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N WRIT of Certiorari to the United sustaining one of the two claims for

States Circuit Court of Appeals which the libel was brought, and denyfor the Third Circuit to review a decree ing the other. Reversed and remanded which granted a motion by appellants for further proceedings. in that court to withdraw the appeal See same case below, 167 C. C. A. 440, from a decree of the District Court for 256 Fed. 224. the Eastern District of Pennsylvania, The facts are stated in the opinion. supervened since the decree of the low- | subsequently to an appeal, which was er court was entered. Watts, W. & offered in evidence on the appeal, was Co. v. Unione Austriaca Di Navigazione, ordered suppressed for the reason that 248 U. S. 19, 63 L. ed. 100, 3 A.L.R. the same witness testified upon the trial 323, 39 Sup. Ct. Rep. 1.

in the lower court, concerning the very And so changed conditions since the matters referred to in the deposition, entry of the decree below, due to the and no grounds were shown for introentry of the United States into war, will ducing additional proof at that time. be considered. Ibid.

Ibid. And where a ship sailing under the If the cause is to be heard in the apflag of a certain nation has, in accord-pellate court de novo, and the merits of ance with the congressional act, been the case are involved in the questions condemned as a prize, on appeal from presented to the court for its considerasuch decree of condemnation the appel- tion, it is essential and necessary that late court will take into consideration the court should have the testimony upa treaty entered into with such nation on which the lower court based its deciafter such condemnation, which requires sion, and so there can be no hearing on the restoration of such ship. United the merits where the testimony taken in States v. The Peggy, 1 Cranch, 103, 2 the court below has not been certified L. ed. 49.

up in the transcript of record on appeal, So, too, if the law under which a sen- | in the absence of a stipulation that it tence of condemnation has been pro- might be omitted. Nelson v. White, 32 nounced be repealed after sentence in C. C. A. 166, 48 U. S. App. 656, 83 Fed. the court below and before final sen- 215. tence in the appellate court, no sentence So, too, if an appeal is from only so of condemnation be pronounced much of a decree as awards judgment where no special provision has been on only one of several separate and dismade for that purpose by statute. Yea- tinct causes of action stated in a libel, ton v. United States, 5 Cranch, 281, 3 and the record contains only the proofs L. ed. 101.

relating to such cause of action, the Although there is a trial de novo on several causes of action stated in the appeal in an admiralty case, a new libel cannot be tried de novo. The John charge will not be considered unless ap- & Winthrop, 106 C. C. A. 1, 182 Fed. plication to make new allegations or 380. take new proofs is made, as required by While an appeal reopens the whole the admiralty rules. The Minnie, 140 Č. case, the appellate court will not award C. A. 362, 225 Fed. 36.

increased damages on the prayer of the And while appellate courts in ad-party who has not appealed. Shaw v. miralty treat an appeal as a new trial, Folsom, 40 Fed. 511. In commenting on in which new pleadings and proofs are Irvine v. The Hesper, 122 U. S. 256, 30 permitted in furtherance of justice, it is L. ed. 1175, 7 Sup. Ct. Rep. 1177, cited not a matter of course to allow parties in this note, which was cited as supportwho have deliberately withheld evidence ing the contention that an appeal opened available to them in the district court the whole case and authorized the court to present such evidence on appeal. The to decree a sum to the appellee beyond Stonington & The Wm. H. Payne, 25 the sum awarded by the district court, Fed. 621; Singlehurst v. La Compagnie the court said: "I do not understand Générale Transatlantique, 1 C. C. A. that the Supreme Court in that case in487, 1 U. S. App. 126, 50 Fed. 104; tended to overthrow the long-established The Saunders, 23 Fed. 303.

rule repeatedly declared by it, that the Nor will new evidence be admitted on party to an admiralty cause or to an appeal in an admiralty case without a equity cause, who does not appeal, can showing of a sufficient reason for doing only be heard in support of the decree so. The Sirius, 4 C. C. A. 273, 7 U. S. of the court below.

That case App. 660, 54 Fed. 188.

was a suit for salvage; and while it So, a deposition of a libellant, taken I decides that an award to a salvor who

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Mr. William J. Conlen argued the sel, asserting claims (1) for failure to cause and filed a brief for petitioner. deliver part of the cargo, which, as eviNo brief was filed for respondents.

denced by the intake weights recited in

the bill of lading, had been loaded on the Mr. Chief Justice White delivered the vessel at Buenos Aires, and (2) for damopinion of the court:

age by sea water to part of the delivered Consequent on the allowance of a writ cargo in consequence of leakage alleged of certiorari, the case is here to review to be due to the unseaworthiness of the

vessel. the action of the court below in granting, in an admiralty case there pending,

Holding that the recital in the bill of a motion for leave to withdraw an ap- prima facie evidence, and that the proof

lading of the intake weights was but peal made by the respondents, who were there appellants. 167 C. C. A. 440, 256 showed the delivery of all cargo received Fed. 224. The situation thus arose :

on board, the court dismissed the libel The schooner John Twohy was char- as to the first claim. As to the second, tered to carry a cargo of bones from however, it found that the damage from Buenos Aires to Philadelphia.

The leakage had resulted from unseaworvoyage was made, and, following the dis- thiness and sustained that claim. charge of the cargo, the charterers, who

The claimants alone appealed, and, are the petitioners, [78] libeled the ves after having twice obtained a continappeals may be reduced, although the And in Munson S. S. Line v. Miramer adverse party does not appeal, it decides S. S. Co. 93 C. C. A. 360, 167 Fed. 960, nothing more, and it is not to be sup- a more favorable decree was entered in posed that the court would overrule its favor of the party who did not appeal. previous decisions without saying so, or So, too, an appeal to a Federal circuit without referring to them.”

court of appeals from a final decree of a And in The Ciampa Emilia, 1 C. C. A. district court in a suit in admiralty 508, 1 U. S. App. 143, 50 Fed. 239, it brings the case before it for a trial de was held that the court will not take novo, so that the court may review an any notice of the contention of a libel- | interlocutory decree therein which was lant who has not appealed, that certain not appealed from, and allow a recovery items of loss were improperly disallowed against a party who was dismissed by by the court below. And see The Roar- that decree, and may review both interer, 1 Blatchf. 1, Fed. Cas. No. 11,876. locutory and final decrees so far as es

But while it has been held that one sential to grant relief to a party who who has not appealed can be heard only has not appealed from either decree. in support of the decree, and therefore Reid v. Fargo, 241 U. S. 544, 60 L. ed. can get in the appellate court no more 1156, 36 Sup. Ct. Rep. 712. or other relief than it gives, there are In The Charles Morgan, 115 U. S. 69, many cases which take the contrary 29 L. ed. 316, 5 Sup. Ct. Rep. 1172, it view.

was held that, under the admiralty rules, Thus, the award of the district court the circuit court may, in its discretion, in favor of the appellant may be de- permit an amendment of a libel so as to creased on appeal although the appel- include a claim for damages growing out lee did not appeal. Irvine v. The Hes of the original cause of action and litiper, supra. The court stated that when gated in the court below, but rejected the libellants appealed, they did so in because not specified in the pleading. view of the rule, and took the risk of The court distinguished Houseman v. the result of a trial of the case de novo. The North Carolina, 15 Pet. 50, 10 L. ed. The whole case was opened by the ap. 657, which held that a libel could not peal as much as it would have been if be 'amended after an appeal so as to both parties had appealed, or if the appeal had been taken only by the claim bring in a new claim for damages, as ant.

being a decision before the adoption of So, too, in The San Rafael, 72 C. C. A. the admiralty rules. 388, 141 Fed. 270, an award made to cer

In The Morning Star, 14 Fed. 866, an tain libellants by the district court was amendment to the pleadings was perincreased although such libellants did mitted which presented the case to the not appeal, the court holding that the appellate court in a different aspect fact that no appeal by them was taken from that in which it was presented to was unimportant, since by their appeal the lower court, but on the condition the adverse parties took the risk of the that the costs of the district court be result of a trial of the case de novo. paid by the appellant.

uance, moved for leave to withdraw the, vine v. The Hesper, Mr. Justice Blatchappeal. Opposing this motion, the libel- ford, speaking for the court, said: lants asserted that, under the practice "It is well settled, however, that an in admiralty in that circuit, an appeal appeal in admiralty from the district opened up the whole case for recon- court to the circuit court vacates altosideration in the appellate court; that, gether the decree of the district court, relying upon that practice, they had re- and that the case is tried de novo in the frained from themselves taking an ap- circuit court. Yeaton v. United States, peal from the ruling of the trial court. 5 Cranch, 281, 3 L. ed. 101; Anonymous, denying their claim for nondelivery of 1 Gall. 22, Fed. Cas. No. 441; The Roarcargo; that, owing to the continuances er, 1 Blatchf. 1, Fed. Cas. No. 11,876; allowed the appellants, the time within The Saratoga v. 438 Bales of Cotton, í which the libellants might have taken Woods, 75, Fed. Cas. No. 12,356; The an appeal had expired, and if the ap- Lucille, 19 Wall. 73, 22 L. ed. 64; The pellants prevailed in their motion, the Charles Morgan, 115 U. S. 69, 75, 29 libellants would be without means of ob- L. ed. 316, 318, 5 Sup. Ct. Rep. 1172. taining a review of the adverse action We do not think that the fact that the of the trial court.

claimants did not appeal from the decree Coming to consider these contentions, of the district court alters the rule. the court held them to be without merit; When the libellants appealed, they did first, because the libellants, by them- so in view of the rule, and took the risk selves taking an appeal, could have re- of the result of a trial of the case de quired the appellate court to proceed novo. The whole (80] case was opened and decide the same; second, because, by their appeal as much as it would have having failed to adopt that course they been if both parties had appealed, or if could not complain if the court, in the the appeal had been taken only by the exercise of its discretion, declined to claimants." grant them as a legal right that which And in the Reid Case this court, they might have made such had they although pressed to repudiate the pracavailed themselves of [79] the appro- tice, as opposed to the weight of adpriate procedure; aud third, because the judged cases, declined to do so, and recourt conceived that the allowance of the affirmed the ruling made in Irvine v. withdrawal of the appeal would be in The Hesper. furtherance of the due administration In view, therefore, of the settled law of the admiralty, in that it would tend as to the effect of appeals in admiralty, to put an end to litigation, would afford we are of opinion that the libellants appellants time within which to exer- were justified in regarding the appeal cise a cooler judgment, would forewarn taken by the claimants as securing to all persons to themselves appeal if they libellants the right to be heard in the desired to insure a review of unfavor- | appellate court without the necessity of able decisions, and would prevent the perfecting a cross appeal in order to hardship which would result from a preserve that right. To hold, then, that contrary ruling, as many would be de- the appellate court could, nevertheless, terred from appealing from unjust de- without affording the libellants an opcisions if, having once embarked on that portunity to be heard, enter a decree course, they were powerless to with the plain effect of which was to deny draw. Upon compliance with certain one of the two claims for which the conditions prescribed by the court, ap- libel was brought, and which, in view of pellants' motion was therefore granted the settled effect of the appeal, the li

We are unable to give our approval | bellants could not be presumed to have to this result or the reasons by which abandoned, would be to subject them to it was sustained. As recognized by the a wrong without a remedy, even if it court, the case of The Canadia, 154 c. did not amount to a denial of due procC. A. 153, 241 Fed. 233, had settled in ess of law.

And this renders it unnecessary to that circuit that, in admiralty, an appeal by either party operated to remove the consider the supposed advantages which case to the appellate court for a trial would arise from the adopting of a new de novo.

rule, since, if the wisdom of so doing The decision was based sole- be arguendo conceded, that concession ly upon the previous rulings of this would not justify the misapplication of court in Irvine v. The Hesper, 122 U. S. the existing rule, and the destruction of 256, 30 L. ed. 1175, 7 Sup. Ct. Rep. 1177, rights vested in reliance not only upon and Reid v. Fargo, 241 U. S. 544, 60 L. its existence, but upon the discharge of ed. 1156, 36 Sup. Ct. Rep. 712. In Ir-| the duty to enforce and apply it.

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error:

It follows that the decree of the court, in the Lever Act of August 10, 1917, 4, below must be reversed and the cause as re-enacted in the Act of October 22, 1919, remanded for further proceedings in $.2. to punish criminally any person who conformity with this opinion.

wilfully makes "any unjust or unreason

able rate or charge in handling or dealing It is so ordered.

in or with any necessaries,” violated U. S. Const., 5th and 6th Amendments, which require an ascertainable standard of guilt,

fixed by Congress rather than by courts (81) UNITED STATES OF AMERICA, and juries, and secure to accused persons Piff. in Err.,

the right to be informed of the nature and

cause of accusations against them. L. COHEN GROCERY COMPANY.

[For other cases, see Criminal Law, I. a; Con

stitutional Law, III. b, 2, in Digest Sup.

Ct. 1908.) (See S. C. Reporter's ed. 81-97.)

[No. 324.) Price regulation profiteering - Lever

Act excessive prices for necessaries,

Argued October 18 and 19, 1920. Decided 1. The price at which a commodity is

February 28, 1921. sold is comprehended by the provision of the Lever Act of August 10, 1917, § 4, as

N ERROR to the District Court of re-enacted by the Act of October 22, 1919, the United States for the Eastern $ 2, making it unlawful for any person wil. District of Missouri to review a judgfully to make any unjust or unreasonable ment which quashed an indictment for rate or charge in handling or dealing in or charging excessive prices for necessawith any necessaries, or to conspire to ex

ries. Affirmed. act excessive prices for any necessaries.

See same case below, 264 Fed. 218. Price regulation · profiteering Lever

The facts are stated in the opinion. Act excessive prices for necessaries.

Solicitor General Frierson argued the 2. The exaction of excessive prices cause and filed a brief for plaintiff in upon the sale of necessaries, contrary to the provisions of the Lever Act of August

Both in August, 1917, and in October, 10, 1917, § 4, as re-enacted in the Act of October 22, 1919, § 2, was, where such sale 1919, when the acts in question were was subsequent to the latter act, penalized passed, Congress, in the exercise of its by the provision of the re-enacted section, war powers, had full authority to enmaking violations of any of the provisions act all proper legislation to assure an of such section punishable by fine or im- adequate supply and equitable distribuprisonment, although the section, before its tion of the necessaries of life. re-enactment, contained no penalty.

Stewart v. Kahn (Stewart v. Bloom) War effect on constitutional guar-11 Wall. 493, 506, 20 L. ed. 176, 179; anties.

3. The mere existence of a state of Jacob Ruppert v. Caffey, 251 U. S. 264, war could not suspend or change the oper- 64 L. ed. 260, 40 Sup. Ct. Rep. 141 ation upon the power of Congress of 'the Hamilton v. Kentucky Distilleries & guaranties and limitations of U. S. Const., Warehouse Co. 251 U. S. 146, 64 L. ed. 5th and 6th Amendments, as to delegating 194, 40 Sup. Ct. Rep. 106. legislative power to courts and juries, The regulation of the prices of the penalizing indefinite acts, and depriving citizens of the right to be informed of the necessaries of life is a proper governnature and cause of aceusations against mental function which, when deemed them.

necessary for the prosecution of a war, [For other cases, see War, V. in Digest Sup. Congress may exercise. Ct. 1908. ]

Munn v. Illinois, 94 U. S. 113, 124, Criminal law indefiniteness of crim- 24 L. ed. 77, 83; 4 Tucker's Bl. Com.

inal statute profiteering Lever Act delegation of power.

pp. 159, 160; 2 Russell, Crimes, 7th ed. 4. Congress, in attempting, as it did p. 1919; Rex v. Waddington, 1 East, 163,

102 Eng. Reprint, 64; Mobile v. Yuille, Note.-On decisions under the Lever 3 Ala. 140, 36 Am. Dec. 441; Budd v. Act-see

notes to Mossew United New York, 143 U. S. 517, 36 L. ed. 247, States, 11 A.L.R. 1265, and Standard 4 Inters. Com. Rep. 45, 12 Sup. Ct. Rep. Chemicals & M. Corp. v. Waugh Chemical 468; Brass v. North Dakota, 153 U. S. Corp. 14 A.L.R. 1059.

391, 38 L. ed. 757, 4 Inters. Com. Rep. On continuance of constitutional guar- 670, 14 Sup. Ct. Rep. 857; German Alanties during war or insurrection- --see liance Ins. Co. v. Lewis, 233 U. S. 389, note to West Virginia ex rel. Mays v. 410, 58 L. ed. 1011, 1021, L.R.A.1915C, Brown, 45 L.R.A.(N.S.) 996.

1189, 34 Sup. Ct. Rep. 612.

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V.

1920.

The Act of October, 1919, is not sub- , the government has no concern must deject to the objection that it is too vague pend upon a degree of necessity resultand uncertain.

ing from the proximity of a peril, or United States v. Brewer, 139 U. S. danger to the general government itself. 278, 288, 35 L. ed. 190, 193, 11 Sup. Ct. Stotenburgh v. Frazier, 16 App. D. C. Rep. 538; Miller v. Strahl, 239 U. S. 229, 48 L.R.A. 220; Lawton v. Steele, 426, 434, 60 L. ed. 364, 368, 36 Sup. Ct. 152 U. S. 133-139, 38 L, ed. 385-389, 14 Rep. 147; Tozer v. United States, 4 Sup. Ct. Rep. 499. Inters. Com. Rep. 245, 52 Fed. 917; Due process of law is the law of the Nash v. United States, 229 U. S. 373, 57 land. L. ed. 1232, 33 Sup. Ct. Rep. 780; Davidson y. New Orleans, 96 U. S. Arizona Employers' Employers' Liability

Liability Cases 97, 24 L. ed. 616; Missouri P. R. Co. v. (Arizona Copper Co. v. Hammer) 250 Humes, 115 U. S. 512, 519, 29 L. ed. 463, U. S. 400, 432, 63 L. ed. 1058, 1071, 6 465, 6 Sup. Ct. Rep. 110; Scott v. ToA.L.R. 1537, 39 Sup. Ct. Rep. 553; ledo, 1 L.R.A. 688, 36 Fed. 385. United States v. Rosenblum, 264 Fed. The phrase imports in general a pub582; United States v. Oglesby Grocery lic law, equally binding upon all persons Co. 264 Fed. 691; Waters-Pierce Oil Co. and classes. v. Texas, 212 U. S. 86, 53 L. ed. 417, Giozza v. Tiernan, 148 U. S. 657, 37 29 Sup. Ct. Rep. 220; Omaechevarria v. L. ed. 599, 13 Sup. Ct. Rep. 721. Idaho, 246 U. S. 343, 62 L. ed. 763, 38 Laws which create crime ought to be Sup. Ct. Rep. 323.

so explicit that all men subject to their Messrs. Louis B. Sher and Chester H. penalties may know what act it is their Krum argued the cause and filed a brief duty to avoid. for defendant in error:

United States v. Brewer, 139 U. S. The Constitution is a law for rules 278, 35 L. ed. 190, 11 Sup. Ct. Rep. 538; and the people equally in war and in Tozer v. United States, 4 Inters. Com.

Rep. 245, 52 Fed. 917. It protects all classes of men, peace. at all times, and under all circumstances. There is no standard of determination in

The statute is unjust or unreasonable. Ex parte Milligan, 4 Wall. 121, 18 L. the statute of unjustness or unreasoned. 295. The framers of the Constitution did

ableness. not intend to restrain the states in the u. S. 106, 55 L. ed. 663, 34 L.R.A.(N.S.)

Standard Oil Co. v. United States, 221 regulation of civil institutions adopted 834, 31 Sup. Ct. Rep. 502, Ann. Cas. for internal government. Dartmouth College v. Woodward, 4

1912D, 734; Waters-Pierce Oil Co. v. Wheat. 518, 629, 4 L. ed. 629, 657; Ham- Texas, 212 U. S. 86, 53 L. ed. 417, 29 mer v. Dagenhart, 247 U. s. 251, 62 L. Sup. Ct. Rep. 220. ed. 1101, 1107, 3 A.L.R. 649, 38 Sup. Ct. Messrs. William D. Guthrie, Benjamin Rep. 529, Ann. Cas. 1918E, 724.

F. Spellman, and Bernard Hershkopf It is true that private contracts must filed a brief as amici curiæ: yield to public welfare when appropri- The Lever Law violates the 5th and ately declared and defined.

6th Amendments to the Constitution. Union Dry Goods Co. v. Georgia Pub- United States v. Sharp, Pet. C. C. 122, lic Service Corp. 248 U. S. 372, 63 L. Fed. Cas. No. 16,264; United States v. ed. 309, 9 A.L.R. 1420, 39 Sup. Ct. Rep. Reese, 92 U. S. 214, 220, 23 L. ed. 563, 117, P.U.R.1919C, 60.

565; United States v. Brewer, 139 U. S. And there is no absolute freedom to 278, 288, 35 L. ed. 190, 193, 11 Sup. Ct. do as one wills, or to contract as one Rep. 538; 1 Works of Edward Livingchooses. Liberty is not mere license. ston on Crim. Jurisprudence, Chase's ed.

Chicago, B. & Q. R. Co. v. McGuire, 1873, pp. 12,170; Macaulay, Indian 219 U. S. 567, 55 L. ed. 338, 31 Sup. Ct. Penal Code, 4 Misc. Works at p. 170; Rep. 259.

United States v. Myatt, 264 Fed. 450; And it is settled that all contracts and Detroit Creamery Co. v. Kinnane, 264 property rights are held subject to the Fed. 845; International Harvester Co. v. fair exercise of the power of the state Kentucky, 234 U. S. 216, 58 L. ed. 1284, to prescribe regulations for the general 34 Sup. Ct. Rep. 853; Collins v. Kenwelfare.

tucky, 234 U. S. 634, 58 L. ed. 1510, 34 Atlantic Coast Line R. Co. v. Golds- Sup. Ct. Rep. 924; Bishop, Statutory boro, 232 U. S. 548, 558, 58 L. ed. 721, Crimes, 3d ed. § 41; Chicago & N. W. 726, 34 Sup. Ct. Rep. 364.

R. Co. v. Dey, 1 L.R.A. 744, 2 Inters. But the right of the United States to Com. Rep. 325, 35 Fed. 866; United penalize merely local contracts in which I States v. L. Cohen Grocery Co. 264 Fed. 65 L. ed.

517

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