Bridges v. United States/Opinion of the Court

by Harold Hitz Burton

United States Supreme Court

346 U.S. 209

Bridges  v.  United States

 Argued: May 4, 1953. --- Decided: June 15, 1953

In this proceeding we are limited to the consideration of the following questions: (1) is it barred by the statute of limitations and, if not, (2) is it barred by the principles of res judicata, or estoppel, or the Due Process Clause of the Fifth Amendment? For the reasons hereafter stated we hold that it is barred by the statute of limitations. We do not reach or discuss the second question.

The issues raised by the first question are:

1. Whether the Wartime Suspension of Limitations Act ^[1] has suspended the running of the general three-year statute of limitations ^[2] in relation to the offenses charged in-

Count I, under the general conspiracy statute; ^[3]

Count II, under § 346(a)(1) of the Nationality Act of 1940; ^[4] or

Count III, under § 346(a)(5) of the Nationality Act of 1940; ^[5] and

2. Whether the saving clause in § 21 of the Act of June 25, 1948, which enacted the present Criminal Code into law, ^[6] continued in effect the special five-year statute of limitations of § 346(g) of the Nationality Act of 1940 ^[7] in relation to violations of § 346(a) of that Act.

For the reasons set forth, we reach a negative conclusion on each of the above issues.

Petitioner Harry Bridges entered the United States in 1920 as an immigrant seaman from Austalia. Subsequently, he defeated two attempts of the United States to deport him because of his alleged Communist Party membership or affiliation. The second such attempt culminated June 18, 1945, in Bridges v. Wixon, 326 U.S. 135, 65 S.Ct. 1443, 89 L.Ed. 2103.

June 23, 1945, he applied, in the San Francisco office of the Immigration and Naturalization Service, for a Certificate of Arrival and a Preliminary Form for Petition for Naturalization. August 8, he appeared, with petitioners Schmidt and Robertson, before an examiner for a preliminary examination. Each of the three testified that Bridges was not a member of the Communist Party.

September 17, 1945, Bridges appeared in the Superior Court in San Francisco for the naturalization hearing. Schmidt and Robertson testified that they had known Bridges for five years or longer, that he was a resident of the United States during that time and that they vouched for his loyalty to the United States. Bridges gave the following answers under oath:

'Q. Do you now, or have you ever, belonged to any organization that advocated the overthrow of the government by force or violence? A. No.

'Q. Do you now, or have you ever, belonged to the Communist Party in the United States? A. I have not, I do not.'

He was then admitted to citizenship.

May 25, 1949, more than three years later, a grand jury in the United States District Court for the Northern District of California returned the present indictment in three counts.

Count I charges the three petitioners with a conspiracy to defraud the United States by impairing, obstructing and defeating the proper administration of its naturalization laws by having Bridges fraudulently petition for and obtain naturalization by falsely and fraudulently stating to the naturalization court that he had never belonged to the Communist Party in the United States, and that such statement was known at all times by each of the petitioners to be false and fraudulent. The appearance and testimony of the petitioners in the naturalization proceeding were alleged as the overt acts in the conspiracy.

That count is laid under the following general conspiracy statute:

'If two or more persons conspire either to commit any offense against the United States, or to defraud the United States in any manner or for any purpose, and one or more of such parties do any act to effect the object of the conspiracy, each of the parties to such conspiracy shall be fined not more than ten thousand dollars, or imprisoned not more than two years, or both.' § 37 of the old Criminal Code, 35 Stat. 1096, 18 U.S.C. § 88, now 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371.

Count II charges Bridges with wilfully and knowingly making a false statement under oath in the naturalization proceeding when he testified that he was not and had not been a member of the Communist Party. Count II is laid under § 346(a)(1) of the Nationality Act of 1940, 54 Stat. 1163, 8 U.S.C. § 746(a)(1), which makes it a felony for any person-

'Knowingly to make a false statement under oath, either orally or in writing, in any case, proceeding, or matter relating to, or under, or by virtue of any law of the United States relating to naturalization or citizenship.' ^[8]

Count III charges Schmidt and Robertson with wilfully and knowingly aiding Bridges, who was not entitled thereto, to obtain a Certificate of Naturalization which was to be procured by false and fraudulent statements. It avers that they knew that Bridges was a member of the Communist Party and that he had made false and fraudulent representations in the naturalization proceeding. Count III is laid under § 346(a)(5) of the Nationality Act of 1940, 54 Stat. 1164, 8 U.S.C. § 746(a)(5), which makes it a felony-

'To encourage, aid, advise, or assist any person not entitled thereto to obtain, accept, or receive any certificate of arrival, declaration of intention, certificate of naturalization, or certificate of citizenship, or other documentary evidence of naturalization or of citizenship-

'a. Knowing the same to have been procured by fraud; * * *.' ^[9]

Petitioners each moved to dismiss the indictment on the ground, inter alia, that each count was barred by the statute of limitations. The motions were denied. D.C., 86 F.Supp. 922. The trial resulted in a jury verdict of guilty on each count. Bridges received concurrent sentences of imprisonment for two years on Count I and five years on Count II. The other petitioners each received concurrent sentences of imprisonment for two years on each of Counts I and III. The Court of Appeals affirmed. 9 Cir., 199 F.2d 811. Rehearing en banc was denied. 9 Cir., 201 F.2d 254. Because of an indicated conflict between that decision and part of the decision in Marzani v. United States, 83 U.S.App.D.C. 78, 168 F.2d 133, affirmed by an equally divided Court, 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431, 336 U.S. 922, 69 S.Ct. 513, 93 L.Ed. 1075, as well as its conflict in part with United States v. Obermeier, 2 Cir., 186 F.2d 243, and because of the importance of the issues, we granted certiorari, 345 U.S. 904, 73 S.Ct. 648. ^[10]

The acts charged occurred in 1945. Accordingly, unless the general three-year statute of limitations is suspended or superseded, the indictment, found in 1949, was out of time and must be dismissed. ^[11]

A. The suspension prescribed by the Wartime Suspension of Limitations Act applies to offenses involving the defrauding of the United States or any agency thereof, whether by conspiracy or not, and in any manner, but only where the fraud is of a pecuniary nature or at least of a nature concerning property.

The Wartime Suspension of Limitations Act creates an exception to a longstanding congressional 'policy of repose' that is fundamental to our society and our criminal law. From 1790 to 1876, the general limitation applicable to noncapital offenses was two years and since then it has been three years. ^[12] In relation to a comparable exception stated in § 1110(a) as the limitation applicable under the Revenue Act of 1926, ^[13] Mr. Justice Roberts, speaking for the Court, said:

'Moreover, the concluding clause of the section, though denominated a proviso, is an excepting clause, and therefore to be narrowly construed. United States v. McElvain, 272 U.S. 633, 639, 47 S.Ct. 219, 71 L.Ed. 451. ^[14] And, as the section has to do with statutory crimes, it is to be liberally interpreted in favor of repose, and ought not to be extended by construction to embrace so-called frauds not so denominated by the statutes creating offenses.' United States v. Scharton, 285 U.S. 518, 521-522, 52 S.Ct. 416, 417, 76 L.Ed. 917.

The legislative history of this exception emphasizes the propriety of its conservative interpretation. It indicates a purpose to suspend the general statute of limitations only as to war frauds of a pecuniary nature or of a nature concerning property. It nowhere suggests a purpose to swallow up the three-year limitation to the extent necessary to reach the offenses before us.

The present Suspension Act had its origin in the Act of August 24, 1942. ^[15] See United States v. Smith, 342 U.S. 225, 226 227, 72 S.Ct. 260, 261, 96 L.Ed. 252. That Act was a wartime measure reviving for World War II substantially the same exception to the general statute of limitations which, from 1921 to 1927, had been directed at the war frauds of World War I. ^[16] The Committee Reports show that in 1921 Congress aimed the proviso at the pecuniary frauds growing out of war contracts. ^[17] Congress was concerned with the exceptional opportunities to defraud the United States that were inherent in its gigantic and hastily organized procurement program. It sought to help safeguard the treasury from such frauds by increasing the time allowed for their discovery and prosecution. In 1942, the reports and proceedings demonstrate a like purpose, coupled with a design to readopt the World War I policy. ^[18]

This interpretation of the scope of the 1942 provision was expressly approved in Marzani v. United States, 83 U.S.App.D.C. 78 82, 168 F.2d 133-137. As to nine counts based upon the amended False Claims Act, 18 U.S.C.A. § 287, the Court of Appeals for the District of Columbia Circuit held that the 1942 Wartime Suspension of Limitations Act did not suspend the three-year statute of limitations. Those counts charged that false statements had been made to government agencies in relation to Communist Party membership, in connection with an application for a position in the government service. Referring to United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598, the Court of Appeals said:

'Thus, the (Supreme) Court held that defrauding the United States in a pecuniary or financial sense is not a constituent ingredient of offenses under the False Claims Act.

'It necessarily follows, in our view, that the Suspension Act does not apply to offenses under the False Claims Act. The Supreme Court has clearly said (1) that a statute identical in pertinent part with the Suspension Act does not apply to offenses of which defrauding the United States in a pecuniary way is not an essential ingredient; and (2) that such defrauding of the United States is not an essential ingredient of offenses under the False Claims statute.' 83 U.S.App.D.C., at page 81, 168 F.2d, at page 136.

Brought here on several issues, including dismissal of the nine counts, that case was twice affirmed, without opinion, by an evenly divided Court. 335 U.S. 895, 69 S.Ct. 299, 93 L.Ed. 431, 336 U.S. 922, 69 S.Ct. 513, 93 L.Ed. 1075. See also, United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616. ^[19]

As the offenses here charged are those of knowingly making a false statement under oath in a proceeding relating to naturalization (Count II), or of conspiring to have someone do so (Count I), or of aiding someone to obtain a Certificate of Naturalization knowing it to be procured by fraud (Count III), none of them involve the defrauding of the United States in any pecuniary manner or in a manner concerning property. We accordingly hold that, for that reason, the Wartime Suspension of Limitations Act does not apply to those offenses.

B. A further ground for our conclusion is that this Court already has interpreted the language before us, or similar language in comparable Acts, to mean that the wartime suspension of limitations authorized by Congress is limited strictly to offenses in which defrauding or attempting to defraud the United States is an essential ingredient of the offense charged. Decisions of this Court, made prior to 1942, had so interpreted the earlier legislation that its substantial reenactment, in 1942, carried with it the interpretation above stated. United States v. Scharton, 285 U.S. 518, 52 S.Ct. 416, 76 L.Ed. 917; United States v. McElvain, 272 U.S. 633, 47 S.Ct. 219, 71 L.Ed. 451; United States v. Noveck, 271 U.S. 201, 46 S.Ct. 476, 70 L.Ed. 904. See also, Braverman v. United States, 317 U.S. 49, 54-55, 63 S.Ct. 99, 102, 87 L.Ed. 23, and United States v. Cohn, 270 U.S. 339, 46 S.Ct. 251, 70 L.Ed. 616.

The simplest demonstration of this point appears in Count II. The offense there charged is that Bridges knowingly made a false material statement in a naturalization proceeding. In that offense, as in the comparable offense of perjury, fraud is not an essential ingredient. The offense is complete without proof of fraud, although fraud often accompanies it. The above-cited cases show that even though the offense may be committed in a pecuniary transaction involving a financial loss to the Government, that fact, alone, is not enough to suspend the running of the three-year statute of limitations. Under the doctrine of these cases, the suspension does not apply to the offense charged unless, under the statute creating the offense, fraud is an essential ingredient of it. The purpose of the Wartime Suspension of Limitations Act is not that of generally suspending the three-year statute, e.g., in cases of perjury, larceny and like crimes. It seeks to suspend the running of it only where fraud against the Government is an essential ingredient of the crime. In view of the opportunity to commit such frauds in time of war, and in view of the difficulty of their prompt discovery and prosecution, the Government seeks extra time to deal with them. Nothing in § 346(a)(1) makes fraud an essential ingredient of the offense of making a false material statement under oath in a naturalization proceeding.

Likewise, in Count III, the aiding of someone to commit that offense, in violation of § 346(a)(5), does not require proof of fraud as an essential ingredient. If, as here, the main offense is complete with the proof of perjury, the suspension does not apply to the charge of aiding in the commission of that offense. The insertion in the indictment of the words 'procured by fraud' does not change the offense charged. The embellishment of the indictment does not lengthen the time for prosecution. It is the statutory definition of the offense that determines whether or not the statute of limitations comes within the Suspension Act.

So it is with Count I. A charge of conspiracy to commit a certain substantive offense is not entitled to a longer statute of limitation than the charge of committing the offense itself. There is no additional time prescribed for indictments for conspiracies as such. The insertion of surplus words in the indictment does not change the nature of the offense charged.

'The language of the proviso cannot reasonably be read to include all conspiracies defined by section 37. (The general conspiracy section of the old Criminal Code, now 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371.) But if the proviso could be construed to include any conspiracies, obviously it would be limited to those to commit the substantive offenses which it covers.' United States v. McElvain, 272 U.S. 633, 639, 47 S.Ct. 219, 220, 71 L.Ed. 451.

The Government contends that the General Conspiracy Act ^[20] under which Count I is laid comprises two classes of conspiracies: (1) 'to commit any offense against the United States' and (2) 'to defraud the United States in any manner or for any purpose'. It urges that the indictment here charges a conspiracy to defraud the United States under the second clause. It suggests that, under that clause, proof of a specific intent to defraud is an essential ingredient of the offense and thus brings Count I within the Suspension Act. The fallacy in that argument is that, while the indictment may be framed in the language of the second clause, both it and the proof to support it rely solely on the fact of a conspiracy to commit the substantive offenses violating § 346(a)(1) or s 346(a)(5) as charged in Counts II and III. Count I actually charges that petitioner conspired to 'defraud the United States' only by causing the commission of the identical offenses charged in Counts II and III. The use in Count I of language copied from the second clause of the conspiracy statute merely cloaks a factual charge of conspiring to cause, or knowingly to aid, Bridges to make a false statement under oath in his naturalization proceeding, or to obtain by false statements a Certificate of Naturalization to which he was not entitled.

The Court of Appeals in Marzani v. United States, supra, was convinced that the Suspension Act did not apply to such offenses, as those here involved, under the False Claims Act, no matter what words descriptive of fraud were added to the indictment, so long as fraud was not an essential ingredient of the offense defined in the statute. Another Court of Appeals arrived at a like conclusion in United States v. Obermeier, 2 Cir., 186 F.2d 243, 256-257, with respect to offenses under the statute involved in Count II of the instant indictment.

II. The saving clause in § 21 of the Act of June 25, 1948, does not 'save' the special five-year statute of limitations of the National Act of 1940 so as to apply it to the violations of that Act charged in Counts II and III.

The Government contends, alternatively, that the indictment, which was found May 25, 1949, was timely as to Counts II and III, even if the Suspension Act is not applicable to this indictment. Its alternative contention is that those counts respectively charge violations of § 346(a)(1) and (5) of the Nationality Act of 1940 which occurred in 1945 and that the indictment for them was found within the special five-year limitation of § 346(g) of that Act. ^[21] It appears, however, that § 346(a-h) was expressly repealed, as of September 1, 1948, by § 21 of the Act of June 25, 1948, which enacted the new Criminal Code into law. Including its controversial saving clause, that repealing section reads as follows:

'Sec. 21. The sections or parts thereof of the Revised Statutes or Statutes at Large enumerated in the following schedule are hereby repealed. ^[22] Any rights or liabilities now existing under such sections or parts thereof shall not be affected by this repeal.' 62 Stat. 862.

By such repeal of § 346(g), the general three-year statute of limitations became applicable. 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282. ^[23] Three years having expired before the indictment was found, § 3282 bars the instant indictment. The Government, however, contends that the abovequoted saving clause in § 21 refers not only to substantive liabilities but also to the period during which a crime may be prosecuted and thus includes the special five-year limitation contained in § 346(g). This issue was presented to the Court of Appeals in the instant case and was decided against the Government. 9 Cir., 199 F.2d 811, 819-820. In doing so, the court relied in part upon a like conclusion of the Court of Appeals for the Second Circuit in United States v. Obermeier, supra. That case related to an indictment in two counts for knowingly making, in 1945, in a naturalization proceeding, as here, false statements under oath in relation to membership in the Communist Party. The review of legislative materials and court decisions made there need not be repeated here in reaching the same result-that the saving clause in § 21 did not keep the special five-year limitation alive after September 1, 1948. ^[24]

The purpose of Congress to substitute the general three-year limitation in place of the special five-year limitation is indicated in the Reviser's Note to 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282 which says:

'In the consolidation of these sections the 5-year period of limitation for violations of the Nationality Code, provided for in said section 746(g) of Title 8, U.S.C., 1940 ed., Aliens and Nationality, is reduced to 3 years. There seemed no sound basis for considering 3 years adequate in the case of heinous felonies and gross frauds against the United States but inadequate for misuse of a passport or false statement to a naturalization examiner.'

To adopt the interpretation proposed by the Government would produce the situation that offenses committed in August, 1948, would be indictable until August, 1953, where as like offenses committed in the following October, 1948, would not be indictable after October, 1951. The longer period for the prosecution of the earlier offenses has no relation to war conditions. Such a result is not to be inferred without a clear direction to that effect.

Finally, to interpret the words 'rights or liabilities' in the saving clause as including such procedural incidents as the period within which indictments may be found would overlook the practice of Congress to specify the saving of such limitations expressly when and if Congress wished them to be 'saved.' In the Revised Statutes of 1874, § 5598 preserved 'All offenses committed, and all penalties and forfeitures' but, nevertheless, § 5599 was inserted to add 'All acts of limitation, whether applicable to civil causes and proceedings, or to the prosecution of offenses, or for the recovery of penalties or forfeitures * * *.' ^[25] The 1909 Criminal Code contained similar provisions in §§ 343 and 344. 35 Stat. 1159. In 1933, when the Revised Statutes were reexamined and obsolete sections, including § 5598, were repealed, § 5599 was retained. 47 Stat. 1431. The reason then given for its retention was that the survival clause in the general repealing statute, 47 Stat. 1431, referred 'only to 'rights' and 'liabilities' and not to remedies, recourse to which may be barred by limitation.' S.Rep. No. 1205, 72d Cong., 2d Sess. 3. See Campbell v. Holt, 115 U.S. 620, 6 S.Ct. 209, 29 L.Ed. 483.

As the general three-year statute of limitations is applicable to each of the offenses charged and has been neither suspended by the Wartime Suspension of Limitations Act, nor made inapplicable by § 21 of the Act of June 25, 1948, the indictment in this proceeding came too late to be effective. The motion to dismiss it should have been granted when first made. The judgment of the Court of Appeals, accordingly, is reversed and the cause is remanded to the District Court with direction to dismiss the indictment.

Reversed and remanded.

Mr. Justice JACKSON and Mr. Justice CLARK took no part in the consideration or decision of this case.

Mr. Justice REED, with whom The CHIEF JUSTICE and Mr. Justice MINTON join, dissenting.

Notes

1. 18 U.S.C. (Supp. V) § 3287, 18 U.S.C.A. § 3287.
2. 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282.
3. § 37 of the Criminal Code, 35 Stat. 1096, 18 U.S.C. § 88, now 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371.
4. 54 Stat. 1163, 8 U.S.C. § 746(a)(1), now 18 U.S.C. (Supp. V) § 1015(a), 18 U.S.C.A. § 1015(a).
5. 54 Stat. 1164, 8 U.S.C. § 746(a)(5), now 18 U.S.C. (Supp. V) § 1425, 18 U.S.C.A. § 1425.
6. 62 Stat. 862, 18 U.S.C.A. note preceding section 1.
7. 54 Stat. 1167, 8 U.S.C. § 746(g), now 18 U.S.C.A. § 3282.
8. Section 346(a) was repealed by § 21 of the Act of June 25, 1948, 62 Stat. 862, 868. Simultaneously, § 346(a)(1) was substantially reenacted in 18 U.S.C. (Supp. V) § 1015(a), 18 U.S.C.A. § 1015(a). For the effect, if any, of the saving clause in § 21 upon the statute of limitations relating to § 346(a), see 73 S.Ct. at pages 1063-1065, infra.
9. See note 8, supra, as to repeal of § 346(a). Simultaneously, § 346(a)(5) was substantially reenacted in 18 U.S.C. (Supp. V) § 1425, 18 U.S.C.A. § 1425.
10. The grant was limited to questions 1 and 2 presented by the petition for the writ, viz.:
11. 'Except as otherwise expressly provided by law, no person shall be prosecuted, tried, or punished for any offense, not capital, unless the indictment is found or the information is instituted within three years next after such offense shall have been committed.' 18 U.S.C. (Supp. V) § 3282, 18 U.S.C.A. § 3282.
12. 1 Stat. 119; R.S. § 1044; 19 Stat. 32-33. The limitation as to treason or other capital offenses was three years from 1790 until it was removed in 1939. 1 Stat. 119; R.S. § 1043; 53 Stat. 1198; 18 U.S.C. (Supp. V) § 3281, 18 U.S.C.A. § 3281.
13. 44 Stat. 114-115, 18 U.S.C. (1925 ed., Supp. V) § 585, now 26 U.S.C.A. § 3748(a).
14. '* * * The purposes of the added proviso (to the general limitation section) was to carve out a special class of cases. It is to be construed strictly, and held to apply only to cases shown to be clearly within its purpose.' United States v. McElvain, 272 U.S. 633, 639, 47 S.Ct. 219, 220, 71 L.Ed. 451.
15. '* * * the running of any existing statute of limitations applicable to offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, and now indictable under any existing statutes, shall be suspended until June 30, 1945, or until such earlier time as the Congress by concurrent resolution, or the President, may designate. * * *' 56 Stat. 747-748.
16. 'Sec. 1044. * * *: Provided, however, That in offenses involving the defrauding or attempts to defraud the United States or any agency thereof, whether by conspiracy or not, and in any manner, and now indictable under any existing statutes, the period of limitation shall be six years. * * *' 42 Stat. 220, November 17, 1921.
17. In 1921, H.R.Rep.No. 365, 67th Cong., 1st Sess. 1, supporting the bill to enact the proviso, said:
18. In 1942, S.Rep.No. 1544, 77th Cong., 2d Sess. 1, 2, supporting the suspension of the running of the statute, said:
19. Haas v. Henkel, 216 U.S. 462, 30 S.Ct. 249, 54 L.Ed. 569, and Hammerschmidt v. United States, 265 U.S. 182, 44 S.Ct. 511, 68 L.Ed. 968, are not to the contrary. The statements there made refer to conspiracies to defraud the United States 'in any manner or for any purpose' as used in the second clause of the general conspiracy section. See § 37 of the old Criminal Code, 35 Stat. 1096, now § 371 of the new Criminal Code, 18 U.S.C. (Supp. V). See also, United States v. Gilliland, 312 U.S. 86, 61 S.Ct. 518, 85 L.Ed. 598. They do not control the interpretation of the provisions in the Wartime Suspension of Limitations Act discussed in this opinion.
20. § 37 of the old Criminal Code, 35 Stat. 1096, 18 U.S.C. § 88, now 18 U.S.C. (Supp. V) § 371, 18 U.S.C.A. § 371, see 73 S.Ct. at page 1058, supra.
21. '(g) No person shall be prosecuted, tried, or punished for any crime arising under the provisions of this Act unless the indictment is found or the information is filed within five years next after the commission of such crime.' 54 Stat. 1167, 8 U.S.C. § 746(g).
22. In that schedule of repealed actions, at 62 Stat. 868, are §§ 346(a-h), (l), and 347 of the Nationality Act of 1940, also identified as from Chapter 876, 54 Stat. 1163-1168, approved October 14, 1940.
23. See note 11, supra.
24. In United States v. Smith, 342 U.S. 225, 226-227, n. 1, 72 S.Ct. 260, 261, 96 L.Ed. 252, we assumed, without deciding, that this reservation had no effect on the running of a statute of limitations.
25. See also, the general saving clause that was in the Revised Statutes but has been regarded as not applicable to matters of remedy and procedure:

'Sec. 13. The repeal of any statute shall not have the effect to release or extinguish any penalty, forfeiture, or liability incurred under such statute, unless the repealing Act shall so expressly provide, and such statute shall be treated as still remaining in force for the purpose of sustaining any proper action or prosecution for the enforcement of such penalty, forfeiture, or liability.'

See 1 U.S.C. (Supp. V) § 109, 1 U.S.C.A. § 109. Hallowell v. Commons, 239 U.S. 506, 36 S.Ct. 202, 60 L.Ed. 409; Hertz v. Woodman, 218 U.S. 205, 218, 30 S.Ct. 621, 624, 54 L.Ed. 1001; Great Northern R. Co. v. United States, 208 U.S. 452, 28 S.Ct. 313, 52 L.Ed. 567.