223; Lamborn v. McAvoy, 265 Fed. 944;, Marioneaux also filed a brief as amici A. T. Lewis & Son Dry Goods Co. v. curiæ: Tedrow, D. C. Col. Lewis, D. J., April 9, In the construction of a particular 1920; United States v. Bernstein, 267 statute, or in the interpretation of any Fed. 295; United States v. People's Fuel of its provisions, all acts relating to the & Feed Co. 271 Fed. 790; United States same subject or having the same general v. Pennsylvania R. Co. 242 U. S. 208, purposes in view should be read in con237, 238, 61 L. ed. 251, 267, 268, 37 nection with it. Sup. Ct. Rep. 95; Louisville & N. R. Co. Woods v. Carl, 75 Ark. 328, 87 S. W. v. Railroad Commission, 19 Fed. 691 ; 621, 3 Ann. Cas. 423, affirmed in 203 U. Tozer v. United States, 4. Inters. Com. S. 358, 51 L. ed. 219, 27 Sup. Ct. Rep. Rep. 245, 52 Fed. 917; Hocking Valley 99; 36 Cyc. 1147, 1148. R. Co. v. United States, 127 Č. C. A. The meaning of doubtful words in one 285, 210 Fed. 543; Czarra v. Medical statute may be determined by reference Supers. 25 App. D. C. 450; United States to another in which the same words v. Capital Traction Co. 34 App. D. C. have been used in a more obvious sense. 599, 19 Ann. Cas. 68; Louisville & N. 36 Cyc. 1147, 1148; Eckerson v. Des R. Co. v. Com. 99 Ky. 132, 33 L.R.A. Moines, 137 Iowa, 452, 115 N. W. 177. 209, 59 Am. St. Rep. 457, 35 S. W. 129; The construction of a statute by the South Covington & C. Street R. Co. v. legislature, as indicated by the language Com. 181 Ky. 449, 205 S. W. 603; Ex of subsequent enactments, is entitled to parte Jackson, 45 Ark. 164; Chicago, great weight. B. & Q. R. Co. v. People, 77 Ill. 443; Ex 36 Cyc. 1142. parte Young, 209 U. S. 123, 147, 52 The lawmaker is always presumed to L. ed. 714, 723, 13 L.R.A.(N.S.) 932, 28 know the existent law. Sup. Ct. Rep. 441, 14 Ann. Cas. 764; 36 Cyc. 1136, 1145; Ensley v. State, Oklahoma Operating Co. v. Love, 252 172 Ind. 198, 88 N. E. 62. U. S. 331, 337, 64 L. ed. 596, 599, 40 Sup. Rate or charge commonly refers to Ct. Rep. 338.

compensation for services rendered. We The classification contained in $$ 4 speak of the rates or charges of a teleand 26 of the Lever Act, as amended, phone or telegraph or railroad company violates the 5th Amendment to the Con- for the services they render. We speak stitution.

of the price, not the rate or charge, at United States v. Armstrong, 265 Fed. which goods are sold. 683; Connolly v. Union Sewer Pipe Co. Barnard v. Morton, 1 Curt. C. C. 404, 184 U. S. 540, 46 L. ed. 679, 22 Sup. Fed. Cas. No. 1,006; Green v. Jones, 78 Ct. Rep. 431; McGhee, Due Process of N. C. 268; Alexander v. Morris, 3 Call Law, pp. 60-64, 311; 2 Willoughby, (Va.) 99; East Tennessee, V. & G. R. Const. pp. 873, 874; Brushaber v. Union Co. v. Hunt, 15 Lea, 261. P. R. Co. 240 U. S. 1, 24, 25, 60 L. ed. Laws which create crime ought to be 493, 504, L.R.A.1917D, 414, 36 Sup. Ct. so explicit that all men subject to their Rep. 236, Ann. Cas. 1917B, 713; Giozza penalties may know what acts it is their v. Tiernan, 148 U. S. 657, 662, 37 L. ed. duty to avoid. 599, 601, 13 Sup. Ct. Rep. 721.

United States v. Sharp, Pet. C. C. 118, The Act of October 22, 1919, is void Fed. Cas. No. 16,265. because there is not any existing war

Before a man

can be punished, his emergency to sustain it as a proper ex

case must be plainly and unmistakably

within the statute. ercise of the war power of Congress. Johnson v. Gearlds, 234 U. S. 422, 446,

United States v. Lacher, 134 U. S. 58 L. ed. 1383, 1393, 34 Sup. Ct. Rep. 794; 624, 628, 33 L. ed. 1080, 1083, 10 Sup. Perrin v. United States, 232 U. S. 478, Ct. Rep. 625; United States v. Brewer, 486, 58 L. ed. 691, 696, 34 Sup. Ct. Rep.

139 U. S. 278-288, 35 L. ed. 190–193, 11 387; Municipal Gas Co. v. Public Serv.

Sup. Ct. Rep. 538; Lamborn v. McAvoy,

265 Fed, 914. ice Commission, 225 N. Y. 95, P.U.R. 1919C, 364, 121 N. E. 772; Castle v.

Where one part of a statute is susMason, 91 Ohio St. 303, 110 N. E. 463,

ceptible of two constructions, and the Ann. Cas. 1917A, 164; Hepburn v. Gris- language of another part is clear and wold, 8 Wall. 603, 617, 19 L. ed. 513,

definite, and is consistent with one of 524; Griesedieck Bros. Brewing Co. v.

such constructions, and opposed to the Moore, 262 Fed. 582.

other, that construction must be adopted

which will render the clauses harmoniMessrs. John A. Marshall, D. N. ous. Straup, Joel F. Nibley, and Thomas 36 Cyc. 1132.

In construing a statute the legislative, (e) to exact excessive prices for any intent is to be determined from a gen- recessaries.

Any person violateral view of the whole act, with refer- ing any of the provisions of this section ence to the subject-matter to which it upon conviction thereof shall be fined applies and the particular topic under not exceeding $5,000 or be imprisoned which the language is found.

for not more than two years, or both: 36 Cyc. 1128, and notes 55 & 56.

It is the duty of the court, so far as The text thus reproduced is followed practicable, to reconcile the different by two provisos exempting from the opprovisions so as to make them consistent cration either of the section or of the and harmonious, and to give a sensible act enumerated persons or classes of and intelligent effect to each.

persons, engaged in agricultural or sim36 Cyc. 1129 and notes.

ilar pursuits. Where general terms or expressions in Comparing the re-enacted section with one part of a statute are inconsistent the original text (Act of August 10, with more specific and particular provi- 1917, chap. 53, § 4, 40 Stat. at L. 276, sions in another part, the particular pro- Comp. Stat. § 31153ff, Fed. Stat. Anno. visions will be given effect as clearer Supp. 1918, p. 183), it will be seen that and more definite expressions of the the only changes made by the re-enactlegislative will.

ment were the insertion of the penalty 36 Cyc. 1130, 1131.

clause and an enlargement of the enuWhere a statute includes both a par- merated exemptions. ticular and also a general enactment, In each of two counts the defendant, which, in its most comprehensive sense, the Cohen Grocery Company, alleged to would include what is embraced in the be a dealer in sugar and other necessaparticular one, the particular enactment ries in the city of St. Louis, was charged must be given effect, and the general with violating this section by wilfully enactment must be taken to embrace and feloniously making an unjust and only such cases within its general lan- unreasonable rate and charge in handling guage as are not within the provisions and dealing in a certain necessary, the of the particular enactment.

specification in the first count being a Sanford v. King, 19 S. D. 334, 103 sale for $10.07 of about 50 lbs. of sugar, N. W. 28; 36 Cyc. 1131.

and that in the second, of a 100-pound In expounding one part of a statute i bag of sugar for $19.50. resort should be had to every other The defendant demurred on the followpart, including even parts that are un-ing grounds: (a) That both counts constitutional, or that have been re- were so vague as not to inform it of the pealed.

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.

infirmity because it was so indefinite as To subject a party to a penalty for not to enable it to be known what was violation of a statute it is not sufficient forbidden, and [87] therefore amounted that the offense is within the mischief, to a delegation by Congress of legislative if it is not within the literal construc- power to courts and juries to determine tion of the statute.

what acts should be held to be criminal Leonard v. Bosworth, 4 Conn. 421; 36 and punishable; and (c) that as the Cyc. 1186, 1187, note 52.

country was virtually at peace, Congress

had no power to regulate the subject Mr. Chief Justice White delivered the with which the section dealt. In passopinion of the court:

ing on the demurrer the court, declaring Required on this direct appeal to de- that this court had settled that, until cide whether Congress, under the Consti- the official declaration of peace, there tution, had authority to adopt [86] $ 4) was a status of war, nevertheless decidof the Lever Act as re-enacted in 1919, ed that such conclusion was wholly negwe reproduce the section so far as relevant ligible as to the other issues raised by (Act of Oct. 22, 1919, chap. 80, § 2, 41 the demurrer, since it was equally well Stat. at L. 297):

settled by this court that the mere status "That it is hereby made unlawful for of war did not, of its own force, suspend any person wilfully

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.


Holding that this latter result was not the subsequent enforcement of a penalty the case as to the particular provisions i which is specifically and unmistakably of the 5th and 6th Amendments which it provided. had under consideration, that is, as to We are of opinion that the court below the prohibitions which those amend- was clearly right in ruling that the dements imposed upon Congress against cisions of this court indisputably estabdelegating legislative power to courts lish that the mere existence of a state and juries, against penalizing indefinite of war could not suspend or change the acts, and against depriving the citizen operation upon the power of Congress of of the right to be informed of the na- the guaranties and limitations of the 5th ture and cause of the accusation against and 6th Amendments as to questions such him, the court, giving effect to the as we are here passing upon. Ex parte amendments in question, came to con- Milligan, 4 Wall. 2, 121-127, 18 L. ed. sider the grounds of demurrer relating 281, 295–297; Monongabela Nav. Co. v. to those subjects. In doing so and re- United States, 148 U. S. 312, 336, 37 L. ferring to opinion previously ed. 463, 471, 13 Sup. Ct. Rep. 622; Unitexpressed by it in charging a jury, the ed States v. Joint Traffic Asso. 171 U. S. court said:

505, 571, 43 L. ed. 259, 288, 19 Sup. Ct. “Congress alone has power to define Kep. 25; McCray v. United States, 195 crimes against the United States. This U. S. 27, 61, 49 L. ed. 78, 97, 24 Sup. Ct. power cannot be delegated to the courts Rep. 769, 1 Ann. Cas. 561; [89] United or to the juries of this country.

States v. Cress, 243 U. S. 316, 326, 61 "Therefore, because the law is vague, L. ed. 746, 752, 37 Sup. Ct. Rep. 380; indefinite, and uncertain, and because it Hamilton v. Kentucky Distilleries & fixes no immutable standard of guilt, but Warehouse Co. 251 U. S. 146, 156, 64 leaves such standard to the variant views L. ed. 194, 199, 40 Sup. Ct. Rep. 106. It of the different courts and juries which follows that, in testing the operation of may be called on to enforce it, and be the Constitution upon the subject here cause it does not inform defendant of the involved, the question of the existence nature and cause of the accusation against or nonexistence of a state of war behim, [88] I think it is constitutional- comes negligible, and we put it out of ly invalid, and that the demurrer offered view. by the defendant ought to be sustained." The sole remaining inquiry, therefore, The indictment was therefore quashed. is the certainty or uncertainty of the text

In cases submitted at about the same in question; that is, whether the words, time with the one before us and involv- "That it is hereby made unlawful for any ing identical questions with those here person wilfully . . to make any ir issue it is contended that the section unjust or unreasonable rate or charge does not embrace the matters charged. in handling or dealing in or with any We come, therefore, on our own motion necessaries,” constituted a fixing by in this case to dispose of that subject, Congress of an ascertainable standard of since, if well founded, the contention guilt, and are adequate to inform persons would render a consideration of the con- accused of violation thereof of the nastitutional questions unnecessary. The ture and cause of the accusation against basis upon which the contention rests is them. That they are not, we are of opinthat the words of the section do not ion so clearly results from their mere embrace the price at which a commodity statement as to render elaboration on the is sold, and, at any rate, the receipt of subject wholly unnecessary. Observe such price is not thereby intended to be that the section forbids no specific or penalized. We are of opinion, however, definite act. It confines the subjectthat these propositions are without mer- matter of the investigation which it it, first, because the words of the section, authorizes to no element essentially inas re-enacted, are broad enough to em- hering in the transaction as to which it brace the price for which a commodity provides. It leaves open, therefore, the is sold, and second, because, as the widest conceivable inquiry, the scope of amended section plainly imposes a penal- which no one can foresee, and the result ty for the acts which it includes when of which no one can foreshadow or adcommitted after its passage, the fact equately guard against. In fact, we see that the section, before its re-enactment, no reason to doubt the soundness of the contained no penalty, is of no moment. observation of the court below in its This must be the case unless it can be opinion to the effect that, to attempt to said that the failure at one time to im-enforce the section would be the exact pose a penalty for a forbidden act fur- equivalent of an effort to carry out a nishes an adequate ground for preventing statute which in terms merely penalized and punished all acts detrimental to the would be additionally [91] obvious if public interest when unjust and unrea- we stopped to recur to the persistent efsonable in the estimation of the court forts which, the records disclose, were and jury. And that this is not a mere made by administrative officers, doubtabstraction finds abundant demonstra- less inspired by a zealous effort to distion in the cases now before us; since charge their duty, to establish a standin the briefs in these cases the conflict-ard of their own to be used as a basis ing results which have arisen from the to render the section possible of execupainstaking attempts of enlightened tion. 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. The 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 there. market,--whether they bought them in the fore unlawful, 'rate or charge,' without makordinary course of trade, paying the market ing any profit; or the rate or charge made price at the time, the length of time defend may involve a loss to him upon the purchasants have carried them in stock, the expense ing price.” [264 Fed. 447.] of carrying on the business, what a fair and District Judge Hand, of the northern dis. reasonable profit on the goods would be, trict of New York, in his charge to the and all the other facts and circumstances grand jury, said: in and about the transaction, but not how “Furthermore, it is not the particular much the market price had advanced from profit that the individual himself makes the time the goods were purchased to the which is the basis of the unreasonable time they were sold."

charge, but it is whether the charge is such In United States v. Oglesby Grocery Co., as gives unreasonable profit, -not to him, District Judge Sibley, of the northern dis- but if established generally in the trade. trict of Georgia, said:

The law does not mean to say that all people "The words used by Congress in reference shall charge the same profit. If I am a to a well-established course of business particularly skilful merchant or fairly indicate the usual and established facturer, and I can make profits which are scale of charges and prices in peace times as greater than the run of people in my busia basis, coupled with some infleribility in ness, I am allowed to make those profits. view of changing conditions. The statute So much am I allowed. But, if I am chargmay be construed to forbid, in time of war, ing more than a reasonable price, taking the any departure from the usual and estab- industry as a whole, I am not allowed to lished scale of charges and prices in time of keep that profit because on other items I peace, which is not justified by some special am sustaining a loss." circumstances of the commodity or dealer.” In United States v. Goldberg, District [264 Fed. 695.]

Judge Bledsoe, of the southern district of Judge McCall, of the western district of California, charged the jury that, in passing Tennessee, in his charge to the grand jury, on the question of the reasonableness of stated that, if a shoe dealer bought two prices for sugar, the jury should take into orders of exactly the same kind of shoes consideration, among other circumstances, at different times and at different prices, the following: the first lot at $8 per pair and the second “That there was, if you find that there lot after the price had gone up to $12 per was, a market price here in the community, pair, "and then he sells both lots of those or generally, with respect to the profit that shoes at $18, he is profiteering clearly upon normally should be made upon sugar sold the first lot that only cost him $8. Now he either by manufacturers or jobbers and redoes that upon the theory that, if he sells tailers.” these shoes out, and goes into the market

In United states v. Culbertson, etc. Co., and buys again, he will have to pay the District Judge Rudkin, of the eastern dishigher price; but that doesn't excuse him. trict of Washington, on the trial of defendHe is entitled to make a reasonable profit, ant on July 8. 1920, charged the jury but he certainly hasn't the right to take among other things that, as a matter of advantage of the former low purchase, and law, defendant was entitled to sell its goods take the same profit on them that he gets on on the basis of the actual market value at the twelve-dollar shoes.”

the time and place of sale, over and above In L'nited states v. Myatt, District Judge the expense of handling the goods, and a Connor, of the eastern district of North reasonable profit; and that the original cost Carolina, said:

price became immaterial, except as it threw "It will be observed that the statute does some light upon the market value.


Brewer, 139 U. S. 278, 288, 35 L. ed. 190,, that, not forgetful of our duty to sus193, 11 Sup. Ct. Rep. 538; Todd v. Unit- tain the constitutionality of the statute ed States, 158 U. S. 278, 282, 39 L. ed. [93] if ground can possibly be found to 982, 983, 15 Sup. Ct. Rep. 887; [92] and do so, we are nevertheless compelled in see United States v. Sharp, Pet. C. C. this case to say that we think the court 118, Fed. Cas. No. 16,264; Chicago & N. below was clearly right in holding the W. R. Co. v. Dey, 1 L.R.A. 744, 2 Inters. statute void for repugnancy to the ConCom. Rep. 325, 35 Fed. 866, 876; Tozer stitution, and its judgment quashing the v. United States, 4 Inters. Com. Rep. indictment on that ground must be, and 245, 52 Fed. 917, 919, 920; United States it is hereby, affirmed. v. Capital Traction Co. 34 App. D. C. Affirmed. 592, 19 Ann. Cas. 68; United States v. Pennsylvania R. Co. 242 U. S. 208, 237, Mr. Justice Pitney and Mr. Justice 238, 61 L. ed. 251, 267, 268, 37 Sup. Ct. Brandeis concur in the result. Rep. 95. But decided cases

are referred to Mr. Justice Day took no part in the which, it is insisted, sustain the con- consideration or decision of this case. trary view.

Waters-Pierce Oil Co. v. Texas, 212 U. S. 86, 53 L. ed. 417, 29 Mr. Justice Pitney, concurring: Sup. Ct. Rep. 220; Nash v. United States, I concur in the judgment of the court, 229 U. S. 373, 57 L. ed. 1232, 33 Sup. but not in the reasoning upon which it Ct. Rep. 780; Fox v. Washington, 236 U. is rested. S. 273, 59 L. ed. 573, 35 Sup. Ct. Rep.

Defendant was indicted upon two 383; Miller v. Strahl, 239 U. S. 426, 60 counts, alike in form, charging in each L. ed. 364, 36 Sup. Ct. Rep. 147; case that it "did wilfully and feloniousOmaechevarria v. Idaho, 246 U. S. 343, ly make an unjust and unreasonable rate 62 L. ed. 763, 38 Sup. Ct. Rep. 323. We and charge in handling and dealing in a need not stop to review them, however, certain necessary, to wit, sugar," in that first, because their inappositeness is it demanded, exacted, and collected exnecessarily demonstrated when it is ob- cessive prices for specified quantities of served that, if the contention as to their sugar purchased from it, in violation of effect were true, it would result, in view the Lever Act (Act of October 22, 1919, of the text of the statute, that no stand-chap. 80, § 2, 41 Stat. at L. 297, 298, ard whatever was required, no informa- amending § 4 of Act of August 10, 1917, tion as to the nature and cause of the chap. 53, 40 Stat. at L. 276, 277, Comp. accusation was essential, and that it was Stat. § 31153ff, Fed. Stat. Anno. Supp. competent to delegate legislative power, 1918, p. 183). I am convinced that the in the very teeth of the settled signif- exacting of excessive prices upon the icance of the 5th and 6th Amendments sale of merchandise is not within the and of other plainly applicable provi- meaning of that provision of the act sions of the Constitution; and second, which is cited as denouncing it; that the because the cases relied upon all rested act does not make it a criminal offense; upon the conclusion that, for reasons that for this reason the demurrer to the found to result either from the text of indictment was properly sustained; and the statutes involved or the subjects with that whether the provision is in conflict which they dealt, a standard of some with the 5th or 6th Amendment is a sort was afforded. Indeed, the distinc question not necessarily raised, and tion between the cases relied upon and which ought not to be passed upon. those establishing the general principle In order to appreciate the point, it is to which we have referred, and which necessary to quote entire so much of the we now apply and uphold as a matter section as defines the crimes thereby deof reason and authority, is so clearly nounced. It reads as follows: pointed out in decided cases that we [94] “That it is hereby made unlawful deem it only necessary to cite them. In- for any person wilfully to destroy any ternational Harvester Co. v. Kentucky, necessaries for the purpose of enhancing 234 U. S. 216, 221, 58 L. ed. 1284, 1287, the price or restricting the supply there34 Sup. Ct. Rep. 853; Collins v. Ken- of: knowingly to commit waste or wiltucky, 234 U. S. 634, 637, 58 L. ed. 1510,/ fully to permit preventable deterioration 1511, 34 Sup. Ct. Rep. 924; American of any necessaries in or in connection Seeding Mach. Co. v. Kentucky, 236 U. with their production, manufacture, or S. 660, 662, 59 L. ed. 773, 35 Sup. Ct. distribution; to hoard, as defined in § 6 Rep. 456; and see United States v. Penn- of this act, any necessaries; to monopsylvania R. Co. supra.

clize or attempt to monopolize, either It follows from what we have said | locally or generally, any necessaries; to

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