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    IN RE KOLLOCK, 165 U.S. 526 (1897)

    U.S. Supreme Court

    IN RE KOLLOCK, 165 U.S. 526 (1897)

    165 U.S. 526

    In re KOLLOCK.

    No. 9, Original.

    March 1, 1897

    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, [165 U.S. 526, 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. U. S., 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 [165 U.S. 526, 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:

    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 [165 U.S. 526, 529]   stamped packages when empty; and section 14, for a chemist and microscopist in the office of the commismissioner. 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:

    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:

    Section 19 provides for the recovery of fines, etc.

    Sections 20 and 21 read: [165 U.S. 526, 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.

    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 [165 U.S. 526, 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:

    Henry E. Davis and J. M. Wilson, for petitioners.

    Sol. Gen. Conrad, for respondent.

    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 indict- [165 U.S. 526, 533]   ment. 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. U. S. v. Bailey, 9 Pet. 238; U. S. v. Eaton, 144 U.S. 677 , 12 Sup. Ct. 764; Caha v. U. S., 152 U.S. 211 , 14 Sup. Ct. 513.

    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 [165 U.S. 526, 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:

    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. U. S. v. Symonds, 120 U.S. 46 , 7 Sup. Ct. 411; Ex parte [165 U.S. 526, 537]   Reed, 100 U.S. 113 ; Smith v. Whitney, 116 U.S. 181 , 6 Sup. Ct. 570; 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. St. 3312, 3395, 3445, 3446, et seq.

    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.

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