CERTIFIED APPEAL FROM THE UNITED STATES DISTRICT COURT FOR THE SOUTHERN DISTRICT OF OHIO.
Douglas, J., delivered the opinion of the Court, in which Burger, C. J., and Black, White, Marshall, and Blackmun, JJ., joined. Stewart, J., filed a dissenting opinion, in which Harlan and Brennan, JJ., joined, post, p. 565.
MR. JUSTICE DOUGLAS delivered the opinion of the Court.
The information charged that appellee shipped sulfuric acid and hydrofluosilicic acid in interstate commerce and "did knowingly fail to show on the shipping papers the required classification of said property, to wit, Corrosive Liquid, in violation of 49 C. F. R. 173.427."
Title 18 U. S. C. § 834 (a) gives the Interstate Commerce Commission power to "formulate regulations for the safe transportation" of "corrosive liquids" and 18 U. S. C. § 834 (f) states that whoever "knowingly violates any such regulation" shall be fined or imprisoned.
Pursuant to the power granted by § 834 (a) the regulatory agency*fn1 promulgated the regulation already cited which reads in part:
"Each shipper offering for transportation any hazardous material subject to the regulations in this chapter, shall describe that article on the shipping paper by the shipping name prescribed in § 172.5 of this chapter and by the classification prescribed in § 172.4 of this chapter, and may add a further description not inconsistent therewith. Abbreviations must not be used." 49 CFR § 173.427.
The District Court, relying primarily on Boyce Motor Lines, Inc. v. United States, 342 U.S. 337, ruled that the information did not charge a "knowing violation" of the regulation and accordingly dismissed the information.
The United States filed a notice of appeal to the Court of Appeals, 18 U. S. C. § 3731, and in reliance on that section later moved to certify the case to this Court which
the Court of Appeals did; and we noted probable jurisdiction, 400 U.S. 990.
Here as in United States v. Freed, 401 U.S. 601, which dealt with the possession of hand grenades, strict or absolute liability is not imposed; knowledge of the shipment of the dangerous materials is required. The sole and narrow question is whether "knowledge" of the regulation is also required. It is in that narrow zone that the issue of " mens rea " is raised; and appellee bears down hard on the provision in 18 U. S. C. § 834 (f) that whoever "knowingly violates any such regulation" shall be fined, etc.
Boyce Motor Lines, Inc. v. United States, supra, on which the District Court relied, is not dispositive of the issue. It involved a regulation governing transporting explosives, inflammable liquids, and the like and required drivers to "avoid, so far as practicable, and, where feasible, by prearrangement of routes, driving into or through congested thoroughfares, places where crowds are assembled, street car tracks, tunnels, viaducts, and dangerous crossings." The statute punished whoever "knowingly" violated the regulation. Id., at 339. The issue of " mens rea " was not raised below, the sole question turning on whether the standard of guilt was unconstitutionally vague. Id., at 340. In holding the statute was not void for vagueness we said:
"The statute punishes only those who knowingly violate the Regulation. This requirement of the presence of culpable intent as a necessary element of the offense does much to destroy any force in the argument that application of the Regulation would be so unfair that it must be held invalid. That is evident from a consideration of the effect of the requirement in this case. To sustain a conviction, the Government not only must prove that petitioner could have taken another route which was both
commercially practicable and appreciably safer (in its avoidance of crowded thoroughfares, etc.) than the one it did follow. It must also be shown that petitioner knew that there was such a practicable, safer route and yet deliberately took the more dangerous route through the tunnel, or that petitioner willfully neglected to exercise its duty under the Regulation to inquire into the availability of such an alternative route.
"In an effort to give point to its argument, petitioner asserts that there was no practicable route its trucks might have followed which did not pass through places they were required to avoid. If it is true that in the congestion surrounding the lower Hudson there was no practicable way of crossing the River which would have avoided such points of danger to a substantially greater extent than the route taken, then petitioner has not violated the Regulation. But that is plainly a matter for proof at the trial. We are not so conversant with all the routes in that area that we may, with no facts in the record before us, assume the allegations of the indictment to be false. We will not thus distort the judicial ...