United States v. Johnson

• Decision Date: 10 January 1944
• Docket Number: 150-155.,148,No. 142-146,142-146
• Citation: 53 F. Supp. 167
• Parties: UNITED STATES v. JOHNSON and eleven other cases.
• Court: U.S. District Court — District of Delaware

53 F. Supp. 167

UNITED STATES v. JOHNSON and eleven other cases.

Nos. 142-146, 148, 150-155.

District Court, D. Delaware.

October 16, 1943.

On Reargument January 10, 1944.

Stewart Lynch, U. S. Atty., and Robert C. Barab, Sp. Asst. to U. S. Atty., both of Wilmington, Del., John D. Masterton, Sp. Asst. to U. S. Atty., of Paterson, N. J., and Francis A. Reardon, Chief Enforcement Atty., Office of Price Administration for the District of Delaware, of Wilmington, for the United States.

James M. Tunnell, Jr. (of Tunnell & Tunnell), Frederick P. Whitney, and Howard W. Bramhall, all of Georgetown, Del., for defendants.

LEAHY, District Judge.

Indictments were returned charging a large number of defendants with violation of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, §§ 904(a) and 925(b). Motions to quash and demurrers have been filed. For present purposes, twelve typical indictments are selected. Determination of their legal sufficiency should be dispositive of the same questions lurking in the remaining indictments. Defendants in all of the cases, except certain individuals doing business as Sussex Poultry Company, are charged with having sold poultry in violation of applicable Regulations.¹ Sussex Poultry Company alone is charged with unlawful purchases. The indictments are substantially similar, depending on the time the alleged sales or purchases of poultry occurred, the type of chicken (broilers or fryers) sold or purchased, or the price paid or received by each defendant. In each indictment there is an allegation as to the "ceiling price" which the regulations permitted to be accepted or paid in connection with the transactions. The motions to quash and the demurrers attack the indictments as invalid for failure to state with clarity and definiteness the facts constituting the crime and the venue so as fairly to appraise the defendants of the charges they will be required to meet. Moreover, it is contended that certain of the indictments are fatally defective because they are based on an alleged violation of a regulation which had been superseded prior to the return of the indictments. I prefer to treat each of these grounds in reverse order.

I. Effect of modification of Revised Maximum Price Regulation 269. This regulation, effective December 16, 1942, was amended or superseded by Amendment No. 8 of the Price Administrator on April 22, 1943 (8 F.R. 5408 et seq.). In the interim, on March 5, 1943, the District Court of Massachusetts, in United States v. Hark, 49 F.Supp. 95, granted a motion to quash an indictment, based on an alleged violation of a certain regulation, on the ground that it had been repealed prior to the return of the indictment and that the Administrator had not effected any saving clause that would be applicable to the revoked regulation.² Shortly after this judicial spanking, the Administrator promptly issued a supplemental order (8 F.R. 4325) on April 2, 1943. It provides: "1305.54 Effect of repeal, revocation, amendment or other modification of price regulations—(a) The repeal, revocation, amendment or other modification of a price regulation or any part thereof shall not have the effect to release or extinguish any penalty or liability incurred under such price regulation unless otherwise expressly provided but such price regulation or part thereof shall be treated as remaining in force for the purpose of allowing or sustaining any proper suit, action, prosecution, or proceeding with respect to such penalty or liability." Defendants here argue that, on the basis of the common law rule, upon the repeal of an act without any reservation of its penalties, all criminal proceedings taken under it must fall, on the presumption that the repeal was intended as a legislative pardon for past acts; and that the government can not avail itself of 1 U.S.C.A. § 29, as that section refers to "repeal of any statute" and, being in derogation of the common law, it must be strictly construed to the repeal of statutes and not regulations. They pose the question thus:

Where is the source of power in the Administrator to make an order providing that a person shall not be released from prosecution for a violation of a price regulation which has been repealed or amended where the indictment is found after the repeal or modification thereof?

The crux of the offenses here is the price per pound paid and received for poultry in violation of the "ceiling price". Admittedly, the price ceilings of live poultry were different on the date of returning a majority of the indictments than at the time of the commission of the alleged violations by most of these defendants. The crime involved came into existence when, pursuant to legislative authority, the Administrator promulgated Regulation 269. Undoubtedly, the April 2, 1943 Supplemental Order 40 was issued in recognition of the principle that unless a statute is continued in force its repeal precludes further prosecution. But Amendment No. 8 is a regulation and not a statute. The only specific saving clause found in the Act, 50 U.S. C.A.Appendix, § 901(b), which permits prosecution after the statute terminates includes all regulations, price schedules and requirements in effect on the terminal date of June 30, 1944. This saving clause would seem to apply to the termination of the Act in the manner specified. It has no reference to regulations theretofore revoked or amended.

It seems to me the Administrator does not have power to expand or extend his statutory authority. Congress might have passed a saving clause to cover the situation here. But it did not do so. And I find myself unable to agree with the suggestion that the Administrator's authority to promulgate a saving clause, in derogation of the common law rule, might be implied generally from the Act. Implied authority in an administrative officer to repeal, extend or modify a law may not be inferred from the grant of authority to enforce it. State v. Retowski, 6 W.W.Harr. 330, 36 Del. 330, 175 A. 325; United States v. 11,150 Pounds of Butter, 8 Cir., 195 F. 657; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480, 55 L.Ed. 563.

There is only one provision in the Act upon which an argument may be bottomed that the Administrator has the power to promulgate a saving clause in connection with repealed regulations. In Sec. 2(g), 50 U.S.C.A. Appendix, § 902 (g), it is provided that: "Regulations, orders, and requirements under this Act may contain such provisions as the Administrator deems necessary to prevent the circumvention or evasion thereof." As a saving clause is in derogation of the common law rule, it must indicate its purpose. Obviously, Sec. 2(g) fails to meet this test by a wide margin. The present Administrator has no congressional authority to promulgate a regulation which will have the same effect on a repealed regulation that Title 1 U.S.C.A. § 29 has on a repealed statute. This does not mean, however, that the indictments must fall on this ground. The Administrator's act of amending Regulation 269 can have no effect upon prosecution of persons who have violated Sec. 4(a) of the Act. That section prohibits the buying or selling of commodities at prices higher than those permitted by applicable regulations. The statute creates the offense; and any person who has violated a previously existing regulation remains amenable to prosecution.

This view finds support in United States v. Curtiss-Wright Export Corp., 299 U.S. 304, 57 S.Ct. 216, 226, 81 L.Ed. 255. In that case, defendants had sold arms to certain South American belligerents in violation of a proclamation of the President issued by him under the authority granted by a Joint Resolution of both houses of Congress. The Joint Resolution simply prohibited the sale of any commodities (arms or munitions of war) except as the President might prescribe.³ Prior to the return of the indictment in that case the President issued a second proclamation which, it was argued, revoked the penal provisions for violation of the first. In sustaining the indictment, the Supreme Court said: "Prior to the first proclamation, the Joint Resolution was an existing law, but dormant, awaiting the creation of a particular situation to render it active. No action or lack of action on the part of the President could destroy its potentiality. Congress alone could do that. The happening of the designated events—namely, the finding of certain conditions and the proclamation by the President—did not call the law into being. It created the occasion for it to function. The second proclamation did not put an end to the law or affect what had been done in violation of the law. The effect of the proclamation was simply to remove for the future a condition of affairs which admitted of its exercise." The views expressed herein, both as to the interpretation of the Curtiss-Wright Export Corporation case and the effect of a prosecution under a repealed regulation originally promulgated under the Emergency Price Control Act, are essentially the same as those expressed by Kalodner, J., in United States v. Trilling et al., D.C. 51 F.Supp. 843, decided September 17, 1943.

Hence, I conclude that modification, revocation, or amendment of Regulation 269 can have no effect on the present prosecution.

II. Sufficiency of indictments under Regulation 269 in effect prior to April 22, 1943. Sufficient facts of a crime committed must be stated in an indictment to support a conviction. Specifically, the court and defendants must be able to determine this from the indictment, the statutes and the pertinent administrative regulations passed pursuant to the statutes. If the facts alleged may all be true and yet appear to constitute no offense, the indictment is insufficient. Fontana v. United States, 8 Cir., 262 F. 283; Lynch v. United States, 8 Cir., 10 F.2d 947; United States v. Armour & Co., D.C., 48 F.Supp. 801; 27 Am.Juris. p. 621. The purpose of such requirements is to...