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August 22, 1949

DETTRA FLAG CO., Inc. et al.

The opinion of the court was delivered by: BARD

On June 23, 1948, an information containing eight counts was filed against the defendants for violating Section 76e of Title 18 U.S.C.A. by manufacturing and selling banners and drapes on which were reproduced the insignia and emblem of The American Legion and by circulating and distributing a catalogue bearing a colorable imitation of a reproduction of such insignia and emblem without authorization from the Legion. The case is now before me on the defendants' motion to dismiss the information on the grounds that this statute is an unconstitutional delegation of legislative powers by Congress, and that the information is defective and invalid for indefiniteness.

Section 76e of Title 18 U.S.C.A. (now 18 U.S.C.A. § 705, wherein the wording has been slightly rephrased) provides: 'That the manufacture, sale or purchase for resale, either separately or appended to, or to be appended to, or the reproduction of any article of merchandise manufactured or sold, of the badge, medal, emblem, or other insignia or any colorable imitation thereof, or the reproduction thereof for commercial purposes, of any veterans' organization incorporated by Act of Congress, or the printing, lithographing, engraving or other like reproduction on any poster, circular, periodical, magazine, newspaper, or other publication, or the circulation or distribution of any such printed matter bearing a reproduction of such badge, medal, emblem, or other insignia or any colorable imitation thereof, of any such veterans' organization, is prohibited except when authorized under such rules and regulations as may be prescribed by such organization so incorporated. Any person who knowingly offends against any provision of this Act shall on conviction be punished by a fine not exceeding $ 250 or by imprisonment not exceeding six months, or by both such fine and imprisonment.'

 The retention of legislative power in Congress has been zealously guarded by the courts; delegation of ministerial duties, however, has had long recognition in our democratic form of government. This delegation was first effectuated in The Brig Aurora, 7 Cranch 382, 3 L. Ed. 378, in 1813, and was specifically enunciated by Chief Justice Marshall in Wayman v. Southard, 1825, 10 Wheat. 1, 6 L. Ed. 253, when he acknowledged that Congress may delegate to others the power 'to fill up the details'. 10 Wheat. page 43. As our nation expanded and our economy became more complex, the problem of legislating for our needs became equally more intricate. Of necessity, more and more ministerial duties were delegated to others. The expansion of governmental functions during the past two decades by means of administrative agencies has been accomplished to a large extent by utilizing this principle.

 Beginning with Field v. Clark, 143 U.S. 649, 12 S. Ct. 495, 36 L. Ed. 294, through to the present, the general legal dogmas which control delegation of ministerial duties have been evolved. Congress must establish definite standards to be followed and policies to be effectuated, and in criminal statutes they must affix the penalty for violation thereof. Within these standards the administrator may exercise his discretion in the application and enforcement of the statute in order to carry out its purpose. Congress may not delegate nor may an administrator usurp the legislative function. Intelligent principles and definite standards must be stated to guide, control, and limit the execution of the statute; they cannot be left to the administrator's discretion. *fn1"

 It is often hard to distinguish the line separating the power to make law from the authority or discretion as to its execution. Mutual Film Corp. v. Industrial Comm. of Ohio, 236 U.S. 230, 245, 35 S. Ct. 387, 59 L. Ed. 552, Ann.Cas. 1916C, 296; United States v. Crimaud, supra 220 page 517, 31 S. page 483. One of the problems here involved requires me to determine, in accordance with the foregoing principles, on which side of the line this statute falls.

 The standards imposed by this statute are sufficiently definite and fixed to enable anyone of average intelligence to know what the statute means. We are living in a highly integrated economy based on the production and distribution of goods, so that every one has some knowledge of what is meant by the terms 'manufacture', 'sale or purchase for resale', 'colorable imitation', 'printing', and 'circulation or distribution of any such printed matter'. Certainly, any person engaged in such pursuits would know what these terms meant. If Congress had merely prohibited such action, rather than prohibiting it unless authorized by another, no one would think of asking 'What is prohibited?' The standards which the administrator must apply are definite.

 The policy or purpose of this statute is likewise clear. Congress is attempting to protect the veterans' organizations and the public. The various veterans' organizations are incorporated by separate federal statutes, see 36 U.S.C.A. Each statute provides that each organization may adopt its own emblems, badges, pins and other insignia. The American Legion, and presumably each organization, has patented or copyrighted its insignia. Thus all rights in this insignia belong initially to the organization concerned. These organizations are national in scope and were formed to commemorate the service and sacrifice of some of our citizenry. As long as the frailties of human nature exist there will always be some outsiders unfortunately who crave and want, but do not deserve, the rights, privileges and honors that go with membership in such organizations. It is proper that Congress should seek to protect the public from frauds perpetrated by imposters, and also to protect the interest of these organizations in self identification. The committee reports in Congress state that the purpose of the Act is to protect these organizations and the public from the unauthorized use of their insignia, that patent infringement suits have been ineffective, and that the national scope of the organizations and intricacies of interstate commerce require national rather than state legislation. Judiciary Committee Report No. 1147 accompanying H.R. 5982, 76th Cong., 1st Sess. 1; Hearings before Judiciary Sub-Committee on H.R. 5982, 76th Cong., 1st Sess. 2, 4. One of the easiest ways this purpose can be effectuated is by controlling the source. Such a policy or purpose is apparent from the wording of the statute.

 In controlling the source of this evil Congress cannot be expected to regulate such reproduction in detail. Various concerns or individuals may enter and leave the fields encompassing the different methods of reproducing the insignia; their products may be of good or bad quality, and the quality may vary from time to time; the various organizations may alter or change their insignia, or bring out new insignia. It would be unreasonable to expect Congress to be a continuous fact finding body of such myriad details which might change overnight. Allowing an administrator to regulate these details within established standards is reasonable under the circumstances. Yakus v. United States, supra; United States v. Grimaud, supra; Field v. Clark, supra.

 Defendants contend that these rules and regulations of The American Legion cannot be arbitrary and unreasonable. I agree. They must conform to the standards and policies established by Congress; they cannot go beyond the scope of the ministerial duties delegated to them. Such would be an attempt to legislate, and would be void. In re Mellea, D.C., 5 F.2d 687. The rules and regulations which are within the scope of the statute must be fair and reasonable. Rules which are arbitrary and unreasonable would violate due process, as would an arbitrary and unreasonable statute. Whaley v. State, 168 Ala. 152, 52 So. 941, 30 L.R.A.,N.S., 499; cf. In re Mellea, supra. No rules or regulations have been called to my attention, and this problem is therefore not before me.

 The defendants allege further that the rules and regulations of a private corporation have been invested with the dignity of a penal statute.

 A penal statute must explicitly establish the elements of the crime which it creates, for a person cannot be left to speculate whether or not his conduct is criminal. Any statute which by its vagueness makes a man of ordinary intelligence guess as to its meaning violates due process of law. Lanzetta v. State of New Jersey, 306 U.S. 451, 59 S. Ct. 618, 83 L. Ed. 888; Connally v. General Construction Co., 269 U.S. 385, 46 S. Ct. 126, 70 L. Ed. 322. If the statute is sufficiently clear so that the elements of the crime are definite with reasonable certainty, and if the penalty is fixed by the statute, as in the statute before me, then violation of rules and regulations is made a crime not by the administrator but by Congress.

 The situation in the Grimaud case, supra, seems very analogous to this Hase of this case. The Forest Reserve Act of 1891 and amendments thereto had established definite standards and policies to be effectuated by the Secretary of Agriculture. This official was authorized to ' * * * make such rules and regulations and establish such service as will insure the objects of such reservations, namely, to regulate their occupancy and use and to preserve the forest thereon from destruction; and any violation of the provisions of * * * such rules and regulations shall be punished as is provided for in * * * (Rev. Stat. § 5388, 18 U.S.C.A. § 1853)'. 30 Stat. 35.

 When a statute has already established definite standards and policies to be effectuated, a statement explaining what the rules shall regulate is surplusage. Thus, the elaborateness of the above section of the Forest Reserve Act should not distinguish it from the statute currently before me.

 In upholding the constitutionality of this part of the Forest Reserve Act, Mr. Justice Lamar, speaking for the court, said: 'But the authority to make administrative rules is not a delegation of legislative power, nor are such rules raised from an administrative to a legislative character because the violation thereof is punishable as a public offense.' 220 521, 31 S. 484, 55 L. Ed. 563. 'A violation of reasonable rules regulating the use and occupancy of the property is made a crime, not by the Secretary, but by Congress. The statute, not the Secretary, fixes the penalty.' 220 522, 31 S. 485. 'The offense is not against the ...

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