United States v. Howard

PETITIONER:United States
RESPONDENT:Ludenia Howard, trading as Stokes Fish Company
LOCATION: Seminole County

DOCKET NO.: 52
DECIDED BY: Warren Court (1956-1957)
LOWER COURT:

CITATION: 352 US 212 (1957)
ARGUED: Dec 06, 1956
DECIDED: Jan 14, 1957
GRANTED: Jun 11, 1956

ADVOCATES:
Clarence L. Thacker – for the appellee
Leonard B. Sand – for the appellant

Facts of the case

Federal criminal information was filed in district court against Ludenia Howard, representing Stokes Fish Company, for violating the Federal Black Bass Act. The Act forbids any person to transport black bass or other fish across state lines if doing so is prohibited by the laws of the state. In Florida, such issues are governed by the regulations of the Florida Game and Fresh Water Fish Commission. The district court held that the regulations were not “laws” of Florida under the meaning of the Black Bass Act and quashed the information. The United States appealed directly to the Supreme Court.

Question

Are the regulations of the Florida Game and Fresh Water Fish Commission considered “laws” of the state of Florida as the word is construed in a federal act?

Earl Warren:

Number 52, United States of America, Appellant, versus, Ludenia Howard, Trading as Stokes Fish Company.

Mr. Sand.

Leonard B. Sand:

May it please the Court.

This is a direct appeal from an order of the District Court of the Southern District of Florida dismissing an information which was brought under Title 16, Section 852, commonly known as the Black Bass Act, although that statute now applies to all fish.

The information set forth on pages 1 and 2 of the record charged that when Ludenia Howard trading as the Stokes Fish Company delivered to the Railway Express Agency in the State of Florida for transportation to the State of Georgia, 150 pounds of freshwater bream, freshwater crappie and freshwater black bass.

And that such transportation was then contrary to the laws of the State of Florida and in violations of the Black Bass Act.

The Black Bass Act, set forth at page 39 of the Government’s brief, provides that it should be unlawful for any person to deliver for transportation from one State to another any black bass or other fish if such transportation is contrary to — to the law of the State from which the black bass or other fish is or is to be transported.

The defendant moved in the lower court to dismiss the information on the grounds that it failed to state the cause of action and this motion was granted.

The order dismissing the information appears on page 3 of the record and the judge there said that the only prohibition against the out-of-state transportation of the fish, set forth in the information, was found in the regulations of the Game and Fresh Water Fish Commission of the State of Florida.

And being of the opinion that the rules and regulations of this Commission do not constitute the law of Florida as described by and contemplated by the Black Bass Act, the information was dismissed.

(Inaudible)

Leonard B. Sand:

He meant that you have to have a statute, yes, Your Honor.

As this was a decision dismissing an information based on the construction of the statute upon which the information was founded, the Government took a direct appeal and this Court noted probable jurisdiction.

We — we look then at the outset to the status of these rules and regulations as they exist in the State of Florida.

In the 1942, general election, Florida amended its constitution by enacting Article IV, Section 30, set forth at page 43 of the Government’s brief.

This constitutional amendment created the fresh water fish commissions and conferred upon it, the power to regulate the manner and method of taking, transporting, storing and using fresh water fish among other things.

It was also provided in this constitutional amendment, Section 7 on page 44 of the Government’s brief that the legislature may enact any laws in the aid of but not inconsistent with the provisions of this amendment and all existing laws inconsistent herewith shall no longer remain in force and effect.

All laws fixing penalties for the violation of the provisions of this amendment —

William O. Douglas:

What — where are you reading?

Leonard B. Sand:

I’m on page 44 of the Government’s brief.

All laws fixing penalties for the violation of the provisions of this amendment and all laws imposing license taxes shall be enacted by the legislature from time to time.

In other words, Florida by constitutional amendment vested in this Commission supreme authority over the regulation of fresh water fish and left to the legislature only the power to act — to enact consistent laws and laws fixing penalties and license taxes.

The Florida Game Commission pursuant to this constitutional authority enacted a rule, Rule 1401, cited at page 48 of the Government’s brief.

And that rule provided that no person should transport out of the State Florida any black bass, bringing some fish and other enumerated fishes.

The —

Imposed in the Constitution by (Inaudible)

Leonard B. Sand:

Yes, Your Honor.

The Florida legislature enacted Section 372.83, cited at page 46 of the Government’s brief, and that statute provides that any person who violates any rule or regulation of the Commission adopted pursuant to the constitutional amendment shall be guilty of a misdemeanor.

Therefore, there existed in Florida at the time of the alleged defense, a rule promulgated by the Commission acting pursuant to constitutional authority prohibiting this transportation and a Florida statute enacted by the legislature providing that any violation of that rule would be a misdemeanor.

There is no question in this case as to the validity of the rules or regulations in the State of Florida.

Leonard B. Sand:

The Florida Supreme Court has held that they have the effect of law in that State and indeed, appellee concedes this.

On page 12 of appellee’s brief, the following language appears.We frankly and fully concede that the Florida Commission is a legally constituted commission.

We also concede without argument that its rules are enforced in the State of Florida so long as these rules are within the scope of the amendment creating it, and I may state parenthetically, there is no question here but the rules are within the scope of the amendment.

For this purpose, appellee concedes.

In the State of Florida, they are given the force and effect of law.

However, this does not make them the law of Florida as contemplated by the Black Bass Act.

It is with this last statement the Government takes issue.

For it is the Government’s position that when Congress in the Black Bass Act said contrary to the law of any State, it meant contrary to such law as that State should probably consider binding upon its citizens.

Since there is no question but the Florida considers these rules and regulations valid and enforces them, there’s no question but that they should be the laws of the State within the meaning of the Black Bass Act.

The Black Bass Act was originally enacted in 1926.

Prior to that time, this Court had on many occasions construed phrases such as state statute, more restrictive phrases than law of the State to include administrate regulations as well as states statutes.

Hugo L. Black:

May I ask you before you leave that paragraph that you referred us to —

Leonard B. Sand:

Yes, Mr. Justice.

Hugo L. Black:

— that the last paragraph on the next page doesn’t take the opposite view.

Leonard B. Sand:

Well, I — I believe in the next paragraph, appellee is —

Hugo L. Black:

At the bottom of page 13, it says even if the rules and regulations of a Commission under some conditions could be the law of a State, it does not follow that these are the laws applied.

We take position that they are not the law applied.

Leonard B. Sand:

Not the law of the fact but believe, appellee there means, not the law of Florida within the meaning of the Black Bass Act even though they are the law of Florida within the State of Florida itself.

The — nothing in the legislative history of the Black Bass Act indicates that it was intended to apply only to administrative regulations.

Indeed, in the Senate bill, accompanying the 1947 amendments of the Black Bass Act cited that, at the bottom page of 29 and 30 of the Government’s brief, it is said that if we are protecting fish, an important natural resource, the Federal Government must collaborate in the enforcement of protective laws and regulations at the point where state jurisdiction ends.

And it must also be remembered that we are acting here in the context of conservation, an area in which both the Federal Government and the States, have traditionally proceeded through administrative regulation.

Indeed, this is recognized in other provisions of Title 16.

Thus, in Section 669 of Title 16, cited at pages 24 and 25 of the Government’s brief, it is provided that the Secretary of the Interior is authorized to cooperate with the States through their respective State Fish and Game Departments.

And then skipping, it says, “But no money apportioned under said sections to any State shall be expended therein until its legislature or other state agency authorized by the state constitution to make laws governing the conservation of wildlife shall have assented to the provisions of said sections.

Congress there specifically has recognized that state agencies may be authorized by the state constitution to enact laws governing conservation and then —

William J. Brennan, Jr.:

Mr. Sand, is there anything to the point that apparently this Commission may make regulations as one county or one section and not for other sections of the State may adopt them tonight and change them tomorrow.

I gather that’s the argument.

Leonard B. Sand:

We — we think not, Mr. Justice Brennan.

With respect to the local nature of some regulations, indeed, before the constitutional amendment was passed, that’s precisely what the state legislature did.

So, there’s no inherent difference between the regulations of the Commission and the — and the state legislature.

Leonard B. Sand:

In Sylvester against Tindall, cited at page 19 of the Government’s brief, the Florida Supreme Court reviewed the past history of conservation and legislation in that State and noted that — that for many years, the legislature had tried in vain to adequately deal with the subject matter of this amendment by local or special acts.

And — and so we feel that that distinction is without merit.

With respect to the changeable nature of these regulations, I might say that it has been the law of Florida consistently since 1927 that out-of-state transportation of black bass was illegal, besides which the Florida Legislature has provided rules for the promulgation of the Commission’s regulations.

These rules provide for publication in a newspaper for —

William J. Brennan, Jr.:

These are a register of some kind?

Leonard B. Sand:

Yes.

They — they must be filed with the — a certified copy must be filed with the secretary of state and the rules of statewide application as this particular rule is — cannot be effective until 30 days thereafter.

I — I deal with that question on the merits although since that was not the basis of the decision of the District Court, it is a question not for this Court in this — at this stage of — of this case.

So the — the construction placed upon the Black Bass Act by the court below would nullify that Act in all but six States of the Union for — in all but six States.

The subject matter with which we are here concerned is dealt with by administrative agencies.

In 42 other States rules and regulations the law of the State with respect to fresh water fishing, are promulgated by fish commissions.

Hugo L. Black:

Do they publish that?

Do the other States publish their laws?

Are there rules?

Are — are — there’s — there’s a claim here that these rules are not published, as I gather it and that — that you have no way to know what they are and that they change from time to time without any publication.

Leonard B. Sand:

I — I think, Your Honor, that that claim here is — is not that they are not published because certainly they are published.

They are available in a — in a handbook which is available to anybody, writing to the Commission for it and also on file with the local judge.

I think the claim is that a regulation cannot be the law because it — it may be changed from day to day.

As a matter of fact, these regulations cannot be changed from day to day.

They can go into effect only 30 days after they have been filed with the Secretary of State of Florida.

And as I have said, and in — in fact, there has been no change in this particular law of Florida since 1927.

Felix Frankfurter:

Mr. Sand, looking at the index of cases of your brief, I noticed there’s no reference to the United States against Eaton and Caha against United States.

These were the given, United States against Eaton, that was the case where the prohibition of a criminal statute.

This was the violation and to anyone, the party shall knowingly admit et cetera anything to be — any of the things required by law (Inaudible)

And this Court held that violation of a regulation by the appropriate department is not a violation of law.

And I think that was the case which started the common practice is to stay in power that if the statute gives the rule making power, he — he can make some other offense to violate any regulation, that’s all right because I noticed in the brief that was cited by either side and I don’t see why not, but (Inaudible)

Leonard B. Sand:

Well, Your Honor, I —

Felix Frankfurter:

And that should be — I think I would be giving you a hard time on the U.S. against Eaton.

Leonard B. Sand:

Well, I — I think, Your Honor, in interpreting what Congress meant when it used the phrase contrary to the law of the State in this statute which was derived from the 1900 Lacey Act with respect to birds and wild animals.

One has to look to the purpose of the — of the statute, the obvious intent of Congress acting in the field where administrative action is the traditional form, the widespread form.

Leonard B. Sand:

And that in —

Felix Frankfurter:

But that wasn’t until the (Inaudible) case.

The enforcement of — of criminal statutes against the violation of its accusation, et cetera and violation of the standard of security they were both in for prior regulations.

This business that the obvious intent of Congress would not be (Inaudible) about it.

This leads me into the esoteric knowledge of the Congress is unfortunately, never having been (Inaudible)

Leonard B. Sand:

But I think, Your Honor, that — that Congress has — has spoken in other provisions of the Black Bass Act and in other provisions of Title 16.

Felix Frankfurter:

Are you saying that there is a party of legislative hearing which puts a gloss under what lawyers do is that it?

Leonard B. Sand:

Yes, Your Honor.

That — that —

Felix Frankfurter:

What are they, specifically?

Leonard B. Sand:

Well, there are the —

Felix Frankfurter:

You have to establish that to get by with me, anyhow.

Leonard B. Sand:

There — there is the fact that in the Black Bass Act itself in Section 8 cited on page 42 of the Government’s brief.

Felix Frankfurter:

Wait a minute, let me look into it.

All right.

Leonard B. Sand:

It reads, “Nothing in this chapter shall be construed to prevent the several states and territories for making, when enforcing laws or regulations not inconsistent with the provisions of this chapter.”

There is, as I —

Felix Frankfurter:

Then I should say that looks two ways.

Leonard B. Sand:

Well, I — I grant, Your Honor, that — that it might that Congress has used the phrase “regulations” in one section and not — not in another.

I — I grant that that argument would be available to the appellee.

I think most of.

Felix Frankfurter:

Coming out with the starting point that while one should twist land without a shape you in order to become a statute but if there is doubt, you incline one way rather than another, if we let our (Inaudible)

Leonard B. Sand:

I — I agree that a penal statute should be strictly construed.

Felix Frankfurter:

As I — I didn’t say that.

Leonard B. Sand:

But —

Felix Frankfurter:

All right.

You mean the same thing.

Leonard B. Sand:

Yes.

I — I think we do.

Felix Frankfurter:

(Voice Overlap) —

Leonard B. Sand:

And as I have — I’ve previously made reference to Section 669 of Title 16 in which —

Felix Frankfurter:

Now, let me put my eyes on it.

Leonard B. Sand:

That’s on pages 24 and 25 of the Government’s brief.

Felix Frankfurter:

All right.

Do you mind pointing out (Inaudible)

Leonard B. Sand:

Well, the — the italicized language there, Your Honor.

Felix Frankfurter:

Who there reflective statements (Inaudible)

Leonard B. Sand:

Authorized by the state constitution to make laws governing the conservation of wildlife.

So, Congress here has recognized that laws using not rules or regulations but the very word “laws” may be promulgated by a State through an agency other than the legislature.

And that has more importance than your first?

Leonard B. Sand:

I — I think it does, sir.

And the legislative history to the — to the 1947 amendment to the bill, cited at pages 29 and 30 of the Government’s brief, in which the intent there is explicitly stated to collaborate in the enforcement of protective laws and regulations at the point where state jurisdiction ends.

Hugo L. Black:

What page is that?

Leonard B. Sand:

Page — at the bottom of page 29, the top of page 30 of the Government’s brief.

The Government feels that this shows a — an intent upon the part of Congress not to have the Black Bass Act apply only in the six States where the subject matter is dealt with exclusively by the legislature but in all 48 States including the 42 where rules and regulations are promulgated by administrative agencies.

Felix Frankfurter:

(Inaudible)

Leonard B. Sand:

The — the Act as originally passed in 1926 related only to Black Bass.It was subsequently amended to apply to all game fish and in 1952, it was amended to apply to all fish.

Felix Frankfurter:

The question is the same as to all fish.

Leonard B. Sand:

All fish.

The Government submits that the decision of the court below is clearly erroneous and should be reversed.

Earl Warren:

Mr. Thacker.

Clarence L. Thacker:

If it please the Court.

I might say that at the outset here that if Ludenia Howard, a citizen of the State of Florida had known that she was to be charged on a game or on a fish violation case and that then mind of the United States Governor — Governor would put her in this Supreme Court prior to a time that her innocence whereas was still presumed to be there and before she had been convicted, I dare say gentlemen, that she would have been much better off had she been not guilty but plead guilty in the lower court.

And I say that advisedly and very sincerely, and I say it for this reason, that all of us know that more and more today that administrative agencies and commissioners are governing our very lives and it’s very important that when we consider the rules and regulations that are made with these agencies and the statutes that are passed by the Congress in a criminal nature that our individual citizens do not — do not — not — do not lose their liberty through actions of these boards and commissions to an insidious process.

Now, I want to change my argument a little bit today from what I have planned to do by virtue of certain of the questions that came up here.

We don’t contend in any respect that the rules and regulations of the Game and Fish Commission of Florida are not enforceable in Florida if they were within the scope of the constitutional amendment was created.

But we do say, and very sincere to this Court, that even though that rule is enforceable in Florida, it was not within the contemplation of the Black Bass Act which was passed in 1926 that those rules and regulations should be the law of Florida.

And I think one reason is very obvious on the face of it and that is in 1926, when that Black Bass Act was passed which prohibited the transportation of black bass within the States or without the States, if it was against the law of that State, that the constitutional amendment creating the game and fish — Fresh Water Fish Commission in Florida did not come into being until some 20 years later, almost 20 years later.

So, I think it’s observed on the face of it to say that Congress meant at that time that the law of authority was going to apply to the rules and regulations that came into effect in the State of Florida almost 20 years later.

Felix Frankfurter:

But the federal’s — the Black Bass Act wasn’t to strictly to apply though, was it?

Clarence L. Thacker:

No, sir, it was not restrictive.

Felix Frankfurter:

(Inaudible)

Clarence L. Thacker:

No, sir, it was not —

Felix Frankfurter:

I don’t know what the State — to what State —

Clarence L. Thacker:

I think it has general — general application.

Felix Frankfurter:

— the black bass centralizes or if it’s allowed to swim but there may have been States when this was as apparent that (Inaudible) through speculations.

Clarence L. Thacker:

That may be true, sir, here and that — that’s — the Government take some solace in this position, Your Honor.

And that is they say that that Black Bass Act has been amended twice, since its inception in 1926 for the very fact that when that Act was — was amended that the Congress did not change the wording with respect to the law of the State is the best evidence that the Congress did not even consider the rules and regulations of the Commission.

And the only amendments that took part in that — in that Black Bass Act was to name different types of fish other than black bass upon which it’s illegal to transport back and forth.We seriously contend, Your Honors, that the main difference that the Government and Ludenia Howard in this case is the fact that the Government refused to believe that this is a criminal statute and it affects the liberty of our citizens.

And add as a criminal statute as this Court has held many times, the statute must be strictly construed.

If there’s any ambiguity in the statute, that ambiguity must be resolved in favor of the accused.

If the statute is perceptible of two interpretations on a criminal basis, the interpretation which favors the accused must be used.

There can be no steps, there can be no constructive federal offenses, no constructive offenses.

And we believe, Your Honors, that when we read into that Black Bass Act today, that was passed in 1926, that it implied to the rules and regulations of the Game Commission which came in many years later that we thereby make a constructive offense which this Court from time immemorial says we cannot do any criminal case.

I would like to address my remarks a little bit to the little pamphlet here which the Government has seen fit to introduce before this Court in its brief and that’s called the Wildlife Code of the State of Florida.

Now, actually we’re not here falling with the Game and Fish Commission of Florida, but I think that we — we’re only falling with a little bit with respect to a federal criminal — criminal action attaching to any arbitrary rule that that Board of four or five members might — might pass.

Now, it’s impossible to codify the rules and regulations of this Game and Fish Commission.

For example, our legislature meets every two years and — and the laws of — that are passed without legislature become the laws of the State and they are — they are codified by the Secretary of State of Florida statutes and then those laws are published by the West Publishing Company and Harrison Publishing Company as Florida statutes annotated.

Because of the nature of these rules and the changeableness of these rules, it is impossible to codify with our statutes in a rule of this fresh and game fish — Fish Commission.

And I submit, Your Honor, that that was not the intention of the Congress when it gave it — gave that power to the — when it talked about the law of the State that it did not consider that a citizen or a — a board of three or four citizens could automatically invoke the long arm of the Federal Government because of some arbitrary change in rule that that Commission makes which are not codified among our statutes in which it cannot be codified among our statutes.

William J. Brennan, Jr.:

Well, Mr. Thacker, what is that little book that you —

Clarence L. Thacker:

This is the Game and Fresh Water rules what — Wildlife Code of the State of Florida, Your Honor.

William J. Brennan, Jr.:

Well, I mean is that printed periodically or reprinted or what?

Clarence L. Thacker:

That Justice Brennan, that’s a very good question.

It’s printed at the will of the Commissioner and if you will notice on the back of this book —

William J. Brennan, Jr.:

Well, was that filed here with us?

Clarence L. Thacker:

Yes, sir, it’s found with the Government.

William J. Brennan, Jr.:

It seemed you haven’t.

You will notice on the back pages of this book, the Game Commissioner himself certifies that this book is the rule or the rules and regulations of a certain date.

Clarence L. Thacker:

We don’t seem to have that at least I have one now.

Hugo L. Black:

But we — it hasn’t been filed with us.

Clarence L. Thacker:

But the Government brief recites it had, sir.

If I’m in error —

Hugo L. Black:

Maybe it had.

Clarence L. Thacker:

— I got it through the Government’s brief.

Hugo L. Black:

That’s not been circulated perhaps.

Clarence L. Thacker:

Maybe it hasn’t been circulated, but it —

When was it filed?

Clarence L. Thacker:

It was filed with the Government’s brief.

Unfortunately, there were only two copies that were obtained (Inaudible)

Now, I’d be very happy to obtain copies —

William J. Brennan, Jr.:

Is that difficult to get them?

Clarence L. Thacker:

No, sir.

Felix Frankfurter:

Mr. Thacker, may I — may I repeat the question asked by my Brother Brennan?

Are you suggesting that this publication is a publication that was not easily available?

Clarence L. Thacker:

I am absolutely, sir.

Felix Frankfurter:

Now I’m asking for — why do you say that?

Clarence L. Thacker:

I’m saying it for this reason, Your Honor.

I have to give you several reasons to tell you why.

A lawyer — a lawyer can write to Tallahassee, the state capital in Florida and obtain this book.

But at the time he gets this book —

Hugo L. Black:

Can they obtain nine I suppose?

[Laughter]

Clarence L. Thacker:

Yes, sir, I think so.

But at the time he obtains this book, various rules and regulations may be changed then.

And then from time to time as this Commission meets, it puts up special preference which changes many of these rules.

Felix Frankfurter:

We have to ask you because this Court had a case — rather — what is the word “memorable” in this district (Inaudible) unavailability, inaccessibility of rules and regulations.

Thus this Court on page 7 said this at the time of argument simply to (Inaudible)

Hugo L. Black:

Your Honor —

Felix Frankfurter:

— on our case in which if it’d be true that these are regulations promulgated by your provision, whatever it’s called, subject to change without notice, et cetera, et cetera, (Inaudible) case I think deserves contention?

Clarence L. Thacker:

Well, sir, these rules are — are subject to change without notice and I dare say that there’s not a dozen lawyers in the State of Florida that knows from any particular time what the rule of this Game and Fresh Water —

William J. Brennan, Jr.:

(Inaudible)

Clarence L. Thacker:

(Voice Overlap) —

William J. Brennan, Jr.:

— down here and not —

Clarence L. Thacker:

I beg pardon, sir?

William J. Brennan, Jr.:

Didn’t you suggest that they’re not merely subject to change without notice because they are in fact changed and not taken (Voice Overlap) —

Clarence L. Thacker:

They are in fact changed without notice, yes.

William J. Brennan, Jr.:

— these little pamphlets or something (Voice Overlap) —

Clarence L. Thacker:

Yes, sir, it’d lose — it’s lose a page.

Tom C. Clark:

I thought they haven’t been filed for 30 days.

Clarence L. Thacker:

I would like to address my remarks to that in one second.

The legislature has come along whether it had the power to do so or not and as we locate in this pamphlet, you will find the section of the statute which says, that if this — if the law has a statewide application, then a certified copy of that the rule for this Commission must be filed with the Secretary of State for a period of 30 days.

But if the — if the Commission passes a rule which is of a reasonable nature, of a local nature, then it must be — the certified copy must be on file with the Secretary of State for a period of 20 days.

Then the legislature comes along and says that the above provisions are directly only and not mandatory.

So we contend, Your Honors, that under such set of circumstances of that that Congress could not have intended, in fact, that a — that a criminal — federal criminal penalties should attach to a rule or regulation of four or five members which members would change as it will.

Harold Burton:

But isn’t inherent in the nature of fish and game laws that they’d be flexible and be changed would to have meet the seasons and meet the changes of the fish in one thing or another?

Clarence L. Thacker:

I dare say, Your Honor, that there are probably some necessity for that.

And I say again that these rules and regulations do have the force and effect of law in the State of Florida and they are enforced as long as the rule or regulation comes within the amendment itself.

Hugo L. Black:

Are they in the Code of Law?

Clarence L. Thacker:

No, sir.

Felix Frankfurter:

Are they criminally enforced?

Are there criminal sanctions implied and not more than that?

What do you mean by enforce?

Clarence L. Thacker:

I — I mean that the courts enforce them that —

Felix Frankfurter:

Well, in what way albeit the situation derives?Are there local penalties and (Voice Overlap) —

Clarence L. Thacker:

Well — for — for example —

Felix Frankfurter:

— conjunctions or what?

Clarence L. Thacker:

For example, the leading case that the Government relies on here is called the (Inaudible) case in which a citizen was charged with the possession of alligators in less than 8-feet in length.

The — the (Inaudible) was convicted and the case went to the Supreme Court.

While that case was before the Supreme Court and before the Court had rendered its decision the Game and Fish Commission had changed this rule and says it was against the law to catch alligators less than 6-feet in length.

Clarence L. Thacker:

But anyway, the Game — the Supreme Court did say that the conviction was — should stand and that the — before — that the rules and regulations for a fact the purchase did have the force and effect of law, but —

Felix Frankfurter:

Does — is that a — is there a specific provision in your State to which violation of rules and regulations are deemed to be or rather make offenses or is that (Inaudible)

Clarence L. Thacker:

If — if I understand your question, Your Honor —

Felix Frankfurter:

The question is, does your — does Florida law as applied to the statute says, as any rules and regulations in conformity therewith are between violations of this Act or is that influential?

Clarence L. Thacker:

The legislature has the power under the constitutional amendment to assess penalties of — against the — of the rules which is set forth in this book.

Felix Frankfurter:

So — so that the Constitution authorizes violations of rules.

Clarence L. Thacker:

Right.

Felix Frankfurter:

It’s explicit.

Clarence L. Thacker:

I think I’m correct on that.

William J. Brennan, Jr.:

Mr. Thacker, as it says and the answer to that question, the — so far as the statute which the Government has printed at page 46, any person violating any rule, regulation or order of the Game and Fresh Water Fish Commission that that and pursuant to Section 30, Article IV of the Constitution of the State and this chapter shall be guilty of misdemeanor?

Clarence L. Thacker:

I think that’s right, sir.

William J. Brennan, Jr.:

That’s made a crime.

But what’s his punishment for — on — on conviction for misdemeanor on the clause?

Clarence L. Thacker:

Your Honor, I don’t know offhand.

But it’s —

William O. Douglas:

How long was this regulation about the black bass in effect before this —

Clarence L. Thacker:

Your Honor, the —

William O. Douglas:

— was violated?

Clarence L. Thacker:

There was a statute of the legislature of the State of Florida which was — which prohibited transportation of black bass.

But that statute was repealed by the legislature of 1951.

So today, there is no statute on the — on the — there is no legislative actions — acts on the books of Florida which prohibits the transportation.

Now, I don’t know how long the — it’s been illegal in Florida to transport black bass without the State.

But the point is this and it’s not inconceivable that it happen.

William O. Douglas:

But what if —

Clarence L. Thacker:

That —

William O. Douglas:

— this regulation wasn’t passed the day before it was made available?

Clarence L. Thacker:

Oh, no, sir — no, sir.

The point is —

Tom C. Clark:

Then they’d never said their regulation (Inaudible)

Clarence L. Thacker:

I don’t know offhand when the — when the regulation was passed but it’s been passed sometime ago.

Clarence L. Thacker:

But the point is that this Game and Fresh Water Fish Commission can it — its discretion change — change its mind at anytime as to — as to that black bass regulation or any other one of these regulations.

And we say when that is — when — when that authority is given to two or three men that can automatically invoke a federal penal statute that the Congress never intended to make that the law of the State.

And we submit, Your Honor, that on that basis that the eminent district judge was correct and properly acquires the information in this case.

Leonard B. Sand:

I wish merely to apologize to the Court for not having filed additional copies.

William J. Brennan, Jr.:

Well, it didn’t help your case any (Inaudible) recently available.

Leonard B. Sand:

Well, as a matter of fact anybody can obtain a copy of the Code —

William J. Brennan, Jr.:

I just —

Leonard B. Sand:

— by writing to the — by writing to the Commission.

Felix Frankfurter:

Well, that means that before you finish and before you — you better have to find out whether you can fish or what or how long or how short (Inaudible)

Leonard B. Sand:

As a matter of fact, they’ve taken care of — of that problem also, Your Honor, because a copy of the rules are filed with a — a county judge and so they’re — they are available within the immediate locality in which the person might —

Felix Frankfurter:

But then Mr. Thacker says that the lady may go out and fish under the (Inaudible) which the last one she had, but just the day before they changed (Inaudible)

Leonard B. Sand:

Well, Mr. Thacker overlooks —

Have you ever brought of a fishing license yourself when you’re going out to fish?

Have the warden come up to you and said you’re catching too short fish, pulled out the rule book and you find it’s a different rule?

Leonard B. Sand:

But, Your Honor, I think that could not happen in the State of Florida because while some of the provisions of the applicable statute on — are not mandatory, Section 2 is mandatory and that provides that the rule shall become effective 30 days after the filing of the certified copy in the office of the Secretary of State.

And — and so that at least 30 days must elapse before the rule can be changed.

Do you file one copy with the Secretary of State and 30 days after (Inaudible)

Leonard B. Sand:

And then additional copies are filed with each county judge.

Felix Frankfurter:

But Mr. Thacker says that, if I understood him, and if that’s a direct issue and not mandatory.

Leonard B. Sand:

The provision for filing of the —

Felix Frankfurter:

No — no.

Leonard B. Sand:

— copies would —

Felix Frankfurter:

It’s 30 days.

Leonard B. Sand:

That is not correct, Your Honor, because —

Felix Frankfurter:

But we have to — does — does it matter whether it is (Inaudible)

Leonard B. Sand:

If — if — it does not matter, Your Honor.

As a matter of fact —

Felix Frankfurter:

Why do you say that?

Why do you say it doesn’t matter if it’d be true that these rules nobody can if — can know what the rules are in the order wherein which lies (Inaudible) before they need to change on them overnight.

I’m not saying that is the way to regulate fish.

Felix Frankfurter:

That is not the problem but maybe the wisest thing to regulate fish.

And I thought that my Brother Harlan is a fisherman as I am not.

The problem that I do understand is if that be so, then you got a problem with instruction whether Congress by using that term, a term which may incorporate such angulatory, such fugitive regulation is to be covered by the term “laws”.

You said that 42 States out of the 48 administer their fishing game laws through these types of commissions?

Leonard B. Sand:

Yes, Your Honor.

How long has that been going on 42 States?

Leonard B. Sand:

The survey —

Could you give us — could you give us a list in other words, of the States that were operating through the Commission rule at the time that this federal statute was passed?

Leonard B. Sand:

I can tell you that in 1954, six States — I — I think I — I think perhaps I have not understood Your Honor’s question.

I thought you said that 42 States operated on fishing game laws through these commissions?

Leonard B. Sand:

Through some administrative party —

Through some administrative party.

Leonard B. Sand:

— other than the legislature.

My question was, how long has that been going on in those 42 States?

Were they all with the — with the Fish and Game regulations at the time this federal statute was passed the 42 States all administered in that fashion?

Leonard B. Sand:

Not in — not in 1926, Your Honor.

(Inaudible)

Leonard B. Sand:

But certainly by 1952, which is the date of the last amendment of the Black Bass Act, the practice of proceedings through these parties was — was widespread.

Felix Frankfurter:

Suppose one concluded that the (Inaudible) six laws have enactments by legislature.

Was the reenactment in the — and when was this, the last reenacted?

Leonard B. Sand:

1952.

Felix Frankfurter:

Would — would then 1952 did that translate in who regulates the district (Inaudible)

Leonard B. Sand:

Well, I — I think —

Felix Frankfurter:

Suppose that — suppose I conclude that if I had to stop with 1926, I would (Inaudible) in light of the extensive development, the administrative agencies and their regulations call for a change of that (Inaudible) of our views?

Leonard B. Sand:

Yes, I — I think so, Your Honor, because we don’t have merely the reenactment of the statute.

We have legislative history connected with the reenactment for the statute.

Felix Frankfurter:

— in the —

Leonard B. Sand:

In — in 1947 for instance, where — where it was said that the Federal Government must a — a state laws and regulations subsequent to 1926.

This was —

Felix Frankfurter:

Well a part of that’s covered and one — two of them would seem to be very helpful at least (Inaudible)

Leonard B. Sand:

I —

Felix Frankfurter:

And actually, my mind is made up onwards.

But —

Leonard B. Sand:

the —

Felix Frankfurter:

— in other words — in other words, in — in enactments of this sort, there maybe plain indication and indeed expressions calling for cooperation in the federal party if the state assigns, non-concept, thereby all regulations were swept into the combination as offenses.

It’s a different question.

Did this federal statute for fish come to life in 1926, you say?

Leonard B. Sand:

1926.

It’s (Inaudible)

Wait a second.

Now, in 1926, how many States could you give us?

How many States were administering their fishing and game laws through this administrative procedure in 1926?

Could you do that piece of research and inform us on that?

Leonard B. Sand:

I — I will endeavor to do that, Your Honor.

I would say that in 1926, of course, the Federal Government was itself administering its conservation program through the Department of — of Interior and through administrative action.

So, it would be anomalous to say that in this context where the Federal Government itself proceeds administratively it enacted a statute which did not encompass state administrative action as well.

Felix Frankfurter:

But again, you just got the coverage.

So, if the Congress in 1926 had awareness of the fact that regulation is more being issued by (Inaudible)

Leonard B. Sand:

It’s Department of Interior.

Felix Frankfurter:

Department of Interior.

And that sort of law, I suggest that that’s a double-edged sword (Inaudible)

Leonard B. Sand:

And — and perhaps, it would be if we stopped at 1926 when we look at the subsequent —

Felix Frankfurter:

That’s — that’s the inquiry.

The inquiry was directed as I understood it.

The inquiry was how many States in 1926 enforced game and fishing laws through the regulatory system.

And you replied well — in any event, the Federal Government said and I say that doesn’t tell very much for you.

It looks in both directions as janitors.

Leonard B. Sand:

Yes, Your Honor.

The Government does emphasize the legislative history connected with the subsequent amendments to the Black Bass Act which specifically states that the intent is to a federal — to — I’d state laws and regulations in this area where the state enforcement is weakest.

Earl Warren:

The delegation of these powers — plenary powers so-called to Fish and Game Commissions and the States is something of a quite recent origin, isn’t it, and development?

Leonard B. Sand:

It — it has been a development which has — has accelerated in recent years so that —

Earl Warren:

As I recall it, we’ve had it in California for some over six or eight years and at that — at the time, we — we undertook to do it.I think there were not many States in the Union that — that had it.

To my recollection is that that was rather recent that they had amended.

Leonard B. Sand:

But certainly by 1947 and 1952 which were the dates of the last two amendments of this Act that — that practice was a — a prevalent mind, that the practice of acting through these commissions.

Hugo L. Black:

May I ask you an additional question about your publication.

How often is that little code published?

Do you know?

Maybe you would know.

Leonard B. Sand:

It’s — it well, it’s published periodically and as I say, it is available to anybody who provides the —

Hugo L. Black:

Well, periodically, what does that mean?

Leonard B. Sand:

I — I —

Hugo L. Black:

In this, I understood to say that the law requires that when they change this, they send one copy to a probate judge, county judge, and one copy to the Secretary of State.

Of course, a lot more people fish in Florida today.

And I — I’m wondering what provision there is for that publication to reach the public outside of that.

I understand that these — these regulations constantly change.

I — I believe you said that.

It had to but for the season and so forth.

Leonard B. Sand:

Well, to cover the — the individual in Florida who does not obtain the — the booklet, other Florida statutes which — which govern licenses provide there shall be printed on the back of the license for one, a synopsis of the fishing laws.

And as a matter of fact, in this —

Hugo L. Black:

A synopsis of the fishing laws?

Leonard B. Sand:

Of — of the laws which — which would apply and which would include —

Hugo L. Black:

Does that cover the regulations that are going along?

Leonard B. Sand:

Yes, that would then cover this.

Hugo L. Black:

You mean by that the — that the publication of the regulations to the Board on the back of the license?

Leonard B. Sand:

That — that which would constitute that the fishing laws of — of the State of Florida which would include this regulation.

Hugo L. Black:

I don’t suppose those are published there frequently so that changes wouldn’t be very — wouldn’t very easily reach the people through that matter.

Leonard B. Sand:

That there has been no change in — in the law of Florida with respect to black bass since 1927.

And as a matter —

Earl Warren:

They have — they have changed it several times to include other fish and they —

Leonard B. Sand:

That the federal statute but in Florida, it has consistently been the law since 1927 —

Earl Warren:

Or —

Leonard B. Sand:

— that it was illegal to ship — to ship black bass out of the State.

Earl Warren:

And how about other fish?

Leonard B. Sand:

I believe no.

The Florida statute of 1927 related only to black bass.

Earl Warren:

Yes.

Leonard B. Sand:

It was in 1943 that the rule included the — the other fish as well.

Earl Warren:

Mr. Sand, is there any procedural requirement for the change of these regulations that is calling for public notice having it be done at a public hearing, the right of anybody to appear in — in opposition to it or posting afterwards or anything of that kind other than what you have said here just filing it through a secretary of State or the county judge?

Leonard B. Sand:

And — and published in a news paper.

Earl Warren:

Yes, but there’s no requirement beforehand.

Do they have to give notice if they’re going to — they’re going to consider the change of rule?

Must it be done at a public meeting?Does anyone have a right to object to the change or — or advocate it?

Leonard B. Sand:

As far as —

Earl Warren:

Or (Voice Overlap) —

Leonard B. Sand:

— I know, Your Honor, these rules are promulgated by the Commission itself but there is no attack here upon the validity of the rules.

The —

Earl Warren:

Now —

Leonard B. Sand:

The only question before this —

Earl Warren:

(Voice Overlap)

Leonard B. Sand:

— Court is — is whether Congress intended to include in the —

Earl Warren:

Yes.

Leonard B. Sand:

— phrase law of the State, rules of administrative parties, any due process objections which might relate to the manner of promulgation or the giving of notice would awake some other stage of these proceedings.

But as this case is here on a direct appeal, the only question is the validity of the construction placed upon the statute by the District Court.

Earl Warren:

Well, I — I think — I think Mr. Sand, that you overlooked the fact that — that these commissions are — are all relatively new in our state systems.

And many of them started out few years ago without any procedures at all.

They would change a regulation overnight and people just wouldn’t — wouldn’t know what the regulation was and I know in my State and I have no doubt in other States that — that recently and only comparatively, recently have we tightened up the laws so that that can’t be done.

And so that they must give notice of a change of a — a regulation of this kind if it’s to be considered law.

They must — they must have it — do it at a public hearing.

The public must have a right to be heard on it and — and so forth.

Now, my point is this.

Earl Warren:

Would Congress in 1926, when it — when this Act was enacted have in mind recognizing such regulations as law?

Now, you’re taking the most favorable part of it.

It seems to me the way the thing is at the present time.

I’m saying, well, Congress must admit that, but I don’t know whether the Congress would have admit that in 1926 when there was no — there was no real stability to — to such rules or no procedural requirements in changing them.

Leonard B. Sand:

If — if Congress did not mean it in 1926, it certainly meant it in 1947 where the Senate Bill which accompanied the amendments of the Black Bass Act specifically stated that the Federal Government must collaborate in the enforcement of protective laws and regulations at a point where state jurisdiction ends.

I think, Your Honor, that it’s valid for the Government to look to the practice as it existed in 1947 and in 1952 when the Act was amended because it was not merely a mechanical amendment.

There — there’s a — a legislative history in connection with those amendments indicative of the congressional intent.

Earl Warren:

Well, in Fish and Game matters, the Government collaborates with States but they don’t always accept their regulations as laws in other instances.

Leonard B. Sand:

No, but here Congress, in using the phrase “law of the State”, did look to — to the — whatever law that — that State felt properly binds its citizens and there’s no question here as to the validity of these rules and regulations within the State of Florida.

With respect to the — to the question of — of notice, I would like also to state that the facts alleged in the information indicate that the defendant here is a — a fish dealer and as such would have to get a — a fish license.

And it says very plainly on that license that it is unlawful for any wholesaler or retail fish dealer knowingly to have or allow, would permit any that any black bass to be stored on the premises.

So that certainly, this defendant must have had knowledge of — of the prohibitions with respect to black bass that existed in the State of Florida.

Hugo L. Black:

Does the law book refer to those as laws?

Leonard B. Sand:

Just the Wildlife Code referred to?

Hugo L. Black:

Yes.

Leonard B. Sand:

The Commission refers to its rules and regulations, past rules and regulations, but the Florida legislature refers to them as laws.

Hugo L. Black:

Where does it do that?

Leonard B. Sand:

It does that in Section 372.07.

Hugo L. Black:

Where is that supposed to — I mean is that printed in one the briefs?

Leonard B. Sand:

That is printed in the — in the Wildlife Code.

Hugo L. Black:

Was that an act of the legislature?

Leonard B. Sand:

That is a statute, an act of the legislature.

Hugo L. Black:

What did it say?

Leonard B. Sand:

It says that the Game and Fresh Water Fish Commission and each and every one of its duly authorized conservation agents shall have power and authority throughout the State to enforce all laws relating to game, non-game birds, fresh water fish and so on.

Hugo L. Black:

But where does it say that regulations and rules are laws?

Leonard B. Sand:

Well, by virtue of the constitutional amendment that the legislature can act — can enact only such laws as will be consistent with those of the Commission.

Hugo L. Black:

Does — does the constitutional amendment refer to the Commission’s rules and regulations as laws?

Has anybody ever referred to it as laws before in a — in any of the legislative acts or in the constitutional provision?

Leonard B. Sand:

In — in Florida.

Hugo L. Black:

In Florida?

Leonard B. Sand:

In Florida.

In Florida, the amendment itself —

Hugo L. Black:

I understand it authorizes and promulgates regulations and rules.

But does it refer to them as laws?

Leonard B. Sand:

It —

Hugo L. Black:

Have they ever referred to them as laws?

Leonard B. Sand:

It — it does — it does in the particular statute to which I referred with respect to the power to arrest for violation of — of laws.

Hugo L. Black:

So, where — where — for what violations of laws?

Leonard B. Sand:

Laws relating to game.

Hugo L. Black:

But does it say — does it say anywhere that regulations and rules are to be treated as laws?

Leonard B. Sand:

There is as far as I know, no — no Florida statute which says rules and regulations shall be laws.

There is a Florida statute.

Hugo L. Black:

And on — has there been any of them published which referred to as laws or any state publication of any kind referred to them as laws?

Leonard B. Sand:

There — there’s a — there’s a further Florida statute which says that Section 372.70, which says that the prosecuting officers of the civil courts of criminal jurisdiction of the State shall investigate and prosecute all violation of the laws relating to game, fresh water fish.

Hugo L. Black:

Yes.

Leonard B. Sand:

And of course, by virtue of the constitutional amendment, it is only this Commission which — which has the supreme power in Florida to — to regulate fish and game.

Hugo L. Black:

I mean if these other states refer to these as laws rather than the rules and regulations?

Leonard B. Sand:

That — that —

Hugo L. Black:

I’m — I’m thinking about Congress passing a law and when it said laws, I have always, to myself rather had a distinction in my mind between laws and rules and regulation of a Board and maybe Congress might have.

Leonard B. Sand:

So if it — if it did, it certainly — it certainly indicated — well — in the — in the —

Hugo L. Black:

But it can be easily said that instead of saying the laws, they could have said laws and regulations in this law in which you rely on which there’s information read.

Leonard B. Sand:

There — but they could have, Your Honor, but in Section 669 of Title 16 cited at pages 24 and 25 of the Government’s brief.

Hugo L. Black:

What does it say?

Leonard B. Sand:

Well, it’s — it says there, at the top of page 25, it begins at the bottom pages 24, “no money apportioned under said sections to any state shall be expended therein until its legislature or other state agency authorized by the state constitution to make laws governing the conservation of wildlife.

Hugo L. Black:

Just what is the reference directly to — to the laws?

Leonard B. Sand:

To the laws in — in a federal statute, in a federal statute.

Hugo L. Black:

And that was 1937?

Leonard B. Sand:

That was in 1937 and subsequent to that, the Black Bass Act was amended — it was amended in — in 1947 and again in 1952.

And when it was amended in 1947, the purpose was said to aid state laws and regulations.

Felix Frankfurter:

Mr. Sand, as — as Mr. Chief Justice was referring (Inaudible) If your brief does not — you need to tell me that it does, if your brief has not addressed itself to the questions that have been raised as to the — what I call the fugitive character unavailable, this difficulty surrounding why easily obtained knowledge through this conflict, is in short, the conflict is difficult to get at.

Felix Frankfurter:

It further more (Inaudible) whether it would be changed overnight, in 30 days in this directory as your brief has dealt with — with the implications of such difficulties in ascertaining what’s supposed is “the law” of Florida is, then as I said referring to the Chief Justice in as far as discernment is likely to have an additional memorandum of the Government addressing itself with that Act that’s in the case to — and particularly, to have in mind the implications, the well-known historical implications, the argument to this Court of the Hot Oil case in 293 U.S.

Leonard B. Sand:

That —

Felix Frankfurter:

And does — does the brief deal with (Voice Overlap) —

Leonard B. Sand:

That the brief that deals with —

Felix Frankfurter:

If you take (Inaudible)

Leonard B. Sand:

It does — it does to a limited extent and a —

Felix Frankfurter:

(Inaudible)

Leonard B. Sand:

Thank you.