the case came to trial before a jury on the plea of not guilty. The testimony showed that on the 7th day of December, 1918, the defendant had done the things charged in the indictment, and that the place at which those things were done was within five miles of the boundary line of Camp Zachary Taylor adjoining that city. The jury returned a verdict of guilty.

The defendant has moved, first, for a new trial, and, second, that judgment on the verdict be arrested, upon the ground that the facts proved did not show that any offense had been committed against any law of the United States. By the latter motion there is raised an interesting and important question, which has received the very careful consideration of the court, because, however disgusting the conduct of a person may be, the courts of the United States cannot punish that conduct as criminal unless there be some specific statutory law of the United States authorizing and requiring it. Accurately speaking, the conduct of the defendant is of that character which ordinarily could only come under the general police power constitutionally reserved to the states by the Tenth Amendment, and is not within the legislative power of Congress, except in time of war or other great public peril, that might be averted or mitigated under the commerce clause of the Constitution. These phases of the law should not be overlooked in cases like this. In this connection, and to illustrate our meaning, it will suffice to state the general proposition in the language found on page 473 of volume 9 of the Encyclopedia of United States Supreme Court Reports, where it is said:

"The general police power is reserved to the states. The power to protect the public health and the public safety, to preserve good order and the public morals, to protect the lives and property of their citizens, 'the power to govern men and things' within the limits of their dominions, by any legislation appropriate to that end and which does not encroach upon the rights guaranteed by the national Constitution, nor come in conflict with the acts of Congress passed in pursuance of that instrument, is a power originally and always belonging to the states, not surrendered by them to the general government, nor directly restrained by the Constitution of the United States."

This is supported by a great number of notable cases.

But, without further going into those matters, it will suffice to say that there is no statute of the United States applicable to this case, unless it be the provisions, presently to be inserted, of the act entitled "An act to authorize the President to increase temporarily the military establishment of the United States," approved May 18, 1917 (Act May 18, 1917, c. 15, 40 Stat. 76).

Under the Constitution of the United States (article 1, § 8, cl. 11), Congress is authorized to declare war, by clause 12 to raise and support armies, by clause 14 to make rules for the government of the land and naval forces, and by clause 18 it is empowered to make all laws which may be "necessary and proper" for carrying into execution the powers given in that article and all other powers vested by the Constitution in the government of the United States or any department or officer thereof.

We may assume for the purpose of this opinion that section 13 of the act referred to (Comp.St.1918, § 2019b) covered a legitimate exercise of the powers of Congress. Although there is no express provision in that section which authorizes the Secretary of War to make regulations to meet the exigencies of the section, we may assume (without deciding) not only that such regulations were made, but that they conformed to the provisions of the act. We may also assume that Congress had concluded that the legislation to be referred to was "necessary and proper" to carry into effect the other powers authorized to be exercised in the great emergency of war that had a few days before come upon the country.

By a joint resolution passed by Congress and approved by the President on April 6, 1917, it was resolved:

"That the state of war between the United States and the Imperial German government which has thus been thrust upon the United States is hereby formally declared; and that the President be, and he is hereby, authorized and directed to employ the entire naval and military forces of the United States and the resources of the government to carry on war against the Imperial German government; and to bring the conflict to a successful termination all of the resources of the country are hereby pledged by the Congress of the United States." 40 Stat. 1, c. 1.

This situation, in the judgment of Congress, required much legislation. Among the acts it passed was that approved May 18, 1917, the thirteenth section of which is as follows:

"That the Secretary of War is hereby authorized, empowered, and directed during the present war to do everything by him deemed necessary to suppress and prevent the keeping or setting up of houses of ill fame, brothels, or bawdy houses within such distance as he may deem needful of any military camp, station, fort, post, cantonment, training, or mobilization place, and any person, corporation, partnership, or association receiving or permitting to be received for immoral purposes any person into any place, structure, or building used for the purpose of lewdness, assignation, or prostitution within such distance of said places as may be designated, or shall permit any such person to remain for immoral purposes in any such place, structure, or building as aforesaid, or who shall violate any order, rule, or regulation issued to carry out the object and purpose of this section shall, unless otherwise punishable under the Articles of War, be deemed guilty of a misdemeanor and be punished by a fine of not more than $1,000, or imprisonment for not more than twelve months, or both." 40 Stat. 83.

Events of greatest moment continued to follow, and early in the month of November, 1918, the military power of the enemy collapsed. In no part of our history did anything arouse more universal interest among the people of the United States than did this situation.

Article 2, § 3, of the Constitution provides that the President "shall from time to time give to the Congress information of the state of the Union, and recommend to their consideration such measures as he shall judge necessary and expedient." For much the greater part of the existence of our government the method of complying with this constitutional requirement has been by what we are accustomed to call the "messages of the President." The President of to-day (as he lawfully might) has used another method of giving to the Congress such information as he thought it wise to communicate; his method being to request the two houses of the Congress to meet in joint session, and, when that is done, to make his communication orally, and in this way meet the constitutional provision. In substance both methods are precisely the same. And so on November 11, 1918, Congress, knowing of his wishes, adopted the following joint resolution, viz.:

"Resolved

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