This case comes to this court on a certificate of division in opinion between the judges of the circuit court of the United States for the district of Massachusetts.
At May term, 1888, of that court, an indictment was found by the grand jury against George R. Eaton, containing two counts. The first count alleged that on the 1st of November, 1886, and on divers days thereafter, up to and until the 28th of June, 1887, at Boston, in that district, and at a place of business situated therein, the defendant was engaged in the business, avocation, and employment of a wholesale dealer in oleomargarine, and was subject and liable to all needful regulations made by the commissioner of internal revenue of the United States, with the approval of the secretary of the treasury, for the carrying into effect of the act of congress approved August 2, 1886, c. 840, (24 St. p. 209,) entitled 'An act defining 'butter,' also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine;' that, at the times above mentioned, said regulations were well known to the defendant, and it became his duty to keep a book showing the oleomargarine received by him, and from whom the same was received, and also showing the oleomargarine disposed of by him, and to whom the same was sold or delivered, in accordance with the regulations made by the commissioner of internal revenue and approved by the secretary of the treasury on August 25, 1886; and that, at the times above mentioned, he willfully, knowingly, and unlawfully failed to keep such book showing the matters above stated, as required by law. The second count alleged, with the other averments contained in the first count, that it became the duty of the defendant to make a monthly return to the collector of internal revenue, showing the oleomargarine received by the defendant, and from whom it was received, and also that disposed of by him, and to whom it was sold or delivered, in accordance with said regulations; and that, at the times above mentioned, he willfully, knowingly, and unlawfully failed to make such monthly return to the collector of internal revenue, as required by law. The defendant filed a demurrer to the indictment, alleging that it was insufficient in law.
At the hearing in the circuit court on the demurrer, the following questions arose, upon which the judges by whom the court was held were divided in opinion; and those questions were stated and certified to this court: 'First. Whether a wholesale dealer in oleomargarine, who knowingly and willfully fails and omits to keep a book showing the oleomargarine received by him and from whom the same was received, and also showing the oleomargarine disposed of by him and to whom the same was sold or delivered, as required by the regulations made by the commissioner of internal revenue, with the approval of the secretary of the treasury, August 25, 1886, is liable to the penalty imposed by section 18 of the act of congress approved August 2, 1886, entitled 'An act defining 'butter,' also imposing a tax upon and regulating the manufacture, sale, importation, and exportation of oleomargarine.' 24 St. p. 209. Second. Whether a wholesale dealer in oleomargarine, who knowingly and willfully fails and omits to make monthly returns to the collector of internal revenue, showing the oleomargarine received by him and from whom the same was received, and also showing the oleomargarine disposed of by him and to whom the same was sold or delivered, as required by the said regulations, is liable to the penalty mentioned in the first question.'
Asst. Atty. Gen. Parker, for the United States.
[Argument of Counsel from pages 680-682 intentionally omitted]
P. A. Collins, for defendant.
Mr. Justice BLATCHFORD delivered the opinion of the court.
Sections 1 and 2 of the act in question define what is 'butter' and what is 'oleomargarine.'
Section 3 imposes special taxes of certain amounts on manufacturers of oleomargarine, on wholesale dealers therein, and on retail dealers therein.
Section 4 imposes a penalty on manufacturers, wholesale dealers, and retail dealers, for carrying on those respective businesses without having paid the special tax therefor.
Section 5 provides that every manufacturer of oleomargarine shall file, with the collector of internal revenue of the district in which his manufactory is located, such notices, inventories, and bonds, shall keep such books, render such returns of materials and products, put up such signs, affix such number to his factory, and conduct his business under such surveillance of officers and agents, as the commissioner of interpal revenue, with the approval of the secretary of the treasury, may, by regulation, require. But that section imposes no penalty for a noncompliance with its provisions.
Section 6 contains requirements in regard to the packing of oleomargarine by manufacturers, and in regard to the packages in which sales shall be made by manufacturers, wholesale dealers, and retail dealers, and imposes a penalty for the violation of its requirements.
Section 7 contains requirements as to putting a label on each package by the manufacturer, and imposes a penalty for not doing it.
Section 8 provides for collecting a tax of two cents a pound on the article from the manufacturer by coupon stamps, and applies the requirements of law as to stamps relating to tobacco and snuff.
Section 9 provides for assessing and collecting the tax which has not been paid by stamps, and declares that such tax shall be in addition to the penalties imposed by law for the sale or removal of the article without the payment of such tax.
Section 10 provides for an additional tax on imported oleomargarine, by stamps to be affixed and canceled while it is in the custody of customs officers, and for warehousing the article; and it imposes a penalty for a violation of the section by a customs officer, and a penalty for selling or offering for sale imported oleomargarine not put up in packages and stamped as provided by the act.
Section 11 imposes a penalty for purchasing or receiving for sale any oleomargarine not branded or stamped according to law, and section 12 a penalty for purchasing the article or receiving it for sale from a manufacturer who has not paid the special tax.
Section 13 requires the destruction of stamps on packages which have been emptied, and imposes a penalty for the failure to do so.
Section 14 provides for the appointment of chemists and microscopists, and authorizes the commissioner of internal revenue to decide what articles are taxable under the act, and what substances made in imitation or semblance of butter, and intended for human consumption, contain ingredients deleterious to the public health, and also provides for appeals from the decision of the commissioner of internal revenue to a board of three officers whose decision shall be final.
Section 15 provides for the forfeiture of packages which are not stamed, and of packages intended for human consumption which contain ingredients so adjudged to be deleterious to the public health, and imposes a penalty for removing or defacing stamps, marks, or brands on packages containing oleomargarine taxed as provided in the act.
Section 16 contains a provision for the export of oleomargarine to a foreign country without the payment of tax or affixing stamps, under regulations to be made by the commissioner of internal revenue, with the approval of the secretary of the treasury, and for the branding of the exported packages; but it prescribes no penalties.
Section 17 provides that, if any manufacturer of oleomargarine defrauds or attempts to defraud the United States of the tax thereon, he shall forfeit the factory, manufacturing apparatus, and all oleomargarine and raw material found in the factory and on the premises, and be fined and imprisoned as provided in that section.
Section 18 is as follows: 'That if any manufacturer of oleomargarine, any dealer therein, or any importer or exporter thereof, shall knowingly or willfully omit, neglect, or refuse to do, or cause to be done, any of the things required by law in the carrying on or conducting of his business, or shall do anything by this act prohibited, if there be no specific penalty or punishment imposed by any other section of this act for the neglecting, omitting, or refusing to do, or for the doing or causing to be done, the thing required or prohibited, he shall pay a penalty of one thousand dollars; and, if the person so offending be the manufacturer of or a wholesale dealer in oleomargarine, all the oleomargarine owned by him, or in which he has any interest as owner, shall be forfeited to the United States.'
Section 19 provides 'that all fines, penalties, and forfeitures imposed by this act may be recovered in any court of competent jurisdiction;' and section 20 'that the commissioner of internal revenue, with the approval of the secretary of the treasury, may make all needful regulations for the carrying into effect of this act.'
Section 21 is unimportant as regards this case.
It is stated in the brief of the assistant attorney general, counsel for the United States, that one of the regulations of August 25, 1886, named in the two counts of the indictment, and claimed to be applicable to the present case, was as follows: 'Wholesale dealers in oleomargarine will keep a book, (form 61,) and make a monthly return on form 217, showing the oleomargarine received by them, and from whom received; also the oleomargarine disposed of by them, and to whom sold or delivered;' that that regulation covers the two counts of the indictment and the two questions certified; and that form 61, so referred to, is a form for a record in a book, and form 217 is one for the monthly return; and it is claimed that such regulation was properly made under section 20 of the act.
It is provided by section 41 of the act approved October 1, 1890, c. 1244, entitled 'An act to reduce the revenue and equalize duties on imports, and for other purposes,' (26 St. 567, 621,) 'that wholesale dealers in oleomargarine shall keep such books and render such returns in relation thereto as the commissioner of internal revenue, with the approval of the secretary of the treasury, may, by regulation, require, and such books shall be open at all times to the inspection of any internal revenue officer or agent.'
But, although the regulation above recited may have been a proper one to be made, under section 20 of the act of August 2, 1886, yet the question to be determined in this case is whether a wholesale dealer in oleomargarine, who knowingly and willfully fails and omits to keep the book and make the monthly return prescribed in the regulation of the commissioner of internal revenue, thereby fails and omits, within the meaning of section 18 of the act, to do a thing 'required by law in the carrying on or conducting of his business,' so as to be liable to the penalty prescribed by that section.
In this connection it is worthy of observation that section 5 of the act requires that every manufacturer of oleomargarine shall keep such books, and render such returns of materials and products, as the commissioner of internal revenue, with the approval of the secretary of the treasury, may, by regulation, require; but it imposes no penalty on the manufacturer for any neglect to keep such books and render such returns, nor does it impose a duty to keep the books and render the returns on a wholesale dealer in the article, such as the defendant in this case was. The question, therefore, is whether a wholesale dealer in oleomargarine, who omits to keep the books or to render the returns prescribed by the regulation made under the authority of section 20 of the act, is liable to the penalty prescribed by section 18, as having omitted or failed to do a thing 'required by law in the carrying on or conducting of his business,' within the meaning of section 18.
Regulations for carrying the act into effect, to be made under the provisions of section 20, are necessary, as they are in various departments of the public service. By section 161 of the Revised Statutes the head of each department is authorized 'to prescribe regulations not inconsistent with law for the government of his department, the conduct of its officers and clerks, the distribution and performance of its business, and the custody, use, and preservation of the records, papers, and property appertaining to it;' and by section 251 the secretary of the treasury is authorized to make and issue instructions and regulations to collectors, receivers, depositaries, officers, and others, and to prescribe rules and regulations, not inconsistent with law, to be used in executing and enforcing the internal revenue laws, and laws relating to raising revenue from imports, or duties on imports, or to warehousing.
Section 20 of the act in question would be fully carried out by making regulations of the character of those provided for in section 161 and section 251 of the Revised Statutes, without extending the provision of section 18 so as to make a criminal offense, as a neglect to do a thing 'required by law,' of a neglect to do a thing required only by a regulation of the commissioner of internal revenue.
It is well settled that there are no common-law offenses against the United States. U. S. v. Hudson, 7 Cranch, 32; U. S. v. Coolidge, 1 Wheat. 415; U. S. v. Britton, 108 U. S. 199, 206, 2 Sup. Ct. Rep. 531; Manchester v. Massachusetts, 139 U. S. 240, 262, 263, 11 Sup. Ct. Rep. 559, and cases there cited.
It was said by this court in Morrill v. Jones, 106 U. S. 466, 467, 1 Sup. Ct. Rep. 423, that the secretary of the treasury cannot by his regulations alter or amend a revenue law, and that all he can do is to regulate the mode of proceeding to carry into effect what congress has enacted. Accordingly, it was held in that case, under section 2505 of the Revised Statutes, which provided that live animals specially imported for breeding purposes from beyond the seas should be admitted free of duty, upon proof thereof satisfactory to the secretary of the treasury and under such regulations as he might prescribe, that he had no authoriy to prescribe a regulation requiring that, before admitting the animals free, the collector should be satisfied that they were of superior stock, adapted to improving the breed in the United States.
Much more does this principle apply to a case where it is sought substantially to prescribe a criminal offense by the regulation of a department. It is a principle of criminal law that an offense which may be the subject of criminal procedure is an act committed or omitted 'in violation of a public law, either forbidding or commanding it.' 4 Amer. & Eng. Enc. Law, 642; 4 Bl. Comm. 5.
It would be a very dangerous principle to hold that a thing prescribed by the commissioner of internal revenue, as a needful regulation under the oleomargarine act, for carrying it into effect, could be considered as a thing 'required by law' in the carrying on or conducting of the business of a wholesale dealer in oleomargarine, in such manner as to become a criminal offense punishable under section 18 of the act; particularly when the same act, in section 5, requires a manufacturer of the article to keep such books and render such returns as the commissioner of internal revenue, with the approval of the secretary of the treasury, may, by regulation, require, and does not impose, in that section or elsewhere in the act, the duty of keeping such books and rendering such returns upon a wholesale dealer in the article.
It is necessary that a sufficient statutory authority should exist for declaring any act or omission a criminal offense, and we do not think that the statutory authority in the present case is sufficient. If congress intended to make it an offense for wholesale dealers in oleomargarine to omit to keep books and render returns as required by regulations to be made by the commissioner of internal revenue, it would have done so distinctly, in connection with an enactment such as that above recited, made in section 41 of the act of October 1, 1890.
Regulations prescribed by the president and by the heads of departments, under authority granted by congress, may be regulations prescribed by law, so as lawfully to support acts done under them and in accordance with them, and may thus have, in a proper sense, the force of law; but it does not follow that a thing required by them is a thing so required by law as to make the neglect to do the thing a criminal offense in a citizen, where a statute does not distinctly make the neglect in question a criminal offense.
The questions certified are answered in the negative.
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