United States v. Salberg

1 Ohio Law. Abs. 629

Opinion

WESTENHAVER, D. J.:

Epitomized Opinion

Salberg was indicted for failure to register as required by the Selective Service Act of May 18, 1917, on June 5, 1917. The Selective Service Act makes it an offense for any person thus required to register to wilfully fail or refuse to present himself for registration or to submit thereto as required by the act. The offense is declared to be a misdemeanor punishable by imprisonment for not more than one year. No limitation upon a prosecution is provided by that act. The Statute of Limitations, Secc. 1708 U. S. Comp. Stat., as amended by Act Nov. 17, 1921, provides no person shall be prosecuted, tried or punished for any offense unless didictment is found within three years after such offense is committed. The amendment extended the period of limitation to six years with respect to offenses involving the defrauding or attempting to defraud the U. S. of any agency thereof. It also provides that it shall not apply to offenses already barred by the provisions of -existing laws, The indictment of Salberg was not found until Dec. 20, 1922. The three year period expired June, 1920. The U. S. pleaded a joint resolution of Congress approved March 8, 1922. This resolution declared that certain acts and resolutions of Congress shall not terminate before the expira-: tion of three years after date of President’s Proclamation of Peace, or effect the amenability to prosecution and trial of any person who shall wilfully fail or refuse to comply with requirements of the Act of May 8, 1917. Salberg demurred to the indictment. In sustaining the demurrer the court held:

Attorneys — H. C. Pontius, for Salberg; G. J. Pill-iod, for U. S.

1. As Salberg is charged with violating the Selective Service Act on June 5, 1917, prosecution of the offense charged was barred not later than June, 1920. The indictment was not found until Dec. 20, 1922. The amendment of Nov. 17, 1921, to the applicable Statute of Limitations does not apply to this case because the Statute oi Limitations had fully run.

2. A joint resolution declaring that previous acts shall'1 not be construed in a certain way is only the expression of an opinion as to what they may mean and is not equivalent to an enactment of law with a retroactive effect.

3. A legislature may enact a law and if not forbidden by the Constitution may make it apply ex post facto or retroactively. But the legislature may declare what the law shall be, but not what it was. 104 U. S. 668.