United States v. Renken

• Decision Date: 06 May 1944
• Docket Number: No. 9181-9183.,9181-9183.
• Citation: 55 F. Supp. 1
• Court: U.S. District Court — District of South Carolina
• Parties: UNITED STATES v. RENKEN, and three other cases.

55 F. Supp. 1

UNITED STATES v. RENKEN, and three other cases.

Nos. 9181-9183.

District Court, W. D. South Carolina.

May 6, 1944.

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

Robert McC. Figg, Jr., and J. D. E. Meyer, both of Charleston, S. C., for defendant Walter A. Renken.

Irwin Geiger, of Washington, D. C., A. C. Mann, of Greenville (Meyer Turin, of Washington, D. C., of counsel), for defendants Old Monastery Co. and R. Harold Ostrow.

J. C. Long and J. D. E. Meyer, both of Charleston, S. C., and John K. Hood, Jr., of Anderson, S. C., for defendants Vincent Chicco and George P. Stauss.

C. T. Graydon, of Columbia, S. C., and A. F. Burgess and Thomas A. Wofford, both of Greenville, S. C., attorneys for the defendants Richland Wholesale Liquors, Inc., and E. M. Smith.

R. B. Hildebrand, of York, S. C., for defendant C. L. Britt.

WYCHE, District Judge.

The indictments in the above cases charge the defendants named therein with conspiring to violate the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, § 904(a), and the Maximum Price Regulations issued in pursuance thereof, and with violations of the Act and Maximum Price Regulations issued thereunder.

Motions to quash, and demurrers to the indictments, are made upon the following grounds:

1. The allegations of the indictments fail to allege that the defendant or defendants wilfully violated, or wilfully conspired to violate, the Maximum Price Regulations No. 193 and No. 445, promulgated under the authority of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, § 901 et seq.

2. The allegations in the indictments fail to allege the approval by the Secretary of Agriculture of Maximum Price Regulations No. 193 and No. 445, promulgated under the authority of the Emergency Price Control Act of 1942.

3. The allegations in the indictments fail to allege that the alleged offenses were committed after approval of Maximum Price Regulation No. 193 and of Maximum Price Regulation No. 445, by the Secretary of Agriculture.

4. The conspiracy indictment and the conspiracy counts in the other indictments fail to allege an offense therein of a conspiracy with such certainty that the defendant in each case can avail himself of his conviction or acquittal thereon for his protection against a further prosecution for the same offense.

5. Because the Emergency Price Control Act of 1942, insofar as it may relate to intoxicating liquors, is in violation of the 21st Amendment to the Federal Constitution, and therefore null and void.

1. As to the first question, the applicable provisions of the Act, 50 U.S.C.A. Appendix, § 904, provide: "(a) It shall be unlawful, * * * for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity, * * * or otherwise to do or omit to do any act, in violation of any regulation or order under section 2 (section 902 of this Appendix), or of any price schedule effective in accordance with the provisions of section 206 (section 926 of this Appendix), or of any regulation, order, or requirement under section 202(b) or section 205 (f) (sections 922(b) or 925(f) of this Appendix), or to offer, solicit, attempt, or agree to do any of the foregoing." Section 902 of the Appendix, referred to, authorizes the Price Administrator to promulgate Maximum Price Regulations pursuant to the Emergency Price Control Act of 1942. Sections 922(b) and 925(f) have no applicability to these cases.

The enforcement provisions of the Emergency Price Control Act of 1942 appears in section 925, Title 50 of the U.S. C.A.Appendix, as follows: "(a) Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 of this Act (section 904 of this Appendix), he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, * * *. (b) Any person who willfully violates any provision of section 4 of this Act (section 904 of this Appendix), * * * shall, upon conviction thereof, be subject to a fine of not more than $5,000, or to imprisonment for not more than two years in the case of a violation of section 4(c) (section 904 of this Appendix) and for not more than one year in all other cases, or to both such fine and imprisonment. Whenever the Administrator has reason to believe that any person is liable to punishment under this subsection, he may certify the facts to the Attorney General, who may, in his discretion, cause appropriate proceedings to be brought. (c) The district courts shall have jurisdiction of criminal proceedings for violations of section 4 of this Act (section 904 of this Appendix), * * *. Such criminal proceedings may be brought in any district in which any part of any act or transaction constituting the violation occurred. * * * (d) No person shall be held liable for damages or penalties * * * (if acting in good faith) * * *. (e) If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney's fees and costs as determined by the court. * * *, and the buyer is not entitled to bring suit or action under this subsection, the Administrator may bring such action under this subsection on behalf of the United States. * * *"

It appears from the foregoing that while it may be unlawful to sell or deliver any commodity in violation of any Maximum Price Regulation, and while civil proceedings for injunction or for treble damages may be brought by the Administrator, or treble damages and attorney's fees may be recovered by an aggrieved purchaser in civil proceedings, no criminal liability attaches unless there is a wilful violation of the Act or of the Maximum Price Regulations issued pursuant thereto. The penal provisions of the Act are applicable only to violations of a regulation which are wilful. Yakus v. United States, 64 S.Ct. 660, 667, 88 L.Ed. ___, ___.

Where the intent is a material ingredient of the crime, it is necessary to be averred, and it may always be averred in general terms. Evans v. United States, 153 U.S. 584, 594, 14 S.Ct. 934, 38 L.Ed. 830. The general rule is that the term wilful cannot be omitted from the indictment when the term is part of a statutory definition. Wharton's Crim. Proc., 10th Ed., Vol. 1, §§ 285 and 318. But where the facts alleged necessarily import wilfullness, the failure to use the word wilful is not fatal to the indictment. Rumely v. United States, 2 Cir., 293 F. 532, certiorari denied 263 U.S. 713, 44 S.Ct. 38, 68 L. Ed. 520.

The Chicco-Stauss indictment consists of thirteen counts; the first count alleges a conspiracy to violate the Act; the second through the thirteenth counts allege the substantive offenses. Each of the substantive charges are in identical language setting forth: that the defendants on or about a certain day, at a certain place in the Western District of South Carolina, did as wholesalers of packaged distilled spirits sell and deliver to a certain individual or individuals who were retailers of packaged distilled spirits, certain distilled spirits, to wit: some brand of distilled spirits at a certain price per case, which said price was in excess of the applicable minimum price established by Maximum Price Regulation No. 193, the said excess amounting to so many dollars, contrary to the form of the Statute, etc. It will be observed that there is nothing in these allegations that alleges a wilful violation, or anything that could be construed as a wilful violation of either the Emergency Price Control Act of 1942, or of any Maximum Price Regulations issued in pursuance thereof.

The indictments against the other defendants, as to the substantive offenses, are in the same general form and verbiage as the Chicco-Stauss substantive counts; and like the substantive counts in the Chicco-Stauss indictment, there is no allegation of wilful violation, or any allegation that could be so construed, of either the Emergency Price Control Act of 1942, or of any Maximum Price Regulations issued in pursuance thereto.

From the foregoing, I must conclude that the demurrers to all of the substantive counts of the indictments against Vincent Chicco, George P. Stauss, Walter A. Renken, E. M. Smith, C. L. Britt and Richland Wholesale Liquors, Inc., should be sustained, and the motions to quash such counts granted.

There remains the conspiracy count in the indictment against all defendants in each of the above cases (except that against Walter A. Renken, sole defendant, C/9183). Counsel in their written briefs frankly and properly admit that their motion to quash and their demurrer on this ground cannot be sustained, but counsel insist that the absence of the word wilful should be taken into consideration upon the decision of the fourth ground.

2 and 3. It is contended by the defendants that in order for the Administrator to establish maximum prices for intoxicating liquors it was necessary for each regulation establishing such prices to be approved, prior to its issuance, by the Secretary of Agriculture in order that said regulation be valid. This is an attack upon the validity of the price regulations. This Court has no jurisdiction to determine such question. Section 204(d) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 924(d), provides that the Emergency Court of Appeals and the Supreme Court upon review shall have exclusive jurisdiction to determine the validity of any regulation or order issued under section 2, 50 U.S.C.A.Appendix, § 902...