United States v. Louisville & N.R. Co.

• Citation: 176 F. 942
• Court: U.S. District Court — Northern District of Alabama
• Decision Date: 15 March 1910
• Parties: UNITED STATES v. LOUISVILLE & N.R. CO.

176 F. 942

UNITED STATES v. LOUISVILLE & N.R. CO.

United States District Court, N.D. Alabama, Northern Division.

March 15, 1910

O. D Street, U.S. Atty.

John C Eyster, for defendant.

GRUBB District Judge.

The indictment charges the defendant with a violation of Act March 3, 1905, c. 1496, 33 Stat. 1264 (U.S. Comp. St. Supp. 1909, p. 1185), providing for the establishment of live stock quarantines by the Secretary of Agriculture, and the prohibition of live stock shipments from quarantined territory in one state into another state, except when rules and regulations permitting such shipments have been established by the secretary, and then except in accordance with such rules and regulations. The demurrer to the indictment attacks the constitutionality of the law under which it is framed, upon the ground that its effect is to delegate legislative authority to the executive, and because no complete offense is defined by the terms of the statute.

The act contains six sections. The first authorizes the secretary to quarantine any state or territory, or any portion thereof when he has determined that live stock within it are infected with any contagious diseases, and to give notice thereof to transportation companies. The second prohibits, among other things, transportation companies from receiving for transportation or transporting from any quarantined territory in one state to another state 'any cattle or live stock, except as hereinafter provided.'

The third section makes it the duty of the secretary, when the public safety will permit, to make and promulgate rules and regulations governing the shipment of cattle and other live stock from quarantined territory in one state to another state, and to give notice of such rules and regulations in the same way as notice of the establishment of the quarantine is required to be given. The fourth section provides that cattle and other live stock may be moved from the quarantined territory of one state to another state in compliance with the rules and regulations so established, and that it shall be unlawful to move them otherwise. The fifth section provides penalties for assaults upon officers of the quarantine service. The sixth and last section declares any one violating section 2 or 4 of the act guilty of a misdemeanor and fixes the punishment therefor.

The indictment alleges the establishment of the quarantine in Alabama by the secretary and the giving of the required notice; the establishment of regulations governing shipments from the quarantined territory to other states, and the giving notice thereof; that one of such regulations provided for the placarding of cars and waybills in cases of such live stock shipments with the words 'southern cattle'; and that the defendant received live stock in Alabama and transported them to Tennessee without so placarding its waybill and cars.

A crime can be created only by a public act, and the language of the act must be sufficient to completely declare and define the crime and affix the punishment. It is not competent for Congress to delegate to the President or the head of an executive department the power to declare what facts shall constitute an offence. It is competent for Congress to commit to the executive the power to determine when the occasion, provided by the law itself for its going into effect, has occurred, and whether the facts, which the law makes conditions to its operation or to a partial or temporary suspension of its operation, exist, and also to provide for the details of the law's administration. It is not competent for Congress to intrust to the executive the power to declare by a departmental rule or regulation that to be unlawful, in the sense of criminal, which would otherwise be lawful; nor, itself, to declare a violation of rules or regulations, thereafter to be promulgated by the executive, a criminal offense. The crime must be created by the act of Congress, alone, for the public are not required to look beyond the act in their endeavor to ascertain what is criminal, and the discretion of fixing what facts import criminality is exclusively that of the lawmaker as distinguished from the executive. The effect of departmental regulations, not ratified by act of Congress, is confined to civil matters, and cannot be made the predicate of criminal offenses. These are the principles announced by many cases in the federal courts, some of which are here cited: Field v. Clark, 143 U.S. 649, 12 Sup.Ct. 495, 36 L.Ed. 294; U.S. v. Eaton, 144 U.S. 677, 12 Sup.Ct. 764, 36 L.Ed. 591; Caha v. U.S., 152 U.S. 218, 14 Sup.Ct. 513, 38 L.Ed. 415; Buttfield v. Stranahan, 192 U.S. 470, 24 Sup.Ct. 349, 48 L.Ed. 525; In re Kollock, 165 U.S. 526, 17 Sup.Ct. 444, 41 L.Ed. 813; St. Louis, I.M. & S.R.R. Co. v. Taylor, 210 U.S. 281, 28 Sup.Ct. 616, 52 L.Ed. 1061; Red C. Oil Mfg. Co. v. Board of Agriculture (C.C.) 172 F. 712; Southern Pac. Co. v. U.S., 171 F. 360, 96 C.C.A. 252; U.S. v. Grimaud (D.C.) 170 F. 205; U.S. v. Matthews (D.C.) 146 F. 306; Dastervignes v. U.S., 122 F. 30, 58 C.C.A. 346; U.S. v. Deguirro (D.C.) 152 F. 568; U.S. v. Shannon (C.C.) 151 F. 863; U.S. v. Maid (D.C.) 116 F. 650; U.S. v. Blasingame (D.C.) 116 F. 654.

The sixth section of the act in question declares the violation of section 2 and of section 4 of the act to be a misdemeanor as therein stated. Section 4 declares the transportation of live stock from a quarantined territory in one state into another state in a manner not in compliance with the shipping rules and regulations of the Department of Agriculture to be unlawful. The crime, so far as based on section 4, when considered by itself, is defined merely by rules and regulations thereafter to be established by the Department of Agriculture. In the case of United States v. Grimaud (D.C.) 170 F. 205, the validity of a law, which provided that violations of rules and regulations to be established by the Secretary of the Interior, with relation to the occupancy and use of forest reservations, should be punishable as a crime, and a regulation of the department thereunder prohibiting the grazing of sheep on such reservation, unless permitted by the secretary, was involved. The court said (page 207):

'There can be no pretense that Congress itself has defined as a crime the act for which defendants are here indicted, namely, grazing sheep, without permission, in a forest reserve. The statute itself does not forbid or make any reference whatever to sheep grazing, nor in the remotest degree suggest that Congress had it at all in mind, and, according to the government's own theory, it did not become a crime until nine years after the passage of the statute, which the government claims made it criminal, and then only because of the promulgation of an administrative rule which it contravenes. The mere statement of the theory, it seems to me, condemns it, and, after much reflection, I have now no hesitancy in holding that the statute, in so far as it affixes punishment to infractions of executive rules and regulations thereafter to be promulgated, is incomplete and wholly inadequate to form the basis of a criminal prosecution.'

And again, on page 209, the court said:

'There can be no controversy whatever about the principle itself; the only room for dispute lies in its application. In the case at bar, the statute does not declare the grazing of sheep, without permission, to be a crime, nor does it make the slightest reference to that matter, but declares that whatever the Secretary of the Interior may thereafter prohibit shall be a misdemeanor. Congress merely prescribes a penalty, and then leaves it to the Secretary of the Interior to determine what acts shall be so punishable. Thus it will be seen that the very essence of the alleged crime, namely, what act shall constitute it, is not fixed by Congress, but wholly confided to the discretion of an administrative officer. If this does not necessarily involve a delegation of legislative power, it is difficult to conceive of a statute challengeable on that ground.'

In the case of U.S. v. Eaton, 144 U.S. 677, 687, 12 Sup.Ct 764, 767 (36 L.Ed. 591), the sufficiency of a departmental regulation, requiring the dealer to keep a record sale book and make report of sales to the Commissioner of Internal Revenue, to support a conviction under a law providing that the department should make all needful...