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October 4, 1943

KRUPNICK et al., and fifteen other cases

The opinion of the court was delivered by: MEANEY

Defendants were indicted for violations of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix § 201 et seq., and Maximum Price Regulation No. 169 as revised and amended, in that they knowingly, wilfully and unlawfully sold quantities of beef in excess of prices permitted under the regulation and failed to keep and preserve a complete and accurate record of such sales. There is also an indictment for conspiracy to violate the aforesaid Act and Regulation considered in this opinion.

Motions to quash the indictments are made with various grounds assigned therefor. First: The Emergency Price Control Act of 1942 is unconstitutional. Second: The Regulation No. 169 is unconstitutional and discriminatory. Third: The indictments are generally vague and indefinite and fail fairly to apprise the defendants of the crime charged. These are the main objections to the indictment, though others will be disposed of also.

 To take up the constitutionality of the Emergency Price Control Act, it would appear that the basis of objection to the enforcement, by criminal prosecution or otherwise, of regulations of Administrative bodies authorized by Congress, such as those under consideration, seems to be, that such regulations, aimed though they may be at the prevention of inflation, profiteering, hoarding, manipulation, and other disruptive practices arising directly or indirectly out of the national emergency, are violative of constitutional prohibitions and directions. In a government such as ours, founded as it is upon a charter of rights, and upon nominated safeguards against tyranny, it is vitally essential that those constitutional restrictions on legislative action which are necessary for such protection, be preserved in their full force and vigor. In the prosecution of a war as all-affecting and all inclusive as is the one in which we are at present involved, it must be remembered that the constitution with all of its provisions must be preserved inviolate, no matter what the temptation to suspend it in any of its parts in behalf of an all out endeavor to render the war effort of our people totally effective. To win the war abroad at the cost of freedom at home would be a cruel mockery and stultification of the aspirations of a people dedicated to the sacred cause of human liberty.

 And therefore legislation passed under the guise of an exercise of the "war powers" of government must be carefully scrutinized, for nothing is granted to Congress for its action during war time, and under its war powers, which is categorically denied it by constitutional provisions, for these are supreme in every condition of the nation's existence, be it war with its menaces, or peace with its promises. Sacrifices, unnecessary in quieter times, become the ordinary lot of war-tortured peoples; but those sacrifices which our citizens are called upon to make, must not be accompanied by the destruction of basic rights which make this a land of freedom, orderly government, and constitutional guarantees.

 But within the confines of constitutional limitations the will of Congress in its attempts to foster proper prosecution of the war and at the same time to preserve economic stability, should be given sympathetic and reasonable interpretation. That hardships may ensue from the enforcement of its expressed will as enacted into law is no reason for refusing to accept such enforcement where it is a proper exercise of authority. In many instances, measures deemed necessary for the maintenance of the structure of government and for the protection of the decent democratic way of life may result in deprivation and loss to many citizens; but such woes, attendant on the battle of civilization, are not of necessity improper distortions of our way of life, and are negligible when compared to what the armed forces endure, all in the way of lawful compliance with the requirements of bearing the burden of participation in the total of citizenship.

 Being ever mindful of the exigences of the particular occasion, the Congress in creating an act such as the Emergency Price Control Act delegating powers to a particular agency or administration, is bound by certain definite and circumscribing limitations, these limitations being coextensive with the powers granted by its mainspring -- the Constitution. The taking over and operation of railroads ( Northern Pacific Railway Co. v. North Dakota, 250 U.S. 135, 39 S. Ct. 502, 63 L. Ed. 897); the taking over the operation of telephone and telegraph lines ( Dakota Central Telephone Co. v. State of South Dakota, 250 U.S. 163, 39 S. Ct. 507, 63 L. Ed. 910, 4 A.L.R. 1623); compulsory military service ( Arver v. United States, 245 U.S. 366, 38 S. Ct. 159, 62 L. Ed. 349, L.R.A.1918C, 361, Ann. Cas.1918B, 856); authorizing the Secretary of Agriculture to set minimum milk prices based on parity, and adjusted if necessary ( United States v. Rock Royal Co-op., 307 U.S. 533, 59 S. Ct. 993, 83 L. Ed. 1446); the delegation of powers by Congress under the Bituminous Coal Act of 1937, 15 U.S.C.A. § 828 et seq. ( Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 60 S. Ct. 907, 84 L. Ed. 1263) are some of the many delegations of power exercised by the Congress under the Constitution which have been upheld by the Supreme Court.

 The Act in question was sustained by a three-judge court in Henderson v. Kimmel, D.C., 47 F.Supp. 635, in its relation to the ceiling on rents; and with reference to the price control feature ( United States v. Hark, D.C., 49 F.Supp. 95); indictment dismissed on other grounds. On an indictment for selling commodities in violation of maximum prices, demurrers to the indictment were overruled in United States v. C. Thomas Stores, Inc., D.C., 49 F.Supp. 111, 112, 113. The court in the latter case said: "The test, therefore, to be applied is this: Has Congress clearly and fully stated its purposes and objects, and has it established standards by which such purposes are to be accomplished?"

 The present act meets this test. It is on a parity with the other powers exercised by the Congress in the situations heretofore set forth. The method of establishing maximum prices was generally outlined, but detailed and itemized specifications to be relied upon by the administrator were not, and by the very nature of the task, could not be meticulously provided. The Act does, however, make manifest its policy or purpose and establishes the standards which are to serve as basis for the development of that policy and the working out of its details. This is sufficient specification to meet the requirements for justification of delegation, not of law making authority, but of powers necessary to carry out the legislative purpose. The provisions of the Act are applicable to all portions of the country and are to be applied to those portions, which may vary from day to day, wherein the emergency situation may be declared to exist. No special singling out of any district limits its application, it is general in its scope and extension. Where local agencies operate to render them unnecessary, the regulations authorized by the Act are not imposed. The Act places a duty on the Administrator to study pertinent data and to establish prices as a result of adjustment made in view of relevant factors of general applicability.

 In this connection defendants make the point that the Act is unconstitutional since it grants power to the Administrator which amounts to determination of what acts shall be criminal. Looking to the Act, it is found that Congress declared what acts shall be criminal in section 205(b), 50 U.S.C.A.Appendix § 925(b), and has relegated to the Administrator the task of making the detailed specifications necessary for the fulfillment of Congressional will. See United States v. Grimaud, 220 U.S. 506, 517, 31 S. Ct. 480, 55 L. Ed. 563.

 It is contended that the regulations, violation of which are charged, are unconstitutional for the reason that by operation of these regulations, the defendants are deprived of their property without due process of law, and without due compensation, and that their rights to be informed of the nature and cause of the accusation against them have been violated.

 It is further alleged that the provisions of the regulation contravene the express provisions of the Emergency Price Control Act of 1942 and that the Price Administrator in promulgating the regulations acted arbitrarily, capriciously and beyond the scope of his authority.

 Insofar as the assertion is concerned that the regulation in question violates the 5th and 6th Amendments to the Constitution, it would seem to the Court that such is not the case. The regulation was made by virtue of the authority expressly granted by the Act itself, an authority which, it has been determined, was bestowed by Congress without conflict with constitutional restriction. Whether or not that authority was transcended, and whether the Administrator acted capriciously and arbitrarily in devising the terms of the regulation and whether the regulation conformed to the provisions of the Act is another question. There is a well defined distinction between the question of the constitutionality of the Act itself and the validity of the Regulation made by virtue of the Act and the powers granted the Administrator therein.

 Both the Government and the defendants recognize the inherent right of the Court to pass on the constitutionality of the Act in all of its phases. The difficulty is created when the defendants assume to attack the constitutionality of the regulations when (as a matter of fact) what they are in reality attacking is the validity of the regulations or their conformity to the provisions of the Act. There would seem to be no doubt that the Emergency Price Control Act is constitutional. And it would further seem incontestible that the Administrator, in devising the schedules and terms of the Regulation, acted under the directions to him contained in the Act. Whether he acted within the confines of his province and met the requirements of the act in framing Regulation 169 ...

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