United States v. Food and Grocery Bureau of So. Cal.

• Decision Date: 24 March 1942
• Docket Number: No. 14952-Y.,14952-Y.
• Citation: 43 F. Supp. 974
• Court: U.S. District Court — Southern District of California
• Parties: UNITED STATES v. FOOD AND GROCERY BUREAU OF SOUTHERN CALIFORNIA, Inc., et al.

43 F. Supp. 974

UNITED STATES v. FOOD AND GROCERY BUREAU OF SOUTHERN CALIFORNIA, Inc., et al.

No. 14952-Y.

District Court, S. D. California, Central Division.

March 24, 1942.

Tom C. Clark, Alfred C. Ackerson, George R. Maury, Robert J. Rubin, Sheridan Morgan, Paul Meyers, Perry H. Taft, and Homer H. Bell, Sp. Assts. to Atty. Gen., all of Los Angeles, Cal., for plaintiff.

Cupp, Hunt & Henderson, by J. Wesley Cupp, all of Los Angeles, Cal., for Food and Grocery Bureau of Southern California, Inc., S. M. White, Clarence A. Plumridge, Roy J. Porter, and Carl M. Grayson.

Cupp, Hunt & Henderson, by J. Wesley Cupp, and Otto Christensen and Eugene Sax, all of Los Angeles, Cal., for Myer Pransky.

Mitchell, Johnson & Ludwick, Byron C. Hanna, and James Kirby, all of Los Angeles, Cal., for Clayton Whiteman, Sam Seelig, Henry J. Carty, T. I. Lingo, and Miller Allen.

D. C. Montgomery and Otto Christensen, both of Los Angeles, Cal., for Harold R. Zenor and George Hagmann, Jr.

YANKWICH, District Judge.

The opinion on the demurrer (United States v. Food and Grocery Bureau et al., D.C.Cal., 1941, 41 F.Supp. 884) abstracts the allegations of the indictment. The opinion on the motions to dismiss and to strike (United States v. Food and Grocery Bureau et al., D.C.Cal., 43 F.Supp. 966, filed March 11, 1942) outlines the Government's proof.

So, in stating the grounds for the verdict to be announced, we may start, both factually and legally, where we left off in those two opinions.

In a famous English prosecution for a criminal libel against Parliament, in which, although publication had been proved, the jury had found the defendant not guilty, the trial judge, at the insistence of the attorney for the Crown, asked the jury whether they had found the defendant not guilty "because publication had not been proved." The answer of the jury has become a classic. Through the foreman, they answered: "Not guilty, not guilty. That is our verdict, my Lord, and we abide by it". Rex v. Owen, 1752, 18 Howell, State Trials, 1203.

One familiar with the law of criminal libel as it then stood, can understand the importance of the answer and the courage of the jury in giving it. Truth was not a defense. And when publication was proved, the offense was complete. Had the jurors answered the Court's question affirmatively, their answer could have been considered a special verdict, and the verdict of not guilty nullified. Had they answered it negatively, they would have stood impeached. For publication had been proved. By giving this courageous answer, these twelve men who, as the record of the case shows, were drapers and other tradesmen, not only saved their verdict, but wrote a glorious incident in the history of trial by jury in the English-speaking world, and in the history of free speech. They vindicated the right of the jury, as judges of both the law and the facts, to best serve the interests of the social order by using their power of acquittal to uphold freedom of expression at a time when harsh judicial doctrines originating in the Court of Star Chamber (De Libellis Famosis, 1609, 5 Rep. 125) stood in its way by declining to allow truth from good motives as a defense in criminal libel. See, Hudson's Treatise on the Court of Star Chamber, Part II, Ch. XI in Collectanea Juridica, Vol. 2, pp. 100-104; Cf. Yankwich, Essays in the Law of Libel, 1929, pp. 103 et seq., 267-272.

I think of this incident every time I am called upon to decide a criminal case of importance which is tried without a jury. I bear in mind what counsel endeavor to do to the Court's reasons when the case reaches a higher court and the rather slighting manner in which some appellate courts refer to what they call (always in quotation marks) "opinions" in criminal cases. Some state that, strictly speaking, the "reasons" for the verdict are not "a part of the record". People v. Grana, 1934, 1 Cal.2d 565, 570, 36 P.2d 375, 378. Theoretically, this is, no doubt, true. Yet, I believe, after a rather long experience as a trial judge in one community, during which time I have tried many criminal cases of significance without a jury, that, as trial judges, we owe it not only to the government, the defendants, and their attorneys, but also to the community as a whole, not to hide behind the formula of a general verdict, but to state the foundations for our conclusions. They may carry no conviction to a higher court. And they may be in the same category as all reasons given by a trial judge. Ultimately a trial judge speaks to the higher court through his judgment. His judgment may be good and his reasoning bad. Or his reasoning may be good and his judgment bad. This is the foundation for the warning which, according to the old legal story, an older judge gave to the younger "to give judgments, but never to give reasons."

I am not a believer in this doctrine. And I have sought consistently with the newer concept of judicial ethics (see Canon 19, Canons of Professional and Judicial Ethics, American Bar Association, adopted August 27, 1909) in every cause, civil or criminal, to inform litigants and their counsel of the grounds for decision. So this is my apologia for following the practice in this case.

In any case arising under the Sherman Anti-Trust Act, 15 U.S.C.A. § 1, which punishes contracts, combinations or conspiracies "in restraint of trade or commerce among the several States", the nature of commerce is vital. I have always been of the view that the difficulty which sometimes confronts us in attempting to reconcile the various definitions of "commerce" in the decisions of the Supreme Court derives from the fact that the Court does not always use the same touchstone in assaying what is and what is not commerce. The Court adopts one norm when dealing with the power of the State to tax. See Heisler v. Thomas Colliery Co., 1922, 260 U.S. 245, 43 S.Ct. 83, 67 L.Ed. 237; Henneford v. Silas Mason Co., 1937, 300 U.S. 577, 57 S.Ct. 524, 81 L.Ed. 814; Felt & Tarrant Co. v. Gallagher, 1939, 306 U. S. 62, 59 S.Ct. 376, 83 L.Ed. 488; Southern Pacific Co. v. Gallagher, 1939, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586; Ford Motor Co. v. Beauchamp, 1939, 308 U.S. 331, 60 S.Ct. 273, 84 L.Ed. 304; People of California v. Thompson, 1941, 313 U.S. 109, 61 S.Ct. 930, 85 L.Ed. 1219. Under it, it is willing to concede the right of the State to regulate or tax articles originating in interstate commerce, even during the momentary pause when they come to rest in the state, and before they resume the continuity of movement in interstate commerce. When, however, it approaches the problem from the other angle — control by the federal government — it is not so meticulous in observing the dividing line between intrastate and interstate activities. National Labor Relations Board v. Jones & Laughlin Corp., 1931, 301 U.S. 1, 57 S.Ct. 615, 81 L.Ed. 893, 108 A.L.R. 1352; United States v. Darby, 1941, 312 U.S. 100, 657, 61 S.Ct. 451, 85 L.Ed. 609, 132 A.L.R. 1430; United States v. Wrightwood Dairy Co., 1942, 62 S.Ct. 523, 86 L. Ed. ___; Illinois Natural Gas Co. v. Central Illinois Public Service Co., 1942, 62 S.Ct. 384, 86 L.Ed. ___.

When the governmental power to control commerce takes the form of criminal legislation, courts hark back to the proposition declared early in our judicial history, that the constitutional grant of control of commerce between the States, Article I, Sec. 8, Clause 3, Constitution of the United States, gives the Congress a power which is both plenary and absolute, with the primacy of the federal government beyond challenge. See Gibbons v. Ogden, 1824, 9 Wheat. 1, 196, 6 L.Ed. 23; United States v. Rock Royal Co-Operative, Inc., 1939, 307 U.S. 533, 569, 59 S.Ct. 993, 83 L.Ed. 1446. Anti-trust legislation is of this character. It seeks to prevent interference with interstate commerce through combinations and to destroy practices injurious to it. It expresses an economic philosophy which holds that competition best serves the national economy by preserving freedom to trade. United States v. Colgate & Co., 1919, 250 U.S. 300, 307, 39 S.Ct. 465, 63 L.Ed. 992, 7 A.L.R. 443; Paramount Famous Lasky Corp. v. United States, 1930, 282 U.S. 30, 42, 51 S.Ct. 42, 75 L.Ed. 145.

For the purpose of delimiting the respective spheres of intrastate and interstate activities, a concept has been developed, relating to the movement of commodities between the states, which says that interstate activity ends when the commodities come to rest within the state. American Steel & Wire Co. v. Speed, 1904, 192 U.S. 500, 24 S.Ct. 365, 48 L.Ed. 538; Atlantic C. L. Ry. v. Standard Oil Co., 1927, 275 U.S. 257, 267, 48 S.Ct. 107, 72 L.Ed. 270; Chicago, Milwaukee & St. Paul Ry. v. Iowa, 1914, 233 U.S. 334, 343, 34 S.Ct. 592, 58 L.Ed. 988; Schechter Corp. v. United States, 1935, 295 U.S. 495, 543, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947; Federal Trade Commission v. Bunte Bros., 1941, 312 U.S. 349, 61 S.Ct. 580, 85 L.Ed. 881. And its widest application has been made in cases upholding the regulatory powers, especially the taxing power, of a state over goods in transit during their stay in the state. See, Southern Pacific Co. v. Gallagher, 1939, 306 U.S. 167, 59 S.Ct. 389, 83 L.Ed. 586, and other cases cited above. But the courts have warned us not to accept the concession which the federal government is thus willing to make to state sovereignty in matters of this character in a dogmatic sense. Specifically have they warned us that these cases do not delimit the extent of federal control over interstate commerce. See Binderup v. Pathe Exchange, 1923, 263 U.S. 291, 311, 44 S.Ct. 96, 68 L.Ed. 308; Live Poultry Dealers' Protective Association v. United States, 2 Cir., 1924, 4 F.2d 840, 842.

So they have taken cognizance of the fact that many strictly local activities may injuriously affect interstate commerce or restrain it so as to come under the interdict of anti-trust legislation. Coronado Coal Co. v....