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223; Lamborn v. McAvoy, 265 Fed. 944;
A. T. Lewis & Son Dry Goods Co. v.
Tedrow, D. C. Col. Lewis, D. J., April 9,
1920; United States v. Bernstein, 267
Fed. 295; United States v. People's Fuel
& Feed Co. 271 Fed. 790; United States
v. Pennsylvania R. Co. 242 U. S. 208,
237, 238, 61 L. ed. 251, 267, 268, 37
Sup. Ct. Rep. 95; Louisville & N. R. Co.
v. Railroad Commission, 19 Fed. 691;
Tozer v. United States, 4 Inters. Com.
Rep. 245, 52 Fed. 917; Hocking Valley
R. Co. v. United States, 127 C. C. A.
285, 210 Fed. 543; Czarra v. Medical
Supers. 25 App. D. C. 450; United States
v. Capital Traction Co. 34 App. D. C.
599, 19 Ann. Cas. 68; Louisville & N.
R. Co. v. Com. 99 Ky. 132, 33 L.R.A.
209, 59 Am. St. Rep. 457, 35 S. W. 129;
South Covington & C. Street R. Co. v.
Com. 181 Ky. 449, 205 S. W. 603; Ex
parte Jackson, 45 Ark. 164; Chicago,
B. & Q. R. Co. v. People, 77 Ill. 443; Ex
parte Young, 209 U. S. 123, 147, 52
L. ed. 714, 723, 13 L.R.A.(N.S.) 932, 28
Sup. Ct. Rep. 441, 14 Ann. Cas. 764;
Oklahoma Operating Co. v. Love, 252
U. S. 331, 337, 64 L. ed. 596, 599, 40 Sup.
Ct. Rep. 338.

The classification contained in §§ 4
and 26 of the Lever Act, as amended,
violates the 5th Amendment to the Con-
stitution.

United States v. Armstrong, 265 Fed. 683; Connolly v. Union Sewer Pipe Co. 184 U. S. 540, 46 L. ed. 679, 22 Sup. Ct. Rep. 431; McGhee, Due Process of Law, pp. 60-64, 311; 2 Willoughby, Const. pp. 873, 874; Brushaber v. Union P. R. Co. 240 U. S. 1, 24, 25, 60 L. ed. 493, 504, L.R.A.1917D, 414, 36 Sup. Ct. Rep. 236, Ann. Cas. 1917B, 713; Giozza v. Tiernan, 148 U. S. 657, 662, 37 L. ed. 599, 601, 13 Sup. Ct. Rep. 721.

The Act of October 22, 1919, is void because there is not any existing war emergency to sustain it as a proper exercise of the war power of Congress.

Johnson v. Gearlds, 234 U. S. 422, 446,
58 L. ed. 1383, 1393, 34 Sup. Ct. Rep. 794;
Perrin v. United States, 232 U. S. 478,
486, 58 L. ed. 691, 696, 34 Sup. Ct. Rep.
387; Municipal Gas Co. v. Public Serv-
ice Commission, 225 N. Y. 95, P.U.R.
1919C, 364, 121 N. E. 772; Castle v.
Mason, 91 Ohio St. 303, 110 N. E. 463,
Ann. Cas. 1917A, 164; Hepburn v. Gris-
wold, 8 Wall. 603, 617, 19 L. ed. 513,
524; Griesedieck Bros. Brewing Co. v.
Moore, 262 Fed. 582.

Messrs. John A. Marshall, D. N.
Straup, Joel F. Nibley, and Thomas

518

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Marioneaux also filed a brief as amici curiæ:

statute, or in the interpretation of any In the construction of a particular of its provisions, all acts relating to the same subject or having the same general purposes in view should be read in connection with it.

621, 3 Ann. Cas. 423, affirmed in 203 U. Woods v. Carl, 75 Ark. 328, 87 S. W. S. 358, 51 L. ed. 219, 27 Sup. Ct. Rep. 99; 36 Cyc. 1147, 1148.

statute may be determined by reference The meaning of doubtful words in one to another in which the same words have been used in a more obvious sense.

Moines, 137 Iowa, 452, 115 N. W. 177. 36 Cyc. 1147, 1148; Eckerson v. Des

legislature, as indicated by the language The construction of a statute by the of subsequent enactments, is entitled to great weight.

36 Cyc. 1142.

know the existent law.
The lawmaker is always presumed to

172 Ind. 198, 88 N. E. 62.
36 Cyc. 1136, 1145; Ensley v. State,

Rate or charge commonly refers to
speak of the rates or charges of a tele-
compensation for services rendered. We
phone or telegraph or railroad company
for the services they render. We speak
which goods are sold.
of the price, not the rate or charge, at

Fed. Cas. No. 1,006; Green v. Jones, 78
Barnard v. Morton, 1 Curt. C. C. 404,
N. C. 268; Alexander v. Morris, 3 Call
(Va.) 99; East Tennessee, V. & G. R.
Co. v. Hunt, 15 Lea, 261.

so explicit that all men subject to their
Laws which create crime ought to be
penalties may know what acts it is their
duty to avoid.

Fed. Cas. No. 16,265.
United States v. Sharp, Pet. C. C. 118,

Before a man can be punished, his case must be plainly and unmistakably within the statute.

United States v. Lacher, 134 U. S. 624, 628, 33 L. ed. 1080, 1083, 10 Sup. Ct. Rep. 625; United States v. Brewer, 139 U. S. 278-288, 35 L. ed. 190–193, 11 Sup. Ct. Rep. 538; Lamborn v. McAvoy, 265 Fed. 944.

Where one part of a statute is susceptible of two constructions, and the language of another part is clear and definite, and is consistent with one of such constructions, and opposed to the other, that construction must be adopted ous. which will render the clauses harmoni

36 Cyc. 1132.

255

In construing a statute the legislative intent is to be determined from a general view of the whole act, with reference to the subject-matter to which it applies and the particular topic under which the language is found.

36 Cyc. 1128, and notes 55 & 56.

It is the duty of the court, so far as practicable, to reconcile the different provisions so as to make them consistent and harmonious, and to give a sensible and intelligent effect to each.

36 Cyc. 1129 and notes.

Where general terms or expressions in one part of a statute are inconsistent with more specific and particular provisions in another part, the particular provisions will be given effect as clearer and more definite expressions of the legislative will.

36 Cyc. 1130, 1131.

Where a statute includes both a particular and also a general enactment, which, in its most comprehensive sense, would include what is embraced in the particular one, the particular enactment must be given effect, and the general enactment must be taken to embrace only such cases within its general language as are not within the provisions of the particular enactment.

Sanford v. King, 19 S. D. 334, 103 N. W. 28; 36 Cyc. 1131.

In expounding one part of a statute resort should be had to every other part, including even parts that are unconstitutional, or that have been repealed.

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The text thus reproduced is followed by two provisos exempting from the operation either of the section or of the act enumerated persons or classes of persons engaged in agricultural or similar pursuits.

Comparing the re-enacted section with the original text (Act of August 10, 1917, chap. 53, § 4, 40 Stat. at L. 276, Comp. Stat. § 3115}ff, Fed. Stat. Anno. Supp. 1918, p. 183), it will be seen that the only changes made by the re-enactment were the insertion of the penalty clause and an enlargement of the enumerated exemptions.

In each of two counts the defendant, the Cohen Grocery Company, alleged to be a dealer in sugar and other necessaries in the city of St. Louis, was charged with violating this section by wilfully and feloniously making an unjust and unreasonable rate and charge in handling and dealing in a certain necessary, the specification in the first count being a sale for $10.07 of about 50 lbs. of sugar, and that in the second, of a 100-pound bag of sugar for $19.50.

The defendant demurred on the following grounds: (a) That both counts were so vague as not to inform it of the nature and cause of the accusation; (b) Bank for Savings v. The Collector that the statute upon which the indict(Bank for Savings v. Field) 3 Wall.ment was based was subject to the same 495, 18 L. ed. 207; 36 Cyc. 1132.

To subject a party to a penalty for violation of a statute it is not sufficient that the offense is within the mischief, if it is not within the literal construction of the statute.

Leonard v. Bosworth, 4 Conn. 421; 36 Cyc. 1186, 1187, note 52.

Mr. Chief Justice White delivered the opinion of the court:

infirmity because it was so indefinite as not to enable it to be known what was forbidden, and [87] therefore amounted to a delegation by Congress of legislative power to courts and juries to determine what acts should be held to be criminal and punishable; and (c) that as the country was virtually at peace, Congress had no power to regulate the subject with which the section dealt. In passing on the demurrer the court, declaring that this court had settled that, until the official declaration of peace, there was a status of war, nevertheless decided that such conclusion was wholly negligible as to the other issues raised by the demurrer, since it was equally well settled by this court that the mere status of war did not, of its own force, suspend to make any or limit the effect of the Constitution, unjust or unreasonable rate or charge in but only caused limitations which the handling or dealing in or with any nec Constitution made applicable as the essaries; to conspire, combine, agree, necessary and appropriate result of the or arrange with any other person status of war, to become operative.

Required on this direct appeal to decide whether Congress, under the Constitution, had authority to adopt [86] § 4 of the Lever Act as re-enacted in 1919, we reproduce the section so far as relevant (Act of Oct. 22, 1919, chap. 80, § 2, 41 Stat. at L. 297):

"That it is hereby made unlawful for any person wilfully

Holding that this latter result was not the case as to the particular provisions of the 5th and 6th Amendments which it had under consideration, that is, as to the prohibitions which those amendments imposed upon Congress against delegating legislative power to courts and juries, against penalizing indefinite acts, and against depriving the citizen of the right to be informed of the nature and cause of the accusation against him, the court, giving effect to the amendments in question, came to consider the grounds of demurrer relating to those subjects. In doing so and referring to an opinion previously expressed by it in charging a jury, the court said:

"Congress alone has power to define crimes against the United States. This power cannot be delegated to the courts or to the juries of this country.

"Therefore, because the law is vague, indefinite, and uncertain, and because it fixes no immutable standard of guilt, but | leaves such standard to the variant views of the different courts and juries which may be called on to enforce it, and because it does not inform defendant of the nature and cause of the accusation against him, [88] I think it is constitutionally invalid, and that the demurrer offered by the defendant ought to be sustained." The indictment was therefore quashed. In cases submitted at about the same time with the one before us and involving identical questions with those here in issue it is contended that the section does not embrace the matters charged. We come, therefore, on our own motion in this case to dispose of that subject, since, if well founded, the contention would render a consideration of the constitutional questions unnecessary. The basis upon which the contention rests is that the words of the section do not embrace the price at which a commodity is sold, and, at any rate, the receipt of such price is not thereby intended to be penalized. We are of opinion, however, that these propositions are without merit, first, because the words of the section, as re-enacted, are broad enough to embrace the price for which a commodity is sold, and second, because, as the amended section plainly imposes a penalty for the acts which it includes when committed after its passage, the fact that the section, before its re-enactment, contained no penalty, is of no moment. This must be the case unless it can be said that the failure at one time to impose a penalty for a forbidden act furnishes an adequate ground for preventing

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the subsequent enforcement of a penalty which is specifically and unmistakably provided.

We are of opinion that the court below was clearly right in ruling that the decisions of this court indisputably establish that the mere existence of a state of war could not suspend or change the operation upon the power of Congress of the guaranties and limitations of the 5th and 6th Amendments as to questions such as we are here passing upon. Ex parte Milligan, 4 Wall. 2, 121-127, 18 L. ed. 281, 295-297; Monongahela Nav. Co. v. United States, 148 U. S. 312, 336, 37 L. ed. 463, 471, 13 Sup. Ct. Rep. 622; United States v. Joint Traffic Asso. 171 U. S. 505, 571, 43 L. ed. 259, 288, 19 Sup. Ct. Rep. 25; McCray v. United States, 195 U. S. 27, 61, 49 L. ed. 78, 97, 24 Sup. Ct. Rep. 769, 1 Ann. Cas. 561; [89] United States v. Cress, 243 U. S. 316, 326, 61 L. ed. 746, 752, 37 Sup. Ct. Rep. 380; Hamilton v. Kentucky Distilleries & Warehouse Co. 251 U. S. 146, 156, 64 L. ed. 194, 199, 40 Sup. Ct. Rep. 106. It follows that, in testing the operation of the Constitution upon the subject here involved, the question of the existence or nonexistence of a state of war becomes negligible, and we put it out of view.

The sole remaining inquiry, therefore, is the certainty or uncertainty of the text in question; that is, whether the words, "That it is hereby made unlawful for any person wilfully to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries," constituted a fixing by Congress of an ascertainable standard of guilt, and are adequate to inform persons accused of violation thereof of the nature and cause of the accusation against them. That they are not, we are of opinion so clearly results from their mere statement as to render elaboration on the subject wholly unnecessary. Observe that the section forbids no specific or definite act. It confines the subjectmatter of the investigation which it authorizes to no element essentially inhering in the transaction as to which it provides. It leaves open, therefore, the widest conceivable inquiry, the scope of which no one can foresee, and the result of which no one can foreshadow or adequately guard against. In fact, we see no reason to doubt the soundness of the observation of the court below in its opinion to the effect that, to attempt to enforce the section would be the exact equivalent of an effort to carry out a statute which in terms merely penalized

would be additionally [91] obvious if we stopped to recur to the persistent efforts which, the records disclose, were made by administrative officers, doubtless inspired by a zealous effort to discharge their duty, to establish a standard of their own to be used as a basis to render the section possible of execution.

and punished all acts detrimental to the Public interest when unjust and unreasonable in the estimation of the court and jury. And that this is not a mere abstraction finds abundant demonstration in the cases now before us; since in the briefs in these cases the conflicting results which have arisen from the painstaking attempts of enlightened Judges in seeking to carry out the stat- That it results from the consideration ute in cases brought before them are which we have stated that the section vividly [90] portrayed. As illustrative before us was void, for repugnancy to the of this situation we append in the mar- Constitution, is not open to question. gin a statement from one of the briefs on United States v. Reese, 92 U. S. 214, 219, the subject. And again, this condition 220, 23 L. ed. 563, 565; United States v. 1 In United States v. Leonard, District not declare it unlawful to make an unjust Judge Howe, of the northern district of New or unreasonable profit upon sugar. York, held that, in determining whether or profit made is not the test, and may be ennot a price was unreasonable, the jury tirely irrelevant to the guilt of the defendshould take into consideration "what prices ant. He may, within the language of the the defendants paid for the goods in the statute, make an unreasonable, and theremarket,-whether they bought them in the fore unlawful, 'rate or charge,' without makordinary course of trade, paying the marketing any profit; or the rate or charge made price at the time, the length of time defendants have carried them in stock, the expense of carrying on the business, what a fair and, reasonable profit on the goods would be, and all the other facts and circumstances in and about the transaction, but not how much the market price had advanced from the time the goods were purchased to the time they were sold."

In United States v. Oglesby Grocery Co., District Judge Sibley, of the northern district of Georgia, said:

to

"The words used by Congress in reference a well-established course of business fairly indicate the usual and established scale of charges and prices in peace times as a basis, coupled with some inflexibility in view of changing conditions. The statute may be construed to forbid, in time of war, any departure from the usual and established scale of charges and prices in time of peace, which is not justified by some special circumstances of the commodity or dealer." [264 Fed. 695.]

Judge McCall, of the western district of Tennessee, in his charge to the grand jury, stated that, if a shoe dealer bought two orders of exactly the same kind of shoes at different times and at different prices, the first lot at $8 per pair and the second lot after the price had gone up to $12 per pair, "and then he sells both lots of those shoes at $18, he is profiteering clearly upon the first lot that only cost him $8. Now he does that upon the theory that, if he sells these shoes out, and goes into the market and buys again, he will have to pay the higher price; but that doesn't excuse him. He is entitled to make a reasonable profit, but he certainly hasn't the right to take advantage of the former low purchase, and take the same profit on them that he gets on the twelve-dollar shoes."

In United states v. Myatt, District Judge Connor, of the eastern district of North Carolina, said:

"It will be observed that the statute does

The

may involve a loss to him upon the purchasing price." [264 Fed. 447.]

District Judge Hand, of the northern district of New York, in his charge to the grand jury, said:

"Furthermore, it is not the particular profit that the individual himself makes which is the basis of the unreasonable charge, but it is whether the charge is such as gives unreasonable profit, not to him, but if established generally in the trade. The law does not mean to say that all people shall charge the same profit. If I am a particularly skilful merchant or manufacturer, and I can make profits which are greater than the run of people in my business, I am allowed to make those profits. So much am I allowed. But, if I am charging more than a reasonable price, taking the industry as a whole, I am not allowed to keep that profit because on other items I am sustaining a loss."

In United States v. Goldberg, District Judge Bledsoe, of the southern district of California, charged the jury that, in passing on the question of the reasonableness of prices for sugar, the jury should take into consideration, among other circumstances, the following:

"That there was, if you find that there was, a market price here in the community, or generally, with respect to the profit that normally should be made upon sugar sold either by manufacturers or jobbers and retailers."

In United states v. Culbertson, etc. Co., District Judge Rudkin, of the eastern district of Washington, on the trial of defendant on July 8, 1920, charged the jury among other things that, as a matter of law, defendant was entitled to sell its goods on the basis of the actual market value at the time and place of sale, over and above the expense of handling the goods, and a reasonable profit; and that the original cost price became immaterial, except as it threw some light upon the market value.

Brewer, 139 U. S. 278, 288, 35 L. ed. 190, 193, 11 Sup. Ct. Rep. 538; Todd v. United States, 158 U. S. 278, 282, 39 L. ed. 982, 983, 15 Sup. Ct. Rep. 887; [92] and see United States v. Sharp, Pet. C. C. 118, Fed. Cas. No. 16,264; Chicago & N. W. R. Co. v. Dey, 1 L.R.A. 744, 2 Inters. Com. Rep. 325, 35 Fed. 866, 876; Tozer v. United States, 4 Inters. Com. Rep. 245, 52 Fed. 917, 919, 920; United States v. Capital Traction Co. 34 App. D. C. 592, 19 Ann. Cas. 68; United States v. Pennsylvania R. Co. 242 U. S. 208, 237, 238, 61 L. ed. 251, 267, 268, 37 Sup. Ct. Rep. 95.

But decided cases are referred to which, it is insisted, sustain the contrary view. Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 53 L. ed. 417, 29 Sup. Ct. Rep. 220; Nash v. United States, 229 U. S. 373, 57 L. ed. 1232, 33 Sup. Ct. Rep. 780; Fox v. Washington, 236 U. S. 273, 59 L. ed. 573, 35 Sup. Ct. Rep. 383; Miller v. Strahl, 239 U. S. 426, 60 L. ed. 364, 36 Sup. Ct. Rep. 147; Omaechevarria v. Idaho, 246 U. S. 343, 62 L. ed. 763, 38 Sup. Ct. Rep. 323. We need not stop to review them, however, first, because their inappositeness is necessarily demonstrated when it is observed that, if the contention as to their effect were true, it would result, in view of the text of the statute, that no standard whatever was required, no information as to the nature and cause of the accusation was essential, and that it was competent to delegate legislative power, in the very teeth of the settled significance of the 5th and 6th Amendments and of other plainly applicable provisions of the Constitution; and second, because the cases relied upon all rested upon the conclusion that, for reasons found to result either from the text of the statutes involved or the subjects with which they dealt, a standard of some sort was afforded. Indeed, the distinction between the cases relied upon and those establishing the general principle to which we have referred, and which we now apply and uphold as a matter of reason and authority, is so clearly pointed out in decided cases that we deem it only necessary to cite them. International Harvester Co. v. Kentucky, 234 U. S. 216, 221, 58 L. ed. 1284, 1287, 34 Sup. Ct. Rep. 853; Collins v. Kentucky, 234 U. S. 634, 637, 58 L. ed. 1510, 1511, 34 Sup. Ct. Rep. 924; American Seeding Mach. Co. v. Kentucky, 236 U. S. 660, 662, 59 L. ed. 773, 35 Sup. Ct. Rep. 456; and see United States v. Pennsylvania R. Co. supra.

It follows from what we have said

that, not forgetful of our duty to sustain the constitutionality of the statute [93] if ground can possibly be found to do so, we are nevertheless compelled in this case to say that we think the court below was clearly right in holding the statute void for repugnancy to the Constitution, and its judgment quashing the indictment on that ground must be, and it is hereby, affirmed. Affirmed.

Mr. Justice Pitney and Mr. Justice Brandeis concur in the result.

Mr. Justice Day took no part in the consideration or decision of this case. Mr. Justice Pitney, concurring:

I concur in the judgment of the court, but not in the reasoning upon which it is rested.

Defendant was indicted upon two counts, alike in form, charging in each case that it "did wilfully and feloniously make an unjust and unreasonable rate and charge in handling and dealing in a certain necessary, to wit, sugar," in that it demanded, exacted, and collected excessive prices for specified quantities of sugar purchased from it, in violation of the Lever Act (Act of October 22, 1919, chap. 80, § 2, 41 Stat. at L. 297, 298, amending § 4 of Act of August 10, 1917, chap. 53, 40 Stat. at L. 276, 277, Comp. Stat. § 3115ff, Fed. Stat. Anno. Supp. 1918, p. 183). I am convinced that the exacting of excessive prices upon the sale of merchandise is not within the meaning of that provision of the act which is cited as denouncing it; that the act does not make it a criminal offense; that for this reason the demurrer to the indictment was properly sustained; and that whether the provision is in conflict with the 5th or 6th Amendment is a question not necessarily raised, and which ought not to be passed upon.

In order to appreciate the point, it is necessary to quote entire so much of the, section as defines the crimes thereby denounced. It reads as follows:

[94] "That it is hereby made unlawful for any person wilfully to destroy any necessaries for the purpose of enhancing the price or restricting the supply thereof; knowingly to commit waste or wilfully to permit preventable deterioration of any necessaries in or in connection with their production, manufacture, or distribution; to hoard, as defined in § 6 of this act, any necessaries; to monopelize or attempt to monopolize, either locally or generally, any necessaries; to

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