The opinion
POPE, Circuit Judge
(concurring specially).
I agree that the judgment must be reversed and the information ordered dismissed. Of course Congress might have withdrawn from this Court all jurisdiction to entertain the appeal here, Ex Parte McCardle, 7 Wall. 506 , 19 L.Ed. 264 ; National Exchange Bank of Baltimore v. Peters, 144 U.S. 570 , 12 S.Ct. 767 , 36 L.Ed. 545 , but § 3 of the Act of August 27, 1954, quoted in Judge Denman’s opinion, does not purport to do that. This Court still has jurisdiction to hear the appeal but under § 3 it cannot set aside the conviction on the ground there named; — we may hear the appeal but we may not reverse on the ground that defendant was not indicted by grand jury.
I agree that that provision is invalid either because Congress has “passed the limit which separates the legislative from the judicial power”, under the rule of United States v. Klein, 13 Wall. 128, 147 , 20 L.Ed. 519 , or because, since the enactment operates to inflict punishment, it must be held to be a bill of attainder. I agree that the constitutional prohibition in Article I, § 9, Clause 3, relating to bills of attainder and ex post facto laws extends to the acts of Congress relating to the Island of Guam.
I do not express any opinion with respect to that part of Judge Denman’s opinion in which he concludes that the amendment of the Organic Act of Guam is invalid as an ex post facto law. If hereafter Putty or some other person charged with the commission of an offense prior to the date of the amendatory enactment is prosecuted under the Amendatory Act it will be time enough to decide that question. It is a question not without difficulty but it is one upon which the Supreme Court has never expressed any opinion. Kring v. State of Missouri, 107 U.S. 221 , 28 S.Ct. 443 , upon which Judge Denman’s opinion seems to lean most heavily, was a very different case upon its facts for there a perfect defense to the crime of murder in the first degree which existed at the time of the commission of the crime was taken away by the new law. In the course of its opinion the Supreme Court alluded to the proposition that the distinction between laws which are ex post facto and those which are not is not to be found at the line between substantive and adjective law and that retroactive laws may not escape the constitutional condemnation merely because they regulate procedure. The court referred to what is generally regarded as the best definition of an ex post facto law, that given by Mr. Justice Washington in his charge to the jury in United States v. Hall, 26 Fed. Cas., p. 84, No. 15,285, 2 Wash.C.C. 366. It said: “We are of opinion that any law passed after the commission of an offence which, in the language of Mr. Justice Washington, in United States v. Hall, ‘in relation to that offence, or its consequences, alters the situation of a party to his disadvantage,’ is an ex post facto law.” 1
The Supreme Court was merely stating what has never been questioned, namely, that the retroactive operation of a law may be ex post facto even al *480 though it is in terms and in substance a law regulating procedure. What the Supreme Court said in the Kring case was that the test to be applied is whether a substantial right has been taken away, —the distinction lies in the difference between “substantial” and “unsubstantial” rights.
If and when it becomes necessary to pass upon that question it will be incumbent upon us to determine whether the previous right of a person in Guam to demand that prosecution should be upon a presentment or indictment of a grand jury is of such character that the substitution of prosecution by information operates, if applied retroactively, to deprive the accused of a substantial right within the meaning of the ex post facto clause as expounded in the decisions of the Supreme Court. For the determination of that question Kring v. Missouri furnishes no-help. Some decisions of the Supreme Court furnish illustrations of instances in which the retroactive application of laws prescribing new procedures in criminal prosecutions have been held not violative of this clause. 2 Some retroactive changes in procedure have been stricken down as ex post facto laws. 3 But the effect of the retroactive change from prosecution by indictment to prosecution by information is something upon which the decisions of the Supreme Court furnish no light.
The Supreme Courts of a number of States have discussed this precise question with much learning and ability and have arrived at opposite conclusions. Among the cases upholding these retroactive enactments as not violative of the ex post facto prohibition are: Lybarger v. State, 1891, 2 Wash. 552 , 27 P. 449 ; In Re Wright, 1891, 3 Wyo. 478 , 27 P. 565 , 13 L.R.A. 748 ; People v. Campbell, 1881, 59 Cal. 243 . To the contrary are: State v. Kingsley, 1891, 10 Mont. 537 , 26 P. 1066 ; Garnsey v. State, 1910, 4 Okl. Cr. 547, 112 P. 24 , 38 L.R.A.,N.S., 600; State v. Rock, 1899, 20 Utah 38 , 57 P. 532 .
Since decision of this question is not necessary in the disposition of this case, I prefer to abide by the rule of most courts: never decide today what can be put off until tomorrow.
. “ * * * an ex post facto law is one which, in its operation, makes that criminal which was not so at the time the action was performed; or which increases the punishment, or, in short, which, in relation to the offence or its consequences, alters the situation of a party to his disadvantage.” United States v. Hall, 26 Fed.Cas., p. 84, No. 15,285, 2 Wash.C.C. 366.
. Beazell v. State of Ohio, 269 U.S. 167 , 46 S.Ct. 68 , 70 L.Ed. 216 ; Gibson v. State of Mississippi, 162 U.S. 565 , 16 S.Ct. 904 , 40 L.Ed. 1075 ; Hopt v. People of Territory of Utah, 110 U.S. 574 , 4 S.Ct. 202 , 28 L.Ed. 262 ; Thompson v. State of Missouri, 171 U.S. 380 , 18 S.Ct. 922 , 43 L.Ed. 204 ; Mallett v. State of North Carolina, 181 U.S. 589 , 21 S.Ct. 730 , 45 L.Ed. 1015; this last case is difficult to reconcile on the facts with Kring v. Missouri, supra, Duncan v. State of Missouri, 152 U.S. 377 , 14 S.Ct. 570 , 38 L.Ed. 485 ; Gut v. State, 9 Wall. 35 , 19 L.Ed. 573 .
. Thompson v. State of Missouri, 171 U.S. 380 , 18 S.Ct. 922 , 43 L.Ed. 204 ; American Publishing Co. v. Fisher, 166 U.S. 464 , 17 S.Ct. 618 , 41 L.Ed. 1079 .