United States v. L. Cohen Grocer Co.

Citation264 F. 218
Decision Date08 April 1920
Docket Number7283.
PartiesUNITED STATES v. L. COHEN GROCER CO.
CourtU.S. District Court — Eastern District of Missouri

Vance J. Higgs, Asst. Atty. Gen., for the United States.

Chester H. Krum and Louis B. Sher, both of St. Louis, Mo., for defendant.

FARIS District Judge.

The defendant, a corporation under the laws of the state of Missouri, stands indicted in this court in two counts under the amendment of October 22, 1919, of the Act of August 10 1917. To this indictment, and to both of the counts thereof defendant demurs, for that both the indictment, which follows the language of the amendment, supra, and the amendment itself, are insufficient to inform it of the nature and cause of the accusation against it, and, therefore, that both such indictment and the amendment itself are violative of the Sixth Amendment to the Constitution of the United States.

The language of the statute which attempts to create the crime charged against defendant, so far as that language is pertinent to the specific charge against this defendant reads thus:

'That it is hereby made unlawful for any person willfully * * * to make any unjust or unreasonable rate or charge in handling or dealing in * * * necessaries. * * * Any person violating any of the provisions of this section upon conviction thereof shall be fined not exceeding five thousand dollars and be imprisoned for not more than two years or both. ' Section 2, c. 80, 41 Stat. 298. Amendment of Oct. 22, 1919, to the Lever Act.

Following the language of the above statute, the indictment charges that defendant 'did willfully and feloniously make an unjust and unreasonable rate and charge in handling and dealing in a certain necessary, to wit, sugar,' and thereupon the indictment proceeds to aver the facts of the alleged sale of sugar, in that it sets forth the date of the purchase, the name of the purchaser to whom said sugar was sold by defendant, the amount of sugar sold, and the price charged such purchaser therefor, and concludes by averring:

'That said purchase price so demanded, exacted, and collected for the said granulated sugar, by the said L. Cohen Grocer Company from the said B. Hebigman, was and constituted an unjust and unreasonable rate and charge, as it, the said L. Cohen Grocer Company, then and there well knew.'

Shortly before this, in a trial in this court upon a similar indictment against this defendant, at the close of the case, and upon a demurrer ore tenus, bottomed upon the alleged insufficiency of the evidence to convict, I took occasion in an oral charge to say to the jury this:

'The act under which this prosecution is being had was approved on the 22d day of October, 1919, more than 11 months after the signing of the Armistice. It is, of course, fundamental, gentlemen, that the constitutional validity of this act depends wholly upon whether, at the time it was passed and approved, a state of war existed between the United States of America and the Imperial German government. Clearly, in a time of peace, a statute like this could not stand under the Constitution of the United States for a single minute.
'The federal Constitution is not a limitation upon the powers of Congress, but it is a grant of powers to Congress, and beyond the limits if that grant neither Congress nor any other co-ordinate branch of the government had a right to go. Congress has no power to do anything, unless power to act, either expressly or impliedly, is conferred by the terms of the organic law itself.
'So, in times of peace, the power to pass a statute like this is to be determined by the question whether the statute falls within the domain of interstate commerce, or within the domain of internal revenue. It must be within the domain of one or the other, or Congress has no power to invade the state's rights and pass it. Very clearly, this statute is not a manifestation of the power of legislation on matters of internal revenue. Just as clearly, in my opinion, or almost as clearly, at least, it is not a matter within the domain of interstate commerce. This is so because this act deals with the commodities that are affected by it after interstate commerce has wholly ceased to deal with these commodities; after, in other words, interstate commerce has acted and the commodity has come to rest in the state-- in this case, in the state of Missouri.
'But, since the Supreme Court of the United States in the liquor case has seemingly ruled that a legal state of war, or a legal fiction of war, exists and will continue to exist until the ratification of the treaty of peace with the German republic, and until the proclamation of that fact by the President, although the Imperial German government, with which the war was declared, has ceased to be, I am, therefore, bound by this ruling. Consequently, whatever mental reservations I may hold personally, I take it that so far as that particular phase of the Constitution is concerned that the act in question is valid.
'But a most serious question is met, after the constitutionality of the statute is settled, upon the point of its invasion of states' rights, the point that I have just been talking about. That question is whether the act is not too vague, indefinite, and uncertain to be enforced by the courts, and whether by reason of such vagueness, indefiniteness, and uncertainty it does not, in effect, delegate the legislative power which is vested in Congress alone to the courts and to the juries of this country, and also whether this act by its existing terms fixes any definite or certain rule by which human conduct can be uniformly governed. In other words, the question arises-- a serious question arises: Does it inform the accused of the nature and cause of the accusation against him, as the Sixth Amendment to the Constitution of the United States specifically and certainly requires. I cannot be brought to think so, gentlemen.
'Briefly: This statute makes it a felony for any person-- which, I take it, includes a corporation as well-- willfully to make any unjust or unreasonable charge in dealing in any necessary. It nowhere defines what is unjust or what shall be deemed unreasonable. It leaves it to the jury to find what particular thing it is that the law has made a felony of. One jury might very well say that a profit or charge of one cent a pound on sugar, above cost and carriage, is unjust and unreasonable, and so a felonious act; while another jury might say that a charge of 25 cents was not unjust and unreasonable. No criminal statute, gentlemen, ought to be so vague and uncertain as that the citizen cannot at any given moment know whether he is a felon or a patriot.
'In the presence of the existing rapacity and greed of the profiteer, I confess it has been difficult for me to approach this question in a judicial frame of mind. It is to me a matter of most sincere regret that I find it my duty to say, so far as the application of this law to the facts presented in this identical case is concerned, that it is invalid, for the reason I have stated. It is regrettable that a law which was intended to be as beneficent as this law is intended to be, and which was intended and designed to remedy a most outrageous and crying evil, should be found to fall short by reason of constitutional difficulties of the end sought to be attained. There never was a time when a curb of human greed and rapacity was so urgently demanded as it is demanded now, and I repeat that the abhorrence I feel of the selfish hoggishness of the profiteer is such that I can scarcely deal with the question with the amount of judicial aplomb with which I ought to deal with it.
'But, in my opinion, gentlemen, these considerations do not warrant ruthless overriding of the rights of the citizen to have stated in a criminal statute the certain and definite rights which hedge him about as a citizen, and the certain and definite definition, by which he, or his counsel, can ascertain whether or not he is guilty of a felony.
'Congress alone has power to define crimes against the United States. This power cannot be delegated either 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 it, I think it is constitutionally invalid, and that the demurrer offered by the defendant ought to be
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6 cases
  • United States v. Meyer
    • United States
    • U.S. Court of Appeals — Fifth Circuit
    • July 20, 1959
    ...are so indefinite as to leave the standard of guilt to the variant views of different juries. Compare United States v. Cohen Grocery Co., D.C. E.D.Mo.1920, 264 F. 218, 220, affirmed 1921, 255 U.S. 81, see pages 89, et seq., 41 S.Ct. 298, 65 L.Ed. 516. Rule 7(c) of the Federal Rules of Crimi......
  • Ex parte Taft v. Shaw
    • United States
    • Missouri Supreme Court
    • November 20, 1920
    ...v. Cohen Grocery Co., decided by our late companion, Judge Faris, now of the U.S. District Court for the Eastern District of Missouri. See 264 F. 218, where former brother, in his usual forceful language, in discussing the Lever Act, supra, said: "The definitions, boundaries, and limits of ......
  • Lamborn v. McAvoy
    • United States
    • U.S. District Court — Eastern District of Pennsylvania
    • June 9, 1920
    ...265 F. 944 LAMBORN et al. v. McAVOY, U.S. Atty., et al. No. 2043.United States District Court, E.D. Pennsylvania.June 9, 1920 ... Wm ... District of Missouri, in the case of United States v ... Cohen Grocer Co., 264 F. 218; by Judge Tuttle, of the ... Eastern District of ... ...
  • Juvenile, In re
    • United States
    • Ohio Court of Common Pleas
    • August 17, 1973
    ...255 U.S. 81, at pp. 89-93, 41 S.Ct. 298. Fifth, Sixth and Fourteenth Amendments to the U. S. Constitution. United States v. Cohen Grocery Co. (D.C.E.D.Mo.E.D. 1920), 264 F. 218, 220, affirmed (1921), 255 U.S. 81, 41 S.Ct. 298, 65 L.Ed. 'Moral turpitude' is not defined by statute and is pure......
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