United States v. Chicco, Cr. No. 9227.

• Decision Date: 31 August 1944
• Docket Number: Cr. No. 9227.
• Citation: 59 F. Supp. 211
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES v. CHICCO et al.

59 F. Supp. 211

UNITED STATES v. CHICCO et al.

Cr. No. 9227.

District Court, W. D. South Carolina, Greenville Division.

August 31, 1944.

Oscar H. Doyle, U. S. Atty., of Greenville, S. C., for the Government.

J. C. Long, of Charleston, S. C., and John K. Hood, Jr., of Anderson, S. C., for Vincent P. Chicco.

J. D. E. Meyer and Robt. McC. Figg, both of Charleston, S. C., for George P. Stauss.

TIMMERMAN, District Judge.

The defendants above named were indicted, at the May, 1944, term of this court sitting in Greenwood, South Carolina, in the first count, for a conspiracy to commit an "offense against the United States of America by wilfully violating Section 4(a) of the Emergency Price Control Act of 1942," 50 U.S.C.A.Appendix § 904(a), in the particulars therein set forth. Four (4) overt acts are alleged to have been done in furtherance of and to effect the objects of the conspiracy. The indictment also contains eleven (11) other counts, numbered two to twelve, inclusive, all of which charge substantive offenses in violation of Maximum Price Regulation No. 193, issued in pursuance of the Emergency Price Control Act of 1942, the specific violations being alleged sales of domestic distilled spirits at prices in excess of the maximum permitted by said Regulation. The indictment fixes the venue in the Anderson Division of this court, but by consent of all parties the case has been transferred to the Greenville Division for trial.

Motions to quash the indictment and a demurrer thereto, filed separately by the defendants, were heard together May 19, 1944. After the hearing on said date the Court orally announced that the motions to quash were refused and that the demurrer was overruled, and at the same time gave notice that an opinion would be filed, stating the reasons for the action then taken. The opinion has not been filed before now because of official duties elsewhere.

Opinion

The defendant Chicco's "Motion to Quash on Constitutional Grounds" consists of seven stated grounds on three full pages of typewriting. The defendant Stauss' "Demurrer and Motion to Quash" is based on nine stated grounds which are expressed on twelve typewritten pages. Of the nine grounds stated four of them are repetitions. By this it is meant that the first eight are in pairs; first, a ground to sustain the motion to quash is stated and then immediately that ground is repeated in support of the demurrer. The ninth ground in terms applies both to the motion to quash and the demurrer. The motions are quite prolix, but they are summarized by counsel for the defendants in their briefs.

Counsel for the defendant Chicco summarized the grounds stated in his motion as follows:

"Does the 21st Amendment to the Constitution prohibit Congress from passing any law, and particularly Section 902(a) of the Emergency Price Control Act of 1942, which regulates or interferes in any manner with the sale or delivery within a socalled wet state, of intoxicating liquor legally within the territorial boundaries of the state?

"Has this court jurisdiction to hear and determine the Motion to Quash the Indictment in view of the fact that the Emergency Price Control Act of 1942 in Section 924, Title 50, U.S.C.A.Appendix, created an Emergency Court of Appeals with exclusive jurisdiction to originally determine certain phases of the validity of the regulations made by the Price Administrator under the provisions of the Emergency Price Control Act?

"Does the Emergency Price Control Act of 1942, being a so-called War Power Measure, justify Congress in violating the terms of the 21st Amendment and extending the applicability of the act to intoxicating liquor legally within a state?"

Counsel for the defendant Stauss expressed their contentions in these words:

"The grounds of the demurrer and motion to quash challenge the constitutionality, under the Twenty-first Amendment to the Constitution of the United States, of Section 2 of the Act, insofar as authority is given by Congress to the Administrator to deal with and control the price of intoxicating liquor, particularly within the State of South Carolina. They also challenge the constitutionality of the regulations of the Administrator, insofar as they undertake to control the price of the sale of such liquor, particularly in the State of South Carolina."

From the foregoing it may be deduced that the grounds of attack on the indictment, whether by way of demurrer or by motion to quash, are as follows:

1st: That the Emergency Price Control Act of 1942 violates the 21st Amendment to the Constitution and is therefore void insofar as it attempts or was intended to regulate the price of distilled spirits lawfully within a state.

2nd: That Maximum Price Regulation No. 193, issued under and pursuant to said Act, violates the 21st Amendment to the Constitution and is therefore void insofar as it attempts or is intended to regulate the price of distilled spirits lawfully within a state.

3rd: That the Act does not deny jurisdiction to the District Court, and does not fix exclusive original jurisdiction in the Emergency Court of Appeals, created by the Act, to hear and determine attacks on the constitutionality of the Act or of any Regulation issued thereunder.

Because of the history of this litigation, adverted to hereinbelow, the contentions stated will be considered in the inverse order of their statement. These same defendants were charged in this court in a previous indictment with offenses which were the same as or similar to the ones set forth in the present indictment. In that case the Act and Regulation here brought in question were attacked on the same, or substantially the same, grounds that are now advanced against them. See record in Criminal No. 9182. The attack on the previous indictment was made by motions to quash and demurrers, as may be seen by reference to the cited record. Judge Wyche heard those motions and demurrers; and, in an able opinion filed in said cause (United States v. Renken and Three Other Cases, one of which was against the defendants herein, D.C., 55 F. Supp. 1), he stated some of the issues involved in this language:

"It is contended that, (1) the Emergency Price Control Act of 1942, construed in the light of the 21st Amendment, did not authorize the Administrator to regulate the price of liquor since such authority was not expressly granted; (2) even if the Act authorized the Administrator to regulate the price of liquor it was not intended by Congress that such authority be extended to states such as South Carolina, where such control was inconsistent with the state policy and control plan adopted under the state's right granted in the 21st Amendment; and, finally, if the Act be construed to authorize the Administrator to regulate the price of liquor, then to that extent the Act is in conflict with the spirit and letter of the 21st Amendment and is void." (55 F.Supp. 1 at page 5)

After discussing the contentions stated, Judge Wyche, in his opinion, announced as one of his conclusions the following:

"For the foregoing reasons, I must conclude that this Court has no jurisdiction to determine the validity of the regulations involved in this controversy upon the ground that such regulations are unconstitutional, or upon any other grounds. Therefore, the motions to quash on this ground are denied, and the demurrers on this ground are overruled." (Emphasis added)

As a prelude to the quoted conclusion, Judge Wyche cited and considered relevant provisions of the Emergency Price Control Act of 1942 and the cases of Duckworth v. Arkansas, 314 U.S. 390, 62 S.Ct. 311, 86 L.Ed. 294, 138 A.L.R. 1144, Carter v. Virginia, 321 U.S. 131, 64 S.Ct. 464, 88 L.Ed. 605 and Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834. Commenting on these he said:

"* * * The Emergency Price Control Act of 1942, itself, however, does not regulate the price of intoxicating liquor, or any other commodity. The price control is imposed by the implementing regulations. It follows, therefore, that this ground of defendant's motion attacks the validity of the regulations. In the Yakus Case, as hereinbefore observed, it was definitely decided that the regulation there involved could not be attacked in the District Court, even in a criminal case; that the question, if raised at all, had to be raised in the Emergency Court of Appeals, set up under the Act. However, the Court in its majority opinion, said: `We have no occasion to decide whether one charged with criminal violation of a duly promulgated price regulation may defend on the ground that the regulation is unconstitutional on its face.' But, as was said by Mr. Justice Rutledge, in his dissenting opinion in this case, `The prohibition is unqualified. It makes no distinction between regulations invalid on constitutional grounds and others merely departing in some respect from statutory limitations, which Congress might waive, or by the criterion whether invalidity appears on the face of the regulation or only by proof of facts.' (Emphasis added.) The effect of the decision of the majority of the Court in the Yakus case, therefore, in my opinion, is that a District Court has no jurisdiction to determine the validity of a price regulation prescribed by the Administrator, even if it should appear that such regulation is unconstitutional on its face. I do not see how any other conclusion could be reached under the principles announced therein, * * *." (Emphasis added.)

From what has been said the question naturally arises as to whether the decision and judgment in the Renken Case is binding in this case. I think it is, for the parties are the same and the issue is the same. In the Renken Case the defendants not only attacked the validity of the Regulation but also the constitutionality of the Act as being "in conflict with the spirit and letter of the 21st Amendment." And as noted above, Judge Wyche held that "the Emergency Price Control Act...