195 U.S.

Argument for the United States.

SCHICK v. UNITED STATES.

BROADWELL v. UNITED STATES.

ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS.

Nos. 222, 223. Argued December 2, 1903.-Decided May 31, 1904.

A written waiver of a jury by a defendant in an action brought by the United States to recover a penalty of fifty dollars under § 11 of the act of 1886 as amended by the act of May 9, 1902, is not in conflict with the laws and constitution of the United States, and does not invalidate the judgment.

McCray v. United States, ante, p. 27, followed as to constitutionality of the oleomargarine legislation.

THE facts are stated in the opinion of the court.

Mr. Willim D. Guthrie and Mr. Miller Outcalt, with whom Mr. Charles E. Prior, Mr. Francis J. Kearful, Mr. Delavan B. Cole and Mr. Charles C. Carnahan were on the brief for plaintiff in error.1

Mr. Solicitor General Hoyt for the United States:

The proceedings are by way of criminal information to impose the penalty provided for violation of section 11, of the oleomargarine act. They are directed against the persons and do not seek to forfeit their property. They are, therefore, not penal actions but criminal prosecutions..

"Civil proceedings" would seem to include only those in which the object sought is the forfeiture of property, or the recovery of a judgment for the amount of the prescribed penalty. 16 Ency. Pl. & Pr. p. 231; Atcheson v. Everett, 1 Cowp. 382; Clifton v. United States, 4 How. 242; Henderson's Distilled Spirits, 14 Wall. 33; Snyder v. United States, 112 U. S. 216; Ex parte Wilson, 114 U. S. 417.

1

1 These cases were argued simultaneously with McCray v. United States, and for abstract of arguments as to constitutionality and construction of the statutes, see ante, p. 30.

VOL. OXOV-5

The knowingly purchasing or receiving for sale of oleomargarine not stamped according to law is specifically denominated an "offense," the penalty for which is $50. This being a petty offense, why may not a defendant waive his right to a trial by jury? Callan v. Wilson, 127 U. S. 552; Brewater v. People, 183 Illinois, 143. Upon this point the decisions are not uniform. United States v. Shaw, 59 Fed. Rep. 110, distinctly asserts such a right. Also Bank of Columbia v. Okely, 4 Wheat. 244. As bearing upon the subject, see United States v. Anthony, 11 Blatch. 200; United States v. Taylor, 11 Fed. Rep. 470; In re Belt, 159 U. S. 95; Hallinger v. Davis, 146 U. S. 318; Thompson v. Utah, 170 U. S. 353.

While the language of Art. 3 of the Constitution is that the trial of all crimes shall be by jury, the language of the Sixth Amendment is that the accused shall enjoy the right to a trial by jury; and similar language is used in the Seventh Amendment. If a trial by jury be imperative, then it cannot be waived, even though a statute authorizes such a waiver; for a statute cannot nullify a constitutional requirement. But it is the right to such a trial that is preserved by these Amendments. And if it be only the right, why may not the accused waive that right, even in the absence of a statute authorizing him to do so, especially in a petty case, where jury trial was not provided for under the common law?

Express written waiver of such right was filed in each of these cases. If that right did not exist, is not a trial by the court, after such an attempted waiver, at most only error? And, not having been assigned as error below, or in this court, how can it be noticed here? Maxwell v. Stewart, 21 Wall. 71; 22 Wall. 77; Humphreys v. District of Columbia, 174 U. S. 195.

MR. JUSTICE BREWER delivered the opinion of the court.

The constitutionality of the oleomargarine legislation hav

ing been settled in McCray v. United States, just decided, there is in these two cases only a single question. The plaintiffs in error were severally prosecuted by information in the District Court of the United States for the Northern District of Illinois, under section 11 of the act of August 2, 1886, 24 Stat. 209, which reads: "That every person who knowingly purchases or receives for sale any oleomargarine which has not been branded or stamped according to law shall be liable to a penalty of fifty dollars for each such offense.

In each case the parties in writing waived a jury and agreed to submit the issues to the court. Judgments were entered in favor of the United States and their collection ordered by only the civil process of execution. That the defendants had failed to comply with the section was proved. Indeed, it was not seriously disputed, the defence resting only on the alleged unconstitutionality of the act. The waiver of a jury was not assigned as error, nor referred to by counsel at the hearing before us, either in brief or argument. The question of its effect upon the judgment was suggested by this court, and briefs were called for from the respective parties. Such briefs have been filed, and both agree that the waiver of a jury did not invalidate the proceedings. Notwithstanding this, the fact of the waiver appears in the record.

We entertain no doubt that the parties could rightfully make such a waiver, and that the judgments are in no way invalidated thereby. It will be noticed that the section characterizes the act prohibited as an offense, and subjects the party to a penalty of fifty dollars. So small a penalty for violating a revenue statute indicates only a petty offense. It is not one necessarily involving any moral delinquency. The violation may have been the result of ignorance or thoughtlessness, and must be classed with such illegal acts as acting as an auctioneer or peddler without a license, or making a deed without affixing the proper stamp. That by other sections of this statute more serious offenses are described and more grave punishments provided does not lift this one to the

dignity of a crime. Not infrequently a single statute in its several sections provides for offenses of different grades, subject to different punishments, and to prosecution in different ways. In some States in the same act are gathered all the various offenses against the person, ranging from simple assault to murder, and imposing punishments from a mere fine to death. This very statute furnishes an illustration. By one clause the knowingly selling of adulterated butter in any other than the prescribed form subjects the party convicted thereof to a fine of not more than one thousand dollars and imprisonment for not more than two years. An officer of customs violating certain provisions of the act is declared guilty of a misdemeanor and subject to a fine of not less than one thousand dollars nor more than five thousand dollars, and imprisonment for not less than six months nor more than three years. Obviously these violations of certain provisions of the statute must be classed among serious criminal offenses, and can be prosecuted only by indictment, while the violations of the statute in the cases before us were prosecuted by information. The truth is, the nature of the offense and the amount of punishment prescribed rather than its place in the statutes determine whether it is to be classed among serious or petty offenses, whether among crimes or misdemeanors. Clearly both indicate that this particular violation of the statute is only a petty offense.

In such a case there is no constitutional requirement of a jury. In the third clause of section 2, Article III, of the Constitution it is provided that "the trial of all crimes, except in cases of impeachment, shall be by jury;" and in Article VI of the amendments, that "in all criminal prosecutions the accused shall enjoy the right to a speedy and public trial by an impartial jury of the State and district wherein the crime shall have been committed." If there be any conflict between these two provisions the one found in the amendments must control, under the well-understood rule that the last expression of the will of the lawmaker prevails over an earlier

one. But that in the body of the Constitution does not include a petty offense like the present. It must be read in the light of the common law. "That," said Mr. Justice Bradley, in Moore v. United States, 91 U. S. 270, 274, referring to the common law, "is the system from which our judicial ideas and legal definitions are derived. The language of the Constitution and of many acts of Congress could not be understood without reference to the common law." Again in Smith v. Alabama, 124 U. S. 465, 478, is this declaration by Mr. Justice Matthews: "The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history." In United States v. Wong Kim Ark, 169 U. S. 649, 654, Mr. Justice Gray used this language:

"In this, as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. Minor v. Happersett, 21 Wall. 162; Ex parte Wilson, 114 U. S. 417, 422; Boyd v. United States, 116 U. S. 616, 624, 625; Smith v. Alabama, 124 U. S. 465." See also Kepner v. United States, post, 100; 1 Kent, Com. 336.

Blackstone's Commentaries are accepted as the most satisfactory exposition of the common law of England. At the time of the adoption of the Federal Constitution it had been published about twenty years, and it has been said that more copies of the work had been sold in this country than in England, so that undoubtedly the framers of the Constitution were familiar with it. In this treatise, vol. 4, p. 5, is given a definition of the word "crimes: "

"A crime, or misdemeanor, is an act committed, or omitted, in violation of a public law either forbidding or commanding it. This general definition comprehends both crimes and misdemeanors; which, properly speaking, are mere synonymous terms; though in common usage the word 'crimes' is made to denote such offenses as are of a deeper and more atrocious