# Statement Opposing Jurisdiction — United States v. Borden Co. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0208%3A07 ## Record - **Collection:** Supreme Court brief - **Document type:** Statement Opposing Jurisdiction - **Published:** January 1, 1939 - **Citation:** 308 U.S. 188 ## Text ° ee) <> 18 1999 OMes - Suprema Court, U. $ SUPREME COURT OF THE UNITED| StATES » OCTOBER TERM, 1939 No. 397 THE UNITED STATES OF AMERICA, ey "Appellant, V8. . f THE BORDEN COMPANY, CHARLES L. DRESSEL, HARRY M. RESER, ET AL. APPEAL FROM THE DISTRICT COURT OF THE UNITED STATES FOR THE NORTHERN DISTRICT OF ILLINOIS. STATEMENT OPPOSING JURISDICTION AND MO. TION TO DISMISS ON BEHALF OF APPELLEES | . SIDNEY WANZER & SONS, INC., INTERNATIONAL . DAIRY COMPANY, GORDON B. WANZER, H. STAN. LEY WANZER, LOUIS JANATA AND MILK DEAL. | ERS’ BOTTLE EXCHANGE. .. Y Lor N. MoLwzoen, ) Bernuarpt Frank, _ Couns@ for Appellees. Ganx, Szcorp, Steap & McIntogn, | Of Counsel. — ae i a i aj INDEX. Stat. 31), as amenged August 24, 1935 (49 Stat. _ 150) and as reenacted and amended by the Agricul- oo Marketing Agreement Act of 1937 (50 Stat. _ a ey eh ce ig te Ak ep isunc 4 Sheets . Page 1 Cres Clio rts ots ee Maonw Qs: IN THE DISTRICT COURT OF THE UNITED STATES _ FOR THE NORTHERN DISTRICT OF ILLINOIS ” EASTERN DIVISION’ © No. 31197 © _ UNITED STATES OF AMERICA, ‘ Vs> THE BORDEN COMPANY, EYAL, eA: , é ie * ge . STATEMENT OF DEFENDANTS (APPELLEES) SID. _ NEY WANZER & SONS, INC, A CORPORATION; IN. TERNATIONAL DAIRY COMPANY, A CORPORA. ‘TION; GORDON B. WANZER, H. STANLEY WAN. ZER, LOUIS JANATA, AND MILK DEALERS’ BOT- _ TLE EXCHANGE, A CORPORATION, IN OPPOSI-. ‘ION TO JURISDICTION OF SUPREME COURT OF _ Conformably with Rule 12 of the Supreme Court. of the’ United States, as amended,’ defendants (appellees) named _ inabove caption respectfully present this statement in oppo- sition to fire jurisdiction of said Supreme Court to entertain the appeal allowed herein under the Criminal Appeals Act. Said named defendants (for convenience referred to as ae: faa A, Defendants. . G the Wanzer arsup) fling this opposing statement, filed their: : several demurrers ‘containing the specification, as Para- graph 5 of each’ thereof, that sole and exclusive jurisdiction over the production and marketing of, milk had. been de- . volved upon the executive branch of the government and ‘withdrawn from initial, judicial power. The defendants fil- ing this opposing statement presented a printed opening brief and a printed reply brief i in support of said demurrers. No plea. in bar raising the contention as to supremacy and exclusiveness of executive power was filed by any defendant, nor was any special plea of: any nature filed or presented. Not until the hearing on the settlement of the order sustain- ing theodemurrers was there any intimation that any de- _Mmuirer was to be considered as a special plea in bar. - At the {last named hearing, counsel forthe government for the first time intimated that, under the limitations of the Criminal Appeals Act, there might be doubt as to jurisdiction unless a said demurrers were treated as special pleas in bar. ‘With these preliminary observations in mind, let us pro- - ceed to. reply in the sequence of the government’s statement of jurisdiction: = 3 Seer - A. The statutory jurisdiction of the Supreme Court ender the Criminal Appeals Act is limited and strictly construed. That jurisdiction confers the ‘‘exceptional right to review _ in favor of the United States (United States v. Keitel, 211 U.S, 370, 399), and is’ ‘‘an innovation in criminal jurisdic- — tion in certain classes of.- prosecations, it cannot be extended - beyond its terms’’ (United States v. Dickinson, 213 U. S. 92, 103). B. The government’s statement recites, “‘The Statute of the United States, the construction of which is involved . herein, is Section 1 of the Sherman Act * * *%_a penal statute providing for punishment “by fine. not exceeding © | $5000, or by ac not exceeding one year, or _: 2a 4 \ ° : : i 3 ° . : ° Ped both said punishments, in the discretion of the court.’ (U. S. C. Title 15, See. 1; 26 Stat. 209.) C. The defendants (appellees) filing. this opposing ; statement are distributors of fluid milk in the City of Chi- © cago (excepting that one of their number, the Milk Dealers’. Bottle Exchange, is a mere local plant facility engaged in the rendition of a mere service to local dealers). The court * sustained the demurrers to Counts 1, 2 and 4 upon said . “) “y r e ~ o The “Construction” of Section 1 of the Sherman Act is not involved; wherefore the Supreme Court is withoug juris- diction. ; This is not a case where the decision on the demurrer to the indictment finds that “the acts charged are not within _ the statute’’ (cf. United States v. Patten, 226 U. §. 525, 935). Here the decision of the’ district court is a finding that said court had been deprived of initial judicial. power over the subject matter set forth in the indictment by the ~ Agricultural Adjustment Act of May 12, 1933 (48 Stat. 31), as amended August 24, 1935 (49 Stat. 750), and as reenacted and amended by the Agricultural Marketing Agreement Act of 1937_(50 Stat. 246). Tee Sogo It is elementary that two or more different statutes can- not be considered in the process of construction unless such statutes be in pari materia. As stated in. United States v. Anderson, 9 Wall. (U. 8.) 56, aie **The two acts cannot be construed im pari materia. The one is penal, the other remedial; the one claims a right, the other concedes a privilege.’’ Paragraph 5 of the demurrers filed by the Wanzer Group, wherein the question as to the exclusive, supreme and plenary jurisdiction, of the Secretary of Agriculture over — milk production and marketing was presented. ont be: . a <« yer The scope of ‘‘eonstruction’’ of a statute is defined -in Lake County v. Rollins, 130 U. 8, 662, at 670: - **To get at the thought of. meaning expressed in a statute, a contract er a Constitution, the first resort, in all cases, is to the natural signification of the words, in the order of grammatical arrangement .in which the framers of the instrument have placed them. If: the words convey a definite nieanin , which involved no: - absurdity nor any contradiction of other parts of the instrument, then that meaning, apparent on the face of the instrument, must be accepted, and neither the courts nor the Legislature have the right to add to it or take ‘from it. * * * So, also, where a law is expressed in plain and unambiguous térms, whether ' those terms are general -or limited, the legislature Obviously Section 1 of the Sherman Act and the Agricul- tural Acts cannot be said to be in pari materia; and unless the separate, several and remedial Agricultural Acts. be - held to be in pari materia with Section 1 of the Sherman * Act, said Agricultural Acts cannot be drawn within the — prozess of construction of the separate, unrelated. and penal - statute, viz. Section 1 of the Sherman Anti-Trust Act. Jurisdiction of the appeal, therefore, fails. Il, A oe. The specification of ‘the: Wanser deniurrers, as to the. exclusiveness of executive power over milk production and - marketing does not constitute a special plea in bar; — . The function of a special plea in bar is to set upa defense’ _. dehors the record, as the cases cited on the last page of the government’s jurisdictional statement disclose. 3 Thus citizenship of an Indian charged with murder of Casa - & % Oe another Indian (United States v. Celestine, 215 U. §. 278); the defense of the statute of limttations (United States v. Barber, 219 U. S. 72; United States v. Goldman, 277 U.S. 299); and the defenses. of. former jeopardy or acquittal (United States v. Oppenheimer, 242 U.S. 85: United States v. Thompson, 251 U. 8. 407) represent the range of. in- stances relied upon by the government to support juris- diction on the theory that the said demurrers constituted | a special plea in bar. Obviously, the deferses of statute limitations and of for-. ‘ mer jeopardy or acquittal present a subject matter widely different from that of the instant case; which leaves the Indian case.(United States v. Celestine, 215 U. §. 278) as | the basis of the government’s theory that Paragraph 5 of the Wanzer demurrers constituted a special plea in bar. | In United States v. Celestine, 215 U.S. 278, the Supreme - - Court reversed an order sustaining a special plea in bar. in a prosecution against: an Indian for murder of another. Indian within the limits of an Indian Reservation in the State of Washington. The Supreme Court held that such an offense by an Indian so circumstanced was not excepted from the exclusive jurisdiction of the Federal courts under , . the Act of March 3, 1885, Section, 9, because both parties: held land patents from the United States issued under the authority of the Treaty with the Omahas of March 16, 1854, and the Treaty of Point. Elliott of January 22, 1885, and that the provisions of the Act of February 8, 1887, Section - 6, providing that, upon the completion of land allotments and the patenting of the lands to said Indian allottees, such ' Indians, upon certain conditions, are declared to be citizens of the United States, did not divest the jurisdiction o? Fed- tral courts over offenses committed by one Indian ypon-the person of another Indian within the limits of a reservation. The special plea filed by the Indian was directed against the - e 6 jurisdiction of the circuit court on the ground that he ‘‘has - been and still is a citizen of the United States, and there- fore subject to the laws of the territory and state of Wash- ington. ’” Concerning the Indian’s spedial plea in bar, the Supreme Court, in the Celestine case, in construing Paragraph 4 of the Criminal Appeals Act of 1907 (relating to review of special pleas in bar), at page 283, said: ‘**The fourth paragraph of the act of March 2, 1907, supra, authorizes a review of a ‘decision or judgment sustaining a special plea in bar, when the defendant has not been put in jeopardy.’ The defendant in this case had not been put upon trial, therefore he had not been in jeopardy. The decision of the circuit court sus- tained the special plea in bar. This fourth paragraph differs from the two preceding, in that the review authorized by them is limited to cases in which ‘the _ decision or judgment is based upon the invalidity or construction of the statute upon which the indictment is founded,’ while no such limitation appears in this paragraph. The full significance of this difference ‘need hot now be determined, but clearly the fourth par- . agraph gives to this cotrt a right to review the precise question decided by a trial court in sustaining a special plea in bar, although that decision may involve the application rather than the validity or construction, »_strictly speaking, of the statute upon which the indict- ment was founded:’’ The above quoted differentiation of the language of the fourth paragraph of the Criminal Appeals Act has no per- tinency to the instant case; for the question as to the su- preme, exclusive and plenary jurisdiction of the Secretary of Agriculture does not present an application of the statute upon which the indictment is based, viz., Section 1 of the Shermari Act, but rather of the Agricultural Acts. In the Celestine case, the facts surrounding the Indian 7 were personal to him and ‘resulted from his voluntary action, : In the instant case, the Agricultural Acts have withdrawn initial judicial power from the Federal district courts over the general subject matter of’ the production and market- ing of agricultural commodities, including milk, thereby carving from Section 1 of the Sherman Act any application to such commodities. In other words, the Agricultural Acts have disqualified district courts from exercising initial judi- cial power. The decision of the District Court that it was without judicial power and that the Secretary of Agricul- ture has exclusive power over agricultural commodities, including milk, was a finding relative to the disability of the District Court itself, and did not relate to any claim of right or privilege of the defendants arising out of any voluntary action or conduct on their part. Such a construc- tion of Federal law by the District Court itself, as to its own lack of jurisdiction, is not within the purview or scope ‘of a special plea in bur under which the application of a statute may be applied to voluntary action on the part of a defendant as distinguished from disability inhering within the jurisdiction of a court, as a court. The very fact that the learned counsel for the govern- ment base their sole substantial ground of jurisdiction under the Criminal Appeals Act upon the theory that Par- — agraph 5 of the Wanzer demurrers constituted a special _ Plea in bar, is a conclusive demonstration that the govern- ment has grave doubt concerning the jurisdiction of the Supreme Court to entertain the appeal. The picture of the Agricultural legislation beginning with 1933, as part of the Recovery program, in the period | of world-wide economic chaos, is not one of fact dependent upon voluntary action or status of the citizen. That legis- lation appears on the Federal statute’ books. The several + : A A / Fy - 8 departments of government are presumed to know the Fed- eral statutes. If one department of government, viz., De. . partment of Justice, overlooks an existing code of laws hav- -, ing the effect of removing initial judicial power over a subject matter, the citizen confronted with an indictment under Section 1 of the Sherman Act is not called upon to file a special plea in bar to that effect. Nor is such « citi- ‘ zen to blame for-the narrow limitations of the govern- ment’s right of review under the Criminal Appeals Act. Until Congress, by appropriate amendment, enlarges the scope of review under the Criminal Appeals Act, the ques- tion presented : Whethér the supreme, exclusive and plenary— jurisdiction of the Secretary of Agriculture over the pro- duction and marketing of ‘agricultural products, including : milk, by the agricultural legislation since 1933, has removed initial judicial power, so as to carve from the purview of Section 1 of the Sherman Act any application to such com- modities, does not present a question of “‘construction’”’ or, indeed, of the ‘‘application’’ of the statute upon which the indictment hercin was returned. The government closes its statement of jurisdiction with ~ the suggestion that the question decided by the District Court is contrary to the decisions of the Supreme Court in Sherman Act cases involving agricultural products; but, as none of those cases raised the point decided by the District Court and as all of them were prior to the Agricultural Adjustment Act of 1933, they are not in point. The last case, Sugar Institute v. United States, 297 U. 8. 553, was decided as late as March 30, 1936, prior to the Agricultural Marketing Agreement Act of 1937.. So with the four rail- ae road cases, the last in volume 228 U.S., no similarity exists because of incidental control by the Interstate Commerce Commission. Clearly acquisition of the capital stock of a competing railroad, or agreements between railroads as to distribution of freight or passenger traffic, present an entirely different situation, especially in view of the course of amendment of the Interstate Commares Commission | legislation. , For the respective reasons herein presented, it is def- erentially urged that the appeal should be dismissed for want of jurisdiction. ~~ a Respectfully submitted, (Sgd.) | Gann, Secorp, Sreap AND _ MeIyrosn, y Loy N. McIntosu, Berwaarvr Frank, , . Attorneys for Said Defendants (Appellees). /; ; : IN THE : } SUPREME COURT OF THE UNITED STATES : OCTOBER TERM, A. D. 1939 : | No. 397 | UNITED STATES OF AMERICA, 7 ‘Appellant, vs. THE BORDEN COMPANY ET AL., Ee Appellees. APPEAL FROM THE DISTRICT COURT OF THE UNITED. STATES FOR THE NORTHERN DISTRICT OF ILLINOIS, EASTEKN DIVISION . ff Honoraste Cuares E. Woopwarp, District Judge. MOTION OF APPELLEES SIDNEY. WANZER & SONS, _ INC., A CORPORATION ; INTERNATIONAL DAIRY COMPANY, A’ CORPORATION ; GORDON B. WAN. _ ZER, H. STANLEY WANZER, ‘LOUIS JANATA, AND . MILK DEALERS’ BOTTLE XCHANGE, A CORPO. RATION, TO DISMISS APPEAL. _— ; a nN - . ; | | _ Now come appellees, Sidney Wanzer & Sons, Inc., a cor- Poration; International Dairy Company, a corporation ; —4I sempepeosin Lee SS aa terre i reten oe ~ " 42 Gordon B.Wanzer, H. Stanley Waiuzer, Louis J anata, and Milk Dealers’ Bottle Exchange, a corporation, by Loy N. McIntosh and Bernhardt Frank, their counsel, and move to dismiss:the appeal herein forAhe reasons ‘set forth in the “statement of said appellees in opposition to the jurisdic- tional statement ‘filed by the United States of America. mr ees re (Signed) Loy N. McIntosu, ‘ (Signed) BERNHARDT FRank, ne _ Counsel for Said Appellees. : (3565) Q Ah ae PS --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386401_0208%3A07. Public record. Not legal advice.