« ForrigeFortsett »
It appears that the porter was employed at the Pennsylvania terminal in the city of New York. The petitioner offered to bribe the porter to deliver to him certain trunks containing furs, which were checked from the Pennsylvania station to points outside the state of New York, and paid the porter a sum of money, and procured from him delivery of a trunk containing valuable furs. Petitioner moved in arrest of judgment, claiming that neither the indictment nor the evidence made out any offense under the statute. The district court denied the motion. 256 Fed. 974. The judgment was affirmed by the cirIcuit court of appeals for the second circuit. C. C. A., 263 Fed. 538.  The case then came to this court by a writ of certiorari.
ing for or on behalf of the United States in an official function under or by the authority of a department or office of the government.
Clearly, the porter was not an officer of the United States. United States v. Maurice, 2 Brock. 96, Fed. Cas. No. 15,747; United States v. Hartwell, 6 Wall. 385, 393, 18 L. ed. 830, 832. We need not dwell upon this point, as the government concedes that the porter was not an officer within the meaning of the statute.
The point to be decided depends upon whether, when the bribe was offered to the porter, he was acting for the United States in an official function. The decided cases do not afford much aid in reaching a solution of this problem, and in our view the cases cited in the opinions in the courts below throw little light upon the subject.  The statute creating the offense was passed long before there was any thought of the government taking over the railroads. That does not prevent its application if the thing done offends against it. It is, however, a circumstance proper to be considered in determining whether the situation is one intended to be dealt with by Congress.
The statutes and executive orders concerning railroads are stated in Northern P. R. Co. v. North Dakota, 250 U. S. 135, 63 L. ed. 897, P.U.R.1919D, 705, 39 Sup. Ct. Rep. 502. By the Statute of August 29, 1916 (39 Stat. at L. 619, § 1, chap. 418), the President was given power to take possession and assume control of the transportation systems of the country. After the declarations of war with Germany (April 6, 1917) and Austria (December 7, 1917), the President issued a proclamation of December 26, 1917, taking possession of the transportation systems within the boundaries of the United States (40 Stat. at L. 1733, Comp. Stat. § 1974a). The proclamation appointed a Director General of Railroads, with full authority to take control of the systems, and to operate and administer them. (See Act of March 21, 1918, 40 Stat. at L. 451, chap. 25, Comp. Stat. § 3115a, for the full authority given the Director General by the proc-ernment is covered by the act, but a lamation of the President of March 29, 1918. 40 Stat. at L. 1763, Comp. Stat. § 3115 h.)
The act aims to punish the attempted exercising official functions under or by bribery or bribery of officials and those the authority of a department or office of the government. Not every person performing any service for the government, however humble, is embraced within the terms of the statute. It includes those, not officers, who are performing duties of an official character. As was well suggested by Judge Ward in his dissenting opinion in the circuit court of appeals, not every employee of the gov
limitation is made, applying to those acting in official functions. And he added: "The construction adopted by the court In order to sustain the conviction, the gives these words no meaning. They bribe must have been given to an officer might as well, or indeed better, have of the United States, or to a person act-been omitted, because window-cleaners, or shall make or tender any contract, un- | which may by law be brought before him in dertaking, obligation, gratuity, or security for the payment of money, or for the delivery or conveyance of anything of value, to any officer of the United States, or to any person acting for or on behalf of the United States in any official function, under or by authority of any department or office of the government thereof, or to any officer or person acting for or on behalf of either House of Congress, or of any committee of either House, or both Houses, thereof, with intent to influence his decision or action on any question, matter, cause, or proceeding which may at any time be pending, or
his official capacity, or in his place of trust or profit, or with intent to influence him to commit or aid in committing, or to collude in, or allow, any fraud, or make opportunity for the commission of any fraud, on the United States, or to induce him to do or omit to do any act in violation of his lawful duty, shall be fined not more than three times the amount of money or value of the thing so offered, promised, given, made, or tendered, or caused or procured to be so offered, promised, given, made or tendered, and imprisoned not more than three years."
scrub women, elevator boys, doorkeepers, | official function within the meaning of pages, in short, anyone employed by the statute. We are constrained to the the United States to do anything,-is conclusion that the construction given in included." the courts below, and insisted upon by the government, practically recasts the statute from one embracing officials, and those discharging official functions, into one including every person discharging any sort of duty while the government is in control of the work.
The government admits that the construction contended for will include the employees suggested by Judge Ward. Indeed, the construction given by the courts below would bring within the statute every employee acting under the Director General in the operation of the railroads. We are unable to accept this construction of a criminal statute.
who discharge official duties in the operation of a railroad controlled by an officer of the government.
It follows that the judgment of the Circuit Court of Appeals must be reversed.
J. J. DILLON, Appt.,
The government admits that the statute is ambiguous. While criminal statutes are to be given a reasonable conIn United States v. Strang, decided at struction,  ambiguities are not to this term, January 3, 1921 [254 U. S. 491, be solved so as to embrace offenses not ante, 368, 41 Sup. Ct. Rep. 165], this clearly within the law. We are unable to court held that the Emergency Fleet remedy the uncertainties of this statute Corporation, organized by the Shipping by attributing to Congress an intention Board, and authorized by the President to include a baggage porter with those to exercise a portion of the power granted to him under the Act of June 15, 1917 (40 Stat. at L. 182, chap. 29, Comp. Stat. § 3115ee, Fed. Stat. Anno. Supp. 1918, p. 568),  was a separate entity from the government, which owned all of its stock, and that an inspector of the Shipping Board was not an agent of the United States within the meaning of § 41 of the Criminal Code (Comp. Stat. § 10,205, 7 Fed. Stat. Anno. 2d ed. p. 607), making it an offense for any officer or agent of any corporation, etc., and any member or agent of any firm, or person directly or indirectly interested in the pecuniary profits or contracts of such corporation, etc., to be employed or to act as an officer or agent of the United States for the transaction of business with such corporation, etc. Subsequently the statute was amended so as to bring the United States Shipping Board Emergency Fleet Corporation within its terms as a governmental establishment, and, later, to make it an offense to defraud or to conspire to defraud any corporation in which the United States owned stock. So, in our view, if § 39 is to include every governmental employee, it must be amended by act of Congress.
It is true that in the emergencies of war the government took over the operation of the railroads, and placed them under the control of the President, acting by his chosen Director General, who was given full authority to avail himself of the services of railroad officials, directors, employees, etc., with ample authority over all. But we cannot believe that this action brought every service, however remote from the exertion of official authority, into the exercise of an
R. W. GLOSS, Deputy Collector, etc. (See S. C. Reporter's ed. 368–377.) Constitutional law
1. The fair inference or implication from U. S. Const. art. 5, providing for amendments, is that the ratification must be within some reasonable time after the proposal.
[For other cases, see Constitutional Law, I. in Digest Sup. Ct. 1908.]
time limit for ratification.
2. Congress, in proposing an amendment to the Federal Constitution, may, keeping within reasonable limits, fix a definite period for ratification by the states, and could, therefore, validly declare, in the that it should be inoperative unless ratified resolution proposing the 18th Amendment, within seven years.
[For other cases, see Constitutional Law, I. in Digest Sup. Ct. 1908.]
Note. On ratification of amendments to the Federal Constitution-see notes to Re Opinion of Justices, 5 A.L.R. 1417, and Hawke v. Smith, 10 A.L.R. 1510.
On effect of compliance with prescribed method of amending Constitutions-see note to State ex rel. Thompson v. Winnett, 10 L.R.A. (N.S.) 149.
On judicial notice, generally-see note to Olive v. State, 4 L.R.A. 33.
Evidence judicial notice
ratifica- violating, and under which he was artime of the asserted violation nor at the rested, had not gone into effect at the time of the arrest.
ratification of an amendment to the Federal
[For other cases, see Evidence, I. b, in Digest
The power to amend the Constitution and the mode of exerting it are dealt with in Article 5, which reads:
"The Congress, whenever two thirds of both Houses shall deem it necessary, shall propose amendments to this Constitution, or, on the application of the legislatures of two thirds of the several states, shall call a convention for pro
4. The date of the consummation of the ratification of an amendment to the Federal Constitution, which is, by its own terms, to go into effect one year after being ratified, and not the date of the proclamation of the Secretary of State, is controlling posing amendments, which, in either upon the question when such amendment becomes operative. [For other cases, see Constitutional Law, I. in Digest Sup. Ct. 1908.]
Argued March 22, 1921. Decided May 16, 1921.
case, shall be valid to all intents and purposes, as part of this Constitution, when ratified by the legislatures of three fourths of the several states, or by conventions in three fourths thereof, as the one or the other mode of ratification may be proposed by the Congress; Provided that no amendment which may be
APPEAL from the District Court of made prior to the year one thousand
the United States for the Northern District of California to review an order denying a petition for a writ of habeas corpus. Affirmed.
See same case below, 262 Fed. 563.
Mr. Levi Cooke argued the cause, and, with Messrs. Theodore A. Bell and George R. Beneman, filed a brief for appellant.
Assistant Attorney General Adams argued the cause and filed a brief for appellee.
Mr. Justice Van Devanter delivered the opinion of the court:
This is an appeal from an order denying a petition for a writ of habeas corpus. 262 Fed. 563. The petitioner was in custody under § 26 of Title 2 of the National Prohibition Act October 28, 1919, chap. 83, 41 Stat. at L. 305, on a charge of transporting intoxicating liquor in violation of § 3 of that title, and by his petition sought to be discharged on several grounds, all but two of which were abandoned after the decision in National Prohibition Cases (Rhode Island v. Palmer) 253 U. S. 350, 64 L. ed. 946, 40 Sup. Ct. Rep. 486. The remaining grounds are, first, that the 18th Amendment to the Constitution, to enforce which Title 2 of the act was adopted, is invalid because the congressional  resolution, 40 Stat. at L. 1050, proposing the Amendment, declared that it should be inoperative unless ratified within seven years; and, secondly, that, in any event, the provisions of the act which the petitioner was charged with
65 L. ed.
eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article; and that no state, without its consent, shall be deprived of its equal suffrage in the Senate."
nothing about the time within which It will be seen that this article says ratification may be had-neither that it shall be unlimited nor that it shall be fixed by Congress. What, then, is the reasonable inference or implication? Is it that ratification may be had at any time, as within a few years, a century, or even a longer period; or that it must be had within some reasonable period which Congress is left free to define? Neither the debates in the Federal convention which framed the Constitution nor those in the state conventions which ratified it shed any light on the question.
The proposal for the 18th Amendment is the  first in which a definite period for ratification was fixed.1 Theretofore twenty-one amendments had been proposed by Congress and seventeen of these had been ratified by the legislatures of three fourths of the states,some within a single year after their proposal and all within four years. Each of the remaining four had been ratified in some of the states, but not in a sufficient number.2 Eighty years aft
the subject before, but without any definite 1 Some consideration had been given to action. Cong. Globe, 39th Cong. 1st Sess. 2771; 40th Cong. 3d Sess. 912, 1040, 1309– 1314.
22 Watson, Const. pp. 1676-1679; House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, p. 300.
itself controlling; for with the Constitution, as with a statute or other written instrument, what is reasonably implied
er the partial ratification of one an effort was made to complete its ratification, and the legislature of Ohio passed a joint resolution to that end, after is as much a part of it as what is exwhich the effort was abandoned. Two, pressed. An examination of Article 5 after ratification in one less than the re- discloses that it is intended to invest quired number of states, had lain dor- Congress with a wide range of power in mant for a century.4 The other, pro- proposing amendments. Passing a proposed March 2, 1861, declared: "No vision long since expired, it subjects amendment shall be made to the Con-, this power to only two restrictions: one stitution which will authorize or give to Congress the power to abolish or interfere, within any state, with the domestic institutions thereof, including that of persons held to labor or service by the laws of said state." 195 Its principal purpose was to protect slavery and at the time of its proposal and partial ratification it was a subject of absorbing interest, but after the adoption of the 13th Amendment it was generally forgotten. Whether an amendment  | proposed without fixing any time for by conventions, in three fourths of the ratification, and which after favorable action in less than the required number of states had lain dormant for many years, could be resurrected and its ratification completed, had been mooted on several occasions, but was still an open question.
These were the circumstances in the light of which Congress, in proposing the 18th Amendment, fixed seven years as the period for ratification. Whether this could be done was questioned at the time and debated at length, but the prevailing view in both Houses was that some limitation was intended and that seven years was a reasonable period.
That the Constitution contains no express provision on the subject is not in
3 House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, p. 317 (No. 243); Ohio Senate Journal, 1873, pp. 590, 666, 667, 678; Ohio House Journal, 1873, pp. 848, 849. A committee charged with the preliminary consideration of the joint resolution reported that they were divided in opinion on the question of the validity of a ratification after so great a lapse of time.
4 House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, pp. 300, 320 (No. 295), 329 (No. 399).
5 12 Stat. at L. 251; House Doc. 54th Cong. 2d Sess. No. 353, pt. 2, pp. 195-197, 363 (No. 931), 369 (No. 1025).
6 Cong. Rec. 65th Cong. 1st Sess. pp. 5648-5653, 5658-5661: 2d Sess. pp. 423425, 428, 436, 443-446, 463, 469, 477, 478. 7 United States v. Babbit, 1 Black, 55, 61, 17 L. ed. 94, 96; Ex parte Yarbrough, 110 U. S. 651, 658, 28 L. ed. 274, 276, 4 Sup. Ct. Rep. 152; McHenry v. Alford, 168 U. S. 651, 672, 42 L. ed. 614, 621, 18 Sup. Ct. Rep. 242; South Carolina v. United States. 199 U. S. 437, 451, 50 L. ed. 261, 265, 26
that the proposal shall have the approval of two thirds of both Houses, and the other excluding any amendment which will deprive any state, without  its consent, of its equal suffrage in the Senate. A further mode of proposalas yet never invoked-is provided, which is, that on application of the two thirds of the states Congress shall call a convention for the purpose. When proposed in either mode, amendments, to be effective, must be ratified by the legislatures, or
states, "as the one or the other mode of ratification may be proposed by the Congress." Thus the people of the United States, by whom the Constitution was ordained and established, have made it a condition to amending that instrument that the amendment be submitted to representative assemblies in the several states and be ratified in three fourths of them. The plain meaning of this is (a) that all amendments must have the sanction of the people of the United States, the original fountain of power, acting through representative assemblies, and (b) that ratification by these assemblies in three fourths of the states shall be taken as a decisive exSup. Ct. Rep. 110, 4 Ann. Cas. 737; Luria v. United States, 231 U. S. 9, 24, 58 L. ed. 101, 106, 34 Sup. Ct. Rep. 10; The Pesaro, 255 U. S. 216, ante, 592, 41 Sup. Ct. Rep. 308.
8 Article 5, as before shown, contained a provision that "no amendment which shall be made prior to the year one thousand eight hundred and eight shall in any manner affect the first and fourth clauses in the ninth section of the first article." One of the clauses named covered the migration and importation of slaves and the other deals with direct taxes.
9 When the Federal convention adopted Article 5, a motion to include another restriction forbidding any amendment whereby a state, without its consent, would "be affected in its internal police," was decisively voted down. The vote was: yeas 3-Connecticut, New Jersey, Delaware; nays 8-New Hampshire, Massachusetts, Pennsylvania, Maryland, Virginia, North Caro5 Elliot, lina, South Carolina, Georgia. Debates, pp. 551, 552.
to subscribe, and in our opinion it is quite untenable. We conclude that the fair inference or implication from Article 5 is that the ratification must be within some reasonable time after the proposal.
Of the power of Congress, keeping within reasonable  limits, to fix a definite period for the ratification we entertain no doubt. As a rule the Constitution speaks in general terms, leaving Congress to deal with subsidiary matters of detail as the public interests and changing conditions may require;1 and Article 5 is no exception to the rule. Whether a definite period for ratification shall be fixed, so that all may know what it is and speculation on what is a reasonable time may be avoided, is, in our opinion, a matter of detail which Congress may determine as an incident of its power to designate the mode of ratification. It is not questioned that seven years, the period fixed in this instance, was reasonable, if power existed to fix a definite time; nor could it well be questioned considering the periods within which prior amendments were ratified.
pression of the people's will and be plemented in enough more states to binding on all.10 make three fourths by representatives We do not find anything in the Article of the present or some future generawhich suggests that an amendment, tion. To that view few would be able once proposed, is to be open to ratification for all time, or that ratification in some of the states may be separated from that in others by many years and yet be effective. We do find that which strongly suggests the contrary. First, proposal and ratification are not treated as unrelated acts, but as succeeding steps  in a single endeavor, the natural inference being that they are not to be widely separated in time. Secondly, it is only when there is deemed to be a necessity therefor that amendments are to be proposed, the reasonable implication being that when proposed they are to be considered and disposed of presently. Thirdly, as ratification is but the expression of the approbation of the people and is to be effective when had in three fourths of the states, there is a fair implication that it must be sufficiently contemporaneous in that number of states to reflect the will of the people in all sections at relatively the same period, which, of course, ratification scattered through a long series of years would not do. These considerations and the general purport and spirit of the Article lead to the conclusion expressed by Judge Jameson11 "that an alteration The provisions of the act which the of the Constitution proposed to-day has petitioner was charged with violating relation to the sentiment and the felt and under which he was arrested (Title needs of to-day, and that, if not rati-2, §§ 3, 26) were by the terms of the act fied early while that sentiment may fairly be supposed to exist, it ought to be regarded as waived, and not again to be voted upon, unless a second time proposed by Congress." That this is the better conclusion becomes even more manifest when what is comprehended in the other view is considered; for, according to it, four amendments proposed long ago-two in 1789, one in 1810, and one in 1861-are still pending and in a situation where their ratification in some of the states many years since by representatives of generations now largely forgotten may be effectively sup
10 See Martin v. Hunter, 1 Wheat. 304, 324, 325, 4 L. ed. 97, 102; M'Culloch v. Maryland, 4 Wheat. 316, 402-404, 4 L. ed. 579, 600, 601; Cohen v. Virginia, 6 Wheat. 264, 413, 414, 5 L. ed. 257, 293; Dodge v. Woolsey, 18 How. 331, 347, 348, 15 L. ed. 401, 407, 408; Hawke v. Smith, 253 U. S. 221, 64 L. ed. 871, 10 A.L.R. 1504, 40 Sup. Ct. Rep. 495; Story, Const. 5th ed. §§ 362, 363, 463-465.
11 Jameson, Constitutional Conventions, 4th ed. § 585.
(Title 3, § 21) to be in force from and after the date when the 18th Amendment should go into effect, and the latter by its own terms was to go into effect one year after being ratified. Its ratification, of which we take judicial notice, was consummated January 16, 1919.13 That the Secretary of State did not proclaim its ratification until January 29, 1919,14 is not material, for the date of its consummation, and not that on which it is proclaimed, controls. It follows that the provisions of the act with which the petitioner is concerned went into effect January 16, 1920.
12 Martin v. Hunter, 1 Wheat. 304, 326, 4 L. ed. 97, 102; M'Culloch v. Maryland, 4 Wheat. 316, 407, 4 L. ed. 579, 601.
13 Sen. Doc. No. 169, 66th Cong. 2d Sess.; Ark. Gen. Acts 1919, p. 512; Ark. House Journal, 1919, p. 10; Ark. Sen. Journal, 1919, p. 16; Wyo. Sen. Journal, 1919, pp. 26, 27; Wyo. House Journal, 1919, pp. 27,
28; Mo. Sen. Journal, 1919, pp. 17, 18; Mo. House Journal, 1919, p. 40.
14 40 Stat. at L. 1941.