(dissenting):
I dissent.
The regulation relevant in this instance is a joint publication which was promulgated in accordance with a Postal Agreement between the Department of Defense and the Post Office Department. It applies equally to all of the Services, but each identify the publication by use of their own nomenclature and, because this is a case involving an Army postal clerk, I will use its designation, SR 65-15-1. The authority of the Secretary of the Army to publish this regulation to control the Army personnel is found in 10 USC § 3012, and it governs the operations of the military postal system throughout that Service. Consequently, it has all the formal requisites of a general order or regulation. See paragraph 171a, Manual for Courts-Martial, United States, 1951.
A regulation of this type is given the force and effect of law, and the ordinary rules of statutory construction can be called upon as aids in ascertaining the intent of the Department of the Army as expressed in the language used. In 50 Am Jur, Statutes, § 18, I find the following general rules governing the nature of legislative acts:
“Statutes, or particular provisions of statutes, may be mandatory or prohibitory, or they may be directory, permissive, or discretionary, or one provision of a statute may be mandatory, and another directory. Statutes may also be permissive as to some matters and mandatory as to others. There are even provisions which have been regarded as mandatory when involved in some proceedings, and directory when involved in others, or mandatory under some circumstances and directory under other circumstances.”
Because it must cover all facets of the Army Postal System, this regulation includes both mandatory and permissive provisions, but they are severable and some in no sense depend upon others. Of course, failure to comply with those provisions which are permissive, advisory, hortatory, or the like in character, may not be made the basis for criminal prosecution, but a different principle applies to those requirements which command or prohibit the performance of mentioned acts. In this instance, the accused was alleged to have violated paragraph 33 of SR 65-15-1, supra, which is couched in mandatory language. To quote the pertinent part of it: “Military postal clerks must not accept funds for payment of postage ■with the intention of affixing the stamps to the articles subsequent to acceptance for mailing.”
The majority reach the conclusion that compliance with this paragraph of the regulation was left to the discretion of the clerks themselves. To me, the language amounts to a positive command to all military postal clerks that they cannot operate their office contrary to that provision. The use of the words “must not” indicates an absolute prohibition, and the intent of the promulgator to issue an order which will subject a violator to prosecution seems self-evident upon the most casual reading of the quoted paragraph. Moreover, the consequences which would flow from an interpretation that this provision was permissive would permit a postal clerk to deal at will with used stamps and thereby seriously impair the operations of the military postal service.
There are a number of reasons ad*688vanced in the Court’s opinion to support its conclusion that the publication is not intended as a regulation within the meaning of Article 92 of the Code, 10 USC § 892, but I find them to be of little validity. First, I concede that a few of the provisions of the Regulation “duplicate to some degree, interpret, and in some cases, amplify or condense that which is contained in the Postal Laws and Regulations and other Post Office Department publications.” But the indisputable fact remains that from the moment of its proclamation it was a lawful military regulation of general application. Repetition of or reference to another Department’s laws does not change the character of the publication. It may well be that the sections repeating or referring to other regulations are merely advisory, but that does not change the nature of different mandatory provisions and, regardless of the imposition of civil liabilities for specific violations and mention of postal regulation penalties for others, those parts which are mandatory can be made the basis for penal sanctions under Article 92. Second, I grant that the regulation is described as a “Guide for Military Postal Clerks.” A guide can contain prohibitions but, even if I were to assume to the contrary, that description means nothing if we are to stand by United States v Gray, 6 USCMA 615, 20 CMR 331, in which we said:
“. . . The form in which an order is issued does not determine its legal effect. What is important is that the words used amount to a ‘positive command.’ ”
Third, I concede that paragraph 33 does not contain a penalty provision, but I contend that does not compel a holding that the regulation is not a lawful general order. If that were a factor to be considered, I wonder what would happen to the punishment of dishonorable discharge, total forfeitures, and confinement at hard labor for two years prescribed for violations of Article 92 in the Table of Maximum Punishments, paragraph 127c, Manual for Courts-Martial, United States, 1951. The violation of any and every lawful general order carries the maximum sentence listed therein and never before has it been required that such orders provide, in the words of the majority, “by their terms . . . for the imposition of liability for noncompliance.” Furthermore, the Secretary of the Service cannot fix the punishment which could be imposed, for that power belongs either to Congress or the President.
In summation, I believe the language of the specific subdivision of the regulation alleged to have been violated must be given its ordinary meaning. Here the one under consideration prohibits acts which are inimical to the operation of the Army Postal Service. It is not conditioned upon acceptance or rejection by a postal clerk, and he must comply or suffer the consequences of violating a general regulation. As to other paragraphs of the regulations, those which are permissive and those which contain penalties under the Postal Laws and Regulations, or impose pecuniary responsibility upon military postal clerks for certain types of mistakes, I have no difficulty. If they are permissive, there is no duty to obey, but if they command obedience, their violation subjects the perpetrator to military penal sanctions as well.
I now move on to consider the question of the sufficiency of the second specification which the majority considers as inadequate to allege an offense. I agree with their proposition that if 18 USC § 1720 can be violated by one who wrongfully, unlawfully, and knowingly is in possession of cancelled United States stamps with the intent to use them in payment of postage, then an offense is alleged in this case. I cannot, however, come to their conclusion that such possession under 18 USC § 1720, supra, is not prohibited because that proviso is limited to used stamps from which the cancelled markings have been removed.
If I move back and look at the statute from its four corners, I reach the following conclusion. It was passed by Congress for a specific purpose, and I assume that was to guard the sanctity of the mails and to prohibit the trafficking in cancelled stamps by those *689who could profit at the expense of the United States Postal Service. In order to accomplish those purposes, Congress proscribed a series of acts which serve as stepping stones to a completed scheme which defrauds the Government. They are combined in the same section, but I hope to isolate each from the others and in that manner prove my point.
The first clause of the statute prohibits the use or attempted use in payment of postage any cancelled stamp, whether or not it has been previously used. The second phrase is intended to make an individual an offender if he removes, attempts to remove, or assists in removing the cancellation or defacing mark from any postage stamp — which I will at times designate as washing— that has been used in payment of postage, if the washing is done with intent to re-use the stamps for postage. The next clause enjoins the offer to sell or sale of those stamps from which the cancellation marks have been removed.
Up to that point the statute has taken care of the use or attempted use of once-used stamps, the removal or attempted removal of cancellation marks with intent to use or sell the washed stamps, and the actual sale or offer to sell. That brings me to the clause dealing with possession. It provides that anyone who knowingly possesses any such postage stamp with intent to use the same in payment of postage shall be punished. This is the clause which the Court holds is limited to washed stamps, but I regard that provision as proscribing the possession of either cancelled stamps unwashed or washed with intent to use, and I cannot subscribe to the doctrine that possession of washed stamps with intent to re-use is an offense, while possession with the same intent of those from which the cancellations have not been removed is not. The potentialities for harm to the system are not changed because the cancellation is removed. Most individuals do not have the equipment or the capabilities to remove cancellations, but a person in the postal service can easily overstamp the cancellation. Accordingly, the interpretation of the Court reaches the result that Congress intended to prevent the lesser of two evils. The idea that many philatelists would commit offenses if my interpretation is adopted does not follow. An act may be innocent until it is coupled with mens rea, and then it becomes criminal. The harm to be prevented is the re-use of stamps at the expense of the postal system, and the presence or absence of the cancellation marks on the stamps is of no importance as long as they are possessed or sold for subsequent use in paying postage. No philatelist keeps stamps for that purpose, but if he concludes to so change his trade, then he violates the law.
When interference with Governmental functions may be threatened by the use of spurious postal and revenue stamps, currency, money orders, travel orders, and the like, Congress has enacted legislation which seeks to make trafficking difficult. The laws which reach into those areas are intended to prevent not only the consummated act but the preliminary steps thereto, and that is why the possession of the articles or the tools of the trade are made offenses when coupled with an intent to use them in a way detrimental to the system. To that end Congress has j'ealously guarded the postal service and, as a preventive measure, proscribed the possession of used stamps with the intent to use or sell for re-use. To interpret the statute to apply only to washed stamps would result in a halfway measure, as this case well proves. Here the specification does nc-t allege the removal of the cancellation, but it states the possession was with the requisite criminal intent. I, therefore, conclude it alleges an offense.