O'NEAL v. United States

• Decision Date: 11 February 1944
• Docket Number: No. 9522.,9522.
• Parties: O'NEAL v. UNITED STATES.
• Court: U.S. Court of Appeals — Sixth Circuit

140 F.2d 908 (1944)

O'NEAL v. UNITED STATES.

No. 9522.

Circuit Court of Appeals, Sixth Circuit.

February 11, 1944.

COPYRIGHT MATERIAL OMITTED

John J. Hooker, of Nashville, Tenn. (B. H. Hagey, John J. Hooker, and Walker & Hooker, all of Nashville, Tenn., on the brief), for appellant.

Robert L. Wright, of Washington, D. C. (Horace Frierson and Fred S. Powell, both of Nashville, Tenn., and Tom C. Clark, Robert L. Wright, Fleming James, Jr., David London, and A. M. Dreyer, all of Washington, D. C., on the brief), for appellee.

Before ALLEN, MARTIN, and McALLISTER, Circuit Judges.

ALLEN, Circuit Judge.

The appellant was found guilty by a jury under three counts of a criminal information charging him with (1) a purchase in violation of Title III, Section 2(a) of the Second War Powers Act of 1942, 50 U.S. C.A.Appendix § 633, and of the Revised Tire Rationing Regulations as amended; (2) a sale in violation of the same act and regulations; and (3) a sale in violation of Section 4(a) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 904(a), and Revised Price Schedule No. 66. He was sentenced to pay a fine of $100 and to six months imprisonment under each count, the sentences under the second and third counts to run concurrently with each other and concurrently with the sentence under the first count.

Appellant attacks the judgment upon the ground (1) that Title III, Section 2(a) of the Second War Powers Act of 1942, approved March 27, 1942, c. 199, 56 Stat. 176, and the Revised Tire Rationing Regulations, are unconstitutional and void; (2) that Section 4(a) of the Emergency Price Control Act of 1942, c. 26, 56 Stat. 23, and Revised Price Schedule No. 66 are unconstitutional and void, and (3) that the Revised Tire Rationing Regulations as amended effective February 19, 1942, were superseded, revoked and repealed by Tire Rationing Regulation 1A, effective December 1, 1942.

Appellant, a police officer of the city of Nashville, Tennessee, purchased and sold four new retreaded passenger automobile tires in July, 1942. He bought the tires for $80 and resold them for $160. The selling price established by Maximum Price Regulation No. 66, theretofore issued by the Office of Price Administration (hereinafter called the O. P. A.), was approximately $10 per tire. No attempt was made by appellant nor by any of the parties to these transactions to procure the required rationing certificates. While at the trial appellant claimed that he had not understood that the regulations applied to tires which had been retreaded prior to the promulgation of the Rationing Regulations, evidence was adduced which entitled the jury to find that the appellant was fully acquainted with the regulations covering rationing and price control through his work in cooperation with the local office of O.P.A., and that his offense was therefore wilful within Title III, Section 2(a) (5) of the Second War Powers Act of 1942.

The Tire Rationing Regulations which underlie counts 1 and 2 were issued by O. P. A. on February 11, 1942, effective as of February 19, 1942. They prohibited the purchase and sale of new and recapped rubber tires and tubes except when a rationing certificate had been obtained by the purchaser and transferred to the seller. The regulations were issued pursuant to the authority granted in the federal statute, c. 157, 55 Stat. 236, approved May 31, 1941, 50 U.S.Appendix § 1152, which amended Section 2(a) of the act, approved June 28, 1940, c. 440, 54 Stat. 676. The 1940 Act authorized the establishment of priorities in the deliveries upon contracts with the Secretary of the Navy during the national emergency declared by the President. The statute was entitled in part "An Act to expedite national defense." The 1941 Act added, among others, the following provisions:

"Whenever the President is satisfied that the fulfillment of requirements for the defense of the United States will result in a shortage in the supply of any material * * * for defense or for private account or for export, the President may allocate such material in such manner * * * and to such extent as he shall deem necessary or appropriate in the public interest and to promote the national defense. * * * The President may exercise any power, authority, or discretion conferred on him by this section, through such department, agency, or officer of the Government as he may direct and in conformity with any rules and regulations which he may prescribe."

The Act of 1940 was again amended on March 27, 1942, in the Second War Powers Act, to cover shortage of "any facilities for defense" as well as "material." The powers of the President to investigate shortages were broadened and defined in great detail. A criminal sanction was added in Title III, Section 2(a) (5), as follows:

"Any person who willfully performs any act prohibited, or willfully fails to perform any act required by, any provision of this subsection (a) or any rule, regulation, or order thereunder, whether heretofore or hereafter issued, shall be guilty of a misdemeanor, and shall, upon conviction, be fined not more than $10,000 or imprisoned for not more than one year, or both."

On August 28, 1941, by executive order the President authorized the Office of Production Management (hereinafter called O. P. M.) to perform the functions of the allocation of materials and later, by executive order transferred these functions from the O. P. M. to the War Production Board (hereinafter called W. P. B.), which agency immediately delegated general authority in matters of rationing control on the retail level to O. P. A. The directive which delegated this authority was later approved and countersigned by the President.

Title II, Section 201(b) of the Emergency Price Control Act of 1942, 50 U.S. C.A.Appendix § 921(b), expressly authorized the President "to transfer to the Office of Price Administration any of the powers and functions relating to priorities or rationing conferred by law upon any other department or agency of the Government with respect to any particular commodity or commodities."

Pursuant to these authorizations, on December 12, 1941, O. P. M. issued an order freezing the sale of tires and tubes until the issuance of rationing regulations, which were thereafter issued by O. P. A. on February 11, 1942, prior to the enactment of Title III, Section 2(a) (5). All Tire Rationing Regulations theretofore promulgated were expressly ratified by the President in the Executive Order of April 7, 1942.

Count 3 is based upon an alleged violation of Revised Price Schedule No. 66, issued by O. P. A. January 10, 1942, effective January 19, 1942. Under Title II, Section 205(b) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 925(b), a penalty is provided for wilful violation of Title I, Section 4(a) of the Act, which prohibits any act in violation of any price schedule.

Appellant's principal attack is based upon the proposition that Title III, Section 2(a) of the Second War Powers Act of 1942 and the Revised Tire Rationing Regulations as amended, and Section 4(a) of the Emergency Price Control Act of 1942 and Revised Price Schedule No. 66, are unconstitutional because the statutes delegate pure legislative power to the President.

We think it is plain, and it is not contested that the power to allocate materials and facilities for defense and the power to control the price structure under the Constitution of the United States is legislative rather than executive. While the war power in this country is conferred on the Congress and on the President, Kiyoski Hirabayashi v. United States, 320 U. S. 81, 93, 63 S.Ct. 1375, 87 L.Ed. 1774, the principal war power of the President arises as Commander-in-Chief of the Army and Navy and does not include any war power legislative in its nature. The President also is invested with certain war powers arising out of the treaty-making power, such as the duty of negotiating treaties with our Allies. However, the power to establish shortage rationing, and the power to fix prices upon the entire range of civilian goods is neither expressly nor impliedly included in any war power of the President. Such drastic power necessarily falls within the "legislative power" with which the Congress is invested (Art. I, Section 1, U. S. Constitution).

In carrying out the constitutional division of the powers, it is a breach of the fundamental law for Congress to transfer its legislative power to the President. Panama Refining Co. v. Ryan, 293 U.S. 388, 421, 55 S.Ct. 241, 79 L.Ed. 446; Di Santo v. United States, 6 Cir., 93 F.2d 948. However, the Congress in the field of its duties may invoke the action of the executive branch in so far as the action invoked is not an assumption of its own constitutional field of action. J. W. Hampton, Jr., & Co. v. United States, 276 U.S. 394, 406, 48 S.Ct. 348, 351, 72 L.Ed. 624. In this decision, which upheld legislation empowering the President to increase or decrease duties imposed by the Tariff Act of September 21, 1922, the court held that in determining what one branch of the Government may do in seeking assistance from another branch, "the extent and character of that assistance must be fixed according to common sense and the inherent necessities of the governmental co-ordination."

Appellant urges that this established doctrine does not aid the validity of the statutes here attacked because, as he contends, no standards are established to which the President must conform in the exercise of the statutory powers. But Title III, Sections 2(a)(1) and 2(a)(2) of the Second War Powers Act of 1942, although terse, imposes certain definite restrictions. The President is authorized to allocate, that is to ration, critical materials and facilities only when he is "satisfied that the fulfillment of requirements for the defense of the United States will result in a shortage." While the President is not required in...