The opinion of the court was delivered by: SMITH
The indictment in this case contains six counts, each of which charges the defendant with a violation of certain of the regulations promulgated by the Interstate Commerce Commission pursuant to Section 835 of Title 18 United States Code Annotated. The defendant moves to dismiss the indictment and urges in support of the motion several grounds herein discussed.
'The Interstate Commerce Commission shall formulate regulations for the safe transportation within the limits of the jurisdiction of the United States of explosives and other dangerous articles, including flammable liquids, flammable solids, oxidizing materials, corrosive liquids, compressed gases, and poisonous substances, which shall be binding upon all common carriers engaged in interstate or foreign commerce which transport explosives or other dangerous articles by land, and upon all shippers making shipments of explosives or other dangerous articles via any common carrier engaged in interstate or foreign commerce by land or water.
'The commission, of its own motion, or upon application made by any interested party, may make changes or modifications in such regulations, made desirable by new information or altered conditions.
'Such regulations shall be in accord with the best-known practicable means for securing safety in transit, covering the packing, marking, loading, handling while in transit, and the precautions necessary to determine whether the material when offered is in proper condition to transport.
'Whoever knowingly violates any such regulation shall be fined not more than $ 1,000 or imprisoned not more than one year, or both; and, if the death or bodily injury of any person results from such violation, shall be fined not more than $ 10,000 or imprisoned not more than ten years, or both.' 18 U.S.C.A. 835.
Counts One, Three and Five
These counts were apparently intended to charge violations of the following regulation: 'Drivers of motor vehicles transporting any explosive, inflammable liquid, inflammable compressed gas, or poisonous gas shall avoid, SO FAR AS PRACTICABLE, and, WHERE FEASIBLE, by prearrangement of routes, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings.' (Emphasis by the Court). 49 C.F.R. 238, 1949 Ed., Section 197.1(b).
The defendant contends that the quoted regulation is invalid because of its failure to define an 'ascertainable standard of guilt.' We agree with this contention. The regulation clearly imposes upon the 'drivers of motor vehicles' the duty to avoid 'congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings,' only 'SO FAR AS PRACTICABLE, and, WHERE FEASIBLE.' The duty is not absolute but is limited; it must be discharged only so far as practicable and where feasible. It is our opinion that these very terms are so vague and indefinite as to make the standard of guilt conjectural. Whether or not a particular course of conduct is practicable may depend, as it frequently does, on individual judgment; that which seems practicable to one may not seem practicable to another.
It was held by the Supreme Court in the case of Connally v. General Construction Co., 269 U.S. 385, at page 391, 46 S. Ct. 126, at page 127, 70 L. Ed. 322: 'That the terms of a penal statute creating a new offense must be sufficiently explicit to inform those who are subject to it what conduct on their part will render them liable to its penalties is a well-recognized requirement, consonant alike with ordinary notions of fair play and the settled rules of law; and a statute which either forbids or requires the doing of an act in terms so vague that men of common intelligence must necessarily guess at its meaning and differ as to its application violates the first essential of due process of law.' It is further stated in the opinion of the Court, 269 U.S.at page 393, 46 S. Ct.at page 128: 'A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue.' See also United States v. Cohen Grocery Co., 225 U.S. 81, 41 S. Ct. 298, 65 L. Ed. 516, 14 A.L.R. 1045; Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888; Winters v. People of State of New York, 333 U.S. 507, 68 S. Ct. 665, 92 L. Ed. 840; but see United States v. Alford, 274 U.S. 264, 47 S. Ct. 597, 71 L. Ed. 1040; Sproles v. Binford, 286 U.S. 374, 52 S. Ct. 581, 76 L. Ed. 1167; United States v. Ragen, 314 U.S. 513, 62 S. Ct. 374, 86 L. Ed. 383; United States v. Sullivan, 332 U.S. 689, 68 S. Ct. 331, 92 L. Ed. 297. It is our opinion that the four cases in the latter group are distinguishable but we see no reason to discuss the distinctions.
The views expressed by the Supreme Court in the case of Kraus & Bros. v. United States, 327 U.S. 614, 66 S. Ct. 705, 90 L. Ed. 894, are opposite. The Court, passing on the validity of a regulation promulgated by the Price Administrator pursuant to the Emergency Price Control Act, 50 U.S.C.A.Appendix, 901 et seq., stated, 327 U.S.at page 621, 66 S. Ct.at page 707: 'This delegation to the Price Administrator of the power to provide in detail against circumvention and evasion, as to which Congress has imposed criminal sanctions, creates a grave responsibility. In a very literal sense the liberties and fortunes of others may depend upon his definitions and specifications regarding evasion. Hence to these provisions must be applied the same strict rule of construction that is applied to statutes defining criminal action. In other words, the Administrator's provisions must be explicit and unambiguous in order to sustain a criminal prosecution; they must adequately inform those who are subject to their terms what conduct will be considered evasive so as to bring the criminal penalties of the Act into operation. * * * The dividing line between unlawful evasion and lawful action cannot be left to conjecture. The elements of evasive conduct should be so clearly expressed by the Administrator that the ordinary person can know in advance how to avoid an unlawful course of action.' These principles are equally applicable to regulations promulgated by the Commission.
We are fully aware that the disaster which led to the present prosecution emphasized the need for adequate regulations, but it is not within our power to make them. It was further stated in the case of Kraus & Bros. v. United States, 327 U.S.at page 622, 66 S. Ct.at page 708: 'A prosecutor in framing an indictment, a court in interpreting the Administrator's regulations or a jury in judging guilt cannot supply that which the Administrator failed to do by express word or fair implication. Not even the Administrator's interpretations of his own regulations can cure an omission or add certainty and definiteness to otherwise vague language. The prohibited conduct must, for criminal purposes, be set forth with clarity in the regulations and orders which he is authorized by Congress to promulgate under the Act. Congress has warned the public to look to that source alone to discover what conduct is evasive and hence likely to create criminal liability.' It should be apparent that we cannot, under the pretense of interpretation, give certainty to the regulation so as to make it meet the obvious need.
It should be further observed that the offense defined in the regulation is malum prohibitum, and intent is not an element of the offense as defined. It is for this further reason that the standard of guilt should be prescribed with a reasonable degree of certainty so that the ordinary person can intelligently determine what conduct is within the prohibition of the regulation.
There are additional grounds urged by the defendant in support of the motion. It seems unnecessary to consider these grounds, but we deem it advisable to discuss them. A discussion may be of some assistance and ...