United States v. Brown

• Decision Date: 02 March 1925
• Docket Number: No. 4556.,4556.
• Citation: 4 F.2d 270
• Court: U.S. District Court — Western District of Oklahoma
• Parties: UNITED STATES v. BROWN et al.

4 F.2d 270 (1925)

UNITED STATES v. BROWN et al.

No. 4556.

District Court W. D. Oklahoma.

March 2, 1925.

Roy St. Lewis, Asst. U. S. Atty., of Oklahoma City, Okl., and Homer N. Boardman, Sp. Asst. Atty. Gen., for the United States.

Stuart, Sharp & Cruce, and Suits & Hall, all of Oklahoma City, Okl., for defendants.

COTTERAL, District Judge.

The indictment is for a violation of section 37 of the Criminal Code (Comp. St. § 10201), by which the essentials of guilt, here applicable, are: (1) A conspiracy to commit an offense against the United States; and (2) an overt act done to effect the object of the conspiracy. By the demurrer, the question is presented whether the indictment is sufficient in alleging that the object of the conspiracy was the commission of such an offense.

That object is stated generally as being to engage in unfair and discriminatory practices in connection with receiving, marketing, buying, and selling live stock in interstate commerce, at the Oklahoma National Stockyards, in Oklahoma City, Okl., in violation of the Packers and Stockyards Act of August 15, 1921 (42 Stat. L. 159 Comp. St. Ann. Supp. 1923, §§ 8716¼-8716¼z). It is specified that the defendants conspired to unjustly refuse to buy live stock from and sell live stock to a certain association and a certain company, market agencies at said stockyards, which had theretofore registered as such with the Secretary of Agriculture, and complied with the said act. Eight overt acts are alleged, consisting of refusals to buy and sell live stock. The supposed offense rests upon the provisions of sections 312(a) to 315, inclusive, of the Packers and Stockyards Act (Comp. St. Ann. Supp. 1923, §§ 8716¼o-8716¼q).

Section 312(a) declares it to be unlawful for any stockyard owner, market agency, or dealer to engage in or use any unfair, unjustly discriminatory, or deceptive practice or device in connection with the receiving, marketing, buying, selling, feeding, shipment, weighing, or handling live stock in interstate commerce at a stockyard. Section 312(b) provides that, whenever a complaint is made to the Secretary of Agriculture, or he believes any such person is violating any of those provisions, the Secretary, after notice and full hearing, may make an order that he shall cease and desist from a continuance thereof, to the extent the Secretary finds it does or will exist.

Section 313 provides that the orders of the Secretary shall take effect within a reasonable time, not less than five days, as prescribed therein, and continue in force until further order, or for a specified time, unless suspended or modified by the Secretary, or suspended or set aside by a court of competent jurisdiction. Section 314 provides that any stockyard owner, market agency, or dealer, who knowingly fails to obey any such order, shall forfeit to the United States $500 for each offense, etc., recoverable by a civil suit in the name of the United States. Section 315 empowers the District Court to enforce obedience to such order by injunction or other process.

Those sections do not provide that the practice declared unlawful shall constitute an offense or subject an agency or dealer to a forfeiture. Instead, prerequisites to liability are a hearing, upon notice, an adverse finding, an order to desist, and a disobedience of the order. But the indictment pleads no such facts, and charges only that the object of the defendants was to engage in the unlawful practice. Was this a contemplated offense within the meaning of the conspiracy statute?

It is contended an affirmative answer is necessary for the reason that any act contrary to public policy is an offense. But on that assumption the policy expressly manifest in the act is that all liability is postponed to await a finding and order by the Secretary of Agriculture. The unlawful practice is a matter for his investigation and decision. It is at least inchoate, with the sole power of inquiry vested in the Secretary. Furthermore, until he finds adversely, the fact cannot be said to exist, and meantime it is not subject to judicial inquiry and proof. This is because when the law confides to an executive department the authority to hear and determine matters within its duties the courts have no jurisdiction until the action of such special tribunal has reached finality, and the finding of facts there made is conclusive and binding in subsequent litigation before the courts. Smelting Co. v. Kemp, 104 U. S. 636, 26 L. Ed. 875; Lee v. Johnson, 116 U. S. 48, 6 S. Ct. 249, 29 L. Ed. 570; Howe v. Parker, 190 F. 738, 111 C. C. A. 466; Dixon v....