United States v. Empire Hat & Cap Mfg. Co.

• Decision Date: 12 September 1942
• Docket Number: No. 9263.,9263.
• Citation: 47 F. Supp. 395
• Parties: UNITED STATES v. EMPIRE HAT & CAP MFG. CO. et al.
• Court: U.S. District Court — Western District of Pennsylvania

47 F. Supp. 395

UNITED STATES v. EMPIRE HAT & CAP MFG. CO. et al.

No. 9263.

District Court, E. D. Pennsylvania.

September 12, 1942.

COPYRIGHT MATERIAL OMITTED

Edward A. Kallick, Asst. U. S. Atty. and Gerald A. Gleeson, U. S. Atty., both of Philadelphia, Pa., F. Gwyn Harper, Jr., Sp. Asst. to the Atty. Gen., for plaintiff.

R. Sturgis Ingersoll, of Philadelphia, Pa., for defendant Star Hat & Cap Co., Inc., and others.

Walter Biddle Saul, of Philadelphia, Pa., for appellant Ribbon Narrow Fabric Co.

M. Herbert Syme, of Philadelphia, Pa., for United Hatters, Cap and Millinery Workers, International Union et al.

Jerome L. Greene, of New York City, for defendant Bernard Greenberg & Co.

Peter P. Zion, of Philadelphia, Pa., for defendant Samuel Goldstein and another.

Charles A. Wolfe, of Philadelphia, Pa., for defendant Hyman Rabushka and another.

Sidney L. Krauss, of Philadelphia, Pa., for defendant Soboroff-Rosenwald Co. and others.

GANEY, District Judge.

This is an indictment against five corporations, five labor unions, and thirty-seven individuals, charging them with a combination and conspiracy in violation of Section 1 of the Act of Congress of July 2, 1890, entitled "An Act to protect trade and commerce against unlawful restraints and monopolies." 26 Stat. 209, 15 U.S.C.A. § 1 et seq., as amended by the Act of Congress of August 17, 1937, c. 690, 50 Stat. 693. The pertinent portions of the Act are: "§ 1. Every contract, combination in the form of trust or otherwise, or conspiracy, in restraint of trade or commerce among the several States, or with foreign nations, is hereby declared to be illegal * * *"; section 8: "The word `person', or `persons', wherever used in this Act sections 1-7 and 15 of this title shall be deemed to include corporations and associations existing under or authorized by the laws of either the United States, the laws of any of the Territories, the laws of any State, or the laws of any foreign country." To this indictment, eleven separate demurrers and motions to quash were filed and in a number thereof, requests for bills of particulars. While there is this large number of demurrers and motions to quash as well as bills of particulars most of them to a large extent treat of the same questions and while they will be treated separately, all of them will be disposed of in this opinion in order that a great deal of repetition might be avoided.

Before making disposition of the various objections raised, certain fundamentals with respect to demurrers to criminal indictments will be adverted to, one of which is that in the consideration of demurrers to indictments, all of the facts they plead are admitted to be true. United States v. Cook, 17 Wall. 168, 178, 21 L.Ed. 538; United States v. Van Auken, 96 U.S. 366, 24 L.Ed. 852; Knoell v. United States, 3 Cir., 239 F. 16. Further, nothing but that averred in the four corners of the indictment will be considered, that is no new facts or evidence will be admitted which would be in the nature of a "speaking" demurrer, United States v. Tot, D.C., 36 F.Supp. 273; and finally, the strict technicality and rigor of the old common law rules are presently superseded by liberality in the construction of indictments in order that specific justice may not be defeated by subservience to technicalities. Hagner v. United States, 285 U.S. 427, 52 S.Ct. 417, 76 L.Ed. 861; Jelke v. United States, 7 Cir., 255 F. 264.

Taking up the demurrer and motions to quash filed by United Hatters, Cap and Millinery Workers International Union, Local No. 2 of the United Hatters, Cap and Millinery Workers International Union; Local No. 5 of the United Hatters, Cap and Millinery Workers International Union; Local No. 6 of the United Hatters, Cap and Millinery Workers International Union; Local No. 17 of the United Hatters, Cap and Millinery Workers International Union, and Samuel Deckler, Harry Fromkin, Samuel Hershkowitz, Simon Leno, Jacob Roberts and Samuel Winn, the first objection raised is that the indictment is uncertain, vague and indefinite and does not set out with particularity any offenses known to the law.

An indictment is sufficiently definite and certain if it fairly apprises the accused of the crime charged, in order to give him a fair opportunity to prepare his defense and after judgment to plead a conviction or acquittal in bar to a second prosecution for the same offense. Hagner v. United States, supra; Wong-Tai v. United States, 273 U.S. 77, 47 S.Ct. 300, 71 L.Ed. 545. The offense of conspiracy to restrain and monopolize interstate commerce in violation of the Sherman Act is sufficiently described in the indictment as it is not necessary to set out in detail the evidence of the conspiracy or to describe it with the particularity required in stating a substantive offense. Mercer v. United States, 3 Cir., 61 F.2d 97. This for the reason that the present case has really gone beyond the requirements set out in the case above, since it charges the defendants with having all knowingly engaged within the jurisdiction of this court in a wrongful and unlawful combination and conspiracy to fix prices of army field hats sold and shipped in interstate commerce; that the defendants agreed among themselves to allocate the entire quantity of two million hats among defendant manufacturers, and certain other manufacturers not named in the indictment, in such a way that each manufacturer would bid upon a limited and arbitrary number of such hats and would fix arbitrary and uncompetitive prices which the said manufacturers should bid in response to a request for informal bids. In the effectuation of this combination and conspiracy there is set forth in the indictment the fact of a meeting at which certain of the defendants were present and at which certain allocations were agreed upon and the price per hat fixed. There can be no question here that the commodities, to wit; army caps were to be shipped in interstate commerce and a combination and conspiracy to fix prices and restrict competition in commodities shipped in interstate commerce are illegal under Section 1 of the Act. Standard Oil Company v. United States, 283 U.S. 163, 51 S.Ct. 421, 75 L.Ed. 926; Swift & Co. v. United States, 196 U.S. 375, 25 S.Ct. 276, 49 L.Ed. 518. Further there can be no question but that an agreement to fix prices is illegal under the Sherman Act since price fixing agreements by their very nature affect prices and the proof of an agreement, without anything more, is proof of an illegal combination under the Sherman Act. United States v. Socony-Vacuum Oil Co., 310 U.S. 150, 60 S.Ct. 811, 84 L.Ed. 1129.

The next objection raised is that the alleged conspiracy to fix prices of army field hats by the submission of "informal bids" as set forth in Paragraphs 15, 16, 17, 18 and 19 inclusive, were not really bids in the legal sense of the word, but constituted requests for information which might result in contracts in the future and were designed to assist the government in its desire to insure speed of delivery, proper quality and fairness of prices. This objection is joined in by Premium Cap Co., Hyman Rabushka, Samuel Rabushka; Empire Cap Mfg. Co., D. J. Wasserstrom, David Fleider; Rite Style-Model Cap Co., Samuel Goldstein, Max Sandler; L. Lewis & Son, Irving L. Lewis and Henry J. Kurtz; Ribbon Narrow Fabric Co., Inc., Max Radus, William Davis; Bressler Hat & Cap Co., Jacob Bressler; Star Hat & Cap Co., Inc., Charles Schneider, Hyman Schneider, William Schneider; Diamond Cap Co., Louis Goldberg, Harry Faerman, Morris Zipper; Morose Cap Co., Philip Morose; Union Cap Co.; Bernard Greenberg & Co.; Bernard Greenberg; Bell Cap Co., Robert Klein, Samuel Bell, Morris Goldberg and Abraham Herskowitz. It seems to me in the construction of the term informal bids as used in the indictment it has reference to bids in the sense of offers, looking forward to acceptance and resultant contracts, which would of course be binding on both parties. The argument that these informal bids were not offers because the government was not obligated to enter into contracts is meaningless since any offeree is never obligated to accept an offer, and accordingly this is the only view the court can take for the purpose of construing the indictment on demurrer and motion to quash. The meaning attempted to be imputed to the term by the petitioners is one which the court could not adopt as a matter of law, — that the bids were merely to assist the government to assure speed of delivery, etc. — because it would be reading extraneous matter into the indictment and although it might be raised at the time of the trial by proper proof, at this stage of the proceeding it is something that cannot be taken advantage of by demurrer. United States v. Werner, D. C., 247 F. 708.

In United States v. Krumm, D.C. 269 F. 848, a case decided in this circuit it was held that in the construction of an indictment on demurrer no consideration could be given to definition of terms included in the demurrer. I am convinced that the argument raised by all of the petitioners is one of fact which must be resolved at the time of the trial.

The next objection is raised by the unions and the union agents and is that the defendants are not charged with having committed any act, constituting a violation of the law, since it is not averred that the acts set forth in the indictment were done by persons authorized to act on behalf of the union or that the acts were ratified by the union. This objection can be disposed of by making resort to Paragraph 12 of the indictment which is as follows: "Allegations in this indictment that a defendant union did any act means that its duly authorized officers, agents, employees or associates, authorized, ordered or performed such act". The union and union agents raised the additional objection that the indictment failed to disclose where the alleged agreement to allocate the two million army field hats was made,...