United States v. Cohen Grocery Company/Concurrence Pitney
and  concurred in the result, the former delivering the following opinion in which the latter concurred:

I concur in the judgment of the court, but not in the reasoning upon which it is rested.

Defendant was indicted upon two counts, alike in form, charging in each case that it "did willfully and feloniously make an unjust and unreasonable rate and charge in handling and dealing in a certain necessary, to wit, sugar," in that it demanded, exacted and collected excessive prices for specified quantities of sugar purchased from it, in violation of the Lever Act (Act of October 22, 1919, c. 80, tit. 1, § 2, 41 Stat. 297, 298, amending § 4 of Act of August 10, 1917, c. 53, 40 Stat. 276, 277). I am convinced that the exacting of excessive prices upon the sale of merchandise is not within the meaning of that provision of the act which is cited as denouncing it; that the act does not make it a criminal offense; that for this reason the demurrer to the indictment was properly sustained; and that whether the provision is in conflict with the Fifth or Sixth Amendment is a question not necessarily raised, and which ought not to be passed upon.

In order to appreciate the point it is necessary to quote entire so much of the section as defines the crimes thereby denounced. It reads as follows:

"That it is hereby made unlawful for any person willfully to destroy any necessaries for the purpose of enhancing the price or restricting the supply thereof; knowingly to commit waste or willfully to permit preventable deterioration of any necessaries in or in connection with their production, manufacture, or distribution; to hoard, as defined in section 6 of this Act, any necessaries; to monopolize or attempt to monopolize, either locally or generally, any necessaries; to engage in any discriminatory and unfair, or any deceptive or wasteful practice or device, or to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries; to conspire, combine, agree, or arrange with any other person, (a) to limit the facilities for transporting, producing, harvesting, manufacturing, supplying, storing, or dealing in any necessaries; (b) to restrict the supply of any necessaries; (c) to restrict distribution of any necessaries; (d) to prevent, limit, or lessen the manufacture or production of any necessaries in order to enhance the price thereof; or (e) to exact excessive prices for any necessaries, or to aid or abet the doing of any act made unlawful by this section. Any person violating any of the provisions of this section upon conviction thereof shall be fined not exceeding $5,000 or be imprisoned for not more than two years, or both: Provided, * * * " etc.

For a definition of "hoarding," the section refers to § 6 of the original act (40 Stat. 278 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 3115 ⅛ gg]), which declares that necessaries shall be deemed to be hoarded, within the meaning of the act, when (inter alia) "withheld, whether by possession or under any contract or arrangement, from the market by any person for the purpose of unreasonably increasing or diminishing the price."

The court holds that the words "to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries" are broad enough to embrace the exaction of an excessive price upon a sale of such merchandise. Why Congress should employ so unskillful and ambiguous a phrase for the purpose when it would have been easy to express the supposed purpose in briefer and more lucid words, it is difficult to understand. If the words were to be taken alone, and without reference to the context, it might be possible to stretch their meaning so as to include the exaction of an excessive price. But to do this with a statute defining a criminal offense would, it seems to me, be inconsistent with established rules for construing penal statutes; not only so, but it would violate the rule that a statute is not to be so construed as to bring in into conflict with the Constitution, unless such construction is imperatively required by its plain words. The construction adopted by the court is not thus required. "To make a rate or charge in handling or dealing in or with" merchandise, imports the fixing of compensation for services, rather than the price at which goods are to be sold. It may refer to charges for buying, selling, hauling, handling, storage, or the like.

But the clause in question does not stand alone. It forms a part of a section in which the question of prices is dealt with four times: once in the initial prohibition against destroying any necessaries for the purpose of enhancing the price; a second time in the prohibition of hoarding, defined as including a withholding from market for the purpose of unreasonably increasing or diminishing the price; a third time in the prohibition of a conspiracy to limit the production of necessaries in order to enhance the price; and, finally, in the prohibition of a conspiracy "to exact excessive prices for any necessaries." It seems to me clear, upon the plainest principles of construction, that the change of phrase must be deemed to import a difference of purpose, and that "to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries" must be taken to mean something else than the exaction of an excessive price. It should be observed how closely it is coupled with a cognate offense: "to engage in any discriminatory and unfair, or any deceptive or wasteful practice or device, or to make any unjust or unreasonable rate or charge in handling or dealing in or with any necessaries." Evidently the words "in handling or dealing," etc., qualify "wasteful practice or device," as well as "unjust or unreasonable rate or charge."

That it is not altogether evident what was intended to be included within "unjust or unreasonable rate or charge in handling or dealing in or with any necessaries," may be conceded. So much the more reason for not extending the words by construction so as to make criminal that which is not clearly within their meaning; and for not giving to them a meaning which brings the act into conflict with the Constitution;—and for not expanding the unconstitutional reach of the act, supposing that even without the particular application now made of the quoted words it would be repugnant to the fundamental law.

It is to my mind plain that § 4 was not intended to control the individual dealer with respect to the prices that he might exact, beyond prohibiting him from destroying any necessaries for the purpose of enhancing the price, and from withholding them from the market for a like purpose. So long as he acts alone he is left uncontrolled except by the ordinary processes of competition, his own sense of fairness, and his own interest. A conspiracy with others to exact excessive prices is an entirely different matter, and that is clearly prohibited.

And this bring me to another point: Section 4 naturally divides itself into two parts; the first portion denounces a number of substantive offenses; the second portion denounces a conspiracy to commit any one of a number of offenses, but these do not in terms include any of the offenses specifically prohibited in the earlier portion. This, as it seems to me, is significant. Section 37 of the Criminal Code (Act of March 4, 1909, c. 321, 35 Stat. 1088, 1096 [Comp. St. § 10201]), makes it criminal for two or more persons to conspire to commit any offense against the United States, if one or more of them do any act to effect the object of the conspiracy. Hence it was not necessary for Congress to declare in the Lever Act that a conspiracy to commit any of the offenses defined in the first part of § 4 was punishable criminally. But it proceeded in the latter part to declare that a conspiracy to do any one of certain other acts, should be criminal. It seems to me too plain for argument that, under the circumstances, the inclusion in that part of the section of certain acts as forming the object of a criminal conspiracy amounts to a legislative declaration that, in the absence of conspiracy, those acts are not intended to be punished criminally. One of them is "to exact excessive prices for any necessaries."

Still further: Sections 14 and 25 of the original act (40 Stat. 281, 284 [Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 3115 ⅛ kk, 3115 ⅛ q]) specifically deal with the question of official price-fixing of certain articles of prime necessity—wheat, coal, and coke—and furnish additional evidence that in the framing of this act, when Congress had price-fixing in mind and the regulation of "prices," it employed that simple term, and that it did not refer to prices in the provision of § 4 upon which the indictment in this case rests.

For these reasons, I regard it as unnecessary to pass upon the question whether that provision is in conflict with the Constitution of the United States.

Mr. Justice BRANDEIS concurs in this opinion. 

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