United States v. Slobodkin, 16058

• Decision Date: 02 March 1943
• Docket Number: 16059,No. 16058,16063.,16058
• Parties: UNITED STATES v. SLOBODKIN. SAME v. J. SLOBODKIN CO. SAME v. B. ROTTENBERG CO., Inc., et al.
• Court: U.S. District Court — District of Massachusetts

48 F. Supp. 913

UNITED STATES v. SLOBODKIN.

SAME v. J. SLOBODKIN CO.

SAME v. B. ROTTENBERG CO., Inc., et al.

Nos. 16058, 16059, 16063.

District Court, D. Massachusetts.

March 2, 1943.

Edmund J. Brandon, U. S. Atty., William T. McCarthy, Asst. U. S. Atty., and Joseph J. Gottlieb, Asst. U. S. Atty., all of Boston, Mass., for plaintiff.

John W. Walsh and J. H. Wolfson, both of Boston, Mass., for defendant Slobodkin.

John H. Backus and Leonard Poretsky, both of Boston, Mass., for defendant B. Rottenberg Co.

WYZANSKI, District Judge.

Crim. No. 16058.

In United States v. Jacob Slobodkin, Crim. No. 16058, paragraph 1 of the defendant's motion to quash raises the objection that the indictment is vague. That objection is overruled because the Court finds the indictment sufficiently certain. Paragraphs 2 through 5 of the defendant's motion allege that the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., itself (not, be it observed, any specific regulation thereunder), is invalid under the United States Constitution for these reasons: in violation of Article I of the United States Constitution, Congress delegated legislative power to the Price Administrator (¶ 2); in violation of Amendment V, the Act deprives the defendant of his property and interferes with his liberty of contract (¶ 3); and, in violation of Amendment V, the Act deprives the defendant of his liberty and his property by authorizing this Court to impose a sentence of imprisonment and fines without permitting the defendant to question in this Court the validity of the Act and the regulations thereunder (¶ 4 and 5). The points made in paragraphs 2 and 3 are overruled for these reasons: first, no one denies that this Court in passing upon an indictment laid under the Emergency Price Control Act has the power to consider the validity of such statutory provisions as are applied in the indictment; and second, having the power to pass upon the validity of the statutory provisions here applied, this Court concludes that, upon the showing so far made by the defendant, those provisions do not delegate legislative power in violation of Article I of the United States Constitution and do not regulate property or contracts in violation of Amendment V. As to the points made in paragraphs 4 and 5 they are overruled on the ground that they are moot. This Court has not been presented with an issue as to the validity of any regulation. Accordingly, the motion to quash the indictment is denied. There is no need at this time to consider the defendant's motion to suppress evidence.

Crim. No. 16059.

In United States v. J. Slobodkin Company, Crim. No. 16059, the corporate defendant's motion to quash differs from the individual defendant's motion in Crim. No. 16058 only by omitting any allegation of a possible unlawful imprisonment. The motion to quash the indictment is denied.

Crim. No. 16063.

In United States v. B. Rottenberg Co., Inc., et al., Crim. No. 16063, the defendants have filed pleas in abatement and a motion to quash.

Although paragraph 4 of the corporation's plea in abatement refers to certain prices as being "unfair and inequitable", the pleas do not point with particularity to any alleged constitutional or statutory infirmity of any regulation of the Price Administrator. Instead, the pleas place particular emphasis on the two points (1) that the indictments lack the allegation that the overt act occurred in the United States and (2) that the pleaders acquired immunity from prosecution when the corporate records were, in compliance with a subpoena, produced before the grand jury. Both the first (Dealy v. United States, 152 U.S. 539, 547, 14 S.Ct. 680, 38 L.Ed. 545; Hyde v. Shine, 199 U.S. 62, 66, 77, 25 S.Ct. 760, 50 L.Ed. 90) and second (Wilson v. United States, 221 U.S. 361, 372-374, 31 S.Ct. 538, 55 L.Ed. 771, Ann.Cas.1912D, 558) points are without merit. The several pleas in abatement are overruled.

The motion to quash is a prolix document which in twenty-five numbered paragraphs challenges the indictment principally on the grounds that (1) it does not set forth sufficient facts to charge a crime or to apprize the defendant of the crime, if any, with which he is charged (¶ 1-3, 17-25); (2) it sets forth more than one crime in one count (¶ 5, 6); (3) the Emergency Price Control Act of 1942 upon which the indictment is based is invalid because it delegates legislative power in violation of Article I of the United States Constitution (¶ 7, 8, 16); and (4) the regulations upon which the indictment is based are invalid because they are exercises of legislative power, are penal in nature, are unsupported by necessary determinations of fact, and were formulated by methods of procedure which violated the Fifth Amendment (¶ 9-15). The first two grounds were disposed of from the bench during argument and the third ground falls for the reason set forth in Slobodkin's case, supra. The fourth ground challenges, albeit not concisely or with precision, the regulation on which the indictment is based. Thus the defendants have moved to quash the indictment on the ground that it is founded upon a regulation which, in view of the circumstances of its adoption (and perhaps they also mean in view of the circumstances of its application) is invalid under the Emergency Price Control Act of 1942 and is invalid under the due process clause of the Fifth Amendment to the Constitution. The Government has replied that under § 204 (d) of the Emergency Price Control Act of 1942, c. 26, 56 Stat. 23, 31, U.S.C.A. T. 50, Appendix, § 924(d), this Court is without jurisdiction at any stage in these proceedings to entertain a defense based on an asserted statutory or constitutional invalidity of the regulation.

There is a short answer to this fourth challenge. The defendant's motion to quash is the equivalent of a demurrer. It is not and could not be supported by evidence. It merely tests the indictment, the underlying regulation and the underlying statute as each of them appears upon its face. It follows that under ordinary principles of pleading and criminal procedure, and leaving aside any question of § 204(d), the defendants cannot succeed on the fourth ground of their motion unless such parts of Revised Maximum Price Regulation No. 169 C. C. H. War Law Service ¶ 43.369 as underlie the indictment are invalid upon their face, apart from extrinsic considerations such as the procedure which the Administrator followed in formulating the regulation, the evidence upon which he acted, the arbitrary or lack of arbitrary quality of the regulation in the light of the surrounding circumstances of the industry, and the arbitrary or lack of arbitrary quality of the application of the regulation to these defendants. Viewed in this limited aspect, the fourth ground of the defendants' motion is plainly without merit. On its face the regulation complies with all statutory and constitutional requirements. If there be defects in the regulation, they are not patent. Accordingly, they are not susceptible of determination on a demurrer or motion to quash.

The defendants, however, have indicated that they intend in the course of the trial to present evidence to show that the Administrator acted capriciously in formulating the regulation and that the regulation is capricious in its application to the defendants, and so on both counts violates the due process clause of the Fifth Amendment. If this is the position that the defendants take they, of course, must make a proffer of testimony at the trial when I shall rule upon it. Nothing that I say herein excuses them from that procedural step.

Without excusing such proffer, and solely in connection with the motion now pending before me, I should add that my conclusion adverse to the defendants, on the fourth ground of their motion, rests not only on the short answer already given but also on § 204(d) of the Emergency Price Control Act. In connection with this latter and alternative basis for my conclusion I have considered two questions: whether § 204(d) purports to go so far as the Government contends; and if so, whether it violates the Fifth Amendment. Since the case is ready for trial, I shall merely state my reasons briefly without seeking to document my opinion with the usual citations.

The initial question is one of statutory construction. Unfortunately I have not in the 24 hours available to me had access to the legislative history, including committee reports and Congressional debates except as summarized in Note 55 Harv.L.Rev. 477, 492, 493. I, therefore, am able now to consider only the text of the Act. It shows that criminal prosecutions are provided for in one section, and review of administrative orders in another section. It is in the latter section that there appears subsection 204(d) upon which the Government's argument is based. No one would deny that that subsection purports to preclude a United States District Court from entertaining a suit in equity to set aside a regulation. The draftsman has used apt and familiar words from the Chancellor's vocabulary, "to stay, restrain, enjoin or set aside." But since he has not used any terms peculiar to criminal...