
    UNITED STATES v. RICARDO ESCOBAR.
    San Juan,
    Criminal,
    No. 643.
    
      Violation of President’s Proclamation.
    Joint Resolution.
    1. A joint resolution of Congress authorizing the President to prohibit by proclamation the exportation of war material from ports of the United States has virtually the same effect as a statute.
    Criminal Law.
    2. If Congress has not declared an action a crime, the courts cannot do so.
    Criminal Law.
    3. A joint resolution of Congress authorizing the President to prohibit by proclamation the exportation of war material from ports of the United States, but which does not make the exportation thereof a crime nor fix a penalty, simply authorizes the President to prohibit the exportation, and one acting contrary to the proclamation does not commit a crime.
    Criminal Law — Conspiracy.
    4. The exportation of war materials from ports of the United States contrary to tbe proclamation of tbe President does not constitute a crime, and therefore there cannot be a conspiracy to commit tbe said crime or offense.
    Criminal Law — Strict Construction.
    5. There can be no intendment in support of tbe meaning of a criminal statute, as penal laws are strictly construed.
    Opinion filed December 6, 1916.
    
      Mr. Miles M. Martin, District Attorney,* for United States.
    
      Mr. II. G. Molina for defendant.
   HAMILTON, Judge,

delivered tbe following opinion:

Tbis cause comes up upon a demurrer filed tbis day by leave of court to tbe indictment in tbis case, charging defendant with tbe offense of violating § 37 of tbe Criminal Code, in that, on May 27, 1916, be conspired with other parties, who were not arrested, to transport from San Juan into Santo Domingo a large quantity of war materials, contrary to tbe form of tbe statute in such case made and provided and against tbe peace and dignity of tbe United States. Tbe statute in question is a joint resolution of April 22, 1898, authorizing tbe President to prohibit tbe exportation of coal and other war material from tbe United States. Tbe President, to wit, Mr. Roosevelt, by proclamation of 1905, prohibited tbe exportation of ammunition and tbe like from tbe United States to Santo Domingo, and tbe act set out in tbe indictment is tbe one supposed to constitute tbe offense. Tbe joint resolution is as follows:

“Resolved by tbe Senate and House of Representatives of the United States of America in Congress assembled, That tbe President is hereby authorized, in his discretion, and with such limitations and exceptions as shall seem to him expedient, to prohibit the export of coal or other material used in war from any seaport of the United States until otherwise ordered by the President or by Congress.
“Approved, April 22, 1898.” 30 Stat. at L. 739.

The proclamation is as follows;

By the President of the United States of America. — A Proclamation.

Whereas, by a joint resolution, approved April 22, 1898, entitled, “Joint ^Resolution to Prohibit the Export of Coal or Other Material Used in War from Any Seaport of the United States,” the President is authorized, in his discretion, and with such limitations and exceptions as shall seem to him expedient, to prohibit the export of coal or other material used in war from any seaport of the United States until otherwise ordered by the President or by Congress;

Now, therefore, I, Theodore Eoosevelt, President of the United States of America, for good and sufficient reasons unto me appearing, and by virtue of the authority conferred upon me by the said joint resolution, do hereby declare and proclaim that the export of arms, ammunition, and munitions of war of every kind, from any port in the United States or in Porto Pico, to any port in the Dominican Pepublic, is prohibited, without limitation or exception, from and after the date of this my proclamation until otherwise ordered by the President or by Congress.

And I do hereby enjoin all good citizens of the United States and of Porto Rico, and all persons residing or being within the territory or jurisdiction thereof, to be governed accordingly.

In witness whereof, I have hereunto set my hand and caused the seal of the United States to be affixed. '

Done at the city of Washington this 14th day of October in the year of our Lord one thousand nine hundred and five, and of the Independence of the United States of America the one hundred and thirtieth.

(Seal) Theodore Roosevelt.

By the President:

Elihu Root, Secretary of State.

34 Stat. at L. 3183.

The question arises as to whether the fact that the alleged offense comes under a joint resolution, instead of by statute, is material. It would seem, however, that the difference between a joint resolution and a statute is not material for present purposes. Under the Constitution “every order, resolution, or vote to which the concurrence of the Senate and House of Representatives may be necessary, . . . shall be presented, to the President of the United States; and before the same shall take effect shall be approved by him.” Constitution, art. 1, § I. This course was followed in the present matter. The practice is to publish joint resolutions in the same volume and in the same manner as the Statutes at Large of the United States. Instances may be found in almost every volume. One of the most famous instances of joint resolution was that of July 7, 1898, whereby the Hawaiian Islands were annexed. This not only kept in force many existing penal laws of those Islands, but extended to them the Chinese Immigration Acts, with all their provisions as to crimes and penalties. 30 Stat. at L. 750. Tbis resolution was approved by tbe President, and it bas never been supposed that it was unconstitutional. There was an even more elaborate joint resolution annexing Texas on March 1, 1845, 5 Stat. at L. 797.

Tbe argument is made that if tbe demurrer is sustained tbe lives of American citizens and soldiers in Santo Domingo may be imperiled because tbis court will thereby decide that it is not criminal to export arms and ammunition from tbe United States, and that these may be used against such American citizens and soldiers. Tbis, however, is a question -for Congress and not for tbe courts. If Congress does not see proper to declare an action a crime, tbe courts cannot do so. Tbe Constitution preserves tbe differentiation between legislative and judicial powers, which tbis court would not transgress even if it could do so. In point of fact, however, tbe customhouses, coast guard, and other machinery of tbe government, may be invoked to make tbe proclamation effective; and, if necessary, tbe courts will grant all proper writs of injunction, prohibition, or of any other character. Tbe question raised by tbe demurrer must be settled on purely legal principles.

Tbe demurrer raises tbe point that no crime or offense is created by tbe joint resolution and proclamation of tbe President. That there is a prohibition of export of munitions is conceded, somewhat as if there was an injunction against such export; but it is contended 'that tbe matter stops with tbe prohibition, that whether tbe government is or is not successful in prohibiting tbe export, it can do nothing against tbe person who violates tbe proclamation. It is undoubtedly true that a crime must be created by statute, indeed tbe indictment itself professes to be based upon a statute. Tbe President not only bas not attempted to create an offense by tbe terms of bis proclamation, but could not if be wished to; Under tbe Federal Constitution, legislation must be effected by Congress and Congress alone.

Tbe words “crime” and “offense” are almost synonymous, “offense” being often -used of tbe lighter grades of crime; but to constitute either tbe one or tbe other a statute bas to fix a penalty, whether it be fine or imprisonment or both. Tbe joint resolution in this case affixes no penalty whatever. It may be questionable whether Congress could leave it to tbe President to declare crimes, as this might be a delegation of legislative power. However, Congress bas not undertaken to do any such thing. If a forfeiture is declared, this is enough. Tbe conspiracy statute now under consideration, Criminal Code, § 37, re-enacted, in effect, Eev. Stat. § 5440, Comp. Stat. 1916, § 10,201, will attach and make conspiracy to commit it a crime. It is not material whether tbe penalty affixed to tbe conspiracy statute is greater or smaller than that attached to tbe offense for whose commission tbe defendant is alleged to have conspired. Conspiracy is an offense in itself. Curley v. United States, 64 C. C. A. 369, 130 Fed. 1.

Tbe particular offense charged in this indictment is conspiracy to commit a crime. Tbe conspiracy charge is brought under § 37 of tbe Federal Penal Code, substantially § 5440 of tbe Kevised Statutes. Tbe offense which tbe conspirators intended to commit is alleged to be tbe exportation of ammunition to Santo Domingo. . As seen above, there is no express statute making such exportation an offense, but it is alleged that, as tbe exportation is forbidden by law, it is illegal, and therefore an offense. It is doubtless true tbat § 37 of tbe Penal Code denounces two different offenses; to wit, a conspiracy to commit specific crime and a conspiracy to defraud tbe government. Curley v. United States, supra; United States v. Morse, 161 Fed. 429, 436. Tbe latter provision bas been broadly construed so as to aid its ratber general intent. United States v. Haas, 163 Fed. 908. Tbe other branch of § 37, however, stands upon a different footing. Tbe conspiracy must be in connection with some definite crime. There is no doubt tbat a contempt of court is illegal, and nevertheless it bas been held tbat this is not a crime or offense within tbe view of tbe criminal law. In He Terry, 37 Ped. 649. But tbe contention is tbat § 37 will cover a conspiracy to do anything to which a penalty is attached by statute as distinguished from an order of court. It is true tbat tbe punishment for tbe conspiracy may be greater than tbe punishment of the offense whose commission is planned by tbe conspirators. United States v. Stevenson, 215 U. S. 190, 200, 54 L. ed. 153, 157, 30 Sup. Ct. Rep. 35. It bas been held tbat a conspiracy to commit an act to which a penalty is annexed by tbe Immigration Statute properly comes under § 37 of tbe Penal Code, even though a civil suit may lie to recover tbat penalty. United States v. Tsokas, 163 Fed. 129, 131. In tbe case at bar'it is urged tbat tbe munitions exported may be confiscated by tbe United States, and tbat therefore a conspiracy to export them is a conspiracy to Commit an act to which a penalty is affixed. This is, to say tbe least, doubtful. -A forfeiture of goods, somewhat like tbe forfeiture of contraband in time of war, does not carry with it any personal penalty against tbe owner. He simply loses what be bas embarked in an enterprise, without becoming liable to any personal punishment. This view would seem to extend § 37 further than Congress has provided. In the Tsokas Case, Congress provided that the act complained of was a misdemeanor, although it did not affix a penalty. In the case at bar Congress has not called the act an offense in so many words.

The requirement of all legislation is that it be certain so as to be understood. Particularly is this true of criminal laws. There can be no intendment in support of the meaning of a criminal statute. It must denounce a crime in some definite way, or it is void for uncertainty. There is more liberality in construing acts of Congress than acts of state legislatures, because the Constitution of the United States is more general in its terms than many of the recent state Constitutions. An act of Congress of February 25, 1871, Rev. Stat. §§ 8 — 11, Comp. Stat. 1916, §§ 8 — 11, lays down some general rules as to the foi’m, but beyond the general expression in art. 1, § 1, of the Constitution, that “all legislative powers herein granted shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives,” and the prohibitions in the first eight amendments, there are few detailed regulations found in the Constitution. Penal statutes must be strictly construed.

It follows that the demurrer must be sustained, and it is so ordered.  