1920. UNITED STATES v. COHEN GROCERY CO. 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 re pealed. Bank for Savings v. The Collector (Bank for Savings v. Field) 3 Wall. 495, 18 L. ed. 207; 36 Cyc. 1132. To subject a party to a penalty for Leonard v. Bosworth, 4 Conn. 421; 36 Mr. Chief Justice White delivered the 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 violat- . 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. § 31151ff, Fed. Stat. Anno. Supp. 1918, p. 183), it will be seen that ment were the insertion of the penalty the only changes made by the re-enactclause 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 specification in the first count being a and dealing in a certain necessary, the and that in the second, of a 100-pound sale for $10.07 of about 50 lbs. of sugar, The defendant demurred on the followbag of sugar for $19.50. (a) That both counts were so vague as not to inform it of the ing grounds: nature and cause of the accusation; (b) that the statute upon which the indictinfirmity because it was so indefinite as ment was based was subject to the same not to enable it to be known what was forbidden, and [87] therefore amounted to a delegation by Congress of legislative what acts should be held to be criminal power to courts and juries to determine country was virtually at peace, Congress and punishable; and (c) that as the had no power to regulate the subject ing on the demurrer the court, declaring with which the section dealt. In passthat 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 settled by this court that the mere status the demurrer, since it was equally well or limit the effect of the Constitution, of war did not, of its own force, suspend Constitution made applicable as the but only caused limitations which the status of war, to become operative. necessary and appropriate result of the 519 Holding that this latter result was not "Congress alone has power to define 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. "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 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 in 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 15 1920. UNITED STATES v. COHEN GROCERY CO. would be additionally [91] obvious if That it results from the consideration 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 statute in cases brought before them are vividly [90] portrayed. As illustrative of this situation we append in the margin a statement from one of the briefs on the subject.1 And again, this condition The 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 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 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: "The words used by Congress in reference Judge McCall, of the western district of In United states v. Myatt, District Judge "It will be observed that the statute does 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 charge, but it is whether the charge is such which is the basis of the unreasonable as gives unreasonable profit, not to him, The law does not mean to say that all people but if established generally in the trade. shall charge the same profit. If I am a particularly skilful merchant facturer, 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." or manu 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 on the basis of the actual market value at law, defendant was entitled to sell its goods the time and place of sale, over and above the expense of handling the goods, and a price became immaterial, except as it threw reasonable profit; and that the original cost some light upon the market value. 521 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 1920. UNITED STATES v. COHEN GROCERY CO. engage in any discriminatory and unfair, 22 etc. For a definition of "hoarding," the The court holds that the words "to in or with" merchandise, imports the But the clause in question does not That it is not altogether evident what was intended to be included within "unSo much just or unreasonable rate or charge in handling or dealing in or with any necessaries" may be conceded. the more reason for not extending the words by construction so as to make criminal that which is not clearly within their meaning; and for not giving to them a meaning which brings the act into conflict with the Constitution; and for not expanding the unconstitutional reach of the act, supposing that, even without the particular application now made of the quoted words, it would be It is to my mind plain that § 4 was repugnant to the fundamental law. not intended to control the individual dealer with respect to the prices that he right exact, beyond prohibiting him from destroying any necessaries for the purpose of enhancing the price, and from 523 |
