Assistant Attorney General Adkins and Mr. Karl W. Kirchwey for plaintiff in error.
[228 U.S. 525, 527] No appearance for defendant in error.
Mr. Chief Justice White delivered the opinion of the court:
By virtue of the act of March 2, 1907 [34 Stat. at L. 1246, chap. 2564] this direct writ of error is prosecuted for the purpose of reversing the judgment below because of an alleged erroneous construction given by the court to the joint resolution of March 14, 1912 (37 Stat. at L. 630), in consequence of which the indictment in this case was quashed because stating no defense against the provisions of the joint resolution. [228 U.S. 525, 528] The charging part of the indictment is as follows:
The joint resolution is as follows:
Considering it to be indisputable that two act are essential to constitute export in the legal sense, a shipment from this country to a foreign country, and the landing of the goods in such foreign country, the court below held that no transgression of the prohibition of the 1st section, making it unlawful to export, could arise from the facts charged, because they alleged-giving them the most favorable view to the government- but a shipment from this country to Mexico, unconsummated by delivery in the foreign country. Coming to consider the 2d section, it was held that the act punished by that section was the exportation prohibited by the 1st section, and hence the charge of shipment without an averment of landing in the foreign country stated no offense punishable by the 2d section. The court said:
In common speech the shipment of goods from this to a foreign country without regard to their landing in such country is often spoken of as an export. It is true also that, for the purposes of the provisions of 9, article 1, of the Constitution, prohibiting the laying by Congress of [228 U.S. 525, 530] a tax or duty 'on articles exported from any state,' and 10, article 1, forbidding any state, without the consent of Congress, to 'lay any imposts or duties on imports or exports,' a shipment is considered as the initiation of export so as to bring the goods shipped within the protection of the constitutional safeguards. Almy v. California, 24 How. 169, 16 L. ed. 644; Fairbank v. United States, 181 U.S. 283 , 45 L. ed. 862, 21 Sup. Ct. Rep. 648, 15 Am. Crim. Rep. 135. Despite, however, the significance given to the words 'to export' in these cases, it is nevertheless certain, as stated by the court below, that by a practically unanimous concensus of opinion, accurately speaking, exportation in the complete sense consists of two essential ingredients,-the sending of merchandise from this to a foreign country, and its landing in such country. But the question which we are called upon to solve, that is, the meaning of the words 'to export,' as used in the joint resolution, may not be disposed of by any mere abstract consideration of the meaning of the words, but their signification must be determined with reference to the text of the resolution itself.
Putting out of view the parenthetical clause in the text of the resolution concerning the proclamation of the President, it reads as follows: 'It shall be unlawful to export any arms or munitions of war from any place in the United States to such country;' that is, the country brought within the terms of the resolution by a proclamation of the President. Conceding for argument's sake that if the words 'to export' stood alone in the text, that is, were not accompanied by explanatory or defining words, they would have to be interpreted with reference to the meaning of export in the complete sense, that is, as including landing in the foreign country, such concession is not here controlling or persuasive. We say this because, as we have seen, the words 'to export' are expressly qualified by a clause which serves, in a sense, to define their meaning, and, at all events, to make clear the nature and char- [228 U.S. 525, 531] acter of the acts intended to be embraced by the prohibition against exporting. In other words, the resolution does not say it shall be unlawful to export, but it adds, 'any arms or munitions of war from any place in the United States to such foreign country.' In view of the accepted significance of the words 'to export' when used in their complete sense, and of the fact that in the preceding sentences of the resolution the causes leading to its adoption are expressly stated to be the violence and confusion sometimes promoted in foreign countries 'by the use of arms or munitions of war procured from the United States,' the insertion of words of definition, and the omission from such words of all reference to landing of the prohibited merchandise, would seem to make it clear that the prohibition of the resolution was directed against the act of sending from this to the foreign and prohibited country, without reference to the completion of such act by the landing or delivery of the prohibited merchandise at its destination; in other words, that the object was to forbid the act of shipment from the United States of the prohibited munitions of war to a foreign country, without reference to the fulfilment of the complete act of export by the landing of the contraband goods. If there be room for hesitancy, that is to say, ambiguity, as to the correctness of this construction of the 1st section, we think there can be no ground for such doubt if the context of the resolution be considered; that is, if the 2d section be taken into view as illustrating and making clear the text of the 1st section. There can be no doubt that the object of the 2d section was to make the prohibition of the 1st section operative by punishing violations of its provisions. Now, the 2d section does not purport to punish the act of exporting, but in express terms it only punishes 'any shipment,' thus affixing the construction which we have given to the 1st section and causing it in reason to be impossible to say that the 1st [228 U.S. 525, 532] section simply prohibits export in the completed sense. And this construction of the 2d section becomes irresistible when it is observed that for the purpose of preventing misconception the words 'any shipment' are explained and their meaning made more emphatic by the declaration that they constitute the act 'hereby made unlawful;' thus again in express terms affixing a significance to the 1st section and confirming the meaning which we have given it.
And if the legislative intent manifested on the face of the joint resolution and derived from a consideration of the evil against which it was obviously intended to provide be taken into view, it is not difficult to perceive the reasons which led to the prohibition against and punishment of shipment instead of export in the complete sense. As we have previously observed, the terms of the resolution show that it was the means afforded for the promotion of turmoil and violence in certain foreign countries by the use of arms and munitions of war derived from the United States which gave rise to the passage of the resolution. But to have merely prohibited and punished the export, in the complete sense, of arms and munitions, would not have served to prevent the continued future delivery of such arms, etc., except as the anticipation of punishment might serve as a deterrent. On the other hand, as shipments from the United States were the source of the evil, a prohibition against such shipments and punishments for making them not only exerted all the deterrent influence which could possibly have arisen from punishing export, but besides would reach the acts done in the United States which were the generative source of the trouble, and hence afford the means of putting an effective stop to the evil which it was the purpose to suppress. Although no question is raised on the subject, as in consequence of the construction we affix to the joint resolution we shall reverse and remand, we deem it well to say that merely because [228 U.S. 525, 533] resort was had to personal carriage as a means of moving the prohibited articles from this to a foreign country would not render inapplicable the prohibition against any shipment.