United States v. Armour & Co. of Delaware, 16084-16086.
| Citation | 50 F. Supp. 347 |
| Decision Date | 04 May 1943 |
| Docket Number | No. 16084-16086.,16084-16086. |
| Parties | UNITED STATES v. ARMOUR & CO. OF DELAWARE (two cases). SAME v. ARMOUR & CO. OF DELAWARE et al. |
| Court | U.S. District Court — District of Massachusetts |
Frederick E. Jennings and Robert W. Meserve, both of Boston, Mass., for defendant.
Edmund J. Brandon, U. S. Atty., of Boston, Mass., and Joseph J. Gottlieb, Asst. U. S. Atty., of Boston, Mass., for plaintiff.
Three indictments have been returned against the defendants in these cases. Two of the indictments (Criminal Nos. 16084 and 16086) are for violations by the defendant, Armour & Company of Delaware, of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, § 901 et seq. The third indictment (Criminal No. 16085) was returned against Armour & Company of Delaware and others alleging conspiracy to violate the Emergency Price Control Act of 1942. To these indictments the defendants have filed demurrers and motions to quash. The indictments against the corporate defendant alone allege in substance that the defendant violated Section 4(a) of the Emergency Price Control Act of 1942 by selling and delivering butter at prices in excess of the maximum price established by Maximum Price Regulation No. 280, while in effect, and then at prices in excess of the maximum price established by Maximum Price Regulation No. 289, superseding Regulation No. 280, by evading the price limitations contained therein by scheme, trick and device; namely, by conditioning the sale of the butter sold in the ordinary course of trade and business on the sale of another commodity, and selling the butter and other commodity at a price in excess of the established maximum price for butter. The conspiracy indictment alleges conspiracy so to violate the Act.
The demurrers and motions to quash raise practically the same objections, only three of which have not already been substantially disposed of in other cases in this District:
1. That there could be no conspiracy to violate two regulations which were not in force at the same time.
2. That an indictment will not lie for a violation of Regulation 280, since it was superseded by Regulation 289 prior to the return of the indictment.
3. That the mere conditioning of the purchase of butter on the purchase of eggs, and the sale of the butter and eggs at a price higher than the maximum price established for butter, is not a violation of the Act nor of the regulations.
The first objection offers little difficulty. The short answer is that but one conspiracy is alleged; namely, a conspiracy to violate the Act by selling at prices higher than those established by Maximum Price Regulation 280 while in effect and at prices higher than those established by Maximum Price Regulation 289 when the latter regulation superseded Regulation 280. In other words, the conspiracy alleged was a single conspiracy to violate the Act itself.
In support of the second objection, the defendants rely on the case of United States v. Hark et al., D.C., 49 F. Supp. 95, 97, decided in this District on March 5, 1943. It was there held that an indictment would not lie for the violation of a regulation which had been expressly "revoked" by a subsequent regulation. Of course, a revocation is in effect a repeal, and was so treated by the Court in that case. Judge Sweeney in the Hark case based his decision on the common law rule that on "the repeal of an act without any reservation of its penalties, all criminal proceedings taken under it fell." He pointed out that the "basis of this rule was a presumption that the repeal was intended as a legislative pardon for past acts," citing 22 C.J.S., Criminal Law, § 27 b 4. However, in the instant case, Regulation 289 does not "revoke" or "repeal" Regulation No. 280, but merely supersedes the provisions of Maximum Price Regulation No. 280. See Maximum...
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