Hoover v. Intercity Radio Co. Inc.
286 F. 1003 (D.C. Cir.)
February 5, 1923
Van Orsdel, Associate Justice.
This appeal is from an order of the Supreme Court of the District of Columbia,
directing the issuance of a writ of mandamus requiring appellant, Secretary
of Commerce, to issue to plaintiff company, a license to operate a radio station
in the city of New York.
The plaintiff alleged that it has been engaged in the business of wireless telegraphy
between New York and the other cities of the United States since January 16,
1920, under licenses issues from time to time by defendant, pursuant to the
Act of Congress approved August 13, 1912, 37 Stat. 302 (Comp. St. Section 10100-10109).
It was further alleged that the last license expired on November 12, 1921; that
defendant refused to grant plaintiff a new license for the operation of its
station; that appellee, in all respects, complied with the requirements of the
act of Congress and of the regulations contained therein; and that the duty
imposed upon defendant of granting licenses is purely a ministerial one.
Defendant answered, admitting the refusal of the license, but defending on the
ground that he had been unable to ascertain a wave length for use by the plaintiff,
which would not interfere with the government and private stations, and that
under the provisions of the act of Congress the issuance or refusal of a license
is a matter wholly within its discretion.
Section 1 of the act (Comp. St. Section 10100) forbids the operation of radio
apparatus, where interferences would be caused with receipt of messages or signals
from beyond the jurisdiction of the state or territory in which it is situated,
“except under and in accordance with a license, revocable for cause, in
that behalf granted by the Secretary of Commerce and Labor upon application
therefore.” The license shall be in form prescribed by the Secretary, containing
the restrictions pursuant to the act “on and subject to which the license
is granted.” Section 2 (Comp. St. Section 10101). The license also “shall
state the wave length of the wave lengths authorized for use by the station
for the prevention of interference and the hours for which the station is licensed
for work.” The license is further made subject to regulations of the act
and such regulations as may be made by the authority of the act.
The Secretary of Commerce is given authority, for the purpose of preventing
or minimizing interference with communication between stations, to enforce the
regulations established by the act through the collectors of customs and other
officers in the government, with power, however, in his discretion, to waive
the provisions of the regulations when no interference obtains.
The act further provides as follows:
All stations are required to give absolute priority to signals and radiograms
relating to ships in distress; to cease all sending on hearing a distress signal;
and, except when engaged in answering or aiding the ship in distress, to refrain
from sending until all signals and radiograms relating thereto are completed.
Section 4 (Comp. St. Section 10103).
Private or commercial shore stations, so situated that their operation interferes
with naval and military stations, are forbidden to “use their transmitters
during the first fifteen minutes of each hour, local standard time,” during
which time the military and naval stations shall transmit signals or radiograms,
“except in case of signals or radiograms relating to vessels in distress.”
The Secretary is forbidden to license private or commercial stations to adopt
a wave length between 600 meters and 1,600 meters, the wave lengths between
these figures being reserved for governmental agencies. Penalties are prescribed
for violations of the act.
Congress seems to have legislated on the subject of radio telegraphy with reference
to the undeveloped state of the art. Interference in operation is conceded;
hence the act undertakes to prescribe regulations by which the interference
may be minimized rather than prevented. It regulates the preferences to be accorded
distress signals and government business. It specifically subjects private and
commercial stations to the regulations prescribed by the act, the enforcement
of which is imposed upon the Secretary of Commerce, acting “through the
collectors of customs and other offices re of the government.” Indeed,
the impossibility of totally eliminating interference was recognized internationally
by the London Convention which resulted in the Treaty of July 8, 1913 (38 Stat.
1672).
Complete control of the whole subject was reserved by Congress in the provision
of section 2 (Comp. St. Section 10101) that “such license shall be subject
to the regulations contained herein, and such regulations as may be established
form time to time by authority of this act of subsequent acts or treaties of
the United States, “ and the further provision that “such license
shall provide that the President of the United States in time of war or public
peril or disaster may cause the closing of any station for radio communication
and the removal therefrom of all radio apparatus, or may authorize the use or
control of any such station or apparatus by any department of the government,
upon just compensation to the owners.”
We are in accord with the construction placed upon the act by the Attorney General
on October 24, 1912 (29 Op. Atty. Gen. 579), in response to an inquiry from
the Secretary of Commerce and Labor, as follows:
The language of the act, the nature of the subject-matter regulated, as well
as the general scope of the statute, negative the idea that Congress intended
to repose any such discretion in you in the matter of licenses. It is apparent
from the act as a whole that Congress determined thereby to put the subject
of radio communication under the federal supervision, so far as it was interstate
or foreign in its nature. It is also apparent therefrom that that supervision
and control is taken by Congress upon itself, and that the Secretary of Commerce
and labor is only authorized to deal with the matter as provided in the act,
and is given no general regulative power in respect thereto. The act prescribes
the conditions under which the licenses shall operate, containing a set of regulations,
with penalties for the violations.
That Congress intended to fully regulate the business of radio telegraphy, without
leaving it to the discretion of an executive officer, is apparent from the report
of the House committee in recommending the passage of the bill to the House
of Representatives, as follows:
The first section of the bill defines its scope within the commerce clause of
the Constitution, and requires all wireless stations, ship and shore, public
and private, to be licensed by the Secretary of Commerce and Labor. This section
does not give the head of that department discretionary power over the issue
of licenses, but in fact provides for an enumeration of the wireless stations
of the United States and on vessels under the American Flag. The license system
proposed is substantially the same as that in use for the documenting upward
of 25,000 merchant vessels.
It was further stated by the chairman of the committee on commerce in the Senate,
when the bill was under consideration, that “it is compulsory with the
Secretary of Commerce and Labor that upon application these licenses shall be
issued.”
While committee reports are not binding upon the courts in interpreting statutes,
they are indicative of the legislative intention, and will be followed when
the statements so made accord with the reasonable interpretation to be drawn
from the language of the act itself.
We are not unmindful of the strict rule forbidding interference with the exercise
of official discretion by the extraordinary processes of the courts. The rule
that mandamus will not lie to control the action of an official of the executive
department, in the exercise of discretionary power, is too well settles to require
discussion. But where the duty imposed is purely ministerial, and there is no
discretion reposed in the officer, the courts will not hesitate to require the
performance of the duty as prescribed.
In the present case the duty of naming a wave length is mandatory upon the Secretary.
The only discretionary act is in selecting a wave length, within the limitations
prescribed in the statute, which, in his judgment, will result in the least
possible of interference. The issuing of a license is not dependent upon the
fixing of a wave length. It is a restriction entering into the license. The
wave length named by the Secretary merely measures the extent of the privilege
granted to the licensee.
It logically follows that the duty of issuing licenses to person or corporation
coming within the classification designated in the act reposes no discretion
whatever in the Secretary of Commerce. The duty is mandatory; hence the courts
will not hesitate to require its performance.
The judgment is affirmed, with costs.
UNITED STATES v. ZENITH RADIO CORPORATION et al.
12 F. 2d 614 (N.D. Ill.)
April 16, 1926
Wilkerson, District Judge.
The information charges violations of section 1 of the Act of August 13, 1912,
c. 287 (37 Stat. 302 [Comp. St. Section 10100]).
The first count alleges that on December 19, 1925, defendant Zenith Radio Corporation
used and operated certain apparatus for radio communication, as a means of commercial
intercourse among several states of the United States, to wit, from Mt. Prospect,
Ill., to Seattle, Wash.; which apparatus was so used and operated not under
and in accordance with a license such as described in the act; and that defendant
McDonald aided, abetted, and procured the commission of the offense. The second,
third and fourth counts charge offenses on other dates in the same language
as count 1.
The fifth, sixth, seventh and eighth counts are the same as the first four counts,
except that it is charged that the corporation “used and operated certain
apparatus for radio communication for the transmission of radiograms and signals,
the effect of which then and there extended beyond the jurisdiction of the state
in which the same were then and there made.”
Section 1 of the act in question prohibits the use of apparatus for radio communication
as a means of commercial intercourse among the several states, or with foreign
nations, or upon any vessel of the United States engaged in the interstate of
foreign commerce, or for the transmission of radiograms or signals the effect
of which extends beyond the jurisdiction of the state or territory in which
the same are made, or where interference would be caused thereby with the receipt
of messages or signals from beyond the jurisdiction of said state or territory,
except under and in accordance with a license, revocable for cause, granted
by the Secretary of Commerce upon application therefor. It is provided:
Any person company, or corporation that shall use or operate any apparatus for
radio communication in violation of this section, or knowingly aid or abet another
person, company, or corporation in so doing, shall be deemed guilty of misdemeanor….
Section 2 of the act (Comp. St. Section 10101) provides:
Every such license shall be in such form as the Secretary of Commerce (and Labor)
shall determine and shall contain the restrictions, pursuant to this act, on
and subject to which the license is granted; every such license shall be issued
only to citizens of the United States or Porto Rico or to a company incorporated
under the laws of some state or territory or of the United States or Porto Rico,
and shall specify the ownership and location of the station in which said apparatus
shall be used and other particulars for its identification and to enable its
range to be estimated; shall state the purpose of the station in actual operation
at the date of passage of this act, shall contain the statement that satisfactory
proof has been furnished that it was actually operating on the above-mentioned
date; shall state the wave length or the wave lengths authorized for use by
the station for the prevention of interference and the hours for which the station
is licensed for work; and shall not be construed to authorize the use of any
apparatus for radio communication in any other station that that specified.
Every such license shall be subject to the regulations contained herein and
such regulation as may be established from time to time by authority of this
act of subsequent acts and treaties of the Untied Sates. Every such license
shall provide that the President of the united States in time of war or public
peril or disaster may cause the closing of any station for radio communication
and the removal therefrom of all the radio apparatus, or may authorize the use
or control of any such station or apparatus by any department of the government,
upon just compensation to the owners.
Section 4 of the act (Comp. St Section 10103) provides:
For the purpose of preventing or minimizing interference with communication
between stations in which such apparatus is operated, to facilitate radio communication,
and to further the prompt receipt of distress signals, said private and commercial
stations shall be subject to the regulations of the section. These regulations
shall be enforced by the Secretary of Commerce (and Labor) through the collectors
of customs and other officers of the government as other regulations herein
provided for.
The Secretary of Commerce (and Labor) may, in his discretion, waive the provisions
of any or all of these regulations when no interference of the character above
mentioned can ensue.
Among the regulations prescribed in section 4 are the following:
Normal wave length
First. Every station shall be required to designate a certain definite wave
length as the normal sending and receiving wave length of the station. This
wave length shall not exceed six hundred meters or it shall exceed one thousand
six hundred meters. Every coastal station open to general public service shall
at all times be ready to receive messages of such wave lengths as are required
by the Berlin convention. Every ship station, except as hereinafter provided,
and every coast station open to general public service shall be prepared to
use two sending wave lengths, one of three hundred meters and one of six hundred
meters, as required by the international convention in force: Provided, that
the Secretary of Commerce (and Labor) may, in his discretion, change the limit
of wave length reservation made by regulations first and second to accord with
international agreement to which the United States is a party.
Other wave lengths
Second. In addition to the normal sending wave length all stations, except as
provided hereinafter in these regulations, may use other sending wave lengths:
Provided, that they do not exceed six hundred meters or that they do exceed
one thousand six hundred meters: Provided further, that the character of the
waves emitted conforms to the requirements of regulations third and fourth following….
Division of Time
Twelfth. At important seaports and at all other places where naval or military
and private or commercial shore stations operate in such close proximity that
interference with the work of naval and military stations cannot be avoided
by the enforcement of the regulations contained in the foregoing regulations
concerning wave lengths and character of signals emitted, such private or commercial
shore stations as do interfere with the reception of signals by the naval and
military stations concerned shall not use their transmitters during the first
fifteen minutes of each hour, local standard time. The Secretary of Commerce
(and Labor) may, on the recommendation of the department concerned, designate
the station or stations which may be required to observe this division of time….
General restrictions on private stations
Fifteenth. No private or commercial station not engaged in the transaction of
bona fide commercial business by radio communication or in experimentation in
connection with the development and manufacture of radio apparatus for commercial
purposes shall use a transmitting wave length exceeding two hundred meters,
or a transformer input exceeding one kilowatt, except by special authority of
the Secretary of Commerce (and Labor) contained in the license of the station:
Provided, that the owner or operator of a station of the character mentioned
it this regulation shall not be liable for a violation of the requirements of
the third or fourth regulations to the penalties of one hundred dollars or twenty-five
dollars, respectively, provided in this section unless the person maintaining
or operating such station shall have been notified in writing that the said
transmitter has been found, upon tests conducted by the government, to be so
adjusted as to violate the said third and fourth regulations, and opportunity
has been given to said owner or operator to adjust said transmitter in conformity
with said regulations….
Penalties
For violation of any of these regulations, subject to which a license under
sections one and two of this act may be issued, the owner of the apparatus shall
be liable to a penalty of one hundred dollars, which may be reduced or remitted
by the Secretary of Commerce (and Labor), and for repeated violations of any
of such regulations, the license may be revoked.
For violation of any of these regulations, except as provided in regulation
nineteenth, subject to which a license under section three of this act may be
issued, the operator shall be subject to a penalty of twenty-five dollars, which
may be reduced or remitted by the Secretary of Commerce (and Labor), and for
repeated violations of any such regulations, the license shall be suspended
or revoked.
The Secretary of Commerce granted a license on September 21, 1925, to Defendant
Corporation, and that license was in effect at the times of the alleged offenses
charged in the information…
Among the provisions of the license, the following are to be noted particularly:
This station to be operated only on Thursday nights from 10 to 12 p.m., central
standard time, and then only when the use of this period is not desired by the
General Electric Company’s Denver station. This license is also issued
conditionally upon the avoidance of interference with other stations.
In view of special conditions the station is authorized to sue for communication
exclusively with stations licensed by the United States the following additional
wave lengths under 600 or over 1,600 meters: Meters, 332.4.
The material facts are not in dispute. It is agreed that defendant corporation,
on the dates charged in the information, operated its station on a wave length
and at times which were not authorized.
The broad provisions of section 1 of the at prohibit the use of the radio apparatus
except under and in accordance with a license granted by the Secretary of Commerce.
The use of the apparatus in violation of this provision is made misdemeanor,
punishable by fine up to $500 and forfeiture of the apparatus.
Section 2 of the act provides that the license shall contain the restrictions,
pursuant to the act, on and subject to which the license is granted. It is provided
in section 2 that the license “shall state the wave length or the wave
lengths authorized for use by the station for the prevention of interference
and the hours for which the station is licensed for the work.” It is further
provided: “Every such license shall be subject to the regulations contained
herein and such regulations may be established from time to time by authority
of this act or subsequent acts and treaties of the United States.”
There is no express grant of power in the act to the Secretary of Commerce to
establish regulations. The regulations subject to which the license is granted
are contained in the fourth section of the act.
The fifteenth regulation prohibits a private or commercial station not engaged
in the transaction of bona fide commercial business by radio communication or
in the experimentation in connection with the development and manufacture of
radio apparatus for commercial purposes from using a wave length exceeding 200
meters except by special authority of the Secretary of Commerce. Defendant’s
license authorizes the use of a wave length of 332.4 meters on Thursday night
from 10 to 12 p.m. when the use of this period is not desired by the General
Electric Company’s Denver Station.
Each of the acts of the defendant, relied upon by the United States as the basis
of prosecution, is within the prohibition of the fifteenth regulation. Each
count of the information covers broadcasting on a wave length of 329.5 meters
at a time not covered by the authority in the license. Section 4f contains a
special provision for penalties for violations of the regulations as follows:
For violation of any of these regulations, subject to which a license under
sections one and two of this act may be issued, the owner of the apparatus shall
be liable to a penalty of one hundred dollars, which may be reduced or remitted
by the Secretary of Commerce,…and for repeated violations…the license
may be revoked.
Does the operation of the station upon any wave length at any other time than
from 10 to 12 p.m. on Thursday constitute a violation of section 1? The license
provides:
This station to be operated only on Thursday nights from 10 to 12 p.m. Central
Standard time and then only when the use of this period is not desired by the
General Electric Company’s Denver Station.
The provision in section 2 as to stating in the license the hours for which
the station is licensed must be read and interpreted in its relation to the
entire act.
The Secretary of Commerce is required to issue the license subject to the regulations
in the act. The Congress has withheld from him the power to prescribe additional
regulations established by Congress, the latter must control. Division of time
is covered by the twelfth regulation. The provision in section 2 as to hours
appears, in view of the references in that section to the regulations, to refer
to the regulation as to the division of time. At least, the statute is ambiguous
in this respect, and, while it should be given a reasonable construction, ambiguities
are not to be solved so as to embrace offenses not clearly within the law. Krichman
v. U.S., 256 U.S. 363, 367, 41 S. Ct. 514, 65 L. Ed. 992.
Furthermore, we must remember, in considering an act of Congress, that a construction
which might render in unconstitutional is to be avoided. A statute must be construed,
if fairly possible, so as to avoid not only the conclusion that is unconstitutional
but grave doubts upon the score. U.S. v. Standard Brewery, 251 U.S. 210,220,40
St. Ct. 139, 64 L. Ed. 229; U.S. v Jin Fuey Moy, 241 U.S. 394, 401, 36 S. Ct.
658, 60 L. Ed. 1061, Ann. Cas. 1917D, 854.
If section 2 is construed to give to the Secretary of Commerce power to restrict
the operation of a station as the United States contends is done by this license,
what is the test or standard established by Congress, by which the discretion
of Secretary is to be controlled? In other words, what rule has Congress laid
down for his guidance in determining division of time between the defendant
and the General Electric Company? U.S. v Grimaud, 220 U.S. 506, 519, 31 S. Ct.
480, 55 L. Ed. 563; Union Bridge Co. v. U.S., 204 U.S. 364, 27 S. Ct. 367, 51
L. Ed. 523; Field v. Clark, 143 U.S. 649, 692, 12 S. Ct. 495, 36 L. Ed. 294.
No language is more worthy of frequent and thoughtful consideration than these
words or Mr. Justice Matthews, speaking for the Supreme Court in Yick Wo. V.
Hopkins, 118 U.S. 356. 369. 6 S. Ct. 1064, 1071 (30 L. Ed. 220):
When we consider the nature and the theory of our institutions of government,
the principles upon which they are supposed to rest, and review the history
of their development, we are constrained to conclude that they do not mean to
leave room for the play and action of purely personal and arbitrary power.
Congress cannot delegate its power to make a law, but it can make a law to delegate
a power to determine some fact or state of facts upon which the law makes or
intends to make its own action depend. Has Congress prescribed the rule or standard
which is to control the Secretary of Commerce in the exercise of his discretion
with the degree of certainty required in criminal statutes? It is axiomatic
that statutes creating and defining crimes cannot be extended by intendment,
and that no act, however, wrongful, can be punished under such a statute, unless
clearly within its terms. There can be no constructive offenses, and, before
a man can be punished, his case must be plainly and unmistakably within the
statute. U.S. v. Weitzel, 246 U.S. 533, 543, 38 S. Ct. 381, 62 L. Ed. 872; U.S.
v. Harris, 177 U.S. 305, 310, 20 S. Ct. 609, 44 L. Ed. 780; Todd v. U.S., 158
U.S. 278, 282, 15 S. Ct. 889, 39 L. Ed. 982.
If we view the acts of the defendant corporation as violations of the fifteenth
regulation, and admit for the present purpose the validity of that regulation,
do they constitute a violation of section 1 also because the restrictions imposed
under the regulation are included in the license? It is elementary that where
there is, in an act, a specific provision relation to a particular subject,
that provision must govern in respect to the subject as against general provisions
in the act, although the latter, standing alone, would be broad enough to include
the subject to which the more particular provision relates. Endlich, Interpretation
of Statutes, section 216; Swiss National Insurance Co. v. Miller, 53 App. D.C.
173, 289 F. 571, 576; Washington v. Miller, 235 U.S. 422, 428, 35 S. Ct. 119,
59 L. Ed. 295; U.S. v. Nix, 189 U.S., 199, 205, 23 S. Ct. 495, 47 L. Ed. 775;
Townsend v. Little, 109 U.S. 504, 519, 3 S. Ct. 357, 27 L. Ed. 1012. This rule
is particularly applicable to criminal statues in which specific provisions
relating to particular subjects carry smaller penalties than the general provision.
Congress, when inserted the regulations in the statute, provided especially
for their violation. That provision should control, in my opinion, against the
general, indefinite, and ambiguous provisions of sections 1 and 2.
My conclusion is that, under the rules applicable to criminal statutes, sections
1 and 2 cannot be construed to cover the acts of the defendant upon which this
prosecution is based. Other questions have been argued which it is unnecessary
to decide.
Reference has been made to the rule of practical construction. It is sufficient
to say that administrative rulings cannot add to the terms of an act of Congress
and make conduct criminal which such laws leave untouched. U.S. v Standard Brewery,
251 U.S. 210, 220, 40 S. Ct. 139, 64 L. Ed. 229.
Finding for the defendants.