Lamborn v. McAvoy
| Decision Date | 09 June 1920 |
| Docket Number | 2043. |
| Citation | 265 F. 944 |
| Parties | LAMBORN et al. v. McAVOY, U.S. Atty., et al. |
| Court | U.S. District Court — Eastern District of Pennsylvania |
Wm. A Glasgow, Jr., and Henry P. Brown, both of Philadelphia, Pa Louis O. Van Doren and Wm. R. Conklin, both of New York City for plaintiffs.
Charles D. McAvoy, U.S. Atty., and T. Henry Walnut, Asst. U.S. Atty both of Philadelphia, Pa., for defendants.
This is a suit in equity, brought to enjoin the United States attorney and other officials of the United States from instituting and prosecuting criminal proceedings against the plaintiffs for alleged violations of section 4 of the act of August 10, 1917, as amended by the act of October 22, 1919 (41 Stat. 298, c. 80, Sec. 2), which makes it a criminal offense to 'make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries.'
The plaintiffs, who are engaged in handling, importing, selling, and distributing raw and refined sugars, aver that they are threatened with criminal prosecution upon the charge stated, in that they sold a large quantity of sugar at a price which it is charged is unjust and unreasonable, and that they are threatened in case of prosecution with such action upon the part of the Department of Justice as would interfere with and ruin their business; that the language of the statute by reason of being vague, indefinite, and uncertain cannot be enforced by the courts without depriving the plaintiffs of their liberty and property without due process of law in violation of the Fifth Amendment to the Constitution; and that it does not inform the accused of the nature of the accusation against him and is therefore in violation of the Sixth Amendment to the Constitution.
If the language of the statute renders it unconstitutional upon the grounds stated, it is unnecessary to consider the other grounds of unconstitutionality set up in the bill and urged at the hearing.
The facts appearing from the pleadings and affidavits are, in my opinion, sufficient to sustain equitable jurisdiction under the rule stated by Mr. Justice Day in Dobbins v. Los Angeles, 195 U.S. 223, 25 Sup.Ct. 18, 49 L.Ed. 169:
See, also, Ex parte Young, 209 U.S. 123, 28 Sup.Ct. 441, 52 L.Ed. 714, 13 L.R.A. (N.S.) 932, 14 Ann.Cas. 764; Philadelphia Co. v. Stimson, Secretary of War, 223 U.S. 605, 32 Sup.Ct. 340, 56 L.Ed. 570.
The provisions of section 4 of the Lever Act in controversy have been the subject of a number of recent conflicting decisions. It is impracticable to analyze and discuss these rulings at length. The constitutionality of the act has been sustained, inter alia, by Judge Thomson, in the Western District of Pennsylvania, in United States v. Rosenblum, 264 F. 578; by the Circuit Court of Appeals for the Second Circuit, affirming Judge Hazel, of the Western District of New York, in the case of Weed v. Lockwood, 264 F. 453; by Judge Rudkin, of the District Court of Washington, in the case of United States v. Spokane Dry Goods Co., 264 F. 209; by Judge Holmes, of the Southern District of Mississippi, in a charge to the grand jury. It has been held unconstitutional, inter alia, by Judge Faris, of the Eastern District of Missouri, in the case of United States v. Cohen Grocer Co., 264 F. 218; by Judge Tuttle, of the Eastern District of Michigan, in the case of Detroit Creamery Co. v. Kinnane, 264 F. 845; and by Judge Evans, of the Western District of Kentucky, in a charge to the grand jury.
It must be generally recognized that, if the rule laid down by Mr. Justice Brewer, sitting in the Circuit Court in the case of Tozer v. United States, 52 F. 917, is the law, the statutory language in question is too vague, indefinite, and uncertain to charge a crime. The cases have all turned upon the question whether the rule in that case is recognized and followed, or has been overruled. Mr. Justice Brewer's language in that case, citing Railway Co. v. Dey, 35 F. 866, 1 L.R.A. 744, is as follows:
'In order to constitute a crime, the act must be one which the party is able to know in advance whether it is criminal or not. The criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. There must be some definiteness and certainty. In the case of Railway Co. v. Dey, 35 F. 866, 876, I had occasion to discuss this matter, and I quote therefrom as follows: ' .
In Waters-Pierce Oil Co. v. Texas, 212 U.S. 86, 29 Sup.Ct. 220, 53 L.Ed. 417, the case was cited and the rule recognized in the opinion of the court by Mr. Justice Day. In that case proceedings were begun in the state court against the Waters-Pierce Oil Company to oust the company from doing business in the state of Texas and to assess penalties against it for violation of the anti-trust laws of that state. Mr. Justice Day in his opinion said:
'It is further insisted that the acts in question are so vague, indefinite, and uncertain as to deprive them of their constitutionality, in that they punish by forfeiture of the right to do business, and the imposition of penalties, under provisions of an act which do not advise a citizen or corporation, prosecuted under them, of the nature and character of the acts constituting a violation of the law. These objections are found in the words of the act of 1899, denouncing contracts and arrangements 'reasonably calculated' to fix and regulate the price of commodities, etc. And in the act of 1903 acts are prohibited which 'tend' to accomplish the prohibited results. It is insisted that these laws are so indefinite that no one can tell what acts are embraced within their provisions. In support of this contention it is argued that laws of this nature ought to be so explicit that all persons subject to their penalties may know what they can do, and what it is their duty to avoid. And reference is made to decisions which have held that a criminal statute should be so definite as to enable those included in its terms to know in advance whether the act is criminal or not. Among others, Tozer v. United States, 52 F. 917, is cited, in which the opinion was by Mr. Justice Brewer, then judge of the Circuit Court, in which it was held that the criminality of an act cannot depend upon whether a jury may think it reasonable or unreasonable. To the same effect is Railway Co. v. Dey, 35 F. 866, also decided by Judge Brewer at circuit. And also the case of Louisville & Nashville Railway v. Commonwealth, 99 Ky.
132, is relied upon, in which a railroad was indicted for charging more than a just and reasonable rate, in which it was held that the law was unconstitutional, for under such an act it rests with the jury to say whether a rate is reasonable, and makes guilt depend, not upon standards fixed by law, but upon what a jury might think as to the reasonableness of the rate in controversy. But the Texas statutes in question do not give the broad power to a court or jury to determine the criminal character of the act in accordance with their belief as to whether it is reasonable or unreasonable, as do the statutes condemned in the cases cited.'
The rule of Tozer v. United States was therefore expressly recognized. Judge Manton, in his opinion for the Circuit Court of Appeals in the recent case of Weed & Co. v. Lockwood, 266 F. 785, says:
'The so-called rule of reason, as announced in Standard Oil Co. v. U.S., 221 U.S. 1, and United States v. American Tobacco Co., 221 U.S. 106, has changed the rule as laid down in the Tozer Case.'
The rule of reason as established by the decisions in the Standard Oil and American Tobacco Co. Cases is stated in Nash v. United States, 229 U.S. 376, 33 Sup.Ct. 781, 57 L.Ed. 1232, as follows:
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