The opinion
*371 DONALD RUSSELL, Circuit Judge
(dissenting):
Selective Service Regulations explicitly command all registrants to have in their possession at all times their classification card. 1 The authority to issue such Regulations is specifically conferred in Section 10(b) of the Selective Service Act of 1948, later codified as Section 460 (b)(1), 50 App.U.S.C., 1970, which vested the President with the power “to prescribe the necessary rules and regulations to carry out the provisions of this title.” 2 Section 12(b) of that Act, later codified as Section 462(b), 50 App.U. S.C., 1970, provides that a violation of any regulation so issued may be punishable as a crime.
The defendant admittedly violated the Regulation with reference to the possession of his classification card. Indeed, he violated it intentionally, purposefully, even defiantly. For such defiant and intentional violation he was prosecuted and convicted.
The majority opinion reverses his conviction arising out of such defiant violation. I dissent.
The majority opinion posited its reversal largely on the conclusion that Congress never intended, by enacting the statutory authorization under which the prosecution was had, to authorize prosecution under a regulation for non-possession of a classification card, where some element of fraud was not a part of the offense. It arrives at this conclusion by finding that, though § 462(b) (6), which is the section under which the prosecution was had, makes no reference whatsoever to fraud but provides simply that any violation of a regulation promulgated under “any of the provisions of this title" is punishable, fraud must be read into it as an essential element of any regulation that would support a prosecution thereunder. It justifies this result by reasoning that, since the five specific offenses earlier listed in § 462(b) include, by express language, an element of fraud, subdivision (b)(6) must be read as requiring likewise fraud as an essential element of the crime provided thereunder, even though, as I have said, there is absolutely no language in subdivision (b)(6) to support this construction. The opinion passes over without comment that subdivision (b)(6) is detached from the preceding five parts of § 462(b) by the disjunctive “or”, which, under normal rules of statutory construction, “indicates alternative circumstances” and is “intended to identify and define a wholly separate and distinct offense * * *.” Adolfson v. United States (9th Cir. 1947) 159 F.2d 883, 886 , cert. denied 331 U.S. 818 , 67 S.Ct. 1307 , 91 L.Ed. 1836 , Barkdoll v. United States (9th Cir. 1945) 147 F.2d 617, 618 . Contrary to the view of the majority opinion that subsection (b)(6) is merely a “catch-all” to authorize regulations providing for punishment involving some element of fraud similar to the other parts of subsection (b), the language of (6) makes it clear that the regulation, the violation of which was made punishable by (6), was not narrowly confined in character by the preceding parts of (b) but was as broad and as inclusive as “the provisions of this title.” And “title”, a term repeatedly used throughout the Act, 3 had a very definite application; it covered all the provisions of the Act. It was not limited to the fraudulent aspect of the preceding parts of (b) but embraced all the other parts of the Act, including § 462(a). This is conclusively established by the use of the term “title,” repeatedly in other provisions. Thus, in the very section which vests the President with the power to prescribe regulations, the Act provides that such *372 power extends to any rules and regulations “necessary * * * to carry out the provisions of this title.” That is the scope of the regulations, the violation of which may be punishable under § 462(b)(6), with one limitation stated in (6) itself and that is that any such regulation must relate to “the issuance, transfer, or possession of such certificate.” This regulation met that test: it did relate to possession and it was issued under the power of the-President to issue regulations “necessary * * * to carry out the provisions of this title.”
That (b)(6) is not restricted by the preceding parts of (b) in the type of regulation thereby made punishable finds additional support in the “editorial assistance” attached to the section. Thus, after the provision of the section authorizing punishment for a violation of any regulation promulgated under “any of the provisions of this title,” the editors in the official code have added in brackets “said sections.” This term, “said sections,” refers back to an earlier use of the term, “provisions of this title,” which the editors, in brackets, then identified as “sections 451, 453, 454, 455, 456 and 458-471 of this Appendix,” in other words, the requirements of the Act as a whole.
To sum up this phase of the matter: Subsection (b) (6) does not by its terms or by implication limit the power to punish thereunder for a violation of a regulation that involves an element of fraud but, on the contrary, expressly authorizes punishment for a violation of any regulation issued under the general authority to prescribe regulations if the regulation relates, among other things, to “possession” of a registrant’s classification card.
And I find nothing in the legislative history cited in the majority opinion that will give support to the forced construction adopted. There was nothing really new in subsection (b)(6). With little variation in language, it had been a part of every Selective Service Act enacted over the years since 1917. It appeared as Section 6 of the 1917 Act and Section 11 of the 1940 Act and was in the House bill as the initial sentence in' Section 11. It was repeated in both Sections 12(a) and (b)(6), and prosecution may be had under either. See, United States v. Demangone (3rd Cir. 1972) 456 F.2d 807, 811 , cert. denied 407 U.S. 914 , 92 S.Ct. 2435 , 32 L.Ed.2d 689 . However, the first five parts of § 462(b) were new and were added, as the Conference Report states, in the Senate. It is normal legislative procedure to indicate in the Conference Report any new sentences or terms that may have been added by the Senate to a bill originating in the House. There is, of course, no necessity to point out terms or provisions that are not new. I find, therefore, no significance in the absence of any reference to subsection (b)(6) or any reference to Regulations promulgated thereunder by the Selective Service Director in the Conference Report on Section 462 (b). Certainly, the scanty reference to subsection (b)(6) in the Conference Report will not justify giving to that provision a meaning and a construction that does not accord with its plain language or that would give to the term “this title” a different meaning from that in which that term is used throughout the Act.
The majority opinion, it is true, does not entirely predicate its conclusions on a construction of the statute itself but would find that the intent of the regulation in its requirement of possession by the registrant of his classification card at all times was that its requirement was “directory” rather than “mandatory” and without punitive purposes. It is difficult to understand how such intent can rationally be assumed in the light of the fact that, since 1945, at least, there have been repeated prosecutions of registrants for nonpossession under the provision. Such action is a convincing answer to this assumption in the majority opinion. See, also, United States v. Couming (1st Cir. 1971) 445 F.2d 555, 556 , cert. denied 404 U.S. 949 , 92 S.Ct. 291 , 30 L.Ed.2d 266 .
*373 This conclusion of mine is in accord with the decisions of the other Circuits which have considered the issue. In an unbroken line of decisions stretching back to 1945, federal courts, without a single dissenting voice, have consistently-held that a violation of this regulation or one similar to it, and having similar statutory basis, requiring the registrant to have on his person at all times his registration card, was punishable as a crime. 4 No one of those decisions found any invalidity in the regulation or want of authority in the enabling provisions as expressed in (6), or in earlier provisions of the preceding Acts. In one of these decisions, the Court meticulously analyzed -the points made in the majority opinion favoring invalidity of the very regulation involved here, including Professor Dranitzke’s thesis, and concluded that the Regulation was valid and would support a conviction. United States v. Couming, supra. On at least three occasions the Supreme Court had an opportunity to correct that construction of such a regulation and its supporting statutory authority if it deemed that construction incorrect. 5 It did not do so. 6 It is significant that one of those decisions in which the Supreme Court refused certiorari, was the one which had dismissed as without merit the very considerations on which the majority opinion largely bases its conclusions. United States v. Couming, supra. It is even more significant that Professor Dra-nitzke, in the article which the majority opinion cites as support for its conclusion, concedes: “(A)nd United States v. O’Brien, the only Supreme Court case near point, states ‘we are not concerned here with the nonpossession regulations * * *.’ Yet it should be noted that the Court does imply that nonpossession is punishable as a felony.” 1 SSLR 4034.
Since 1940, scores of individuals have been indicted, convicted and imprisoned for violation of this regulation or one substantially like it based on earlier legislation having a provision similar to 462(b)(6). In the period between 1940 and 1946, there were 189 convictions relating to possession of a registration certificate and 70 convictions relating to possession of notice of classification. 7 It is quite likely that violations and prosecutions accelerated during the Korean and Viet-Nam involvements. If these prosecutions were, as the majority opinion finds, based on an erroneous construction of executive power never authorized or intended by Congress, it is inconceivable that Congress would have stood silently by, permitting the executive by such a misuse of Congressional *374 authority, to convict and imprison scores of citizens over a period of more than three decades. To conceive otherwise is to suggest that Congress was either ignorant of how its laws were being executed or was crassly indifferent to a flagrant and long-continued misuse of its authorizations by the executive department. Such an assumption is, in my judgement, unwarranted. Congress could not have been ignorant of the power exercised by the executive department and it has never shown itself to be indifferent to any misuse of its authorizations by the executive department. Congressional acquiescence in a judicial construction of legislation, consistently followed for more than thirty years, thus hardly justifies the conclusion that this construction is contrary to Congressional intent.
Nor should the construction of Section 462 as authorizing the regulation in question have been unanticipated by Congress or deemed unapproved by it. The Act of 1948 drew upon the Selective Service Act of 1917, 40 Stat. 76 . That Act was found to support a regulation requiring every registrant to have “always in his personal possession his registration certificate” and criminal prosecution for a violation of such a regulation had been upheld. United States v. Olson (D.C.Wash.1917) 253 F. 233, 234 . It would seem safe to assume that Congress, in enacting the similar Acts in 1940 8 and 1948 9 knew of and foresaw that the Selective Service System would issue a similar regulation under the new Acts, and thereby approved by implication the issuance of such a regulation. See, District of Columbia v. Johnson & Wimsatt (1947) 82 U.S.App.D.C. 81 , 160 F.2d 913 , cert. denied 332 U.S. 760 , 68 S.Ct. 63 , 92 L.Ed. 346 ; City of Burlington v. Turner (D.C. Iowa 1972) 336 F. Supp. 594 .
In the face of these compelling considerations, I cannot agree to the belated discovery that this regulation of the Selective Service System was issued in defiance of Congressional intent or that such regulation was not intended to have punitive consequences, and that all the convictions for violations of the regulation occurring over the last thirty years, approved by the Courts and acquiesced in by Congress, were invalid.
I would affirm the conviction.
. Selective Service Regulations, 32 C.P.R. § 1623.5.
. See, U.S.Code Congressional Service, 80th Congress, 2nd Sess. at 632.
The majority opinion in its discussion, goes back to the 1948 Act itself. I have done so, too; and subsequent references are generally to that Act, unless otherwise stated.
. See Section 1(d) Section 4(a) and the very title of the Act of 1948, in all of which the term “this title,” in fixing the scope of the section, was used.
. The cases to this effect are cited in note 3 of the majority opinion. To these should be added United States v. Minder (D.C.Cal.1945) 63 F.Supp. 369 , aff. per curiam, 157 F.2d 856 ; Wills v. United States (9th Cir. 1967) 384 F.2d 943, 946 , cert. denied 392 U.S. 908 , 88 S.Ct. 2052 , 20 L.Ed.2d 1366 , reh. denied 393 U.S. 898 , 89 S.Ct. 66 , 21 L.Ed.2d 185 ; United States v. Smith (D.C.Iowa 1966) 249 F.Supp. 515, 518 , aff. 368 F.2d 529 .
. It has, of course, been often stated that a a denial of certiorari “imports no expression of opinion upon the merits of the case” United States v. Carver (1923) 260 U.S. 482, 490 , 43 S.Ct. 181, 182 , 67 L.Ed. 361 , but merely that “not four members of the Court [who] thought the case should be heard,” Brown v. Allen (1953) 344 U.S. 443, 492 , 73 S.Ct. 397, 439 , 97 L.Ed. 469 , reh. denied, 345 U.S. 946 , 73 S.Ct. 827 , 97 L.Ed. 1370 (Justice Frankfurter’s opinion), yet the fact remains, as Justice Jackson so trenchantly expressed it in his concurring opinion in Brown v. Allen, 344 U.S. at 543 , 73 S.Ct. at 428 that, “ [Lawyers and lower judges will not readily believe that Justices of this Court are taking the trouble to signal a meaningless division of opinion about a meaningless act. It is just one of the facts of life that today every lower court does attach importance to denials [of certiorari] and to presence or absence of dissents from denials, as judicial opinions and lawyers’ arguments show.” See, also, Shapiro v. King (D.C.Mo.1941) 38 F.Supp. 33, 35 , aff’d. 125 F.2d 890 .
. United States v. Kime (7th Cir. 1951) 188 F.2d 677 , cert. denied 342 U.S. 823 , 72 S.Ct. 41 , 96 L.Ed. 622 ; Zigmond v. Selective Service Local Board No. 16 (1st Cir. 1968) 396 F.2d 290 , cert. denied 391 U.S. 930 , 88 S.Ct. 1831 , 20 L.Ed. 851 ; United States v. Couming, supra ( 445 F.2d 555 ).
. Selective Service System Special Monograph No. 14 at 89.
. 54 Stat. 885 .
. 62 Stat. 622 .