Motion — Washington v. WC Dawson & Co.

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Supreme Court of the United States

October Term, 1922.

THE MATTHEW ADDY COMPANY,

Petitioner.

vs.

UNITED STATES OF AMERICA,

Respondent.

Motion and Petition for Writ of Certiorari

and Supporting Brief.

NELSON B. CRAMER,

JULIUS R. SAMUELS,

Cincinnati, Ohio.

Counsel for

The Matthew Addy Company,

Petitioner.

et Si

No.

Supreme Court of the United States

October Term 1922,

THE MATTHEW ADDY COMPANY,

Petitioner,

vs.

UNITED STATES OF AMERICA,

Respondent.

MOTION FOR WRIT OF CERTIORARI.

Comes now The Matthew Addy Company by Nelson

B. Cramer and Julius R, Samuels, its counsel, and moves

this Honorable Court that it shall by certiorari or by

other proper process, directed to the Honorable Judges

of the United States Cireuit Court of Appeals for the

Sixth Circuit, require said court to certify to this court

for its review and determination that certain cause in

said Cireuit Court of Appeals lately pending, in which

The Matthew Addy Company was plaintiff in error and

the United States of America was defendant in error.

and petitioner herein to that end, now tenders herewith

its petition and brief with a certified copy of the en-

tire record in said cause pending in said Cireuit Court

of Appeals for the Sixth Circuit.

Netson B. Cramer,

Jutius R. Samve.s,

Counsel for The Matthew Addy Company,

Petitioner

oo _ Se ee ee ae ee ee ee eee

No. ———.

Supreme Gourt of the United States

October Term 1922.

THE MATTHEW ADDY COMPANY,

Petitioner,

vs,

UNITED STATES OF AMERICA,

Respondent.

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE SIXTH DISTRICT.

The petition of The Matthew Addy Company for a

writ of certiorari directed to the Cireuit Court of Ap-

peals for the Sixth Cireuit, requiring it to certify to the

Supreme Court of the United States the case of The

Matthew Addy Company v. United States of America,

lately pending in said Cireuit Court of Appeals for the

Sixth Circuit.

To the Honorable the Chief Justice and the Associate

Justices of the Supreme Court of the United States:

Said petitioner respectfully shows to the court as fol-

lows:

I. That it is and at all times hereinafter mentioned

Was, a corporation organized and existing under and by

virtue of the laws of the State of Ohio, with its princi-

pal place of business at Cincinnati, in said State of Ohio.

4

Il. That the grand jurors for the United States of

America, impanelled and sworn in the District Court of

the United States for the Western Division of the South.

ern Judicial District of Ohio, at the Ovrtober, 1919, tern

thereof, to-wit, on November 17, 1919, presented an in.

dictment against petitioner, which indictment was in

twenty-three counts, and which alleged under the Act of

Congress of August 10, 1917 (40 Stat., 278), commonly

known as ‘‘The National Detense (Lever) Act’? and

especially sections 1, 2, 3, 4 and 25 thereof, and_ the

executive order of the President of the United States,

dated August 23, 1917, that the President being author.

ized by the terms of said Act to establish rules for the

regulation of and to regulate the method of production,

sale, shipment, distribution, apportionment and storage

thereof among dealers and consumers, on August 23,

1917, issued an executive order in which it was provided

among other things that:

‘*1. A coal jobber is defined as a person (or other

agency) who purchases and re-sells coal to coal deal-

ers or to consumers without physically handling i

on, over or through his own vehicle, dock, trestle

or yard.

‘*2. For the buying and selling of bituminous

coal a jobber shall not add to his purchase pric

a gross margin in excess of 15¢ per ton of 2,000 lbs,

nor shall the combined gross margins of any nun-

ber of jobbers who buy and sell a given shipment

or shipments of bituminous coal, exceed 15e¢ per tou

of 2,000 Ibs.’’

5

The indictment then alleged that during the month:

of September, October and November, 1917, a state of

war then existing between the United States and the Im-

perial German Government, and the law, orders and reg-

ulations above stated being then in foree, defendant, The

Matthew Addy Company, was engaged, in the business

in the City of Cincinnati, Hamilton County, Ohio, as a

wal jobber, as defined in said executive order.

That said The Matthew Addy Company, acting in its

eapacity as a coal jobber as aforesaid, wilfully, unlawful-

ly, knowingly and feloniously did ask, demand and re-

ceive of divers persons named in the various counts for

certain quantities of bituminous coal, certain prices,

which prices included a profit or gross margin to it, said

The Ma.iew Addy Company, as such coal jobber as

aforesaid of 20¢ per ton, and which said profit or margin

of 25¢ per ton was, and was well known by said The Mat-

thew Addy Company to be in excess of the profit or gross

margin of 1loe per ton of 2,000 lbs. permitted by the law,

executive order, and regulations above referred to, to

he added to the purchase price of said jobber; and that

said The Matthew Addy Company did not have any

contract with said parties named, made in good faith,

prior to the 23d day of August, 1917, in which said con-

tract the price for the purchase and sale of said coal!

was fixed, ete. (R., 4).

Ill. Motion to quash the indictment (R., 29) and de-

murrer to the indictment (R., 33) were overruled prior

to the trial.

IV. A trial was had before the court and a jury on

June 2, 1920, and a verdict of guilty was rendered in the

manner and form as charged in counts Nos. 2, 5, 7, 9,

10, 11, 12, 13, 15, 16, 17, 18 and 20, and not guilty as

a

6

charged in the remaining counts thereof, 1 and 4 (R,

38); counts 3, 6, 8, 14, 19, 21, 22, and 23 were withdrawy

from the jury. The case of The Matthew Addy Com.

pany and that of Benjamin N. Ford, Vice-President of

said Company who was separately indicted, were tried

together before the court and a jury and separate ver.

diets rendered by the jury in each case,

V. In the course of the trial, petitioner called as a

witness on its own behalf, one Frank C. Deckebach, who

qualified as a Certified Public Accountant (R., 75). Pe.

titioner proffered in evidence a ‘‘statement of tonnage

and expense of cua! sales and cost in cents per ton”? for

the calendar years, 1917, 1918, and 1919 (defendant's

Exhibit ‘‘C,’’ R., 116-123), in order that the witness

might explain the same; to which counsel for the goy.

ernment objected and which objections were sustained

by the court and exceptions noted (R., 78, 79 and 80).

VI. Motions for a new trial and in arrest of judg.

ment were overruled (R., 37 and 40) and sentence pro-

nounced on June 24, 1920, fining petitioner the sum of

One Thousand ($1,000) Dollars and costs (R., 38).

VII. A writ of error was allowed from the United

States Cireuit Court of Appeals for the Sixth Circuit,

and a transcript of the record filed in said court.

VIII. Said cause came on for hearing on error pro-

ceedings before the United States Cireuit Court of Ap-

peals for the Sixth Cireuit, on March 7, 1922, and was

submitted to the court, and on May 4, 1922, the said

United States Cireuit Court of Appeals for the Sixth

Circuit, affirmed the judgment of the trial court (R., 128).

IX. Your petitioner believes that the said Circuit

Court of Appeals for the Sixth Circuit erred in affirming

7

the judgment of the District Court, and should have re-

versed the said District Court and discharged the de-

fendant.

X. And your petitioner further avers that the pres-

ent ease is one in which it is proper for this court to

issue a writ of certiorari for the following reasons,

among others, to-wit:

1. The questions of law involved in this case are

yuestions involving the constitution and laws of the

United States, and especially involving the validity of

the Act of Congress of August 10, 1917 (40 Stat., 278),

which was one of the most important of the war legisla-

tion passed by Congress during the late war.

2. The construction of the Act of Congress of August

10, 1917, affects the coal industry which is national and

international in scope.

3. The Cireuit Court of Appeals was in error

in affirming the judgment of the District Court in con-

struing the Act of Congress of August 10, 1917, and the

rules and regulations of the President and the United

States Fuel Administrator as it did.

4. The Cireuit Court of Appeals was in error

in affirming the judgment of the District Court in up-

nolding the validity of the Act of Congress of Augnst

10, 1917, and the rules and regulations of the President

and the United States Fuel Administrator.

5. The Court of Appeals was in error in affirm-

ing the judgment of the District Court in holding that

“public danger warrants the substitution of executive

process for judicial process,’’ and in so doing in substance

held that the existence of a state of war suspends the

operation upon the power of Congress of the guarantees

and limitations of the fifth amendment to the constitu-

tion.

6. The decision of the Court of Appeals affirm.

ing the District Court is at variance with the principles

laid down by this court in the case of United States y,

Cohen Grocery Company, 255 U. S., 81-89.

Wherefore, your petitioner prays that this honorable

court will grant a writ of certiorari directed to the Cir.

cuit Court of Appeals for the Sixth Circuit, requiring

that the record of said case in said court, and its judg.

ment be certified to this court, and that this court will

thereupon proceed to correct the errors complained of,

reverse said judgment, and enter final judgment and dis.

charge petitioner, and for such further proceedings as

to this honorable court may seem just and proper in the

premises.

Tue MatrHew Appy Company,

By Netson B. Cramer,

Junius R. SaMve.s,

Its Counsel.

United States of America, State of Ohio, County of

Hamilton, ss.:

Nelson B. Cramer, being first duly sworn, deposes and

says that he is counsel for The Matthew Addy Con-

pany, the petitioner herein; that he has read the fore-

going petition, and is familiar with its contents and that

the allegations contained therein are true as he verily

believes; and further that in his opinion said petition

is well founded and that the case is one in which the

prayer of the petitioner should be granted by this court.

Netson B. CRraMer,

Sworn to before me and subscribed in my presence,

this 3rd day of July, 1922.

Artuvur W. Gorpon,

(Seal)

Notary Public, Hamilton County, Ohio.

My commission expires November 26, 1923.

REO 0s kana oS

Supreme Court of the United States

October Term, 1922.

THE MATTHEW ADDY COMPANY,

Petitioner.

against

UNITED STATES OF AMERICA,

Respondent.

Brief in Support of Petition for

Writ of Certiorari

NELSON B. CRAMER,

JULIUS R. SAMUELS,

Cincinnati, Ohio.

Counsel for

The Matthew Addy Company,

Petitioner.

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3

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5

Be tN tA TO ei cir Rie SOON AD abe Sk wi DACRE ae ei

Index of Brief.

Page

Statement of Case ..... PCy Ter eee TO Tt Tere 1

Specifications of Error ...... VOL EV TERE EE Te ae oe

Outline of Argument ...... LaeKa OMEN ey Vibe x x 4 i

§

Argument— i

. . §

The Court misconstrued the executive order upon

which the indictment was based, as applied to

the undisputed facts ......... ce. ee. vans 8 -

(a) The conviction was not for violation of the ‘

order of August 23, 1917, hut of a subse-

quent order of October 6, 1917) ......... 10 :

:

(b) Retrospective operation was given to the ¢

order of August 23,1917 ...... meres ai i

s

The Court erred in not permitting defendant te &

show its costs profits and losses .......... 12 :

The Court erred in overruling the motion of de- iy

fendants to quash the Indictment ......... 17 e

(a) The Indictment and each count was in-

sufficient in law and fact) ............ oe a

° q

The Court erred in overruling the Demurrer to

the Indictment, on the ground that the Act of

Congress and the Executive Order upon whieh j

the Indictment was hased was uneonstitu- 4

| i RL OA cymat es ia We iega ae oath i

(a) Due process of law was not afforded the

defendant, because no provision for a hear-

ing was made in the Act or in the Executive

WUE kkaadacaswi deni seecnecebeeevics

(b) 'The Court erred in construing the law in

holding that it did not obligate the Presi-

dent to exercise his Agency through the Fed-

eral Trade Commission .................

(c) Cases defining ‘‘ Due Process of Law’’

(d) Cases holding that the Constitution is not

eer TT Ter oer

(e) The Act, as construed by the Court below,

delegated powers to the President not con-

ferrd on him by the constitution .........

93

a4

9°

al

ed

=!

24

Index of Cases.

Page

Boyd vs. United States, 1483 ULS. 649 2.0.2... 29

Chieago, M. & St. P. Ry. vs. Minn,, 184 U.S.418 2.) 27

City of Knoxville vs. Knoxville Water Co., 212 U.S.1 29

Pema We, Commis BO 0 Un cc cacnnccacccccvas 29

Hamilton vs. Ky. Distilleries, 251 U.S. 1460 ...... .3-27

Holter Hardware Co. vs. Boyle, 263 Fed. 134 ....0 0 27

Interstate Commerce Commission vs. Cincinnati,

New Orleans and Texas Pacifie Ry. Co.. 167

ee) Nuns ck AGC Gah neeakiuaceknaccuns 29

Lodeetter we. U.S. 176 1. B. GG knee cass 21

Moyer vs. Peabody, 212 U.S. 78 . we cee ees 27

Minnesota Rate Cases, 230 U.S. 3520 0... eee. 27-29

pee, Cte wee, 4 WM, Bhi sec las ckewdse sans 3-27

Okla, Operating Co. vs. Love, 252 U.S. 381 ...... 27

Sternback vs. U. S., 143 U.S. G49... 29

Schwab vs Doyle, 42 Sup. Ct. Rep. 8910 2... 0.0... 11

os ee A ere per er er 21

U.S. vs. Cohen Grocery Co., 255 UL S.81 2.2... 6... 3-27

U.S. vs Heth, 3 Cranch 399 ...... Sas eeecnaness 1]

U.S. vs. Lexington Mill Co., 232 U.S. 899) 2.20... 17

Ill

No

Supreme Court of the United States

October Term 1922,

THE MATTHEW ADDY COMPANY,

Petitioner.

vs.

UNITED STATES OF AMERICA,

Respondent.

BRIEF IN SUPPORT OF PETITION FOR WRIT OF

CERTIORARI.

STATEMENT OF CASE.

Petitioner prays for a writ of certiorari to the Circuit

Court of Appeals for the Sixth Cirenit, requiring that

said cause in said court, and its judgment be certified

to this court, to secure reversal of the judgment of said

court affirming the judgment of the District Court of

the United States for the Southern District of Ohio,

Western Division, wherein a verdict of guilty was re-

turned by a jury in said court against petitioner on an

indictment based on the Act of Congress of August 10,

——

i ile ae

POL NE, AG

ETSI WOE LE LE LT ROL LT

MOE, ALAS LE NING BEN ELE LOONIE

—

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2

1917 (40 Stat. =78) commonly known as ‘‘The Na.

tional Defense (Lever) Act’? and the executive order

of the President of the United States, dated August 23,

1917 (compilation of Rules, Regulations and Promulga.

tions of the United States Fuel Administrator, Harry A,

Garfield.)

The facts of the case are sucecintly but comprehen-

sively stated in the petition for a writ of certiorari set

out in the forepart of this pamphlet.

Petitioner invokes the exercise by this court of its

power to issue a writ of certiorari herein for the follow.

ing reasons, among others, to-wit:

(a) The questions of law involved in this case are

questions involving the constitution and laws of | the

United States, and especially involving the validity of

the Act of Congress of August 10, 1917 (40 Stat. 27s)

and the rules, regulations and promulgations ofthe Pres.

ident of the United States and the United States Fue!

Administrator acting under the direction of the Presi-

dent, which were among the most important of all the war

legislation passed by Congress during the late war,

(b) The proper construction of the Act of Congress of

: August 10, 1917 and the rules and regulations of the

President of the United States and the Fuel Adminis-

: trator will serve as a landmark in the development of the

constitutional law of this country, and as a guide to Con-

gress and executive and administrative officers of the

United States, as to the powers that may be exercised by

them during an emergency consistent with the consti-

tutional limitations upon their powers.

(ec) The decision of the Court of Appeals affirming the

District Court is at variance with the principles of con-

3

stitutional law laid down by this court in Ex Parte Mut-

gan, 4 Wall. 2, 121-127; Hamilton v. Kentucky Distilleries

Co., 251 U.S. 146, 156 and the very recent case of United

States v. Cohen Grocery Co. 255 U.S. 81, 88-89.

(d) The proper construction of the Act of Congress of

August 10, 1917 and the rules and regulations of the Pres-

ident of the United States and the Fuel Administrator

directly affect the coal industry of the United States,

which is both national and international in scope, as well

as the industries involving the production, distribution

and consumption of foods and fuel throughout the United

States.

SPECIFICATIONS OF ERROR.

The assignment of errors alleged to have been com-

mitted by the District Court appear at R. 93.

The first error and fundamental question is raised by

the seventh assignment which is as follows:

‘‘In charging the jury that defendant might be

found guilty for violation of the order of the Presi-

dent of August 23, 1917, although the undisputed

evidence showed that in respect to each transaction

covered by the indictment, the coal had been pur-

chased by The Matthew Addy Company prior to that

day, and prior to August 10, 1917.”’

Second, the court erred in not permitting defendant

to prove that the gross margin of 15 cents per ton

added to its purchase price, ‘‘was confiscatory and com-

pelled defendant to dispose of its product without allow-

ance for expense and a just compensation for its serv-

ices’? (See R. 79 and Assignments of Error, 3 and 6, R.

94),

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FEILER PE LE ETE ait i aoa

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4

Third, the court erred in overruling the motion of

defendant to quash the indictment and each and every

count thereof, for the reasons urged.

Fourth, the court erred in overruling the claims of

defendant that the statute and the executive order, upon

which the indictment was based, was, as construed by

the court and applied to the undisputed facts, in viola-

tion of the several constitutional provisions specially

relied on.

Fifth, the court erred in not directing a verdict for

defendant, on the ground that the proof failed to sustain

the indictment.

BRIEF OF THE ARGUMENT.

I.

The court misconstrued the executive order upon

which the indictment was based as applied to the undis-

puted facts.

IT.

The court erred in not permitting defendant to show

what were its costs and profits.

ITI.

The court erred in overruling the motion of defendant

to quash the indictment and each and every count there-

of, for the reasons that—

(a) The indictment and each of its several counts

is insufficient in law and fact.

(b) The allegations of the indictment are in-

definite as to material matters and were not sus-

tained by the evidence.

5

IV.

The court erred in overruling the demurrer of defend-

ant to the indictment, which attacked the constitution-

ality of the Act of Congress of August 10, 1917, com-

monly known as the ‘‘National Defense’’ (Lever) Act

(40 Stat. 278), and the executive order of the President,

dated August 23, 1917, for the reasons, that—

(a) They violate the fifth amendment to the Con-

stitution of the United States in that, defendant is

deprived of its property without due process of law.

(b) The Act of Congress violates Section 1, of

Article 1; Section 1 of Article 2, and Section 1 of

Article 3 of the Constitution of the United States,

in that it delegates legislative and judicial powers

to the President of the United States, to the United

States Fuel Administrator appointed by the Presi-

dent, and the Federal Trade Commission.

ARGUMENT.

I.

The court misconstrued the executive order upon which

the indictment was based, as applied to

the undisputed facts.

By Section 25 of the National Defense (Lever) Law,

approved August 10, 1921, it was provided:

“That the President of the United States shall be,

and he is hereby, authorized and empowered, when

ever and wherever in his judgment necessary for the

ellicient prosecution of the war, to fix the price of

coal and coke, whenever and wherever sold, either

by producer or dealer, to establish rules for the

regulation of, and to regulate the method of pro.

duction, sale, shipment, distribution, apportionment,

or storage thereof among dealers and consumers,

6

domestic or foreign; said authority and power may

be exercised by him in each case through the agency

of the Federal Trade Commission during the war

or for such part of said time as in his Judgment may

be necessary.”’

By an order issued August 21, 1917, effective that day,

the President fixed a seale of prices for bituminous coal

at the mines in most of the coal producing districts,

The price fixed for the kind of coal involved in this case,

to-wit: West Virginia run-of-mine, was $2.00 per ton

of 2,000 Ibs. f. 0. b. mines.

On August 23, 1917, the President issued an order

fixing the price on anthracite coal throughout the anthra.

cite producing regions, to become effective September

1, 1917. The same order contained the ‘‘Jobber’s Mar-

gin,’’? and provided:

“1, A eoal jobber is defined as a person (or

other agency) who purchases and resells coal to coal

dealers or to consumers without physically hand-

ling it on, over, or through his own vehicle, dock,

trestle or yard.

2. For the buying and selling of bituminous coal

a jobber shall not add to his purchase price a gross

margin in excess of 15e per ton of 2,000 pounds, nor

shall the combined gross margins of any number

of jobbers who buy and sell a given shipment or ship-

ments of bituminous coal exeeed 15¢ per ton of

2,000 pounds.

3. For buying and selling anthracite coal a job-

ber shall not add to his purehase price a gross mar.

gin in excess of 20c¢ per ton of 2,240 pounds when

delivery of such coal is to be effected at or east of

Buffalo. For buying and selling anthracite coal

for delivery west of Buffalo a jobber shall not add

to his purchase price a gross margin in excess of

7

30c per ton of 2,240 pounds. The combined gross

margins of any number of jobbers who buy and sell

a given shipment or shipments of anthracite coal

for delivery at or east of Buffalo shall not exceed

20¢ per ton of 2,240 pounds, nor shall such combined

margins exceed 30e per ton of 2,240 pounds for the

delivery of anthracite coal west of Buffalo. Pro.

vided that a jobber’s gross margin realized on a

given shipment or shipments of anthracite coal] may

be increased by not more than 5e per ton of 2,240

pounds when the jobber incurs the expense of re.

screening it at Atlantie or lake ports for trans-

shipment by water.’’

The evidence shows without dispute that defendant

bought the coal July 31, 1917, for $3.25 per ton f. 0. b.

mines, or $1.25 per ton more than the price f. 0. b, mines

fixed by the President’s order of August 21, 1917; and

that it sold it in August and September for $3.50 per ton.

The plain meaning of the executive order of August

25, 1917, is, that after the going into effect of that order,

a jobber is prohibited from adding to his purchase price

2 eross Margin in exeess of 15e per ton “for the buying

ind selling of bituminous coal’? and the order has no

application to a transaction whereby a jobber, having

honght coal prior to August 23, 1917, sells it thereafter.

In other words, the order must be construed as prospee-

tive only, and prospective in respect to all of its ele-

ments; that is to say, to both the buying and selling of a

given lot of coal.

It appears from the several orders of the President,

which were judicially noticed by the court (R. 81) that

on August 23, 1917, the President, under authority of

the law, had adopted a comprehensive scheme, fixing

the prices at the mines throughout the country, for both

bituminous and anthracite coals, and in connection

therewith, provided the jobbers’ margins for **the buy-

ing and selling’? of both classes of coal.

The court below either treated the words ** buying

und,’’ in the phrase ‘for the buying and selling of,”

as if they were not included in the order; or else the

court has given to the order a retroactive operation, by

holding that the ‘‘buying’’ of a particular shipment by

a jobber, which is an essential part of the offense and

necessary to constitute it, may be punishable, although

it occurred prior to the enactment of the law.

By the order of August 23, in the first section thereof,

the President carefully defined coal jobbers, in a clause

inserted oniy for the purpose of so defining those words

and complete in itself. Having thus defined, or de.

scribed the persuns (descriplio personae) who are cap-

able of committing the specific offense, the President

proceeded to define the acts which constitute the offense.

Soth in respect to the dealings in bituminous coal by

a single jobber, or several jobbers; and in respect to

dealings in anthracite at or cast of Buffalo and anthra

cite west of Buffalo, in each case, by a single jobber, or

several jobbers, he separately and distinetly provided

that it was ‘‘for the buying and selling”’ that the jobber

should add to his purchase price not more than a particu.

lar ‘‘ gross margin.’’

In doing so the President must be supposed to have

iad in mind the nature of a jobber’s business, and his

necessary relationship to a given transaction. A_ job-

ber does not produce coal and sell it, but buys it and

sells it. The transactions, whereby he purchases, nec-

OC east _

9

essarily involve an expense to him just as much as do

the transactions whereby he sells with the additional

intermediate expense which results from carrying un-

sold coal, equal in any event to the loss of interest on

the money invested. In respect to his business of pur-

chasing and earrying he is entitled to his cost and com-

pensation for his services,

Having these faets in mind, the President wisely and

fairly treated the relationship between a jobber and

a particular transaction, or to use the words of the

order, his relation to ‘‘a given shipment or shipments’’

as a unit. No permissible legal construction of the or-

der can be adopted, which attributes to the President

an intention to limit a jobber to a gross margin in the

selling of a particular shipment, which might well be

less than the expense already ineurred by him in the

purchase thereof, prior to the promulgation of the or-

der.

In the present case and in many possible cases there

might be shipments of coal in the hands of jobbers on

August 25, 1917, theretofore purchased by them, in re-

spect to which their expense connected with the purchase

and carrying already exceeded the gross margin of 15¢

permitted by the order of that day. If the order of

that day had the effect of compelling sueh jobbers to

dispose of such shipments at a loss, or in the alternative,

subject themselves to the penalties against ‘‘hoarding’’

provided in Section 26 of the law, the law itself would

be open to grave constitutional objections. Whereas,

no such objections could be raised, if the order is pros-

pective only, and to be applied only to such jobbers as

might see fit after the promulgation of the order, to en-

gage in the business ‘‘of buying and selling.’’

RL i CNS Be Pf Ea lg IO

10

We have already referred to the fact that by the

two orders of August 21st and August 23rd, the Presi.

dent adopted a comprehensive schedule of prices for

coal, both bituminous and anthracite, at the mines,

throughout the country. We submit that the adoption

of such a sehedule of prices, taken in connection with

the clear wording of clauses 2 and 8 of the order of

August 23rd, shows that it was for the buying and sell.

ing thereafter of coal, the price of which at the mines

was that day fixed, that the jobbers’ margins were fixed,

This construction indicates .a comprehensive, intel-

ligible purpose, and gives effect to all the words of the

order according to their plain English significance.

All of the sales by defendant, covered by the indict-

ment were in the months of August and September,

but the offense of which defendant was convicted was

not the offense charged in the indictment or defined by

any order in force in August and September, but was,

if anything, an offense in violation of a subsequent

order of October 6, 1917, of which Paragraph 9 pro-

vided:

‘*\ jobber who, at the time of the President’s

order fixing the price of the coal in question at

the mine (the order of August 21), had con-

tracted to buy coal at or below the President’s

price, and at that time had no contract to sell

such coal, shall not sell the same at a price higher

than the purchase price plus the proper jobber’s

commission as determined by the President’s regu-

lation of August 23, 1917.’’

The issuance of the order of October 6 shows con-

clusively that prior to that day it was not considered an

11

offense for a jobber who had purchased coal prior to

August 23 to sell the same at any price obtainable on

the market.

The principle is well established that laws, especially

laws creating crimes, are not to be given a retroactive

effect unless the legislative intention that they shall

have such effect is clear, This is especially true when

the retroactive construction throws doubt upon the con-

stitutionality of the law.

The very recent case of Schirab vy. Doyle, Collector of

Internal Revenue, 4. Supreme Court Reporter 391, de-

cided May 1, 1922, involved the question of the retroac-

tive construction of a law of the United States, and this

court held:

“1. Laws are not to be construed as applied to

eases which arose before their passage, unless that

intent be clearly declared, since there is absolute

prohibition against such law when their purpose is

punitive, and the situation which impels; pro-

hibition in such eases exacts clearness of declaration

in other cases.”’

Ue eRe

ets

fi i en

At page 392 of the opinion this court said:

“The act of September 8, 1916, is within the econdem-

nation.

There is certainly in it no declaration of retroactivity,

“clear, strong, and imperative,’’ which is the condition

expressed in United States v. Heth, 8 Cranch, 399, 413

ete,

If the absenee of sueh determining declaration leaves

to the statute a double sense, it is the command of the

eases that that which rejects retroactive operation must

he selected.”’

b

Pe Se, Oa SN See

Se UCU OOO

echt DA tae BEE MA TORS RR TEES ee eT. Bit, OL ra, FS Le eels

12

The learned District Judge was of opinion (see Rul

ing on Motion for a New Trial, R. 36) that because jt

Was stated as a recital of fact in one of the orders of

the Fuel Administration (Order of November 8, 1917)

that the ‘‘coal mine output was largely contracted to

be sold in advance,’’ that the order of August 23, if not

construed so as to penalize the sale by jobbers there

after, of coal previously purchased by them, would

leave it ‘open to the jobber to demand what he could

get for his coal, and to thus carry on the injurious spee.

ulation, manipulation and private control of the supply

which the Act was designed to prevent.”’

We submit that this is not a permissible method of

legal reasoning for the construction of a law creating

a criminal offense. There is nothing to indicate that

when the order of August 23 was issued, the President

had any information concerning the amount of coal at

the mines already contracted for, or whether the condi-

tion in fact existed on August 23. In any event, and

even assuming that the condition did exist, by reason

of the fact that only eleven days had elapsed since the

passage of the Lever Law, and there had been no inter:

vening investigation, it seems clear that he was not in

possession of any such information.

II.

The Court Erred in Not Permitting Defendant to Show

What its Costs and Profits Were.

If we are right in our first contention, the judgment

should have been reversed and it would be unnecessary

for the court to consider the other assignments of error.

If we are not correct in that argument, the question

13

remains whether the defendant was not entitled’to show

that 15¢ per ton added as its commission to its purchase

price resulted in loss or inadequate compensation.

The order of August 23, 1917, provides in terms that

“For the buying and selling of bituminous coal, a job-

ber shall not add to his purchase price a gross margin

in excess of 15¢ per ton.’? But the question is whether

the President had power under the law to limit the

“gross margin’? or commission of the jobber to a com-

mission which resulted in no compensation acequate to

the jobber’s services, or as in this case to a loss because

the selling price averaged less than the cost. The ques-

tion was raised at the trial by the request for Special

Charge No. 2. (R. 82):

“Tf you find from the evidence that the gross mar-

gin of 15e per ton for jobbers as fixed by the Presi-

dent on August 23rd, 1917, does not include defend-

ant’s costs of doing business and a just and reason.

able sum for profit, then I charge vou as a matter of

law that you must return a verdict of ‘not guilty.’ ”’

9?

This charge was refused and exception reserved and is

preserved by the third assignment of error (R. 94):

“In sustaining the objection of counsel for the

government to the defendant’s offer to prove that the

profit of The Matthew Addy Company, upon each and

every transaction upon which the indictment and the

several counts thereof were based was not in excess

of 15e per ton of 2,000 Ibs.’’

and in the sixth assignment (R. 95):

“Tn charging the jury that the word ‘profit’ in the

. See en ee eee cs PORE RM Al “IR Rie ad a UR EI

BFR E ete

14

indictment, at each of the places where said word

appears, was the equivalent of the words ‘gross mar.

gin,’ and in charging the jury that they might returm

a verdict against defendant in the absence of proof

that The Matthew Addy Company made a profit per

ton on the coal covered by the indictment, in excess

of 15ce.’’

The Government offered no evidence to show that any

part of the commission or margin of 25c, added by defend.

ant to its purchase price, was profit.

The defendant offered to show and had incorporated

into the record in connection with the evidence of Frank

C. Deckebach (R., 75), a certified public accountant, com-

prehensive tabulations from its books showing the cost

and expense of its business in cents per ton, not only for

the months covered by the indictment, but prior and sub.

sequent thereto. In the nature of things it was impos-

sible to distribute and allocate to the particular ship-

ments involved in the indictment, the proper proportion

of the company’s total expenses rightly allowable as

selling cost. But by a distribution of all costs against

all sales, it was shown that for the month of July, 1917,

the cost of selling a ton of coal was $.3425, or more than

9c over the total commission of 25¢ which the company

added to its selling price of the coal purchased by it from

Bluefield Coal and Coke Company for $3.25 per ton on

July 31, 1917 (Government Exhibits 1 and 2, R., 102).

For the month of August, 1917, the company’s selling

cost per ton was $.1457, or a fraction of a cent less than

the 15e per ton commission allowed by the executive or-

der. For the month of September the company’s selling

S7~””™ APATITE il NS DRAENEI ANIA TRAST ONG UA A i 2h

15

cost per ton was $.1790, or nearly 3c in excess of the com-

mission allowed. The evidence was rejected, the spe-

cial charge refused, and the jury instructed that the re-

sults of the purchases and sales by defendant by way of

profit or loss were immaterial.

We have already quoted, at page —, the section of the

Act which authorizes the President to fix the price of

coal and coke, and provides that such ‘‘authority and

power may be exercised by him in each case through the

agency of the Federal Trade Commission,’’ ete. In over-

ruling a motion to quash the indictment the District

Judge held that the word ‘‘may’’ in this clause is permis- :

sive, and that the President is not required to exercise

his authority to regulate the prices through the Federal

Trade Commission; and the judgment below was a con-

viction upon the order of the President of August 23, not

concurred in or promulgated by the Federal Trade Com-

mission,

In order to properly construe the law it should be

noted that where the Federal Trade Commission under-

takes to fix prices, it must, under Paragraph 11 of Sec-

tion 25, ‘‘make full inquiry, giving such notice as it may

deem practicable, into the cost of producing,’’ ete., and

that having completed such inquiry it shall (Par., 14):

‘In fixing maximum prices for producers * * *

allow the cost of production, including the expense

of operation, maintenance, depreciation, and deple-

tion, and shall add thereto a just and reasonable

profit.’’

and in Paragraph 15 it is further provided that:

16

‘‘In fixing such prices for dealers, the Commis.

sion shall allow the cost to the dealer and shall add

thereto a just and reasonable sum for his profit in

the transaction.”’

The purpose and intent of the law as a whole was no!

to confiscate, during a public emergency, either the prod-

uct of the producer or the good will or services of the

dealer or jobber, but to regulate prices after inquiry, and

under the ordinary constitutional limitations. And even

if it be true that the immediate emergency justified the

President in fixing jobbers’ prices, instead of adopting

the slower method of submitting them to the Federal

Trade Commission to be fixed upon investigation, we

submit that the President, in exercising such power in

emergency, was not free from the limitations imposed

upon the Federal Trade Commission in the event that it

should exercise the same powers by direction of the Pres-

ident.

We submit that where the President, without investi-

gation, fixed a dealer’s or jobber’s price, without allow-

ing ‘‘the cost to the dealer and adding thereto a just and

reasonable sum for his profit,’ the dealer or jobber may

show upon an indictment based upon Paragraph 17, for

violation of an order of the President, that the price fixed

by the order did in fact not allow ‘‘a just and reasonable

sum for his profit in the transaction,’’ but actually re-

sulted in a loss.

ee ananiean ; eee

17

IIL.

The court erred in overruling the motion of defendant to

quash the indictment and each and every count thereof.

(a) The indictment and each of its several counts,

is insufficient in law and fact.

The District Judge, in his opinion of February 26, 1920,

overruling defendant’s motion to quash the indictment

(R., 28), disposed of our first contention on this point in

the following language :

‘*The indictment is sufficient. The word ‘may’ in

the last clause of the first paragraph of Section 25

of the National Defense (Lever) Act (40 Stat., 276)

is permissive. The President is thereby empowered,

not required, to exercise his authority to regulate

the prices and production of coal through the Fed-

eral Trade Commission in each instance. This is

the ordinary significance of the word. U. S. v. Lev-

ington Mill Co., 232 U. S., 399, and that it was so in-

tended is clear from the context. It may be noted

that the third paragraph vests in the President a

similar optional discretion to act through the Com-

mission or otherwise.’’

We submit that this construction of the law is not

correct.

Paragraph one, which authorized and empowers the

President to fix the price of coal and coke, and to estab-

lish rules for the regulation of and to regulate the method

of production, sale, shipment, distribution, apportion-

ment or storage, is a startling innovation in legislative

18

action, due to the exigencies of war. If Paragraphs |

and 17 had stood alone, without the inclusion of the jp.

termediate paragraphs, the construction adopted by the

District Court might have been necessary, but reading

the section as a whole we submit that there was no in.

tention on the part of Congress to authorize the Presi.

dent to fix, without investigation or appeal, either prices

or jobbers’ commissions on the sale of coal and coke,

This is apparent from the provisions of the sections other

than 1 and 17.

Paragraphs 2, 3 and 4 relate to the requisition of ‘‘th:

plant, business and all appurtenances * * *

to such producer as a going concern,’

tion during the period of the war.

belonging

’

and their opera-

Paragraph 3 provides that in case of such requisition

**a just compensation for the use thereof’’ shall be paid,

which compensation the President shall fix or cause to

be fixed by the Federal Trade Commission, and Para.

graph 4 provides that in case of requisition, if the com.

pensation fixed be not satisfactory to the owner, he shall,

upon payment to him of 75 per cent. of the amount fixed,

‘*he entitled to sue the United States ‘o recover sueh

further sum as, added to said seventy-five percentun,

will make up such amount as will be just compensation.”

Paragraphs 6, 7 and 8 provide an altemative to requi-

sition of the plants of producers and dealers. That is.

‘*an agency to be designated by the Presilent,’’ to whiel

producers shall sell their products, the prices to be fixed

and regulated by such agency.

By Paragraph 8 it is provided that:

‘‘The prices to be paid for such products so pur-

chased shall be based upon a fair and just profit over

19

and above the cost of production, including proper

maintenance and depletion charges, the reasonable-

ness of such profits and costs of production to be de-

termined by the Federal Trade Commission,”’

with further provision that in case the owners are dis-

satisfied with the prices so fixed, they shall be paid sev-

enty-five percentum of the amount, with the right to

bring suit to recover the actual value of their product,

to be determined by the courts.

Paragraphs 11, 12, 13, 14 and 15 prescribe the pro-

cedure whereby the Federal Trade Commission, when

directed by the President, is to make inquiry into the cost

of producing coal and coke, and Paragraph 13 provides

that “If the President has decided to fix the prices at

which any such commodity shall be sold by producers

and dealers generally’? the Federal Trade Commission

shall ‘‘fix and publish maximum prices for both pro-

ducers of and dealers in any such commodity,”’ ete.

Paragraph 17 provides a punishment for any one who,

with knowledge that the prices of any such commodity

have been fixed as herein provided, violates them.

The Federal Trade Commission is required by See-

tions 14 and 15, in fixing maximum prices, both for pro-

ducers and dealers, to allow the cost of production, or

service, and ‘‘add thereto a just and reasonable sum for

the profit in the transaction.’’ We submit that Para-

graph 1, properly construed, and considered as a part

of the entire statute, cannot be casually disposed of by

merely defining ‘‘may’’ therein as permissive; that the

proper construction of Paragraph 1, conferring unusual

powers upon the executive, also defined the only manner

in which such powers could be exercised, and that the

— " . ‘ é tl

&

iy

Ly

b

.

&

Rt ee <SDA a ORE

20

word ‘‘may”’ is equivalent, as it frequently is, to the

v.ord ‘‘shall,’’ and refers to the special requirements of

Paragraphs 11, 12 and 13, inclusive, in providing the

method whereby the President is authorized to fix price:

for ‘‘producer or dealer.”’

Paragraph 16 strongly enforces our contention as to

the proper construction of the statute. It reads:

‘*The maximum prices so fixed and published shal

not be construed as invalidating any contract in

which prices are fixed, made in good faith, prior to

the establishment and publication of the maximun

prices by the commission.”’

During the course of the trial it was recognized that

this paragraph was applicable to the maximum comnis.

sion fixed by the President, for violation of which de.

fendant was indicted. But the paragraph did not under-

take to preserve the inviolability of the contracts as

against prices fixed by the President, but only as against

prices fixed by the commission. If the Government’:

construction of Paragraph 1 is correct, there would ap-

pear to be no sound rule of construction which would per

mit Paragraph 16 to make an exception to the unlimited

power conferred on the President by Paragraph 1.

If our construction of the statute is correct it follows

that—

The indictment should allege the passage of the Ac

and the principal provisions thereof and then that the

President having decided to fix prices at which coal and

coke might be sold, that the Federal Trade Commission

fixed and published maximum prices for dealers in such

commodities and that after such prices were fixed and

published, defendant, with knowledge thereof violated

same by asking, demanding and receiving higher prices

than those fixed.

Nowhere in the indictment does it appear that the

Federal Trade Commission fixed and published maxi-

mum prices and that defendant had notice thereof. If

the Federal Trade Commission did not in fact fix and

publish maximum prices and defendant did not in fact

know or could not have known of any fixing of prices by

it, then the defendant has violated no law and should not

have been compelled to plead to any such indictment.

It is a well recognized rule in criminal pleading, that

no material allegation may be omitted, for without it,

a criminal offense is not described.

In the case of United States v. Hess, 124 U. S., 483,

at page 486, it was held:

‘The general, and, with few exceptions, of which

the present is not one, the universal rule on this

subject, is, that all the material facets and circum-

stances embraced in the definition of the offense must

be stated, or the indictment will be defective. No

essential element of the crime can be omitted with-

out destroying the whole pleading. The omission

cannot be supplied by intendment, or implication,

and the charge must be made directly and not in-

ferentially, or by way of recital.’’

See also Ledbetter v. United States, 170 U. S., 606.

The rule just quoted applied equally to common law

offenses as to statutory offenses. In an indictment for

a purely statutory offense, the reason for the rule is all

the more evident, for a common law crime may become

PPR SA BBR RE A ree he SURE ARETE ME ES BE ATES BA 8 ret Se weeded SN ener ee cor. ot

oo»

defined through legislative and judicial interpretation,

besides the influence of public opinion expressed regard.

ing the law, during many years of its effectiveness.

IV.

The court erred in overruling the demurrer of defendant

to the indictment, which attacked the constitutionality

of the Act of Congress of August 10, 1917, commonly

known as the ‘‘National Defense (Lever) Act’’ (4

Stat. 278), and the executive order of the President,

dated August 23, 1917.

(a) The Act of Congress and the rules, regula-

tions, promulgations and publications of the Presi-

dent and the United States Fuel Administrator vio-

late the fifth amendment to the Constitution of the

United States, in that defendant is deprived of its

property without due process of law.

The first clause of Section 25 of the Act, gives the

President authority to fix the price of coal and coke.

The eleventh clause provides that when directed by the

President, the Federal Trade Commision is required to

inquire as to the costs of production of coal and coke.

The thirteenth clause provides that if the President has

decided to fix prices and the Federal Trade Commission

has completed its inquiry, the Federal Trade Commission

shall fix and publish maximum prices, which prices shall

be observed by all producers and dealers (black type

ours).

Then in the fourteenth and fifteenth clauses, it is pro

vided how maximum prices shall be arrived at. The

seventeenth clause preserihed the penalty for not com-

plying with the prices as fixed.

23

There is nothing in the Act of Congress nor in the

regulations of the President thereunder, as they were

construed and applied by the District Court, which pro-

vide for a hearing with regard to the fixing of prices.

There is not even any semblanec of a hearing either

before the President or the Federal Trade Commission

or a court. The President by himself or through the

Federal Trade Commission may arrive at a price to he

fixed, no matter how arbitrary or unreasonable, and

every one within the meaning of the Act must comply

therewith. This is a taking of one’s property or serv-

ices without compensation and is purely confiseatory

and within the prohibtion of the amendment to the Fed-

eral Constitution. Assuming that the President has

power to act without action by the Federal Trade Com-

mission, there is nothing in the Act of Congress which

provides for the machinery to arrive at the costs of pro-

duction. It is true the President may, if he sees fit,

exercise his power through the ageney of the Federal

Trade Commission and the Federal Trade Commission

may make inquiry as to the costs of production, but how

they shall arrive at such costs of production, is not

stated except that the Act in Clauses fourteen, fifteen

and sixteen of Section 25 provides, ‘‘that in fixing maxi-

mum prices for producers, the commission shall allow

the costs of prodnetion, inelnding the expense of opera-

tion, maintenance, depreciation and depletion and shall

add thereto a just and reasonable profit.’’

That in fixing such prices for dealers, the commission

shall allow the costs to the dealer and shall add thereto

a just and reasonable sum for his profit in the trans-

action,

That the maximum prices so fixed and published shall

not be construed as invalidating any contract in which

prices are fixed, made in good faith prior to the estab-

lishment and publication of maximum prices by the

commission,

In the motion to quash the indictment (R. 29), which

was overruled by the court, we contended that the word

SP RT ALE

CVS IE CI

A er a a NO a ene

24

‘‘may’’ as used in the first paragraph of Section 25, of

the Act of Congress in question should be read as

‘*shall.’’ That it was obligatory upon the President jy

all cases to exercise his authority therein vested in him,

through the ageney of the Federal Trade Commission,

The court below construed the phrase mentioned qs

being permissive on the part of the President, to exer.

cise his authority through the agency of the Federal

Trade Commission.

If the court’s ruling on the motion to quash the indict.

ment is correct, and as the Act of Congress in question

nowhere provides for an investigation by the Presiden:

nor for any semblance of a hearing before him, the Ae

of Congress in question is clearly invalid, as depriving

defendant of its property without due process of law,

and besides, the fact remains that the President has not

exercised his authority through the Federal Trade Com.

mission, which might have the machinery to provid

for a hearing.

While the President is given the power to exercise his

authority through the Federal Trade Commission, it is

very apparent from his rulings and regulations, begin.

ning with the first one under date of August 21, 1917, tha’

he has not seen fit to use the agency of the Federal Trad:

Commission and that he has arbitrarily arrived at the

maximum prices which he fixed in exercising that author.

ity himself.

Nowhere in the Act of Congress nor in any of the rul-

ings and orders of the President, or the United States

Fuel Administrator, is there a remedy provided for de-

fendant, in the event that the prices as fixed were found

not to include the cost of doing business, together wit)

a fair profit, which the Federal Trade Commission is en-

joined to allow dealers, when it (The Federal Trade Con:

ee ee ee re eee ee se oes Ais

25

mission) investigates the cost of doing business and pub-

lishes maximum prices after the President has decided

io fix prices of coal and coke.

Unlike the provision made in the Act of Congress, for

producers, Who, in the event that their properties and

cutput are commandeered by the President, may sue the

United States, the defendant as a jobber, is entirely with-

out remedy and if it exercises the privilege of charging

a price which covers the cost of doing business, plus a

fair profit, as the law intended for it to have, it is amen-

sble to criminal proceedings, which impose a very heavy

penalty.

If the Law authorizes the President, by mere execu-

tive order without previous investigation to finally fix

the jobber’s compensation for his services without pro-

vision for appeal, and does not permit the defendant to

show upon the trial that the compensation so fixed is un-

fair and inadequate, the law is unconstitutional. Due

process of law, as granted by the constitution, is not de-

pendent upon the form of procedure, but there must be

provided some fair method, either in advance or after-

wards, for compensating the person whose property is

taken, or Whose service is compelled, for publie uses.

It may be that where, upon investigation and hearing,

a jobber’s commission had been fixed for the trade in

general, a particular jobber could not complain because

of the faet that by reason of circumstances peculiar to

him, the commission so fixed did not afford him adequat»

compensation. (See remarks of the District Judge, R..,

78.) But in this case there was no hearing or investiga-

tion prior to the order fixing the jobber’s commission nor

any pretense of any. The arbitrary jobber’s commission

Caddie ©

De HO ry Re Re OT ORR A eth I WA RE: oe ele rt da , ~ a ei

26

embodied in the order of August 23, became effective thip.

teen days after the passage of the law itself. On Septem

ber 6 the United States Fuel Administrator, referring {:

the prices and commissions theretofore fixed, frankly

stated that they had been fixed without investigation, Hi

said: ‘**The prices fixed are provisional. They will stand

unless changed by order of the President for good eau

shown. The Fuel Administration will examine all appli

‘ations for revision of prices, accompanied by cost state

ments presented in writing.’’ In fact they were after.

wards changed several times and in many particulars.

The fixing of rates, charges or compensation for prop.

erty taken, is certainly not an executive function. Wher

compensation for property taken is fixed by judgment o!

a court, it is always after hearing and investigation,

where rates and charges are fixed by the Legislature it is

at least always presumed that investigation has bee

made.

If the President or other executive officer may ever.

cise such power without investigation as was done in the

present case, at least it must be open to the citizen ty

show upon the trial that the enforcement of the orde

was confiscatory or non-compensatory as to him. This

richt was denied the defendant in this case.

The District Judge in his opinion on demurrer to tle

indictment admitted that under ordinary conditions,

law such as the Act of Congress of August 10, 1917, would

be invalid because of want of due process of law ani

said:

‘It is true that the Act afforded no opportunity

for judicial review of the reasonableness of the price:

fixed by the President, and this has been determined

27

under ordinary circumstances, with reference (wo

railroad and other rates, to be want of due process

of law. Chicago, Milwaukee & St. Paul Ry. v. Min-

nesota, 134 U. S., 418, 10 Sup. Ct., 462, 702; Minne-

sota Rate Cases, 230 U.S., 352-484; Oklahoma Oper-

ating Co, v. Love, 252 U.S., 321; Holter Hardware

Co. vy. Boyle, 263 Fed., 134.”

But the learned District Court further said:

‘*Publie danger warrants substitution of execu-

tive process for judicial process. Moyer v. Pea-

body, 212 U. S., 78”? (R., 32).

In its opinion affirming the District Court, the Court

of Appeals quoted that part of the opinion of the Dis-

trict Court and concurred jin its views. In this respect,

we submit that both the District Court and the Court of

Appeals were in error, and that such a holding is in direct

variance with the salutary rule laid down by this court

in the early case of Ex parte Milligan, 4 Wall., 2, 121-

127; Hamilton v. Kentucky Distilleries Co., 251 U. S.,

146-156, and the very recent case of United States v.

Cohen Grocery Co,, 255 U. S., 81, 88-89.

In the Cohen case supra, this court speaking through

Mr. Chief Justice White, at page 88 of the opinion said:

‘We are of the opinion that the court below was

clearly right in ruling that the decisions of this court

undisputably establish that the mere existence of

a state of war would not suspend or change th er-

ation upon the power of Congress of the guaraiiees

and limitations of the fifth and sixth amendments

as to questions such as we are here passing upon

(citing cases). It follows that, in testing the oper-

iN i Pee TIA NRE APT NT

28

ation of the Constitution upon the subject here jy.

volved, the question of the existence or non-exis).

ence of a state of war becomes negligible, and w

put it out of view.’’ (Italies ours.)

While this court in the Cohen case held Section 4 oj

the Act of Congress of August 10, 1917, unconstitutional

beeause of indefiniteness, and notwithstanding that the

facts in that case were different than the facts in this

case, in that in the Cohen case no prices were fixed, ani

therefore the question of what were reasonable price

was too indefinuite and did not sufficiently inform the

defendant of the charge against him, while in the cas

at bar, definite prices were fixed, nevertheless, the prin.

ciple laid down by this court in the Cohen ease, viz,

that the existence or non-existence of a state of war or

using the words of the District Judge, the existence oy

9

non-existence of ‘‘publiec danger,’’ becomes negligible,

and should be put out of view, and the usual rules with

reference to the limitations of the Constitution upon the

power of Congress and the chief executive should be

applied. If as the Distriet Court and the Court of Ap-

peals admits, that under ordinary circumstances ther

is a want of due process of law, so far as this petitioner

is concerned, then by applying the rule laid down by this

court in the Cohen ease, petitioner has been deprived

of due process of law, notwithstanding this proceeding

grew out of, and was during the existence of a state of

war and based upon the Act of Congress passed during

such state of war.

Our principal objection to the statute on constitutional

grounds, as applied to the facts in this ease, is not 80

much that the President was without power to fix the

—,

broker’s commissions, but that Congress was without

power to authorize him to do so without investigation,

and subject the defendant to criminal punishment with-

out permitting it to show that the commission fixed was

non-compensatory. In other words, we insist thet prop-

erty can not be taken for a public use, or services com-

pelled for such use, without the right to have it deter-

mined somewhere and at some time, either in advance

or afterward, whether the compensation provided is ade-

quate.

(b) The Act of Congress violates Section 1 of

Article 1; Section 1 of Article 2 and Section 1 of

Article 3, of the Constitution of the United States,

in that it delegates legislative and judicial powers

to the President of the United States, to the United

States Fuel Administrator appointed by the Presi-

dent, and the Federal Trade Commission.

The courts have uniformly held that rate fixing or

price fixing is a legislative function. It has also been

recognized that if the subject is one over which the state

legislature or Congress has authority, it may regulate

the use or even the price of the use of private property.

Interstate Commerce Commission v. Cincinnati, New

Orleans & Texas Pacific Ry. Co., 167 U.8., 479, 505; City

of Knoxville vy. Knoxville Water Co., 212 U. S., 1; Min-

nesota Rate Cases, 230 U. S., 352; Field v. Clark, Boyd

v. United States, and Sternback v. United States, 143 U.

8., 649,

”

»

CONCLUSION.

We respectfully submit that upon the showing made

to this court, a writ of certiorari should be granted, &.

rected to the Cireuit Court of Appeals for the Sixth

Cireuit, requiring that the record of said cause in said

court and the judgment be certified to this court, and

that thereupon this court proceed to correct the error

complained of, reverse said judgment, enter final judg.

ment and discharge petitioner, and grant such further

relief as this court may deem just and proper in the

premises.

Netson B. Cramer, and

Juttus R. SaMveE.s,

Attorneys for Petitioner,

This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.

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