Filed: February 28, 1921 | White, Pitney, Brandeis, Day | Author: Mr. Justice Pitney and Mr. Justice Brandeis
Summary
ERROR TO THE DISTRICT COURT OF THE UNITED STATES FOR . THE EASTERN DISTRICT OF MISSOURI.
This is one of several cases (see post, 98, 100, 102, 104,106,108,109) involving the constitutionality, in part, of § 4 of the Act of August 10, 1917, c. 63, 40 Stat. 276, known as the Food Control or Lever Act, as amended by § 2 of the Act of October 22, 1919, e. 80, 41 Stat. 297,, which is set out below.1
An indictment charged, in the first count, that the Cohen Company, a dealer in sugar and other necessaries, wilfully and feloniously made an unjust and unreasonable rate and charge in handling and dealing in a certain necessary, to wit, sugar, in that it wilfully and feloniously demanded of a person named, who made the purchase, a stated sum for a stated amount of sugar, which, as the company knew, was an unjust and unreasonable rate. The second count described a similar transaction.
The defendant successfully demurred and the case was brought here by the Government under the-Criminal Appeals Act.
The first contention made against the statute is that the offense charged was not a crime under the laws of the United States until the passage of the Act of 1919, and that, at that time, Congress was without power to enact such legislation because actual hostilities in our war with' Germany had ceased. The District Judge correctly held that this contention was not tenable. Stewart v. Kahn, 11 Wall. 493, 506; Ruppert v. Caffey, 251 U. S. 264; Hamilton v. Kentucky Distilleries Co., 251 U. S. 146.
The war conditions, were such indeed as to make it imperative that Congress exert whatever power it had to encourage the production of necessaries and to regulate their prices. , ’
The regulation of the prices of the necessaries of life is a proper governmental function which, when deemed necessary for the prosecution of a war, Congress may exercise. Munn v. Illinois, 94 U. S. 113, 124; Tucker’s Blackstone, vol. 4, pp. 159, 160; Russell on Crimes, 7th ed., vol. 2, p. 1919; King v: Waddington, 1 East, Í43, 163; Statute of Laborers, anno 1349, 2 Stat.. of England, c. vi, pp. 26, 28; Statute of Herrings, anno 1357, id., p. 117. See also: 2 id., p. 162, anno 1363; 2 id., c. viii, pp,- 313, 314, anno 1389; 3 id., c. xii, p. 196, anno 1433; 4 id., cc. viii, ix, p. 41, anno 1487; 4 id., c. v, p. 220, anno 1531; 4 id., c. ii, pp. 263, 264, anno 1533; 4 id., c. xiv, p. 439, anno 1536; 5 id., c. xxf, p. 347, anno 1549; 12 id., c. xviii, p. 77, anno 1709; Budd y. New York, 143 TJ. S, 517; Brass y: Stoeser, 153 TJ. S. 391; German Alliance Insurance Co. v. Lewis, 233 TJ. S. 389, 410. . . '
It was impracticable to lay down any fixed and unvarying-schedule of profits that would be reasonable. No rule that would fix a-certain percentage of cost price as a legitimate profit could, with'justice, be uniformly applied. . The rate of profit that may be legitimately charged varies with the cost of handling different articles and .in different lines of business.
The indictment is' not open to the objection .that it does not sufficiently give the defendant notice of the accusation, and is a good indictment unless it can be said that the act upon which it is based is unconstitutional,
The Act of 1919 is not subject to the objection that it is too vague and uncertain. The question is whether^ Congress may declare it to be a criminal offense to charge an unreasonable price for necessaries, leaving it to a jury to determine, from all the facts and circumstances, whether a particular charge is reasonable or unreasonable; or whether it is necessary for the act itself to provide a more definite standard by which the jury must be governed.
If the reasonableness of.a rate or charge can be said to be a fact, then undoubtedly it may be left to the determination of the jury under the circumstances disclosed by the evidence.
Undoubtedly a statute^ creating an offense must use language which, will convey to the average mind information as to the act or fact which it Is intended to make criminal. United States v. Brewer, 139 U. S. 278, 288. But statutes describing .crimes must necessarily be more or less general in their terms. It is impossible to fix rules of conduct to cover every circumstance or condition that may arise. It is perhaps equally impossible to frame a statute so that all men will agree as to just what circumstances will or will not constitute the crime denounced. There are certain standards both of law and of fact which may be assumed in enacting legislation. When these standards are invoked, a question of fact is presented for the jury to determine \"under the.particular facts of each case, and it is no objection to the statute that it is necessary to invoke\" these external standards. Miller v. Strahl, 239 U. S'. 426, 434.
. To determine from the evidence in a given case what is reasonable or unreasonable is to'perform exactly the..' same function which a jury-performs when the question, of négligence is submitted to it.
That the language used in this statute is not so general and uncertain as to be subject to constitutional objections ..would seem now to be definitely settled by recent rulings of this court. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86; Nash v. United States, 229 U. S. 373.
If it can constitutionally be left to the jury to determine, from the facts and circumstances of a ■-particular case, whether a given contract or combination unduly restricts competition or restrains trade,'it is difficult to see any principle, upon which it can be denied that the same jury may be left to determine, from a given state of facts and circumstances, whether a particular price demanded for necessaries is reasonable or unreasonable. Later cases have emphasized the rule laid down in the. Nash Case. Omaechevarria v. Idaho, 2,46 U.. S. 343;. Arizona Employers’ Liability Cases, 250 U. S. 400, 432. Distinguishing: International Harveste, Co. v. Kentucky, 234 U. S. 216. United States v. Rosenblum, 264 Fed. Rep. 578, 582; United States v. Oglesby Grocery Co., 264 Fed. Rep. 691, 695.
This principle, as applied to this case, is not a new departure, but has-consistently been applied to numerous criminal laws. See United States v. Oglesby Grocery Co., supra.
Syllabus
1. 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. P. 88.
2. 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. P. 89.
3. The mere existence of a state of war did not suspend these guarantees of the Amendments or relieve Congress from their limitations. P. 88.
concurred in the result, the former delivering the following opinion in which the latter concurred:
• I concur in the judgment of the court, but not in the reasoning upon which it is rested.
Defendant was indicted upon two counts, alike in form, charging in each case that it “did wilfully and feloniously make an unjust and unreasonable rate and charge in handling and dealing in a certain necessary, to wit, sugar,” in that it demanded, exacted and collected, excessive prices for specified quantities of sugar purchased from it,' in violation of the Lever Act (Act of October 22, 1919, c. - 80, § 2, 41 Stat. 297,298, amending § 4 of Act of August 10, 1917, c. 53, 40 Stat. 276, 277). I am convinced that the exacting of excessive prices upon the sale of merchandise is not within the meaning of that provision of the act which is cited as denouncing it; that the act'does not make it a criminal offense; that for this reason the demurrer to the indictment was properly sustained; and that whether the' provision is in conflict with the Fifth or Sixth Amendment is a question not necessarily raised, and which ought not to be passed upon.
In order to appreciate the point it is necessary to quote entire so much of the section as defines the crimes thereby denounced., It reads as follows: •
94 “That it is hereby made unlawful for any person willfully to destroy any necessaries for the purpose of enhancing the price or restricting the supply thereof; knowingly to commit waste or willfully to permit preventable deterioration of any necessaries in or in connection with their production, manufacture, or distribution; to hoard, as defined in section 6'of this Act, any necessaries; to monopolize "or attempt to monopolize, either locally or generally, any necessaries; to engage in any discriminatory and unfair, or any deceptive or wasteful practice or device, or to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries; to conspire, combine, agree, or arrange with any other person,' (a) to limit the facilities for transporting, producing, harvesting, manufacturing, supplying, storing, or dealing in any necessaries; (b) to restrict the supply of any necessaries; (c) to restrict distribution of any necessaries; (d) to prevent, limit, or lessen the manufacture or production of any necessaries in order to enhance the price thereof; or (e) to exact excessive prices for any necessaries, or to aid or abet the doing of any act made unlawful by this section. Any person violating any of the provisions of. this section upon conviction thereof shall be fined not exceeding $5,000 or be imprisoned for not more than two years, or both: Provided, . . . ” etc.
For a definition of “hoarding,” the section refers to § 6 of the original act (40 Stat. 278), which declares that necessaries shall be deemed to be hoarded, within the meaning of the act, when (inter alia) “withheld, whether by possession or under any cpntract or arrangement, from the market by any person for the purpose of unreasonably increasing or diminishing the price.”
The court-holds that the words “to make any unjust or unreasonable rate or charge in handling or dealing in or with any neoessaries” are broad enough to embrace the exaction of an excessive price upon a sale of such 95 merchandise. Why Congress should employ so unskillful and ambiguous a phrase for the purpose when it would have been easy to express the supposed' purpose in briefer and more lucid words, it is difficult , to understand; If the words were to be taken alone, and without reference to the context, it might be possible to stretch their meaning so as to include the exaction of an excessive price. But to do this with a statute defining a criminal offense would, it seems to me, be inconsistent . with established rules for construing penal statutes; not only so, but it would violate the rule that a statute is not- to be so construed as to bring it into conflict with the Constitution, unless such construction, is imperatively required by its plain words. The construction adopted by the court is not thus required. “To make a rate or charge in handling or dealing in or with” merchandise,- imports the fixing of compensation -for services, rather than the price at which goods aré to be sold. It. may refer to charges for buying, selling, hauling, handling, storage, or the like.
But the clause in question does not stand alone. It forms a part of a section in which the question, of prices is dealt with four times: once in the initial, prohibition agaihst destroying any-necessaries for the purpose of enhancing the price; a second time in the prohibition of hoarding, defined as including a withholding from market for the purpose of unreasonably increasing or diminishing the price; a third time-in the prohibition of a conspiracto limit the production, of necessaries in order to enhance tire price; and, finally, in the prohibition of a conspiracy “to exact excessive prices for any necessaries.” It seems to me clear, upon the plainest principles, of constrúction,_ that the change of phrase must he deemed to import á difference of purpose, and that “to make any unjust or unreasonable rate or charge in handling or dealing in . or with any necessaries ” must be taken to mean something else than the exaction of an excessive price. It should be 96 observed how closeIy .it is coupled with a cognate offense: “to engage in any discriminatory and unfair, or any deceptive or wasteful practice or device, or to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries.” Evidently the words “in handling or dealing,” etc., qualify “wasteful practice or device,” as well as “unjust or unreasonable rate or charge.”
That it is not altogether evident what was intended to be included within “unjust or unreasonable rate or charge in handling or dealing in or with any necessaries,” may be conceded. So much the more reason for not extending the words by constrüction so as to make criminal that which is not clearly within their meaning; and for not giving to them a meaning which brings the act into conflict with, the Constitution; — and for not expanding the unconstitutional reach of the act, supposing that even without the particular application now made of the quoted words it would be repugnant to the fundamental law.
It is to my mind plain that § 4 was not intended to control the individual dealer with respect to the prices that he might exact, beyond prohibiting him from destroying any necessaries for the purpose of enhancing the price, and from withholding them from the market for a like purpose. So long as he acts alone he is left •uncontrolled except by the ordinary processes of competition, his own sense of fairness, and his own interest. A conspiracy with others to exact excessive prices is an entirely different matter, and that is clearly prohibited.
And this brings me to another point: Section 4 naturally divides itself into two parts; the first portion denounces a number of substantive offenses; the second portion denounces a conspiracy to commit any one of a number of offenses, but these do not in terms include any of the offences specifically prohibited in the earlier 97 portion. This, as it seems to me, is significant. Section 37 of the Criminal Code (Act of March' 4, 1909, c. 321, 35 Stat. 1088, 1096), makes.it criminal for .two or more persons to conspire to commit any offense against the United States, if one or more of them do any act to effect the object of .the conspiracy. ’ Hence it was not necessary for Congress to declare in the Lever Act that a conspiracy to commit any of the offenses defined in the first part of § 4 was punishable criminally.-- But it proceeded in' the latter part to declare that a conspiracy to do any one of certain other acts, should be criminal. It seems-to me. too plain for argument that, under the circumstances, the inclusion in that part of the section of certain acts as forming- the object of a criminal conspiracy amounts to a legislative declaration that, in the absence of conspiracy, those acts are not intended to be punished criminally. One of them is “to exact excessive prices for any necessaries.”
Still further: Sections 14 and 25’ of the original act (40 Stat. 281, 284) specifically deal with the question of. official price-fixing-of certain articles of-prime necessity- — . wheat, coal, and coke — and furnish additional evidence that in the framing of this act, when -Congress had price-fixing in mind and the regulation of “prices,” it employed .that simple term, .and that' it did not refer’ to prices in the provision of § 4 upon which the indictment in this, case rests.
For these reasons, 1 regard it as unnecessary to pass, upon, the question whether that provision Js in conflict with the Constitution of the United States.
Opinion 3 (Mr. Justice Pitney and Mr. Justice Brandeis)
Additional Information
Attorneys
The Solicitor General for the United States:, Mr. Louis B. Sher and Mr. Chester H. Krum for defendant in error., Mr. William D. Guthrie, Mr. Benjamin F. Spellman and Mr. Bernard Hershkopf, by leave of court, filed a brief as amid curiae., Mr. John A. Marshall, Mr. D. N. Straup, Mr. Joel F. Nibley and Mr. Thomas Marioneaux, by leave of court, filed a brief as amid curice.
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