A regulation made August 25, 1886, by the Commissioner of
Internal Revenue, with the approval of the Secretary of the
Treasury, under § 20 of
Page 144 U. S. 678
the Act of August 2, 1886, c. 840, 24 Stat. 209, in relation to
oleomargarine, required wholesale dealers therein to keep a book,
and make a monthly return, showing certain prescribed matters. A
wholesale dealer in the article who fails to comply with such
regulation is not liable to the penalty imposed by § 18 of the
act, because he does not omit or fail to do a thing required by law
in the carrying on or conducting of his business.
There are no common law offenses against the United States.
It is necessary that a sufficient statutory authority should
exist for declaring any act or omission a criminal offense, and the
statutory authority in the present case was not sufficient.
The Court stated the case as follows:
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 Stat. 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
Page 144 U. S. 679
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 Stat. 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.
Page 144 U. S.
682
"
MR. JUSTICE BLATCHFORD delivered the opinion of the court.
Page 144 U. S. 683
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 internal 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
Page 144 U. S. 684
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
stamped 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,
Page 144 U. S. 685
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 § 20 of the act.
It is provided by § 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 Stat. 567, 621,
"that wholesale dealers in oleomargarine shall keep such books
and render such returns in relation thereto as the Commissioner
Page 144 U. S. 686
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 § 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 § 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 § 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 § 20 of the act is
liable to the penalty prescribed by § 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 § 18.
Regulations for carrying the act into effect, to be made under
the provisions of § 20, are necessary, as they are in various
departments of the public service. By § 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
Page 144 U. S. 687
property appertaining to it,"
and by § 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 §
161 and § 251 of the Revised Statutes, without extending the
provision of § 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.
United States v.
Hudson, 7 Cranch, 32;
United States v.
Coolidge, 1 Wheat. 415;
United States v. Britton,
108 U. S. 199,
108 U. S. 206;
Manchester v. Massachusetts, 139 U.
S. 240,
139 U. S.
262-263, and cases there cited.
It was said by this Court in
Morrill v. Jones,
106 U. S. 466,
106 U. S. 467,
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 § 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 authority 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
Page 144 U. S. 688
public law either forbidding or commanding it." 4 American &
English Encyclopedia of Law 642; 4 Bl.Com. 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 § 18 of the act, particularly when the same
act, in § 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
§ 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.
