The Act of August 2, 1886, c. 840, imposing a tax upon and
regulating the manufacture, sale, etc. of oleomargarine, required
packages thereof to be marked and branded, prohibited the sale of
packages that were not, and prescribed the punishment of sales in
violation of its provisions. It authorized the Commissioner of
Internal Revenue to make regulations describing the marks, stamps,
and brands to be used.
Held that such leaving the matter
of designating the marks, brands, and stamps to the Commissioner,
with the approval of the Secretary, involved no unconstitutional
delegation of power.
Kollock was indicted in the Supreme Court of the District of
Columbia for the violation of the sixth section of the Act of
Congress approved August 2, 1886, 24 Stat. 209, c. 840, entitled
"An act defining butter, also imposing a tax upon and regulating
the manufacture, sale, importation, and exportation of
oleomargarine;" and also for carrying on in the District the
business of a retail dealer in oleomargarine without having paid
the special tax thereon. He was arraigned,
Page 165 U. S. 527
tried, and convicted on each indictment, and was sentenced to
fine and imprisonment on the first, and to fine on the second, with
costs on both, and to stand committed further in default of
payment.
December 14, 1896, he was committed to the custody of the United
States Marshal of the District of Columbia, and on the same day
filed his petition in this Court, alleging that he was deprived of
his liberty unlawfully, in that the law under which he was
convicted is in violation of the Constitution and laws of the
United States for the reason that
"it is not within the power of the Congress of the United
States, under the Constitution of the United States, to delegate to
the Commissioner of Internal Revenue or the Secretary of the
Treasury of the United States, or any other person, authority or
power to determine what acts shall be criminal, and the said act of
Congress aforesaid does not sufficiently define, or define at all,
what acts done or omitted to be done within the supposed purview of
the said act shall constitute an offense or offenses against the
United States,"
and praying for a writ of habeas corpus.
Leave was given to file the petition, and a rule to show cause
was entered thereon, petitioner being admitted to bail, to which
the marshal made return that he held petitioner pursuant to the
judgment and sentence of the Supreme Court of the District of
Columbia until he was released from custody on giving bail in
compliance with the order of this Court.
It appeared that Kollock had appealed to the Court of Appeals of
the District of Columbia, which affirmed the judgments below, 25
Wash.Law Rep. 41, in accordance with the decision of that court in
Prather v. United States, 24 Wash.Law Rep. 395.
The act of Congress in question consists of 21 sections.
Sections 1 and 2 define butter and oleomargarine. Section 3 imposes
special taxes on manufacturers, wholesale dealers, and retail
dealers in oleomargarine. Section 4 prescribes penalties for
carrying on business as manufacturer, wholesale dealer, and retail
dealer without payment of
Page 165 U. S. 528
taxes, and section 5, the duty of the manufacturer as to notice,
etc., keeping books, etc., and conduct of business.
Section 6 is as follows:
"That all oleomargarine shall be packed by the manufacturer
thereof in firkins, tubs, or other wooden packages not before used
for that purpose, each containing not less than ten pounds, and
marked, stamped, and branded as the Commissioner of Internal
Revenue, with the approval of the Secretary of the Treasury, shall
prescribe, and all sales made by manufacturers of oleomargarine and
wholesale dealers in oleomargarine shall be in original stamped
packages. Retail dealers in oleomargarine must sell only from
original stamped packages in quantities not exceeding ten pounds,
and shall pack the oleomargarine sold by them in suitable wooden or
paper packages, which shall be marked and branded as the
Commissioner of Internal Revenue, with the approval of the
Secretary of the Treasury, shall prescribe. Every person who
knowingly sells or offers for sale, or delivers or offers to
deliver, any oleomargarine in any other form than in new wooden or
paper packages as above described, or who packs in any package any
oleomargarine in any manner contrary to law, or who falsely brands
any package or affixes a stamp on any package denoting a less
amount of tax than that required by law, shall be fined for each
offense not more than one thousand dollars, and be imprisoned not
more than two years."
Section 7 provides that every manufacturer shall affix a label
on each package manufactured under penalty, section 8 for a tax on
the manufacture to be represented by coupon stamps, the
requirements of law as to stamps relating to tobacco and snuff
being made applicable; section 9 for the assessment of taxes on
oleomargarine sold without using stamps, section 10 for an
additional tax on imported oleomargarine, section 11, a penalty for
purchasing or receiving for sale any oleomargarine not branded or
stamped according to law, section 12, a penalty for purchasing or
receiving for sale any oleomargarine from any manufacturer who has
not paid the special tax, section 13 for the destruction of stamps
on
Page 165 U. S. 529
stamped packages when empty, and section 14 for a chemist and
microscopist in the office of the commissioner. etc., and the
commissioner is authorized to decide what substances, etc.,
submitted to inspection in contested cases shall be taxed under the
act.
Section 15 is as follows:
"That all packages of oleomargarine subject to tax under this
act that shall be found without stamps or marks as herein provided,
and all oleomargarine intended for human consumption which contains
ingredients adjudged, as hereinbefore provided, to be deleterious
to the public health, shall be forfeited to the United States."
"Any person who shall willfully remove or deface the stamps,
marks, or brands on packages containing oleomargarine taxed as
provided herein shall be guilty of a misdemeanor, and shall be
punished by a fine of not less than one hundred dollars nor more
than two thousand dollars, and by imprisonment for not less than
thirty days nor more than six months."
Section 16 provides for the exportation of oleomargarine, and
section 17 imposes a penalty for fraud by the manufacturer in
relation to the tax.
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 for the recovery of fines, etc.
Sections 20 and 21 read:
Page 165 U. S. 530
"SEC. 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."
"SEC. 21. That this act shall go into effect on the ninetieth
day after its passage, and all wooden packages containing ten or
more pounds of oleomargarine found on the premises of any dealer on
or after the ninetieth day succeeding the date of the passage of
this act shall be deemed to be taxable under section eight of this
act, and shall be taxed, and shall have affixed thereto the stamps,
marks, and brands required by this act or by regulations made
pursuant to this act, and for the purposes of securing the affixing
of the stamps, marks, and brands required by this act, the
oleomargarine shall be regarded as having been manufactured and
sold, or removed from the manufactory for consumption or use, on or
after the day this act takes effect, and such stock on hand at the
time of the taking effect of this act may be stamped, marked, and
branded under special regulations of the Commissioner of Internal
Revenue, approved by the Secretary of the Treasury, and the
Commissioner of Internal Revenue may authorize the holder of such
packages to mark and brand the same and to affix thereto the proper
tax paid stamps."
The first indictment against Kollock set forth that, pursuant to
the authority conferred on the Commissioner of Internal Revenue by
the sixth section of the Act of August 2, 1886,
"the said commissioner, with the approval of the Secretary of
the Treasury, did, on the 12th day of March in the year of our Lord
one thousand eight hundred and ninety-one, prescribe certain
regulations in substance and to the effect, among other things,
that the wooden or paper packages in which retail dealers in
oleomargarine were required by said act of Congress to pack the
oleomargarine sold by them, such retail dealers, should have
printed or branded upon them in the case of each sale the name and
address of the retail dealer making the same, likewise the words
'pound' and 'oleomargarine' in letters not less than one-quarter of
an inch square, and likewise a figure or figures of the same size
indicating (in connection with said words 'pound' and
'oleomargarine') the
Page 165 U. S. 531
quantity of oleomargarine so sold, written, printed, or branded
on such wooden or paper packages, and placed before the said word
'pound,' and that the said words 'oleomargarine' and 'pound' so
required to be printed or branded on such packages as aforesaid, in
the case of each sale as aforesaid, and the said figure or figures
so indicative of quantity as aforesaid, in the case of each sale as
aforesaid, and so required to be written, printed, or branded on
such packages as aforesaid, should be so placed thereon as to be
plainly visible to the purchaser at the time of the delivery to
him, such purchaser, by such retail dealers of the oleomargarine
sold to such purchaser by them, such retail dealers."
And thus continued:
"That on the 14th day of January in the year of our Lord one
thousand eight hundred and ninety-six, and at the District
aforesaid, one Israel C. Kollock, late of the District aforesaid,
being then and there engaged in business as a retail dealer in
oleomargarine at a store of him, the said Israel C. Kollock,
situated on Fourth Street Southeast in the City of Washington, in
the said District, did then and there and at said store knowingly
sell and deliver to a certain Florence Davis one-half of one pound
of oleomargarine as and for butter, which said one-half of one
pound of oleomargarine was not then and there and at the time of
such sale and delivery thereof packed in a new wooden or paper
package, having then and there printed or branded thereon the name
and address of him, the said Israel C. Kollock, in letters
one-quarter of an inch square, and the words 'pound' and
'oleomargarine' in letters of like size and a figure or figures of
like size written, printed, or branded thereon, indicative (in
connection with said words 'pound' and 'oleomargarine') of the
quantity of oleomargarine so sold and delivered to her, the said
Florence Davis, as aforesaid, and which said one-half of one pound
of oleomargarine at the time it was so knowingly sold and delivered
to her, the said Florence Davis, as aforesaid, by him, the said
Israel C. Kollock, as aforesaid, was then and there, and at the
time of the sale and delivery thereof as aforesaid, packed in a
paper package upon which there had not
Page 165 U. S. 532
been printed, branded, or written any or either of the marks and
characters aforesaid, so required by the said regulations to be
placed thereon as aforesaid, as he, the said Israel C. Kollock,
then and there well knew, against the form of the statute,"
etc.
MR. CHIEF JUSTICE FULLER, after stating the facts in the
foregoing language, delivered the opinion of the Court.
By the terms of the act, manufacturers of oleomargarine are
required to pack it in wooden packages, "marked, stamped, and
branded as the Commissioner of Internal Revenue, with the approval
of the Secretary of the Treasury, shall prescribe," and all sales
by manufacturers and wholesale dealers must be in "original stamped
packages."
Retail dealers are required to
"pack the oleomargarine sold by them in suitable wooden or paper
packages, which shall be marked and branded as the Commissioner of
Internal Revenue, with the approval of the Secretary of the
Treasury, shall prescribe."
And fine and imprisonment are denounced on
"every person who knowingly sells or offers for sale, or
delivers or offers to deliver any oleomargarine in any other form
than in new wooden or paper packages as above described, or who
packs in any package any oleomargarine in any manner contrary to
law, or who falsely brands any package or affixes a stamp on any
package denoting a less amount of tax than that required by
law."
Kollock was convicted as a retail dealer in oleomargarine of
knowingly selling and delivering one-half pound of that commodity
which was not packed in a wooden or paper package bearing thereon
any or either of the marks or characters provided for by the
regulations and set forth in the indictment.
Page 165 U. S. 533
It is conceded that the stamps, marks, and brands were
prescribed by the regulations, and it is not denied that Kollock
had the knowledge, or the means of knowledge, of such stamps,
marks, and brands. But it is argued that the statute is invalid
because it "does not define what act done or omitted to be done
shall constitute a criminal offense," and delegates the power "to
determine what acts shall be criminal" by leaving the stamps,
marks, and brands to be defined by the commissioner.
We agree that the courts of the United States, in determining
what constitutes an offense against the United States, must resort
to the statutes of the United States enacted in pursuance of the
Constitution. But here the law required the packages to be marked
and branded, prohibited the sale of packages that were not, and
prescribed the punishment for sales in violation of its provisions;
while the regulations simply described the particular marks,
stamps, and brands to be used. The criminal offense is fully and
completely defined by the act, and the designation by the
commissioner of the particular marks and brands to be used was a
mere matter of detail. The regulation was in execution of, or
supplementary to but not in conflict with, the law itself, and was
specifically authorized thereby in effectuation of the legislation
which created the offense. We think the act not open to the
objection urged, and that it is disposed of by previous decisions.
United States v.
Bailey, 9 Pet. 238;
United States v.
Eaton, 144 U. S. 677;
Caha v. United States, 152 U. S. 211.
In the last case, Caha had been convicted of perjury, under
section 5392 of the Revised Statutes, in a contest in a local land
office in respect of the validity of a homestead entry, the oath
having been administered by one of the land officers before whom
the contest had been carried on. It was contended that the
indictment alleged no offense because the statute made no provision
for such a contest before those officers, and therefore it could
not be said that the oath was taken in a "case in which a law of
the United States authorized an oath to be administered."
But it was held by this Court -- in view of the general
grant
Page 165 U. S. 534
of authority to the Land Department to prescribe appropriate
regulations for the disposition of the public lands, the rules and
regulations prescribed by that department for contests in all cases
of such disposition, including homestead entries, and the frequent
recognition by acts of Congress of contests in respect to that
class of entries-that the local land officers, in hearing and
deciding upon a contest as to a homestead entry, constituted a
competent tribunal, and the contest so pending before them was a
case in which the laws of the United States authorized an oath to
be administered.
As bearing on the case in hand, we cannot do better than to
quote at length from MR. JUSTICE BREWER, delivering the opinion, as
follows:
"This is not a case in which the violation of a mere regulation
of a department is adjudged a crime.
United States v.
Bailey, 9 Pet. 238, is in point. There was an act
of Congress making false testimony in support of a claim against
the United States perjury, and the defendant in that case was
indicted for making a false affidavit before a justice of the peace
of the Commonwealth of Kentucky in support of a claim against the
United States. It was contended that the justice of the peace, an
officer of the state, had no authority under the acts of Congress
to administer oaths, and that therefore perjury could not be laid
in respect to a false affidavit before such officer. It appeared,
however, that the Secretary of the Treasury had established, as a
regulation for the government of his department and its officers in
their action upon claims, that affidavits taken before any justice
of the peace of any of the states should be received and considered
in support of such claims. And upon this the conviction of perjury
was sustained, Mr. Justice McLean alone dissenting. It was held
that the secretary had power to establish the regulation, and that
the effect of it was to make the false affidavit before the justice
of the peace perjury within the scope of the statute, and this
notwithstanding the fact that such justice of the peace was not an
officer of the United States. Much stronger is the case at bar, for
the tribunal was composed of officers of the government of the
United States. It was created
Page 165 U. S. 535
by the Land Department in pursuance of express authority from
the acts of Congress. This perjury was not merely a wrong against
that tribunal or a violation of its rules or requirements; the
tribunal and the contest only furnished the opportunity and the
occasion for the crime, which was a crime defined in and denounced
by the statute."
"Nor is there anything in the case of
United States v.
Eaton, 144 U. S. 677,
144 U. S.
688, conflicting with the views herein expressed. In
that case, the wrong was in the violation of a duty imposed only by
a regulation of the Treasury Department. There was an act entitled
'An act defining butter; also imposing a tax upon and regulating
the manufacture, sale, importation, and exportation of
oleomargarine,' which contained several sections forbidding
particular acts, and imposing penalties for violation thereof. And
in addition, there was a general provision in section 18 that"
"if a party 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, . . . he shall pay a penalty,"
"etc. There was authority given to the Commissioner of Internal
Revenue to make all needful regulations for carrying into effect
the act. In pursuance of that authority, the commission required
the keeping of a book in a certain form and the making of a monthly
return, matters which were in no way referred to in the various
sections of the statute prescribing the duties resting upon the
manufacturer or dealer in oleomargarine, although subsequently to
this statute, and subsequently to the offense complained of, and on
October 1, 1890, Congress passed an act by section 41 of which
wholesale dealers in oleomargarine were required to keep such books
and render such returns in relation thereto as the Commissioner of
Internal Revenue should require. It was held by this Court that the
regulation prescribed by the Commissioner of Internal Revenue,
under that general grant of authority, was not sufficient to
subject one violating it to punishment under section 18. It was
said by Mr. Justice Blatchford, speaking for the Court:"
"It is necessary that a sufficient statutory authority should
exist for
Page 165 U. S. 536
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 a 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."
"This, it will be observed, is very different from the case at
bar, where no violation is charged of any regulation made by the
department. All that can be said is that a place and an occasion
and an opportunity were provided by the regulations of the
department at which the defendant committed the crime of perjury,
in violation of section 5392. We have no doubt that false swearing
in a land contest before the local land office in respect to a
homestead entry is perjury within the scope of said section."
The act before us is, on its face, an act for levying taxes, and
although it may operate in so doing to prevent deception in the
sale of oleomargarine as and for butter, its primary object must be
assumed to be the raising of revenue. And, considered as a revenue
act, the designation of the stamps, marks, and brands is merely in
the discharge of an administrative function, and falls within the
numerous instances of regulations needful to the operation of the
machinery of particular laws, authority to make which has always
been recognized as within the competency of the legislative power
to confer.
United States v. Symonds, 120 U. S.
46;
Ex Parte
Page 165 U. S. 537
Reed, 100 U. S. 113;
Smith v. Whitney, 116 U. S. 181;
Wayman v.
Southard, 10 Wheat. 42.
We concur with the Court of Appeals that this provision does not
differ in principle from those of the internal revenue laws which
direct the Commissioner of Internal Revenue to prepare suitable
stamps to be used on packages of cigars, tobacco, and spirits, to
change such stamps when deemed expedient, and to devise and
regulate the means for affixing them. Rev.Stat. §§ 3312,
3395, 3445, 3446, etc.
By section 3446, the secretary and the commissioner were
empowered to alter or renew or change the form, style, and
device
"of any stamp, mark or label used under any provision of the
laws relating to distilled spirits, tobacco, snuff and cigars, when
in their judgment necessary for the collection of revenue taxes and
the prevention or detection of frauds thereon, and may make and
publish such regulations for the use of such mark, stamp, or label
as they find requisite,"
and by the Act of March 1, 1879, 20 Stat. 327, c. 125, §
18, the section was amended so as to provide that the commissioner,
with the approval of the secretary, might
"establish and, from time to time, alter or change the form,
style, character, material, and device of any stamp, mark, or label
used under any provision of the laws relating to internal
revenue."
The oleomargarine legislation does not differ in character from
this, and the object is the same in both, namely, to secure revenue
by internal taxation and to prevent fraud in the collection of such
revenue. Protection to purchasers in respect of getting the real,
and not a spurious, article cannot be held to be the primary object
in either instance, and the identification of dealer, substance,
quantity, etc. by marking and branding must be regarded as means to
effectuate the objects of the act in respect of revenue.
And we are of opinion that leaving the matter of designating the
marks, brands, and stamps to the commissioner, with the approval of
the secretary, involved no unconstitutional delegation of
power.
Writ denied.
