The opinion of the court was delivered by: MARIS
On September 11, 1937 the Collector of Customs at Philadelphia seized and the United States by the libel now before me seeks the forfeiture of a book described as a Zumstein Postage Stamp Catalogue, 1938 Edition, lately imported from Switzerland into this country through the mails. The seizure was based upon the Government's contention that its importation was unlawful because it contained illustrations of foreign postage and revenue stamps reproduced in violation of the law. The importer has intervened in the proceeding, contending that the stamp illustrations contained in the book are entirely lawful, and he claims possession of it.
I do not understand that it is contended by the Government that the illustrations of stamps contained in the book are forged or counterfeit stamps. Certainly in order to constitute it a forgery or a counterfeit an illustration of a stamp must have been made in imitation of the original with a view to deceive. Here there is no suggestion of an intent to deceive, the stamp illustrations contained in the book being obviously designed to assist in the identification and study of genuine stamps and not to serve as substitutes for them. Consequently it must be held that Section 220 of the Criminal Code, 18 U.S.C. § 349, 18 U.S.C.A. § 349, which prohibits the forging or counterfeiting of postage or revenue stamps of any foreign government or knowingly uttering or using any such forged or counterfeit stamps, can have no application to the illustrations contained in the seized book. The same must be said of Section 172 of the Criminal Code, 18 U.S.C. § 286, 18 U.S.C.A. § 286, which directs that all counterfeits of any obligation or other security of any foreign government shall be forfeited to the United States, even if it should be held that the stamps illustrated were obligations or securities of foreign governments, a point to be discussed later.
The only other penal statute to which I have been referred as bearing on the question before me is Section 161 of the Criminal Code, 18 U.S.C. § 275, 18 U.S.C.A. § 275. So far as pertinent it provides that "Whoever * * * shall make or engrave, or cause or procure to be made or engraved, or shall assist in making or engraving, any plate, stone, or other thing in the likeness or similitude of any plate, stone, or other thing designated for the printing of the genuine issues of the obligations of any foreign government, bank, or corporation; or whoever shall print, photograph, or in any other manner make, execute, or sell, or cause to be printed, photographed, made, executed, or sold, or shall aid in printing, photographing, making, executing, or selling, any engraving, photograph, print, or impression in the likeness of any genuine note, bond, obligation, or other security, or any part thereof, of any foreign government, bank, or corporation; or whoever shall bring into the United States or any place subject to the jurisdiction thereof any counterfeit plate, stone, or other thing, or engraving, photograph, print, or other impressions of the notes, bonds, obligations, or other securities of any foreign government, bank, or corporation, shall be fined not more than $5,000, or imprisoned not more than five years, or both."
Does this section render unlawful the making, selling or importing of the stamp illustrations appearing in the seized book? If it does, the importation of the book was unlawful and it is subject to seizure and forfeiture under Section 593(b) of the Tariff Act of 1930, 19 U.S.C. § 1593(b), 19 U.S.C.A. § 1593(b), unless the illustrations were excepted from the provisions of Section 161 by the Act of March 3, 1923, 42 Stat. 1437, 18 U.S.C. § 350, 18 U.S.C.A. § 350, or its amending Act of January 27, 1938, 52 Stat. 6, 18 U.S.C.A. § 350, both of which acts will be discussed later. If, on the other hand, Section 161 does not render these illustrations unlawful it must be concluded that they are entirely lawful since my researches have failed to disclose any other statute which would prohibit them. The Government points out, however, that Section 161 makes it unlawful to make, sell or import prints or impressions in the likeness of obligations or other securities of a foreign government, and it seized the book because it contended that the stamps illustrated therein were obligations or other securities of the governments which issued them. The claimant, on the other hand, contends that the stamps illustrated are in fact neither obligations nor securities. Thus arises the fundamental question in the case.
To determine this question it becomes necessary to consider the meaning of the words "obligation" and "security" as used in Section 161. Since, as we shall see, the Criminal Code does not define them, they must be given their ordinary and usual meaning. De Ganay v. Lederer, 250 U.S. 376, 39 S. Ct. 524, 63 L. Ed. 1042. In Webster's New International Dictionary, Second Edition, "obligation" is defined as "a formal and binding agreement or acknowledgment of a liability to pay a certain sum or do a certain thing." "Security" is defined in the same work as "an evidence of debt or of property, as a bond, stock certificate, or other instrument, etc.; a document giving the holder the right to demand and receive property not in his possession." When used, as they are in Section 161, in the clause -- "note, bond, obligation, or other security," -- it becomes clear that the obligations referred to are such only as may be described as securities, and that the securities mentioned are restricted to those of the same general nature as notes, bonds and obligations under the doctrine of ejusdem generis, which is particularly applicable to penal statutes. First Nat. Bank of Anamoose v. United States, 8 Cir., 206 F. 374, 46 L.R.A., N.S., 1139. It is thus seen that the underlying thought in each case is that of a written instrument evidencing an indebtedness on the part of the issuing government. Stamps, however, are mere evidences of prepayment of money by the holders to the government. In the case of postage stamps they evidence the prepayment of the charges imposed by the government for carrying matter through the mails, while in the case of revenue stamps they indicate the prepayment of certain taxes levied by the government. Certain it is that neither one of them evidences a debt due by the issuing government to the holdler. The conclusion is inescapable that postage and revenue stamps are not in fact obligations or securities as those words are used in Section 161. This conclusion is fully supported by the opinions both of the majority of the Circuit Court of Appeals for the Eighth Circuit and of the dissenting judge in the case of Biddle v. Luvisch, 287 F. 699.
As the court in the case just cited pointed out the fact that Section 147 of the Criminal Code, 18 U.S.C. § 261, 18 U.S.C.A. § 261, in defining the words "obligation or other security of the United States" specifically includes "stamps and other representatives of value, of whatever denomination, which have been or may be issued under any Act of Congress" cannot affect this conclusion since that section does not attempt to define obligations or other securities of foreign governments and is, therefore, inapplicable to those words as used in Section 161. Furthermore the fact that the Congress found it necessary to include stamps in the statutory definition of "obligation or other security of the United States" would indicate that the ordinary meaning of the terms did not include them. As Circuit Judge Lewis said in his dissenting opinion in Biddle v. Luvisch, supra (at pages 702, 703): "But Congress knew, as I think all must know, that an excise stamp is not a note, bond, obligation or other security; hence, it appreciated the necessity of declaring that an 'obligation or other security of the United States' means or includes stamps, in order to bring them within the definition of the crimes therein set out. Stamps, when issued under any act of Congress, were thus made a subject-matter for counterfeiting, as much so as if they had been named in the sections defining the offenses. But the inclusion of stamps as an obligation or other security confined them to domestic stamps. Not so with foreign stamps; they are not mentioned. They could have been expressly named in section 161 as a part of the definition of the crime, or it could have been declared by Congress that the words 'obligation or other security of any foreign government' shall be held to mean all stamps which have been or may be issued under its authority. Nothing of the kind was done, either expressly or by necessary implication. A contrary implication that Congress did not intend to include foreign stamps in the crime defined by section 161 necessarily arises."
It need only be added that when the Congress desired to prohibit the forging or counterfeiting of a postage stamp or revenue stamp of any foreign government it used those precise words and not the words "obligation" or "security" in the penal statute, Section 220 of the Criminal Code. This is additional evidence that the Congress did not intend by the latter words in Section 161 to include stamps. My conclusion finds further support in the well settled rule that the language of a penal statute must be strictly construed. Prussian v. United States, 282 U.S. 675, 51 S. Ct. 223, 75 L. Ed. 610.
It remains for us to consider the provisions of the Act of March 3, 1923, 42 Stat. 1437, 18 U.S.C. § 350, 18 U.S.C.A. § 350, as well as those of Section 2 of the Act of January 27, 1938, 52 Stat. 6, 18 U.S.C.A. § 350, which amended it. The material portions of the Act of 1923 are as follows: "That nothing in sections 161, 172, and 220 of the Act entitled 'An Act to codify, revise, and amend the penal laws of the United States,' approved March 4, 1909 (Thirty-fifth Statutes at Large, at pages 1118, 1121, and 1132), shall be construed to forbid or prevent the printing or publishing of illustrations in black and white of foreign postage or revenue stamps from plates so defected as to indicate that the illustrations are not adapted or intended for use as stamps, or to prevent or forbid the making of necessary plates therefor for use in philatelic or historical articles, books, journals, or albums, or the circulars of legitimate publishers or dealers in such stamps, books, journals, or albums."
It will at once be observed that this act was not penal in its nature. It made nothing a crime which was not a crime under the other provisions of the law to which it referred, and which I have already discussed. On the contrary it is obvious that its purpose was purely remedial. It was intended to make certain that the rinting and publishing for philatelic purposes of black and white illustrations of foreign postage and revenue stamps made from defaced plates should not be deemed to be prohibited by Sections 161, 172 and 220 of the Criminal Code. While it was in force when the book before us was seized it is clear that it can have no bearing on the question whether the illustrations in that book were lawful since none of them was printed from defaced plates.
After the seizure was made in this case the Act of 1923 was amended by Section 2 of the Act of January 27, 1938, 52 Stat. 6, 18 U.S.C.A. § 350, so as to read, so far as here material, as follows:
"(a) Nothing in sections 161, 172, and 220 of the Criminal Code [sections 275, 286, and 349 of this title], as amended, or in any other provision of law, shall be construed to forbid or prevent the printing, publishing, or importation, or the making or importation of the necessary plates for such printing or publishing, for philatelic purposes in articles, books, journals, newspapers, or albums (including the circulars or advertising literature of legitimate dealers in stamps or publishers of or dealers in philatelic or historical articles, books, journals, or albums), of black and white illustrations of --
"(1) foreign revenue stamps if from plates so defaced as to indicate that the illustrations are not adapted or ...