Brief of Appellants — United States v. Curtiss-Wright Export Corp.

7

, Page

Oninions below... ... 4246000640055 hee 2.5) eneeneeee 1

Farindiction .. ... ....«2h.s<ss50000608 408 1

Question presented . 1. . ..,, =. ......0-000-nseeccsenseee sae 2

Shatute involved... .\. .<16c<.2s0s8eeeee eee 2

Biatomont .... ... . «2.2. -050s00cccennsuus teense 3

Specification of errors to be urged__-.-.------------...- 4

Summary of arqgumecs..... ....«<ssanscntaeeee err ameaia 6

Argument:

I. The joint resolution of May 28, 1934, does not consti-

tute an unconstitutional delegation of legislative

power to the President... ....2...4..:..5ssssseeueuen 7

II.. The other grounds urged below in support of the de-

. murrer are without merit: ...... 2.00. =-ebesesue 18

Conclusiom¢. ... .. 2... 0.«002<sse0nen emule 25

Appendix... .. . .....02<620006556055 5050 26

CITATIONS

Cases: ;

Aurora, The, 7 Cranch 382. -__-_---- 2S oe 15

Dakota Central Tel. Co. v. South Dakota, 250 U. 8. 163... 23

Douglas v. Noble, 261 U. BS. 165... ...-. 2.22220 12

Federal Radio Commission v. Nelson nat Co. ., 289 U.

DOB... inns cnsvacecee eee dininedene cn 14, 19

Field v. Clark, 143 U. &. 649. ..........---.-...-. _ 6, 8, 13,19

Hampton & Co. v. United States, 276.U. S. 394__-..... 6, 12, 14

Irresistible, Whe, 7 Wheat. 551 __...----------- a caieetaceel 25

Jacobson v. Massachusetts, 197 U.®. 11_____---------.-- 12

Knowlton v. Moore, 178 U.S. 41.----2---------- 8

Knozville v. Knoxville Water Co., 212 U.S. b----- 18

Longres v. Green, 282 U.S. MAS i, eee kee 22

Louisville & Nashville R. R. Co. v.. Garrett, 231 U.S. 298-- 18

Mahler v. Eby, 264 U. 8. 82... 22. 0.52-.00+--epes 14, 23

Martin v. Mott, 12‘Wheat. 19._....------------ preeeiee 23

Myers v. United States, 272-.U. 8. §2.....4...----cccccee 8

Mutual Film Corp. v. Ohio Industrial Commission, 236 U.8

y | ny ier rere rn 14

New York Central Recuriiien Ce. v. United States, 287 U.S.

P | > mm . 14,19

Pacific States Box & Baskct Co. v. White, 296 U.S. 176... .

101014—36——1__ (1) :

23

II

Ceses—Continued. _ Page

“Panama Refining Co. v. Ryan, 293 U. S. 388_ 8, 10, 14, 16, 19, 23

Philadelphia & Trenton R. R. Co. v. Stimpson, 14 Pet. 448. 23

Reagan v. Farmers’ Loan and Trust Co., 154 U. 8. 362___- 18

Schechter Corp. v. United States, 295 U. S. 495_._-~--- ~ 10, 16,19

Tagg Bros. v. United States, 280 U. S. 420_..........---- 14

Talbott v. United States, 208 Fed. 144, certiorari denied, 232

Dy Uk Dvaccassapdaokebesemeddksnosunentabdesian 16

Union Bridge Co. v. United States, 204 U. S. 364......... 14,19

United States v. Bitty, 208 U. 8. 393............--.-.---- 21

United States v. Chambers, 291 U: 8. 217__......-.-.---- 25

‘United States v. Chavez, 228 U. S. §525.............-.-.. 15

United States v. Chemical Foundation, 272 U. 8. 1__--- 11, 12, 14

United States v. Grimaud, 220 U. 8. 506................. 14,19

United States v. Heinze, 218 U. 8. 532.........--------- 21

United States v. Keitel, 211'U. 8. 370_........---------- 21

United States v. Kissel, 218 U. 8. 601_.........--------- 22

. United States v. Lexington Mill & Elevator Co., 232 U.S.

Tbntcdkdtichidenbadsbdapainabbindénamadgnbne 18

United States v. Lucas, 6 F. (2d) 327...............-.-- 16

United States v. Mason, 213 U. 8. 115. .......-...---.---- 22

United States v. Mesa, 228 U.S. 533... ........-....--- 15

United States v. Mescall, 215 U. 8. 26.....-------------- _ 22

United States v. Midwest Oil Co., 236 U. 8S. 459_-__..---- 8

United States v. Sanges, 144 U. 8. 310_._........-------- 21

United States v. Stevenson, 215 U. 8. 190_-.-.--.----- ae 21

United States v. Tynen, 11 Wall. 88...........-.-.------ 25

Williams v., United States, 289 U. 8. 553. -........--.--- 8

Yeaton v. United States, § Cranch 281_._.......-------- 25

Statutes:

Act of April 18, 1794 (1 Stat. 401)___...-...-------- ete 7

Act of June 4, 1794 (c. 41, 1 Stat. 372). ...........---.- 7

Act of October 1, 1890, Sec. 3 (26 Stat. 567)_.--._.----- 12

Criminal Appeals Act of March 2, 1907 (34 Stat. 1246)... 2, 20

Joint Resolution of March 26, 1794 (1 Stat. 400)_______- 7

- Joint Resolution of April 22, 1898 (30 Stat. 739) _...----- 9

Joint Resolution of March 14, 1912 (37 Stat. 630) _____-- 9

Joint Resolation of January 31, 1922 (42 Stat. 361) (U.S.C.,

eh cincnancantsneceseestbboones 9

Joint Resolution of May 28, 1934 (48 Stat. 811)__.___-- 2,10

Revised Statutes, Sec. 13 (U. S. C., Title 1, See. 29) --- ~~ 25

Tariff Act of 1922, Sec. 315, Title III (42 Stat. 858)__-__- 13

United States Code, Title En) Mcnkaadeamnindeas ' 9

Miscellaneous:

The Chaco Arms Embargo, Report of American Committee

in Geneva to the Senate Committee Investigating the

Munitions Industry, 74th Cong., 2d Sess_._.......---- 24

Hearings on H. R. 8430, 73d Cong., 2d Sess., pp. 72-76_- 14

House Report No. 2119; 59th Cong., Ist Sess. _....----,. 21

Miscellaneous—Continued. Page

House Report No. 8113, 59th Cong., 2d Sess -----..---- 21

Making the Tariff in the United States, T. W. Page ------- 14

The President’s Control of the Tariff (1936), John Day

Ee PR ae ee ee 14

Proclamations of—

October 14, 1905 (34 Stat. 3183).........----------

March 14, 1912, (37 Stat. 1733).........-.----------

October 19, 1915, (39 Stat. 1756) _........--.-------

July 12, 1919, 41 Stat. 1762.........-.....--..----

March 4, 1922, 42 Stat. 2264............---.------

January 7, 1924, 43 Stat. 1934..........--------- a

March 22, 1924, 43 Stat. 1942.........------------

May 2, 1924, 43 Stat. 1946.........---------------

May 15, 1924, 43 Stat. 1950.........--------------

September 15, 1926, 44 Stat. 2625----..-----------

October 22, 1930, 46 Stat. 3036-_....-.--.-- ecccecess

June 29, 1934, 49 Stat. Proc. 1. -....-..------------

May 28, 1934, 48 Stat. 1744-45_.......------------

November 14, 1935, No. 2147. .--..-.--------------- 24, 2

Report of Special Committee of the Senate on Investiga-

tion of the Munition Industry, 8. Rep. No. 944, Part 2,

oovovovevrovoooom

ow

Fite Game... ab Gath... ccctccocccccpcccccccccccccs 14

Senate Report No. 3922, 59th Cane. {a 21

Senate Report No. 1153, 73d Cong., 2d Sess... -.-------- 24

A Tariff Commission at Work, W. H. Wynne, Journal of

Canadian Bankers’ Association, Vol. 33 (January and

July 1036) ........-- i ccacitadindecaiabnbanmesasenaiinthatiaamesdnindiate 14 .

u

%

Guthe Supreme Court of the nited States

OcroBer TERM, 1936

No. 98

THE UNTRED STATES OF AMERICA, APPELLANT

| Vv.

Curtiss-Wright Export CorroraTION, CURTISS

AEROPLANE & Motor Company, INc., BARR SHIP-

PING CORPORATION, JOHN S. ALLARD, SAMUEL J.

ABELOW, AND RoBERT R. BARR, APPELLEES

ON APPEAL FROM THE DISTRICT COURT OF THE UNITED

STATES FOR THE SOUTHERN DISTRICT OF NEW YORK

BRIEF FOR THE UNITED STATES

OPINIONS BELOW °.

The District Court filed an opinion sustaining a

demurrer to the indictment on March 25, 1936

(R.:11). After reargument the court filed a smp-

plemental opinion on April 6, 1936 (R. 23). These

opinions are reported in 14 F, Supp. 230.

‘ : *

JURISDICTION

s]

The judgment of the District Court was entered

on April 20, 1936 (R. 26). The appeal was

prayed and allowed on May 5, 1936 (R. 27, 29).

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.

The jurisdiction to review the judgment com-

plained of, by direct appeal, is conferred by the

Criminal Appeals Act of March 2, 1907, 34 Stat.

1246 (U.S. C., Title 18, See. 682).

Probable jur isdiction was noted by this Court on

October 12, 1936.

QUESTION PRESENTED

Whether the District Court erred in sustaining

a demurrer to the first count of the indictment

which charges a conspiracy to violate the Joint

Resolution of the Congress of the United States

entitled ‘‘Joint Resolution To prohibit the sale of

arms and munitions of war.in the United States

under certain conditions”, approved May 28, 1934

(48 Stat. 811), and the Presidential Proclamation

4 issued thereunder on May 28, 1934 (48 Stat. 1744

: 45), on the ground that the Joint Resolution consti-

tutes an improper delegation of legislative power

to the President.

STATUTE INYOLVED

_ The Joint Resolution of May 28, 1934 (¢. 365, 48

Stat. 811), is as follows:

JOINT RESOLUTION ”

To prohibit the sale of arms or munitions

of war in the United States under cer-

tain conditions

Resolved by the Senate and, House of

Representatives of the United States of

America in Congress assembled, That if the

Seo__ Sg ati 2S inte LAR Nn RS RL tilt cit ci al NS Roi Na aN 2 cea

*

°

3

_ President finds that the prohibition of the:

sale of arms and munitions of war in the

United States to those countries now en-

gaged in armed conflict in the Chaco may

contribute to the reestablishment of peace

between those countries, and if after con-

sultation with the governments of other _

American Republics and with their coopera-

tion, as well as that of such other govern-

ments as he may deem necessary, he makes

‘proclamation to that effect, it shall be un-

lawful to sell, except under such limitatrons

and exceptions as the President prescribes,

any arms or munitions of war in any place

in the United States to the countries now

engaged in that armed conflict, or to any

person, company, or association acting in

the interest of either country, until other-

wise ordered by the President or by Con-

egress. |

Src. 2. Whoever sells any arms or muni-

tions of war in violation of section 1 shall,

on conviction, be punished by a fine not

exceeding $10,000 or by imprisonment not

exceeding two years, or both.

Approved, May 28, 1934.

The two proclamations issued under this ae

lution are set forth “in the Appendix, infra, pp.

27-31.

STATEMENT .

On January 27, 1936, the defendants were in-

dicted in the United States District Court for the

Southern District of New York (R. 3). The

see gene

wns

in ich A te ani 0a BABA ae pig AIL Ml PA SS Ea tit ia ga A hin td LO oe aay

indictment is in two separate counts. The first

count, which is the only one here involved, charges

that the defendants conspired to sell in the United

States fifteen machine guns to Bolivia, one of the

countries engaged in armed contlict in the Chaco,

in violation of the Joint Resolution and the Presi-

dential Proclamation of May 28, 1934 (R.3),

The defendants demurred to this first count (R.

6-9). The District Court, by a judgment dated

April 18, 1936, and entered April 20, 1936 (R. 20),

sustained the demurrer. The judgment of‘the court

was based upon the ground that the Joint Resolu-

tion constituted an improper delegation of legis-

lative power to the } »sident. The court also

considered whether the executive, in issuing his

proclamation, had met the requirements laid upon

him by the terms of the Joint Resolution, and also

whether prosecution for the alleged offenses could

properly be instituted after the effective date of

the second proclamation, dated November 14, 1935

(infra, p. 28), revoking the first. Both of these

questions were resolved against the defendants.

SPECIFICATIONS OF ERRORS TO BE URGED

1. The District Court committed material error

: against plaintiff in sustaining the demurrers of the

defendants Curtiss-Wright Export Corporation,

Curtiss Aeroplane & Motor Company, Inc., Barr

Shipping Corporation, John 8. Allard, Clarence

W. Webster, Samuel J. Abelow, and Robert R.

Barr, to the first count of the indictment.

9. The District Court committed material error

against appellant in sustaining said demurrers in

holding that the Joint Resolution of May 28, 1934

Si Stat. 811), was ‘invalid. ;

3. The District Court committed material error

ae appellant in sustaining said demurrers in

holding that the Presidential Proclamation of May

28, 1934 (48 Stat. 1744-45), made pursuant to the

said Joint Resolution of May 28, 1934, was invalid.

4. The District Court committed material error

against appellant in sustaining said demurrers in

holding that the Joint Resolution of May 28, 1934,

did not accomplish a valid delegation of. legisla-

tive power to the President of the United States.

5. The District Court committed material error

against appellant in sustaining said demurrers in |

holding that the said Joint Resolution of May 28,

1934, was an unconstitutional delegation by Con-

gress of legislative power to the President of the

United States.

6. The District, Court committed ee error

against appellant in sustaining said. demurrers in

Molding that the said Joint Resolution of May 28,

1934, embodied such an attempted abdication of

legislative responsibility as to deprive it. of consti-

tional validity.

7. The District Court committed mated: error

‘against appellant in sustaining said demurrers in

holding that the said Joint Resolution of May 28,

e“

1934, was unconstitutional.

101014—36

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SUMMARY OF ARGUMENT

The Joint Resolution of May 28, 1934, does not

constitute an unconstitutional delegation of legis-

lative power to the President. From the beginning

of the government similar delegations of power

have been made in the field of foreign relations,

Moreover, it meets the requirements for a proper

delegation which hes been laid down in the most

recent cases. The policy of Congress is clearly

stated, the standards are simple and definite, and a

finding by the President is required. Clearly the

present case is controlled by the decisions in Hamp-

ton & Co. v. United States, 276 U.S. 394, and Field

v. Clark, 143 U.S. 649, both of which were likewise

concerned with the conduct of foreign relations.

There is no merit in the defendanf’s claim that the

President is required to make simply an estimate

of the future efficacy of the law. The argument

rests upon a misconstruction of the Resolution,

and, in any event, it is inconsistent with many

decisions of this Court. .

II

The two other grounds urged below by defend-

ants in support of the demurrer, and overruled by

the District Court, are not properly before this

Court under the Criminal Appeals Act. In any

event, they are without merit. By his proclama-

tion the President clearly complied with every re-

quirement of the Joint Resolution, making all find-

ings of fact necessary. Nor did the proclamation

~

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-

of Nov ember 14, 1935, revoking the former procla-

mation, terminate liability for offenses committed

prior to the revocation. The prosecution is au-

thorized by the Resolution, which has not been

repealed: Moreover, even if the proclamation can

be considered as a repeal of the Resolution, the

prosecution is authorized by R. S. Section 13.

ARGUMENT

I

THE JOINT RESOLUTION OF MAY 28, 1934, DOES NOT

CONSTITUTE AN UNCONSTITUTIONAL DELEGATION OF

LEGISLATIVE POWER TO THE PRESIDENT

A. HISTORICAL REVIEW OF CONGRESSIONAL RESOLUTION ON

FOREIGN RELATIONS

From the beginning of the government, in the

conduct of our foreign relations, Congress has fol-

lowed the practice of conferring upon the Presi-

dent power similar to that conferred by the present

Resolution. As early as March 26, 1794, embargoes

were laid upon vessels in ports of the United States

bound for foreign ports. 1 Stat. 400. See also Act

of April 18, 1794, 1 Stat. 401. In that same year

Congress first adopted the device of imposing upon

the President the duty of determining when condi- —

tions had arisen requiring that an embargo should

be applied. By the Act of June 4, 1794 (e. 41, 1

Stat. 372), authority was delegated to the Presi-

dent to lay an embargo, enforced by appropriate

regulations, upon all ships in the ports of the

United States whenever, in his opinion, ‘‘the public

safety shall so require’. This precedent, it is to be

noted, was adopted while many members of thie

Constitutional Convention sat in Congress.’ That

during the ensuing one hundred and forty years

Congress has consistently entrusted the President

With similar powers in a field ‘“‘cognate to the con-

duct by him of the foreign relations of the Govern-

ment’’,” is Convincing evidence that the practice

and acquiescence under it for so long a time reflect

a valid exercise of legislative authority. United

States v. Midwest Oil Co., 236 U.'S. 459, 472-473;

Field vy. Clark, 143 U.S. 649, 691.

While the Joint Resolution here in question is a

direct outgrowth of the early embargo Acts, it is

also substantially identical with a series of more re-

cent Congressional enactments which have occupied

an important place in our foreign policy. The Joint

Resolution of March 14, 1912 (37 Stat. 630), pro- -

vided for embargoes, with such exceptions as the

President should prescribe, upon the exportation

of arms or amrmhunition ‘‘whenever the President

shall find that in any American country conditions

of domestic violence exist which are promoted by

*It has frequently been pointed out that a contempora-

neous legislative exposition of the Constitution, when its

framers were actively participating in public -affairs, is of

zreat weight in determining its proper construction. J/ yers

v. United States, 272 U. S. 52, 175; Williams v.- United

States, 289 U. S. 553, 573-574; ‘Hnowlton v. Moore, 178

U.S. 41, 56. :

*See Panama Refining Co. v. Ryan, 293 U. S. 388, 422—

425. where the statutory -references and “citations to perti-

nent Presidential proclamations are collected.

ra

ae

the use of arms or munitions of war procured from —

the United States.”’* By an amendment of 1922

(Joint Resolution of January: 31, 1922; 42 Stat.

361) the resolution was amended to include, in ad-

dition, ‘‘any’ country in which the United States

exercises extraterritorial jurisdiction’, and the

President’s authority was broadened by authoriz-

ing him to include cases where conditions of domes-

tie violence ‘‘are or may be’’ promoted by the use

of munitions procured.from the United States. As

so amended, it is still in effect (U. 8. C., Title 22,

Sees. 236-237). Under its provisions procla-

mations have been issued prohibiting. shipments

of arms to, Mexico (March 14, 1912, 37 Stat.

*” 1733; October 19, 1915, 39 Stat. 1756; July

-12, 1919, 41 Stat. 1762; and January 7, 1924,

43 Stat. 1934); to China (March 4, 1922, 42

Stat. 2264) ; to Honduras (March 22, 1924, 43 Stat.

1942; see also proclamation of May 15, 1924, 43

Stat. 1950); to Cuba (May 2, 1924, 43 Stat. 1946;

June 29, 1934, 49 Stat. Proe. 1); to Nicaragua

(September 15, 1926, 44 Stat.'2625) ; and to Brazil

(October 22, 1930, 46 Stat. 3036).

’ This resolution was an amendment of the Joint Resolu-

tion of Abril 22, 1898 (30 Stat. 739), which, probably as a

conservation measure, authorized the President, “in his dis-

cretion, * * * to prohibit the export of coal or other

material used in war * * *.” A proclamation of Octo-

ber 14, 1905 (34 Stat. 3183), under this resolution, prohib-

ited exportation of war “material to Porto Rico and the

Dominican Republic.

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-

10

B. THE JOINT RESOLUTION IS CLEARLY SUSTAINED By

THE DECISION OF THIS COURT

An analysis of the Joint Resolution of May 28,

1934 (supra, pp. 2-3) shows that the power which .

it delegates to the President is less than that which

has been approved in many previous decisions of

this Court. : :

The Resolution (48 Stat. 811) prohibits (except

under exceptions to be prescribed by the President,

as to which no question has been raised), the sale

of arms or munitions of war in the United States

to those countries in conflict in the Chaco, if the

President finds that such prohibition ‘“‘may con-

tribute to the reestablishment of peace between

\ those countries’’, “‘and if after consultation with

the governments of other American Republies and

with their cooperation, as well as that of such other

governments as he may deem necessary, he makes

proclamation to that effect.” The Resolution

meets every test which this Court has established

as requisites to a proper delegation of power. The

Congressional policy is clearly declared, the stand-

ard ‘is adequately defined, and a finding by the

: President is required in the exercise of his au-

thority to enact the prohibition. See Panama Re-

fining Co. v. Ryan, 293 U. 8S. 388, 415; Schechter

Corp. v. United States, 295 U. 8. 495, 530. °

Congress has clearly stated its policy; it wished

to give the aid of the United States in reestablish-

ing peace between the belligerents in the Chaco.

< eee Phe ~

:

'

>

Congress has set up a definite standard upon wltich

the President is to base his action: hé must find

that the prohibition of the sale of arms and muni-

tions of war in the United States to the Chaco

combatants may contribute to the reestablishment

of peace between those countries.

The fact to be found by the President—whether .

prohibition of the sale of drms in this country may

contribute to the reestablishment of peace in the

Chaco—is not, as defendants have contended, a

vague matter of opinion merely, upon which only a

guess might be made. On the contrary, it is an

eminently practical question depending upon facts

which were peculiarly available to the President.

Cf. United States v. Chemical Foundation, 272

U.S. 1, 12. The state of the war, which might

vary widely and rapidly, the number and type of

purchases in this country by each side, and the

‘sales if no prohibition were imposed, which would

depend upon the financial condition of the bel-

ligerents, transportation facilities, and the like,

were all factors which of necessity entered into his

decision. Perhaps even more important was the

fact of cooperation, which Congress had _specifi-

cally required him to consider. This cooperation

of other countries would be not only in similarly

prohibiting sales to the combatants, but also is

making effective the prohibition in this country by

taking measures to insure.that sales would not be

12

made to their citizens of arms itinainkelg destined

for Bolivia and Paraguay.‘ |

These subsidiary questions of fact, as well as

many others which might be mentioned, eould not,

in practice, adequately have been made by Con-

gress. Cf. Hampton & Co. v. U nited States, 276

U. S. 394.- The Resolution, therefore, appro-

priately committed to the executive, in connection

with the determination of the ultimate fact of the

effect of the prohibition of sales of arms, the task

of properly evaluating the constantly changing

situation of the. belligerents and the complex and

varying attitudes of other nations as revealed by

continuous diplomatic corr respondence. Cf. [/nited

States v. Chemical Foundation, supra, at p. 12

Douglas v. Noble, 261 U. 8. 165, 169; Jacobson vy.

Massach usetts, 197 U.S. 11, 27.

In any event, the discretion is much less broad

than that allowed the executive by other statutes

which have been sustained by this Court. Section

3 of the Act of October 1, 1890 (26,Stat. 567, 612)

provided that ‘twhenever, and so often as the

‘The decision by the President as to the fact of. this

cooperation may be attacked by appellees as a further dele-

gaticn of power. Assuming, arguendo, that the Resolution

may be so construed, it is perfectly clear that this fact, which

could be ascertained by Congress only with the greatest

difficulty, and which may change rapidly from time to time,

may proper ly be left to the determination of the President.

S5 chelate SiR CRA IS WA Gh ee he RAR

| 13

President shall be satisfied’? that any. country im-

poses duties on certain products which ‘‘he may

deem to be reciprocally unequal and unreasona-

ble”, he might so proclaim and thereby suspend

the operation of certain sections of the Tariff Act.

The test there stated—‘‘reciprocally unequal and

unreasonable’’—is obviously not susceptible of

precise determination; much was left to the judg-

ment of the executive. This Court, in Field v.

Clark, 143 U. 8S. 649, held the delegation proper..

An even more striking illustration is contained

in Section 315 of Title III of the Tariff Act of 1922

(c. 356, 42 Stat. 858, 941). That section provides

that whenever the President finds, with respect to.

articles produced both here and in other countries,

‘‘that the duties fixed in this Act do not equalize

the * * * differences in costs of production in

the United States and the-principal competing

country’’, he shall determine the differences and

equalize them by changing the tariff classifications,

provided that the change in‘rates is not more than

50 per cent. Determination of foreign and domes-

tic costs of production is difficult in the extreme.

Kstimates enter largely into the calculations—esti-

mates of the value of materials, some of which have

no current market price, estimates of the amount

of plant and other capital equipment consumed in

the process of. producing a unit of goods, estimates |

of the amount of labor and capital to be allocated

101014—-36-3

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14

to each of several joint products, and the like. .

In Hampton & Co. v. United States, 276 U. 8.

394, the delegation was sustained. We submit that

the present Resolution is clearly within the stand-

ards laid down in those cascs,. See also Federal

, Radio Commission y. Nelson Bros. Co., 289 U.S.

266; New York Central Securities Co. vy. United

States, 287 U.S. 12: Tagg Bros. v. United States,

280 U.S. 420; United States v. Chemical Founda-

tion, 272.U. §. 1; Mahler y. Eby, 264 U.S. 32:

Avent v. United States, 266 U.S. 127; Mutual Film

Corp. Vv. Ohio Industrial Commission, 236 U.S.

230; United States vy. Grimaud, 220 U.S. 506 ;.

Union Bridge Co. v. United States, 204 U. S. 364.

That it is a criminal statute Which is brought into

effect by the proclamation is; of course, no ground

for objection. "Tnited States Vv. Grimaud, supra.

°A special committee of the Senate has recently found that

“costs are in the last analysis-matters of opinion and are not

susceptible of scientific determination.” Report of Special

Committee of the Senate on Investigation of the Munition

Industry, S. Rep. No. 944. Part 2. 74th Cong.. Ist Sess.. p. 6.

See especially pp. 19-24 (as to difficulties of valuation), pp.

41-36 (as to valuation difficulties in determining deprecia-

tion and similar cost items), and pp. 85-91. See also Testi-

mony of Robert L. O'Brien, Chairman of the United States

Tariff Commission, before the House Ways and Means

Committee, Hearings on H. R. 8430, 73d Congress, 2d Ses-

sion, pp. 72-76; Jobn Day Larkin, The President's Control.

of the Tariff (1936), pp. 18-29, 67-78; W. HI. Wynne, -1

Tariff Commiskion at Work, Journal of Canadian Bankers’

Association, Vol. 33 (January and July, 1926), pp. 184, 195-

197, 421, 423; T. W. Page, Making the Tariff in the United

Ntates, pp. 83-99,

- > D pacers Pima Ragt ings 4 10 «ah coh Rete ald RS Ce MS Ss wo BG Rata ithe

wes aa :

15

One further factor adds to the present signifi-

cance of Field vy. Clark and the Hampton ease.

The tariff Acts there involved, like the resolution

here, were inseparably related to the external rela-

tions of the United States. See also The Aubgra,

7 Cranch 382. The Court has recently recognized,

in reviewing the history of embargo legislation,

that the delegation of the powers confided by such

statutes to the President reflected a recognition

that it was necessary to grant to the Executive ‘an

authority which was cognate to the conduct by him

of the foreign relations of the government.’’ See

Panama Refining Co. v. Ryan, 293 U.S. 388, 422.

Even more direct authority is supplied by United

States Vv. Chavez, 228 U. 8. 525, and United States

vy. Mesa, 228 U.S. 933, in which indictments based

upon the Resolution of March 14, 1912 ° (See p. 7,

supra), were sustained. It is true that the con-

stitutional question was not raised in those cases,

but it is implicit in the decisions that the Res-

olution was ‘constitutional. This conclusion is

reinforced by the fact that in a later ease, in

which the Circuit Court of Appeals had specifi-

cally upheld the constitutionality of the Resolu-

“There is no essential difference between th~ facts to be

found by the President under the Resolution of March 14,

1912. and under the Resolution in this case. In the former

the President was given power to find that a condition of

violence was promoted by the use of arms procured in, this

country. In the latter he is given power to find the recip-

rocal fact, that the prevention of the sale of arms has power

i6 reestablish peace.

| aeons eee ae

a

caenenienenie inti it Aaah kil saan AIH tac es ; it |

16

tion, a petition for certiorari was denied by this |

Court. Lalbott v. United States, 208 Fed. 144

(C. ©. A. 5th), certiorari denied, 232 U. S. 729.

See also United States v. Lucas, 6 F, (2d) 327

‘ (W. D. Wash.).

We submit, therefore, that the present Resolu-

tion complies in every respect with the require-

ments of Panama Refining Co. vy. Ryan, 293 U. §,

388, and Schechter Corp. v. United States, 295

U.S. 495. “Moreover, an analysis of those.cases re-

veals that they provide no support for defendants’

contention. In the Panama case, supra, Section

9 (c) of the National Industria] Recovery Act was

held unconstitutional because it delegated ‘to the

President’a completely unfettered discretion. The

section stated merely that ‘“‘The President is au-

thorized to prohibit”’ the interstate or foreign ship-

“ment of oil produced in excess of state law or

regulation. As the Court stated (p. 430):

* * * Congress has declared no policy,

has established no standard, has laid down

no-rule. There is no requirement, no defi-

nition of circumstances and conditions ‘in

which the transportation is to be allowed or

prohibited, |

We have pointed out above that the Resolution -

here involved clearly indicates the ‘policy which

Congress desires to pursue, and sets up the stand-

ards which are to guide the action-of the President.

A similar comment may be made with respett to

the Schechter ease, su pra. Again the Court could

.

eta a ae ae el a Sesh

6th

17

find no adequate Standards by which the executive

was to be guided, stating (pp. 541-542) :

Section 3 of the Recovery Act

supplies no standards for any trade, indts-

try or activity.. It does not undertake to

prescribe rules of conduct to be applied to

particular states of fact determined by ap-

propriate administrative procedure. * * *

the discretion of the President * * * is

virtually unfettered.

* * *

C. THERE IS NO MERIT IN THE CLAIM THAT THE RESO-|

LUTION INVALIDLY DELEGATES THE POWER TO DETER-

MINE FUTURE EFFICACY RATHER THAN PRESENT

FACT

Defendants urge that insofar as the Resolu-

tion requires the President to find that an em-

bargo ‘‘may contribute to the reestablishment of .

peace’’, he is allowed to make simply an estimate

as to the future efficacy of the law, rather than a

finding of present facts. The word ‘‘finding’’, they’

urge, cannot properly be applied to such a determi-

nation. The objection is equally applicable to the

Joint Resolution of January 31, 1922 (on pp. 7-8),

under which the shipment of arms is prohibited

when the President finds that conditions ‘‘may”’

be promoted by the use of such arms and so makes

proclamation. Two answers may, however, be

made to the contention. ; :

First, the argument rests upon a misinterpreta-

tion of the Resolution. It does not require, in any

sense, the determination of what will be the facts

NE REY EES SE METER COEUR Ce NTI L wecaeca

18

in the future. The President must find a fact pres-

ently existing at the time of proclamation, to wit, .

Will the prohibition of the sale of arms now con-

tribute tothe reestablishment of peace in the Chheo

le now. The words “may contribute’, upon which

appellees and the lower court so strongly rely, are

perfectly consistent with this interpretation,

“Contribute” alone, ‘may obviously refer to the

present time, and “may” in the context of the

Resolution, denotes simply present power or abil-

ity or potentiality of the prohibition of the sale of.

arms to contribute to the reestablishment of peace.

See United States y. Lerington Mill & Elevator

, * ©o., 232 U.S. 399, 411.

Moreover, any. element of present determination

. of future effect which may be present in the func-

tion of the President is clearly not fatal to the

validity of the Resolution, for it is not at all un-

usual. Rate-making bodies, for example, must de-

termine not only value, Which is largely dependent

on future factors such as depreciation, obsolescence

and continuation of the utility as a going concern, —

but must also estimate the future revenue which

will result in order to determine whether the rates”

are confiseatory. Such delegations of power are,

however, commonly upheld. Louisville Nash-

ville R. R. Co. y. Garrett, 231 U.S. 298; Knoxville

Vv. Knorville Water Co., 212 U.S. 1; Reagan v.

Farmers’ Loan and Trust Co., 154 U. 8. 362.

Whether continuation of or change in the present

situation is most apt to be “in the public interest’?

Iaith BT er ty oh he i SD Coy sh il tad ad Aman

19

in the future has been held a proper basis for the

* exercise of delegated authority (see New York Cen- f

tral Securities Co. v. United States, 287 U.S. 12 é

Federal Radio Commissionv. Nelson Bros. Co., :

989 U.S. 266); and likewise what regulations are be

presently necessary for the future protection of the

public domain. United States v. Grimaud, 220

-U.8. 506. The decisions of this Court clearly es- 5

tablish that the proper test, and the only test, of —

the validity of authority vested by Congress in the

executive is the absence of a free and arbitrary dis-

cretion. Schechter ‘Corp. v. United States, 295°"

U.S. 495, 538; Panama Refining Co. v. Ryan, 293

U. S. 388, 420; Union Bridge Co. v. United States,

204 U. S. 364, 386-387; Field v. Clark, 143 U: 8. |

649, 692-693. We submit, therefore, that assign-

ment to the President of the duty of determining

whether the prohibition of the sale of arms has the

_ power to contribute to the reestablishment of peace

between the ‘Chaco belligerents is not an invalid |

mane Pgwy

RE RANTS NEO T ND ERR MRT SEND Meee RE Tt

min ay ewe,

of GOR

delegation but:rather a proper assignment, to the z

department best fitted to determine it, “4 an ordi- i

nary question of present fact. 3

II is.

THE OTHER GROUNDS URGED BELOW IN SUPPORT OF THE

DEMURRER ARE WITHOUT MERIT ;

In the District Court defendants advanced two

further contentions in support of their demurrer

to the first count of the indictment. They urged,

first, that the President, in issuing his proclama-

.'

GP wien a Tt

Berti DS AA Nee Lets Stadt AE ROR Oe a apt — cr

™ 20 2

tion, did not meet the requirements imposed upon

him by the Resolution, and that consequently the

_ proclamation did not bring the statute into effect.

Secondly, they contended that the indictment does

not lie because it was found on J anuary 27, 1936,

subsequent to the date upon which the President

proclaimed the revocation ‘of his first proclama-

tion. Each of these grounds was held to be with-

out merit by the court below, and in this conclusion

we sbelieve the. decision of the lower court was

Clearly correct. -Should the defendants attempt to

obtain a review on this appeal of the decision below

insofar as it relates to the unsustained grounds of

demurrer, it is the position of the Government that

this Court is without jurisdiction, under the

Criminal Appeals Act.

A. QUESTIONS. DECIDED AGAINST THE DEFENDANTS ARE NOT

WITHIN THE JURISDICTION CONFERRED BY THE CRIMINAL

APPEALS ACT. .

The Criminal Appeals Act of March 2, 1907,

infra, p. 80, provides for appeal ‘by and on-be-

half of the United States”? from decisions holding

an indictment bad, or arresting a judgment of eon-

viction, because of the invalidity or construction of

the statute upon which the indictment is founded,

anid also from decisions ‘sustaining a special plea

in bar’? when the defendant has not been placed in

jeopardy. . |

Prior to the enactment of the Criminal Appeals

Act, the Government had no opportunity to obtain

21

review of questions of law ,which were decided , '

against it in the court of first instance. United

States v. Sanges, 144 U.'S.,310. The purpose of

the ‘Act was to remed: this situation, which often

, resulted in the inability. to enforce a valid statute.

The Act did not represent the judgment of

Congress that the decisions ‘specified were of

such importance that immediate review by the Su-

preme Court was desirable, irrespective of which

party obtained the decision below.. Its sole pur-

pose was to make appellate review possible | .

“when the United States had been deprived of

a remedy against wrongdoers.’’ See House Rep.

No. 2119, 59th Cong., Ist Sess.’ See United

States v, Bitty, 208 U.S. 393, 400; United States

v. Stevenson, 215 U.S. 190, 195-196. Accordingly,

the jurisdiction of this Court is limited to an ap-

peal ‘‘taken by and on behalf of the United States.” ;

- See United States v. Bitty, supra, 399-400; United :

States v. Heinze,.218 U.S. 532, 545-546. It seems

plain that the jurisdiction of this Court does not ;

_ extend to questions decided in favor of the United

States, which may be reviewed in the normal man-

ner after conviction.

‘The Act confers a special and limited jurisdie-

tion, and the Court may not examine the whole case -

when a question has been appealed under this Act.

United States v. Keitel, 211 U. S. 31Y,898-399 ;

‘The other reports are silent as to the purpose of the

enactment. Sén. Rep. No. 3922, 59th Cong., ist Sess.; House

Rep. No. 8113, 59th Cong., 2d Sess.

eS Bremen

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;

7

29 «

(United States v. Mason, 213 U.S. 115, 122; United

States v. Mesceall, 215 U. 8. 26, 31; Fnited Stutes y:

Kissel, 218U. 8. 601, 606. It follows-that the gen-

eral rule, that any ground may be urged in support

- of the judgment below, Langnes v. Green, 282 U.S.

531, 537-538, is inapplicable to cases arising under

this Act.

B. THE PROCLAMATION OF MAY 28, 1954, Is IN CONFORMITY

’ WITH THE REQUIREMENTS OF THE JOINT RESOLUTION

Defendants urged below that the Proclamation of

May 28, 1934, was not in conformity with the Joint

Resolution for two reasgus: (1) the language of

the Proclamation does not follow the language of

the Resolution, and (2) the Proclamation does not

make a detailed statement of the findings upon

which it is based, and that such findings as are

stated could not, in fact, have been made.

The first contention. is’ demonstrably: without

merit. The Proclamation declares that the Pres-

ident lras ‘‘found that the prohibition of the sale of

arms and munitions of war in the United States

to those countries now engaged in armed conflict

in the Chaco may éontribute to the reestablishment

of peace between those countries.”” It.also de-

clares that the President has consulted with the

governments of other American republics and has

been assured of such cooperation as he has deemed

necessary as contemplated by the Resolution. Cer-

tainly this is complete compliance with every re-

os

23

quirement for proclamation which the Resolution

specifies. 7 ,

Defendants’ second point is also unsound. The —

President was not required to make lengthy and

detailed findings of fact, stating the processes by

which he had arrived at his conclusion. Unless the

statute requires that further facts be found and

stated by the executive officer (ef. Mahler v. Eby,

264 U. S. 32) the specific statement by the Presi-

dent, in the language of the statute, that \he has

found the facts which are prerequisite fo his

action, is sufficient. Dakota Central Tel. Co. v.

South Dakota, 250 U. 8S. 163; Philadelphia &

Trenton Railroad Co. v. Stimpson, 14 Pet. 448,

458; Martin v. Mott, 12 Wheat. 19, 31. The recent

statement of the Court in Panama Refining Co. v.

Ryan, 293.U. 8. 388, 481-482, is not to the contrary.

There the Act required no findings, and the ques-

tion was whether, if it were to be construed as re-

“quiring the existence of certain circumstances and

conditions upon the basis of which the President ,,

was to act, a statement by him of the existence of

these facts was nevessary. Here the President

stated that he had found the facts upon which,

under the Resolution, his action was to be based.

_ Moreover, findings are of less importance in regu-

lations which constitute general legislation than in

administrative orders’in the nature of judgments

against particular individuals. See Pacific States

Box & Basket Co,v. White, 296 U. S. 176, 186.

HYRHONT a) oor

. .

. .

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24

a

In addition, it may be pointed out that defendants

base their Objection upon an erroneous interpreta-

tion of the facts. Their contention is that because

the Resolution and the proclamation bear the same

date, the President could not, in fact, have made

the finding and consulted with other governments

as the Resolution required. Actually, the Presi-

dent had, for some time prior to May 28, 1934, beer

in contact with other governments on this question

and Was no doubt well acquainted with the situa-

tion.” The Resolution certainly does not require

that all the consultations be made anew after its

passage. The information in the possession of the

President at the time the Resolution was passed

enabled him to put it into effect without delay.

C. THE PROCLAMATION OF NOVEMBER 14, 1955, REVOKING THE

PROCLAMATION OF MAY 28, 1934, DID NOT TERMINATE

LIABILITY FOR OFFENSES COMMITTED PRIOR TO SUCIL REVOCA-

TION

Defendants urged below that the revocation of

the Proclamation of May. 28, 1934, by the Proela-

mation of November 14, 1935, (infra, pp. 28-30)

effectively terminated all liability for acts done

while the first proclamation was in effect. The

argument rests upon the rule-that in the absence of

a competent saving clause, no proceedings can be-

* See Senate ‘Rept. No. 1153, 73d Congress, 2d Session, p. 2;

The Chaco Arms Embargo, Report. by the American Com-

mittee in Geneva to the Special Senate Committee Investi-

gating the Munitions Industry, 74th Congress, 2d Session,

pp. 7-8. .

peas 25

had under a statute which has been repealed or has

otherwise expired. United States v. Chambers,

991 U. 8.217; United States v. Tynen, 11 Wall. 88;

-Yeaton v. United States, 5 Cranch 281. The gen-

eral saving clause contained in Section 13 of the

Revised Statutes (U.S. C., Title 1, See. 29) is said

to be inapplicable.

The rule may be freely admitted, but it is w holly

jnapposite here. It is based upon the principle

that one can not be punished when authority to

inflict that punishment no longer exists: -The Irre-

sistible, 7 7 Wheat. 551; United States Vv. Chambers,

supra, pp. 222-223. Here the revocation of the

ori giwal prociamation did not end authority to in-

flict punishment for prior violations of the statute.

Revocation of the proclamation on ‘November 14,

1935, removed one of the prerequisites essential to

liability for similar acts in the future, so that it was

no longer unlawful to make such sales, but the

revocation obviously did not repeal the Resolution.

The Act of Congress still remains in full force, and

by Section 2 authorizes and prescribes the punish-

ment fer any violations of it which may have been

/ committed. If defendants are found to have done

_ acts illegal under Section 1, they may still be pun-

ished under the authority of Section 2.

Appellees may urge that the statute expired

’ when the Proclamation of May 28, 1934, was re-

voked by the Proclamation of November 14, 1935.

We believe that th# above analysis clearly reveals

that the statute did not expire, but in any event the

:

i

26

point is without merit. By R.S. Section 13 Con-

gress has provided a general saving clause de-

signed to avoid: further difficulties such as those

which arose in United States v. Tynen and Yeaton

v. United States, supra. That section constitutes

ample authority for the present prosecution.

Great’ Northern Ry Co. v. United States, 208

U. S. 452: It is unnecessary to discuss whether

any force should be ascribed to the saving clause

in the revoking Proclamation of November 14,

1935. - |

CONCLUSION

Wherefore, it is submitted that the judgment of

the District Court should be reversed and. the

cause remanded with instructions to overrule the

demurrer..

Respectfully submitted.

d Sranuey REED,

Solicitor General.

/ Brien McManon, ©

Assistant Attorney General.

/ Martin ConBoy, —

F. W. H. ApaAmMs,

Special, Assistants to the Attorney General.

J Wiriam W. Barron, ~

/CHAKLES A. Horsky,

f Attorneys.

OcTOBER 1936.

APPENDIX

The Presidential Proclamation of May 28, 1934

(48 Stat. 1744-1745), is as follows: , :

“ATL.E OF ARMS AND MUNITIONS OF

WAR TO BOLIVIA AND PARAGUAY

By the President of the United States of

America

A PROCLAMATION

Wuereas section 1 of a joint resolution

of Congress entitled ‘Joint Resolution To

prehibit the sale of arms or munitions of

war in the United States under certain con-

ditions’, approved May 28, 1934, provides

as follows: | | ,

‘‘That if the President finds that the pro-

hibition of the sale of arms and munitions

of war in the United States to those coun-

tries now engaged in armed conflict in the

Chaed may contribute to the reestablish-

ment of peace between those countries, and

if after consultation with the governments

-of other American Republics and with their

cooperation, as well as that of such other*

‘governments as he may deem necessary, he

-makes proclamation to that effect, it shall °

be unlawful to sell, except under such limi-

tations and exceptions as the President pre-

scribes, any arms or munitions of war in

any place in the United States to the coun-

tries now engaged in that armed conflict, or-

(27)

28

to any person, company, or association act-

ing in the interest of either country, until

otherwise ordered by the President or by

Congress.’’

_ AnD WHEREAS it is provided by section 2

of the said joint resolution that—

‘*Whoever sells any arms or munitions of

war in violation of section 1 shall, on convie-

tion, be punished by a fine not exceeding

$10,000 or by imprisonment not exceeding

two years, or both.”

Now, THEREFORE, I, FRANKLIN D. Roosr-

VELT, President of the United States of

America, aeting under and by virtue of the

author ity conferred in me by the said joint

resolution of Congress, do hereby declare

and proclaim that I have ¥ound that-the pro-

hibition of the sale of arms and munitions of

war in the United States to those countries

now engaged in armed conflict in the Chaco

may contribute to the reestablishment of.

peace between those countries, and that I

have consulted with the governments of

other American Republics and have been

assured of the cooperation of suc» govern-

ments as I have deemed necessary as con-

templated by the said joint resolution; and

I do hereby admonish all citizens of the

United States-and every person to abstain

from every violation of the provisions of the

joint resolution above set forth, hereby made -

applicable to Bolivia and Paraguay, and I

do hereby warn them that all violations of

such provisions will be rigorously prosecuted.

And I do hereby enjoin upon all officers

of the United States charged with the execu-

tion of the laws thereof, the utmost dili-

gence in preventing violations of the said

soint resolution and this my proclamation

issued thereunder, and in bringing to trial

?

99 . .

and punishment any offenders against the

same. ,

And I do hereby delegate to the Secre-—

tary of State the power of prescribing

exceptions and limitations to the application

of the said joint resolution of May 28, 1934,

as made effective by this my proclamation

- issued thereunder.

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

twenty-eighth day of May, in the year of

our Lord nineteen hundred and thirty-four, .

and. of the Independence of the United

States of America the one hundred and

fifty-eighth. : |

[ SEAL] FRANKLIN D. ROOSEVELT.

By the President:

CorDELL HULL,

Secretary of State.

The Presidential Proclamation of November 14,

1935, No. 2147, is as follows:

SALE OF ARMS AND MUNITIONS TO

BOLIVIA AND PARAGUAY

By the President of the United States of

America

‘

a

A PROCLAMATION

Wuetreas by a Proclamation of the Presi-

dent issued on May 28, 1934, pursuant to a %

Joint Resolution of Congress approved by.

the President on the same date, it was de-

clared that the prohibition of the sale of ©

arms and munitions of war in the United

States to those countries then engaged in

armed conflict in the Chaco might contribute

30

to the reestablishment of peace between

those countries; and

WHEREAS by virtue of the Joint Resolu-

tion and the Proclamation above mentioned

it became unlawful to sell arms or munitions

of war to Bolivia or Paraguay; and

WuHeErEAS the Peace Conference in Plen-

ary Session ‘in Buenos Aires formally

adopted on October 28, 1935, a Resolution

declaring that the war ‘between Bolivia and

Paraguay had come to anend; * * *

Now, THEREFORE, I, FRANKLIN D. Roosr-

VELT, President of the United States of

America, do hereby declare and praclaim

that I have found that the prohibition of the

sale of arms and munitions of war in the

United States to Bolivia or Paraguay will

no longer be necessary as a contribution to

the reestablishment of peace “between those

countries, and the above-mentioned Procla-

mation of May 28, 1934, is hereby revoked

as to the sale of arms and munitions of war

to Bolivia or Paraguay from and after

November 29, 1935, provided, however, that

this action shall not have the effect of re-

leasing or extinguishing any penalty, for-

feiture or liability incurred under the afore- |

said Proclamation of May 28, 1934, or the

Joint Resolution of Congress approved by

the President on the same date; and that the

said Proclamation and Joint Resolution

shall be treated as remaining in force for

the purpose of sustaining any proper ac-

tion or prosecution for the enforcement of

such penaity, forfeiture or liability.

In WitNEsSs WHEREOF, I have hereunto

set my hand and caused the Seal of the

United States of América to be affixed.

Dons at the City of Washington this 14th

day of November, in the year of our Lord

nineteen hundred and thirty-five, a nd of the

31

n

Independence of the United States of

America the one hundred and sixtieth.

[SEAL | - FraNKLIN D. Roosevet.

By the President:

CoRDELL HULL,

Secretary of State.

Act of March 2, 1907, ¢. 2564, 34 Stat. 1246, as.

amended ; U.S... Title 18, See. 682:

An appeal may be taken by and on behalf

o” the United States from the district courts

direct to the @#preme Court of the United

States in all cNMminal cases, in the following

instances, to wit: en '

From a decision or judgment quashing,

setting aside, or sustaining a demurrer to,

any indictment, or any count thereof, where

such decision or judgment is based upon the

invalidity, or construction of the statute

upon which the indictment is founded.

- From a decision arresting a judgment of

conviction for insufficiency of the indict- ’

ment, where such decision is based upon the

invalidity or construction of the statute upon

which the indictment is founded.

From the decision or judgment sustain-

ing a special plea in bar, when the defend-

ant has not been put in jeopardy.

_ The appeal in all such cases shall be taken

within thirty days after the decision or

judgment has been rendered and shall be

diligently prosecuted and shall hav preced-

ence over all other cases.

Pending the prosecution and determina-

tion of the appeal in the foregoing instances,

the defendant shall be admitted to bail on

his own recognizance: Provided, That no

appeal shall be taken -by or allowed the

United States in any case where there has

been a verdict in favor of the defendant.

aa U.S. GOVERNMENT PRINTING OFFICE tone