dissenting.
I dissent.
*740Czarra v. Board of Medical Supervisors, 25 App. D. C. 443. On page 447 tlie court resumes tlie facts as follows:
"The appellant was first brought before the board of medical supervisors in January, 1904, and his licence ordered revoked upon a complaint made of unprofessional and dishonorable conduct in the distribution of obscene literature. The obscene literature consisted of a pamphlet purporting to relate to the cause, prevention, and cure, among other things, of venereal and secret diseases, and of certain filthy and indecent habits and practices. Upon appeal to this court the order was reversed because of the insufficiency of the complaint. Czarra v. Medical Supervisors, 24 App. D. C. 251.”
In United States v. Capital Traction Co., 34 App. D. C. 592, tlie court says (on p. 597) :
"This court, in the case of Czarra v. Medical Supers., 25 App. D. C. 443, construing a statute which provided that any licentiate of the board was subject to have his license revoked upon being-found guilty of unprofessional or dishonorable conduct, said: ‘The single question to be determined is whether, independently of the causes mentioned "unprofessional or dishonorable conduct,” as declared in the act, are sufficiently specific and certain to warrant a conviction thereof and the exercise of the power of revocation by the board of medical supervisors ... In all criminal prosecutions the right of the accused to be informed of the nature and cause of the accusation against him is preserved by the 6th Amendment. In order that he may be so informed by the indictment or information presented against him, the first and fundamental requisite is that the crime or offense with which he stands charged shall be defined with reasonable precision. He must be informed by the law, as well as by the complaint, what acts or conduct are prohibited and made punishable. In the exercise of its powers to regulate the conduct of the citizen, within the constitutional limitations, and to declare what shall constitute a crime or punishable offense, the legislature must inform him with reasonable precision what acts are intended to be prohibited.’ ”
Tlie court, however, in tlie Czarra case also said:
" ‘Every man should be able to know with certainty when he is committing a crime.’ United States v. Reese, 92 U. S. 214, 220, 23 L. Ed. 563, 565,”
*741and then went on to say:
“This obvious duty must be performed by the legislature itself, and cannot be delegated to the judiciary. It may, doubtless, be accomplished by the use of words or terms of settled meaning, or which indicate offenses well known to and defined by the common law. Reasonable certainty, in view of the conditions, is all that is required, and liberal effect is always to be given to the legislative intent when possible. But when the legislature declares an offense in words of no determinate signification, or its language is so general and indefinite as that it may embrace within its comprehension, not only acts commonly recognized as reprehensible, but others also which it is unreasonable to presume were intended to be made criminal, the courts, possessing no arbitrary discretion to discriminate between those which were and those which were not intended to be made unlawful, can do nothing else than declare the statute void for its uncertainty. ’ ’
And further on in the Csarra ease the court said:
“Doubtless all intelligent and fair-minded persons would agree in the opinion of the board of medical supervisors that the act charged against the appellant in the case at bar amounted to conduct both unprofessional and dishonorable. But this is not the test of the validity of the particular clause of the statute. The underlying question involved in all cases that may arise is whether the courts can uphold and enforce a statute whose broad and’ indefinite language may apply not only to a particular act about which there would be little or no difference of opinion, but equally to others about which there might be radical differences, thereby devolving upon the tribunals charged with the enforcement of the law the exercise of an arbitrary power of discriminating between the several classes of acts.”
From United States v. Capital Traction Co., supra, we may quote the syllabus to the following. effect:
“An act of Congress making it a criminal offense for any street railway company in the District of Columbia to run an insufficient number of cars to accommodate persons desiring passage thereon without crowding the same is too indefinite and uncertain in its definition of the offense sought to be created to support an information or indictment. (Construing sec.. 16 of the act of Congress of May 23, 1908, 35 Stat. at L. 246, chap. 190, and following Czarra v. Medical Supers., 25 App. D. C. 443.) ”
*742And on page 598 we find:
“In a criminal statute, the elements constituting the offense must be so clearly stated and defined as to reasonably admit ol but one construction. Otherwise, there would be lack of uniformity in its enforcement. The dividing line between what is lawful and unlawful cannot be left to conjecture. The citizen cannot be held to answer charges based upon penal statutes whose mandates are so uncertain that they will reasonably admit of different constructions. A criminal statute cannot rest upon an uncertain foundation. The crime, and the elements constituting it, must be so clearly expressed that the ordinary person can intelligently choose, in advance, what course it is lawful for him to pursue. Penal statutes prohibiting the doing of certain things, and providing a punishment for their violation, should not admit of such a double meaning that the citizen may act upon the one conception of its requirements and the courts upon another. As was said in United States v. Reese, 92 U. S. 214, 23 L. Ed. 563: ‘If the legislature undertakes to define by statute a new offense, and provide for its punishment, it should express its will in language that need not deceive the common mind. Every man should be able to know with certainty when he is committing a crime ... It would certainly be dangerous if the legislature could set a net large enough to catch all possible offenders, and leave it to the courts to step inside and say who could be rightfully detained, and who should be set at large. This would, to some extent, substitute the judicial for the legislative department of the government.’ ”
United States v. L. Cohen Grocery Company, 255 U.S. 81, was a case where the first two syllabi were as follows:
“Section 4 of the Food Control Act of August 10,1917, as amended October 22, 1919, in denouncing and attaching a penalty of fine or imprisonment to the making by any person of ‘any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,’ must be construed as forbidding and penalizing the exaction of an excessive price upon the sale of a commodity.
“To that extent the section, since it sets up no ascertainable standard of guilt, is repugnant to the Fifth and Sixth Amendments to the Constitution, which require due process of law and that persons accused of crime shall be adequately informed of the nature and cause of the accusation.”
*743There the defendant demurred practically because the statute was so indefinite as not to enable it to-be known what was forbidden, and therefore amounted to a delegation by Congress of legislative power to courts and juries to determine what acts should be held to be criminal and punishable. The Supreme Court of the United States quotes from the opinion of the court below as follows (on page 87):
“Therefore, because the law is vague, indefinite, and uncertain, and because it fixes no immutable standard of guilt, but leaves such standard to the variant views of the different courts and juries which may be called on to enforce it, and because it does not inform defendant of the nature and cause of the accusation against it, I think it is constitutionally invalid, and that the demurrer offered by the defendant ought to be sustained.”
Among other cases the Supreme Court quotes United States v. Capital Traction Co., 34 App. D. C. 592, supra. Then the court went on to refer to other cases in which it was insisted sustained the contrary view, intimating, as I read it, on page 92 that no standard whatever had been required in the case before it, and the court arrived at the conclusion that the statute was unconstitutional. ' ■!
Connally v. General Construction Company, 269 U.S. 385, was a case where the Oklahoma Compiled Statutes imposed severe, cumulative punishments upon contractors with the State who pay their workmen less than the “current rate of per diem wages in the locality where the work is performed.” This statute was held void for uncertainty. The Supreme Court cites from the opinion in United States v. Capital Traction Co., supra, as follows:
‘ ‘ The statute makes it a criminal offense for the street railway companies in tbe District of Columbia to run an insufficient number of cars to accommodate persons desiring passage tbereon, without crowding the same. What shall be the guide to the court or jury in ascertaining what constitutes a crowded car ? What may be regarded as a crowded car by one jury may not be so considered by another. What shall constitute a sufficient number of cars in the opinion of one judge *744may be regarded as insufficient by another . . . There is a total absence of any definition of what shall constitute a crowded car. This important element cannot be left to conjecture, or be supplied by either the court or the jury. It is of the very essence of the law itself, and without it the statute is too indefinite and uncertain to support an information or indictment.”
In State of West Virginia v. Lantz, 26 A.L.R. 894, again to quote the syllabus it was held:
“An act of the legislature (Laws 1921, chap. 112), making it a crime to operate an automobile around a curve on a public road without having the same under control, or without reducing the speed thereof to a reasonable and proper rate, is violative of §§ 10 and 14 of article 3 of the Constitution-of this state, and is void for uncertainty and indefiniteness. ’ ’
It seems that tbe particular statute in that opinion was too indefinite and among other cases the court cites United States v. Capital Traction Co., supra. In a note to the case on page 905 the commentator said as follows:
“In Texas, where the Penal Code provides that the design of the Code is to define in plain language every offense against the laws of this state, and also provides that in order that the system of penal law may be complete within itself, and that no system of foreign laws, written or unwritten, may be appealed to, it is declared that no person shall be punished for any act or omission, unless the same is made a penal offense and a penalty is affixed thereto by the written law of the state, a statute has been held invalid on the ground that it was indefinite and uncertain, which provided that the driver of any motor vehicle shall drive or operate such vehicle in a careful manner with regard for the safety and convenience of pedestrians and all other vehicles of traffic upon the highway.”
State v. Diamond, 20 A.L.R. 1527, involved the- right of free speech .and the court quotes from Czarra v. Medical Supervisors, supra, and from United States v. Reese, supra, and also cites from United States v. Capital Traction Co.
See Cinadr v. State, 300 S.W. 64, citing other cases in Texas where the principle was involved. The particular *745words of the statute was that one needlessly killing an animal is gnilty of an offense.
Stevenson v. Houston T. C. R. Co., 19 S.W. (2d) 207, was a ease where the Penal Code of Texas was held inoperative for indefiniteness in making it an offense to operate on a highway a motor vehicle not provided with adequate breaks kept in good working order.
The Act in the case before ns provides:
“Section 12.— (a) Persons operating motor vehicles on the public highway shall at all times exercise due care and take every reasonable precaution to insure the safety of persons and property.”
It seems to me that under the authorities cited the statute is void for indefiniteness. Anyone who committed an act of negligence, as in the case before us, and ordinarily would only be subjected to a civil suit for damages might be prosecuted as for a crime. I can not believe that it was the intention of the Legislature under the cited section to make people answerable in the criminal courts for negligence. While it may be true that the. said paragraph is independent of the other paragraphs and attempts to charge a separate crime, yet under these decisions I think it can not be sustained.
The case of People v. Borque, 25 P.R.R. 553, rather tends to show that a specific violation of one of the other paragraphs is necessary.
It does not seem to me that there are two lines of decisions in the Supreme Court of the United States. The true rule is stated, as I apprehend, in the Cohen case, supra. What the Supreme Court of the United States then has done is to say in effect, that certain well-known infractions need no further definition. With the other cases cited in the majority opinion I have no quarrel.- They decide that statutes making certain results of speeding a crime and so forth need no greater definition. The said cases do not vary the principle that it is the Legislature and not the courts that should say what is and what is not criminal.