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

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief of Appellants
- **Published:** January 1, 1936
- **Citation:** 299 U.S. 304

## Text

7
, Page
Oninions below... ... 4246000640055 hee 2.5) eneeneeee 1
Farindiction .. ... ....«2h.s 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 .

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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
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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

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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.

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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.

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,

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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.

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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

"eee 5

— J artiinde
- ‘ ee re ee ee ete eae &
—e——- eae tates eh

;

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

. .
. .
Se ON ROE DIRE PY 4 Sees ieee

he

Be eS RE He eee ee ee oe

ees

Be oe

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

---

Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386010_0091%3A3. Public record. Not legal advice.