United States v. Rosenblum
| Decision Date | 01 May 1920 |
| Docket Number | 42. |
| Citation | 264 F. 578 |
| Parties | UNITED STATES v. ROSENBLUM. |
| Court | U.S. District Court — Western District of Pennsylvania |
E Lowry Humes, of Pittsburgh, Pa., for the United States.
James P. Whitla, of Sharon, Pa., and William T. Tredway, of Pittsburgh, Pa., for defendant.
This is a demurrer and motion to quash the indictment. The indictment is drawn under section 2 of the Act of Congress of October 22, 1919, c. 80, 41 Stat. 297, section 4 of the Act of August 10, 1917, c. 53, 40 Stat. 276, known as the Lever Act. The relevant part of the statute defining the offense charged is as follows:
The first count of the indictment, following the language of the statute, charges that the defendant--
'did then and there unlawfully, knowingly, willfully, and feloniously make an unjust and unreasonable rate and charge in handling and dealing in a certain necessary as defined by the Act of Congress of the United States of October 22, 1919 amending the Act of August 10, 1917, to wit, sugar, in this That the said Nathan Rosenblum did then and there sell to M. A. Grande sixty (60) pounds of granulated sugar at twelve and a half cents (12 1/2c) per pound, contrary to the form of the act of Congress in such case made and provided, against the peace and dignity of the United States of America.'
The second and third counts are precisely the same in form, differing only in the date of sale and the party to whom the sale was made.
The grounds of attack on the indictment are that the act of Congress is unconstitutional, because too vague, indefinite, and uncertain to be enforced by the courts, and by reason thereof does in effect delegate the legislative power vested in Congress alone to the courts and juries of the country; that the act by its terms fixes no definite or certain rule by which human conduct can be uniformly governed, so as to know whether the dealer is acting within the law or violating it; that the act does not inform the accused of the nature and cause of the accusation against him, nor provide a method of so informing him, as required by the Sixth Amendment of the Constitution; that the indictment fails to set forth the cost price of the sugar sold, or the replacement prices thereof, at the time of the various sales, so that neither the court nor the jury can judge whether the sale was an unjust and unreasonable sale or charge; and, lastly, that the indictment as found varies very materially from the information on which the defendant gave bail for court.
In the light of various decisions of the Supreme Court, the power of Congress to lawfully enact such legislation, acting within its constitutional powers, is not now to be questioned. While neither war, nor any other great exigency of government, suspends for a moment any provision of the Constitution, yet the government, within the provisions of that instrument, has all the powers granted to it which are necessary to preserve the life of the nation. It is under these powers that the numerous acts of Congress, known as war measures, find their support. The attack on the indictment, and on the particular section of the act of Congress under which it is drawn, is supported by much reason and by numerous and high authorities. The Sixth Amendment to the Constitution requires that in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation. A condensed statement of this important and fundamental right is found in the case of United States v. Brewer, 139 U.S. 288, 11 Sup.Ct. 541, 35 L.Ed. 190, wherein the court says:
'Laws which create crime ought to be so explicit that all men subject to their penalties may know what acts it is their duty to avoid.'
And again:
'Before a man can be punished, his case must be plainly and unmistakably within the statute.'
This general rule is incontrovertible, and upon it rest most of the opinions holding this and like statutes void for uncertainty. But the rule, while simple and plain enough in itself, is often most difficult of application. Recognizing the high necessity of the rule for the protection of the liberty of the citizen, and also recognizing the full force of the reasoning which seeks to apply the rule to section 4 of the Lever Act under which this indictment is drawn, I am led to an opposite conclusion by the reasoning of the Supreme Court in certain well-considered cases. In Waters-Pierce Oil Co. v. Texas, 212 U.S. 87, 29 Sup.Ct. 220, 53 L.Ed. 417, the Supreme Court sustained the Anti-Trust Acts of Texas, which denounced contracts and arrangements 'reasonably calculated' to fix and regulate the price of commodities, and prohibiting acts which 'tend' to accomplish the prohibited results; this against the objection that the act was so vague, indefinite, and uncertain as to render it unconstitutional, the defendant not being informed of the nature and character of the acts constituting a violation of the law.
In Standard Oil v. United States, 221 U.S. 1, 63, 31 Sup.Ct. 502, 55 L.Ed. 619, 34 L.R.A. (N.S.) 834, Ann. Cas. 1912D, 734, sections 1 and 2 of the Sherman Anti-Trust Act (Comp. St. Secs. 8820, 8821) were under consideration. The first section declared as illegal and punishable by fine and imprisonment, every contract, combination in the form of trust or otherwise, 'in restraint of trade or commerce' among the several states, and the second section makes it a misdemeanor for any one to 'monopolize or attempt to monopolize' any part of the trade or commerce among the several states. It was urged that the language of the statute embraces every contract, combination, etc., in restraint of trade, and leaves no room for the exercise of judgment, simply imposing the duty of applying its prohibitions to every case within its literal language. But the court held that--
'Because, as the acts which may come under the classes stated in the first section and the restraint of trade to which that section applies are not specifically enumerated or defined, it is obvious that judgment must in every case be called into play in order to determine whether a particular act is embraced within the statutory classes, and whether, if the act is within such classes, its nature or effect causes it to be a restraint of trade within the intendment of the act.'
The court further said:
'The merely generic enumeration which the statute makes of the acts to which it refers, and the absence of any definition of restraint of trade as used in the statute, leaves room for but one conclusion, which is that it was expressly designed not to unduly limit the application of the act by precise definition, but while clearly fixing a standard, that is, by defining the ulterior boundaries which could not be transgressed with impunity, to leave it to be determined by the light of reason, guided by the principles of law and the duty to apply and enforce the public policy embodied in the statute, in every given case whether any particular act or contract was within the contemplation of the statute.'
More pertinent still is the reasoning of the Supreme Court in Nash v. United States, 229 U.S. 373, 33 Sup.Ct. 780 57 L.Ed. 1232, as that was a...
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Lamborn v. McAvoy
...constitutionality of the act has been sustained, inter alia, by Judge Thomson, in the Western District of Pennsylvania, in United States v. Rosenblum, 264 F. 578; by the Circuit Court of Appeals for the Second affirming Judge Hazel, of the Western District of New York, in the case of Weed v......