327 U.S.

614
66 S.Ct. 705
90 L.Ed. 894

M. KRAUS & BROS., Inc.,

v.
UNITED STATES.
No. 198.
Argued Dec. 14, 1945.
Decided March 25, 1946.

[Syllabus from pages 614-616 intentionally omitted]

Mr.Thomas Turner Cooke, of New York City (I. Jonas Speciner and
Frank W. Ford, both of New York City, on the brief), for petitioner.
Mr. W. Marvin, Smith, of Washington, D.C., for respondent.
Mr. Justice MURPHY announced the conclusion and judgment of the
Court.

The problem here is whether the petitioner corporation was properly convicted
of a crime under the Emergency Price Control Act of 1942.1

The petitioner is engaged in the wholesale meat and poultry business in New
York City. Poultry is a commodity subject to the provisions of Revised
Maximum Price Regulation No. 269,2 promulgated by the Price Administrator
pursuant to Section 2(a) of the Emergency Price Control Act of 1942. Two
informations, each containing six counts, were filed against petitioner. Each
count alleged that, as an integral part of a specified sale of poultry on a day
during the Thanksgiving season in November, 1943, the petitioner 'unlawfully,
wilfully and knowingly evaded the provisions of said Revised Maximum Price
Regulation No. 269, Sec. 1429.5, by demanding, compelling and requiring' the
retail buyer to purchase chicken feet or chicken skin at a specified price as a
condition of the sale of the poultry. Petitioner's president was named as a codefendant in the first information and the two informations were consolidated
for trial purposes.

The theory of the Government is that the petitioner was guilty of an evasion of
the price limitations set forth in this particular regulation if it required the
purchase of chicken feet and skin as a necessary condition to obtaining the
primary commodity, the poultry. This practice is commonly known as a
'combination sale' or a 'tying agreement.' It is argued that the petitioner thereby
received for the poultry the ceiling price plus the price of the secondary
commodities, the chicken parts.

The evidence was undisputed that the poultry was billed by petitioner at ceiling
prices fixed by the Price Administrator and that no ceiling prices had been set
for chicken feet or chicken skin. It was also undisputed that the demand for
poultry during the Thanksgiving season far exceeded the supply and that
petitioner voluntarily imposed a rationing system among its customers.

The Government's case rested primarily upon the testimony of seven retail
butchers who had purchased poultry and poultry parts from petitioner during
the period in question. Only one of them testified explicitly that the sale of
poultry to him had been conditioned upon the sale of poultry parts which he did
not want and for which there was no consumer demand. His testimony,
however, was disbelieved by the jury since it acquitted the petitioner on the
two counts involving sales to him. With two exceptions, the other butchers
testified either that the feet and skins were loaded on their trucks without
previous order or solicitation along with the poultry or that they were billed for
both the poultry and the parts without comment. Five of them stated that they
sold a small amount of the chicken parts and gave away the balance; one
remarked that he could not sell any parts and was forced to dump them. There
was no explicit evidenc that any of the butchers protested, sought to return the
chicken parts or asked to buy the poultry separately. It was reasonable,
however, for the jury to find that the sale of poultry was conditioned upon the
simultaneous sale of the chicken parts and no contrary claim is made before us.

Several times the petitioner tried to introduce testimony establishing that there
was a demand for chicken parts and that they were of value. Petitioner's
counsel stated that 'The government has inferred through all of its testimony
that chicken skin and chicken feet are so much waste, that they are dumped;
that they are not used and they have opened up the door to this type of
testimony.' But the trial judge ruled that the Government had not put that matter
in issue and that the 'only thing we are concerned with is whether or not the
witnesses who testified purchased chicken feet to meet a demand in their
stores.' He accordingly refused to admit the proferred testimony from
petitioner's witnesses, stating to petitioner's counsel that 'I direct you not to put
them on the stand.'

On cross examination, however, petitioner's president was questioned as to the

resale value of chicken skins from the retailer to the general public. He stated
that the value was from 25 to 30 cents a pound and that the skin was used to
make chicken fat. He also testified that chicken feet had a resale value of from
12 to 16 cents a pound and were used in making soup and gelatin. He further
stated that the demand for chicken feet came from retail butchers such as had
been on the stand. Petitioner's counsel then recalled one of the retail butchers
whose testimony previously had been excluded by the court. He testified that
he had bought chicken feet from the petitioner, had 'created a demand' for them
in his store, and had sold them for from 15 to 20 cents a pound. No further
witnesses were called in regard to the retail value of chicken feet and skins.

In submitting the case to the jury, the judge stated that 'what these defendants
are charged with having done is imposing as a necessary condition to the
purchase of turkeys the simultaneous purchase of gizzards, chicken feet or
chicken skin, that were utterly useless and valueless to the purchasers. In order
to violate the law these defendants must have made more than the fixed price of
37 1/2 cents on the chickens, or the turkey price of 40 to 45 cents. And the
testimony about the use of these additional articles sold, the use that can be
made of them, will enable you to determine that they were sold at pricesand
the prices are on all these slips that are in evidenceentirely out of line with
any value that attaches to them, so that it is almost entirely profit to these
defendants, and in doing that, by making the purchase of these things at the
prices fixed, the defendants both realized a greater consideration than the
Office of Price Administration allows for the commodity sold.' He also told the
jury that the 'one question in the case is whether the sale of the chicken skin
and feet was a necessary condition to the purchase of the other (poultry).'

The jury acquitted petitioner's president but convicted the petitioner on nine
counts. Petitioner was fined $2,500 on each count, a total of $22,500. The
conviction was affirmed by the court below, one judge dissenting because of
the exclusion of petitioner's proffered testimony. 2 Cir., 149 F.2d 773. In our
opinion, however, the conviction must be set aside.

10

Secton 205(b) of the Emergency Price Control Act of 1942 imposes criminal
sanctions on 'Any person who willfully violates any provision of section 4 of
this Act.' Section 4(a) of the Act in turn provides that 'It shall be unlawful * * *
for any person to sell or deliver any commodity, * * * in violation of any
regulation or order under section 2 * * *.' Section 2(a) authorizes the Price
Administrator under prescribed conditions to establish by regulation or order
such maximum prices 'as in his judgment will be generally fair and equitable
and wil effectuate the purposes of this Act.' Section 2(g) further states that

'Regulations, orders, and requirements under this Act may contain such
provisions as the Administrator deems necessary to prevent the circumvention
or evasion thereof.'
11

The Price Administrator, pursuant to Section 2(a), issued Revised Maximum

Price Regulation No. 269 on December 18, 1942,3 which regulation was in
effect at the time the poultry sales in question were made. Section 1429.5 of
this regulation, referred to in the informations, stems from Section 2(g) of the
Act. It is entitled 'Evasion' and reads as follows: 'Price limitations set forth in
this Revised Maximum Price Regulation No. 269 shall not be evaded whether
by direct or indirect methods, in connection with any offer, solicitation,
agreement, sale, delivery, purchase or receipt of, or relating to, the commodities
prices of which are herein regulated, alone or in conjunction with any other
commodity, or by way of commission, service, transportation, or other charge,
or discount, premium, or other privilege or other trade understanding or
otherwise.'

12

The manifest purpose of Congress in enacting this statute was to preserve and
protect the economic balance of the nation during a period of grave emergency,
thereby achieving the prevention of inflation and its consequences enumerated
in Section 1. Yakus v. United States, 321 U.S. 414, 423, 64 S.Ct. 660, 666, 88
L.Ed. 834. That aim was implemented by criminal sanctions to be imposed on
those who deliberately choose to ignore the national welfare in this respect by
selling commodities at prices above established levels. As appears from a
combined reading of Sections 205(b), 4(a) and 2(a), criminal liability attaches
to any one who willfully sells commodities in violation of a regulation or order
of the Price Administrator establishing maximum prices.4 Cf. United States v.
Eaton, 144 U.S. 677, 12 S.Ct. 764, 36 L.Ed. 591. Recognizing that sales at
above-ceiling prices may be accomplished by devious as well as by direct
means, Congress in Section 2(g) authorized the Administrator to make
provisions against circumvention and evasion of maximum prices. Hence one
who willfully sells commodities at prices above the maximum in an evasive
manner specified by the Administrator subjects oneself to criminal liability.
These statutory warnings are clear and unambiguous. When incorporated with
such definite and clear regulations and orders as the Administrator may
promulgate, the provisions of the Act leave no doubt as to the conduct that will
render one liable to criminal penalties.

13

This delegation to the Price Administrator of the power to provide in detail

against circumvention and evasion, as to which Congress has imposed criminal
sanctions, creates a grave responsibility. In a very literal sense the liberties and
fortunes of others may depend upon his definitions and specifications regarding

evasion. Hence to these provisions must be applied the same strict rule of
construction that is applied to statutes defining criminal action. In other words,
the Administrator's provisions must be explicit and unambiguous in order to
sustain a criminal prosecution; they must adequately inform those who are
subject to their terms what conduct will be considered evasive so as to bring the
criminal penalties of the Act into operation. See United States v. Wiltberger, 5
Wheat. 76, 94-96, 5 L.Ed. 37. The dividing line between unlawful evasion and
lawful action cannot be left to conjecture. The elements of evasive conduct
should be so clearly expressed by the Administrator that the ordinary person
can know in advance how to avoid an unlawful course of action.
14

In applying this strict rule of construction of the provisions adopted by the

Administrator, courts must take care not to construe so strictly as to defeat the
obvious intention of the Administrator. Words used by him to describe evasive
action are to be given their natural and plain meaning, supplemented by
contemporaneous or longstanding interpretations publicly made by the
Administrator. But patent omissions and uncertainties cannot be disregarded
when dealing with a criminal prosecution. A prosecutor in framing an
indictment, a court in interpreting the Administrator's regulations or a jury in
judging guilt cannot supply that which the Administrator failed to do by
express word or fair implication. Not even the Administrator's interpretations of
his own regulations can cure an omission or add certainty and definiteness to
otherwise vague language. The prohibited conduct must, for criminal purposes,
be set forth with clarity in the regulations and orders which he is authorized by
Congress to promulgate under the Act. Congress has warned the public to look
to that source alone to discover what conduct is evasive and hence likely to
create criminal liability. United States v. Resnick, 299 U.S. 207, 57 S.Ct. 126,
81 L.Ed. 127.

15

In light of these principles we are unable to sustain this conviction of the

petitioner based upon Section 1429.5 of Revised Maximum Price Regulation
No. 269. For purposes of this case we must assume that the Administrator
legally could include tying agreements and combination sales involving the
sale of valuable secondary commodities at their market value among the
prohibited evasion devices. Any problem as to his power so to provide would
have to be raised initially in a proceeding before the Emergency Court of
Appeals. Lockerty v. Phillips, 319 U.S. 182, 63 S.Ct. 1019, 87 L.Ed. 1339;
Yakus v. United States, 321 U.S. 414, 427-431, 64 S.Ct. 660, 668-670, 88
L.Ed. 834; Bowles v. Seminole Rock & Sand Co., 325 U.S. 410, 418-419, 65
S.Ct. 1215, 1219; Case v. Bowles, 327 U.S. 92, 98, 66 S.Ct. 438, 441. The only
issue bearing upon the regulation which is open in this criminal proceeding is
whether the Administrator did in fact clearly and unmistakably prohibit tying

agreements of this nature by virtue of the language he used in Section 1429.5.

That issue we answer in the negative.5
16

Section 1429.5, so far as here pertinent, provides that price limitations shall not
be evaded by any method, direct or indirect, whether in connection with any
offer or sale of a price-regulated commodity alone 'or in conjunction with any
other commodity,' or by way of any trade understanding 'or otherwise.' No
specific mention is made of tying agreements or combination sales.

17

It is urged by the Government that this language fits the type of tying
agreement allegedly used by petitioner. The contention is that petitioner
received for the primary commodity not only the ceiling price but also the price
of the secondary commodities which the retailers were required to buy.
Conversely the retailers were compelled to pay not only the ceiling price but
also the price of the secondary commodities in order to secure the primary
commodity, the poultry. Under this theory it is immaterial whether the
secondary products, the chicken parts, had any value to the retailers or whether
their price was a reasonable one. Reference is made in this respect to Section
302(b) of the Act, defining price as 'the consideration demanded or received in
connection with the sale of a commodity.' Hence it is concluded that the price
limitation on the primary commodity was evaded 'in conjunction with any other
commodity' within the meaning of Section 1429.5. This argument, moreover,
represents the consistent interpretation of the Administrator.6

18

But we do not believe that, under the strict rule of construction previously
discussed, such an interpretation of Section 1429.5 is dictated by its plain
language. It prohibits evasions through sales of price-regulated commodities 'in
conjunction with any other commodity.' That clearly and undeniably prohibits
evasions through the use of tying agreements where the tied-in commodity is
worthless or is sold at an artificial price, thereby hiding an above-ceiling price
for the primary commodity. But to say that the language covers more, that it
also applies to a case where the secondary product has value and is sold at its
ceiling or market price, is to introduce an element of conjecture and to give
effect to an unstated judgment of policy.

19

The language of Section 1429.5 is appropriate to and consistent with a desire on

the Administrator's part to prohibit only those tying agreements involving tiedin commodities that are worthless or that are sold at artificial prices. The
Administrator may have thought that other tied-in sales did not constitute a
sufficient threat to the price economy of the nation to warrant their outlawry, or
that they were such an established trade custom that they should be recognized.
But we are told that he had no such thought, that prohibition of all tying

agreements is essential to prevent profiteering, and that this blanket prohibition

is the only policy consistent with the purposes of the Act. All of this may well
be true. But these are administrative judgments with which the courts have no
concern in a criminal proceeding. We must look solely to the language actually
used in Section 1429.5. And when we do we are unable to say that the
Administrator has made his position in this respect self-evident from the
language used.
20

The Administrator's failure to express adequate y his intentions in Section

1429.5 is emphasized by the complete and unmistakable language he has used
in other price regulations to prohibit all tying agreements, including those
involving the sale of valuable secondary products. Thus he has inserted in the
meat regulation a provision prohibiting evasion of price limitations by 'offering,
selling or delivering beef, veal or any processed product on condition that the
purchaser is required to purchase some other commodity.' Section 1364.406,
Revised Maximum Price Regulation No. 169, as amended March 30, 1943, 8
Fed.Reg. 4099. And in the clothing regulation, the Administrator has provided
that 'No manufacturer shall make a sale of garments which is conditioned
directly or indirectly on the purchase of any other commodity or service.'
Section 15, Revised Maximum Price Regulation No. 287, issued June 29, 1943,
8 Fed.Reg. 9126. See also Section 1389.555, Maximum Price Regulation No.
330, as amended August 7, 1943, 8 Fed.Reg. 11041.

21

The very definiteness with which tying agreements of all types were prohibited
in regard to many other commodities and the absence of any such prohibition in
Section 1429.5 of Revised Maximum Price Regulation No. 269 might well
have led a reasonable man to believe that tying agreements involving the sale of
a valuable secondary commodity at its market price were permissible in the
poultry business when the transactions in question took place. Certainly the
language used by the Administrator did not compel the opposite conclusion.
And certainly a criminal conviction ought not to rest upon an interpretation
reached by the use of policy judgments rather than by the inexorable command
of relevant language.

22

In view of these considerations we interpret Section 1429.5 as prohibiting only

those tying agreements involving secondary products that are worthless or that
are sold at artificial prices. It follows that the conviction below cannot stand.
While the informations can be interpreted as charging a crime under Section
1429.5 as we have read it, the trial judge's charge to the jury was clearly
erroneous. There was evidence, at first excluded but later admitted, that the
chicken parts which the petitioner sold did have value and were sold at their
market price. If the jury believed such evidence it was entitled to acquit the

petitioner. But the trial judge charged that the 'one' question in the case was
whether the sale of the chicken parts was a necessary condition to the purchase
of the poultry. On the basis of that charge the jury may well have disregarded
as irrelevant the evidence of value as to the secondary products and convicted
solely on the ground that there was a tie-in sale. Such a charge is thus reversible
error.
23

There were additional statements in the charge to the jury, to be sure, that the
petitioner was charged with having compelled, in connection with the purchase
of poultry, the simultaneous purchase of chicken parts 'That were utterly useless
and valueless to the purchasers' and at prices 'entirely out of line with any value
that attaches to them.' While such statements tended to charge a violation of
Section 1429.5, as properly interpreted, they were so intertwined with the
incorrect charge as to negative their effect. 'A conviction ought not to rest upon
an equivocal direction to the jury on a basic issue.' Bollenbach v. United States,
326 U.S. 607, 66 S.Ct. 402, 405.

24

The case must therefore be remanded for a new trial, allowing full opportunity
for the introduction of evidence as to the value of the chicken parts and
charging the jury in accordance with the proper interpretation of Section
1429.5.

25

It is so ordered.

26

Reversed and remanded for a new trial.

27

Mr. Justice JACKSON took no part in the consideration or decision of this

case.

28

Mr. Justice DOUGLAS, concurring.

29

If a retailer sold meat or any other commodity to a consumer only on condition

that he purchase and pay for a wholly worthless article, it would be clear that
price ceilings ad been violated. For the attribution of value to the worthless
article would be nothing more than an evasive method of increasing the ceiling
price on the other commodity. I can see no difference where the additional
commodity, although it has value, has no value to the purchaser.

30

But this case is different in both respects or so the jury might find. First,
chicken gizzards, chicken skin, or chicken feet are not wholly worthless

articles. There is demand for them and they have a value. Second, they were
tied-in with sales to retailers who constitute the market for chicken gizzards,
chicken skin, and chicken feet. If in fact that had no value on that market
evasion of price ceilings would be established. But since they apparently had
some value on the retail market, no violation of price ceilings occurred unless
the price charged for them in fact exceeded that market value. That might be
shown either by proof of the fact that the market value was lower or by
showing that the quantity forced on the retailers was in excess of the quantity
which the market could absorb.
31

The case should be remanded for a new trial on that basis. For the trial court
ruled that the additional articles sold were valueless and that the 'one question
in the case is whether the sale of the chicken skin and feet was a necessary
condition to the purchase of the other.' That ruling took from the jury the basic
issue in the case.

32

I think there was evidence that these chicken gizzards, chicken skin, and
chicken feet were valueless to some of the retailers and that a conviction would
be warranted. But it is not enough that we conclude on the whole record that a
defendant is guilty. Bollenbach v. United States, 326 U.S. 607, 66 S.Ct. 402.
The jury under our constitutional system is the tribunal selected for the
ascertainment of guilt.

33

Mr. Justice RUTLEDGE, concurring.

34

I am in agreement with the result and substantially so with Mr. Justice

MURPHY'S opinion. I do not think that administrative regulations, given by
statute the function of defining the substance of criminal conduct, should have
broader or more inclusive construction than statutes performing the same
function. If the regulations involved here had been enacted specifically by
Congress in statutory form, I do not think they could properly be construed to
forbid tie-in sales of these commodities per se.

35

As the opinion points out, the regulations, with reference to other commodities,
expressly prohibited tie-in sales, regardless of whether the tied-in commodity
had value. Persons dealing in those commodities were specifically informed by
the regulations, therefore, that such sales would be in violation of the Act.
There was no such specific prohibition applicable at the time of the sales in
question to sales of poultry. However the general prohibition against evasion
contained in 1429.5 of Revised Maximum Price Regulation No. 269 might be
interpreted, if there had been no regulations specifically forbidding tie-in sales

of other commodities, in view of their existence and the absence of any similar
provision relating to poultry, I do not think it permissible to construe 1429.5
as covering the same ground. Persons reading the regulations to determine what
conduct had been forbidden were entitled in my opinion to conclude that the
Administrator, whenever he thought tie-in sales were per se evasive or in
violation of the Act's policy, had expressly so stated and conversely that where
he had not expressly forbidden the practice, it was not to be understood as
prohibited by general language applicable to many other types of situation but
not specifically to this one. This view, I think, would be required if the
regulations had bee enacted in statutory form. As regulations they cannot be
given broader content.
36

Accordingly I agree with the conclusion that tie-in sales were not forbidden at
the time of these sales, as to poultry. I also agree that the trial court, both in its
instructions and in some of its rulings upon the admissibility of evidence, went
on a conception of the law inconsistent with this view. I therefore concur in the
Court's disposition of the cause.

37

Mr. Justice FRANKFURTER, although agreeing with the opinion of Mr.

Justice MURPHY, also joins in this opinion.

38

Mr. Justice BLACK, dissenting.

39

We were at war in 1943. Scarcity of food had become an acute problem

throughout the nation. To keep the public from being gouged the government
had set ceiling prices on food items. Congress had made it a crime to sell food
above these ceiling prices. When Thanksgiving Day approached there were not
enough turkeys to supply the demand of the many American families who
wanted to celebrate in the customary style.

40

The information filed in the district court charged that the petitioner
'unlawfully, wilfully and knowingly evaded the provisions of * * *' Revised
Maximum Price Regulation No. 269, 1429.5, by compelling and requiring the
buyer to purchase chicken feet, chicken skin, or gizzards at a specified price, as
a condition of the sale of poultry to them. During peace times the petitioner had
ordinarily done a gross business of seven-and-a-half million dollars a year. In
1943, presumably due to the meat shortage incident to the war, the petitioner's
gross business was not quite four million dollars. This meat shortage was felt
acutely during the Thanksgiving season, when petitioner instead of his usual
100 to 150 cars of turkeys received only one car. When the retail butchers and
poultry market proprietors came clamoring for their share of the small supply

(which the defendant rationed among them) they found that along with the
turkeys which they wanted so badly petitioner gave and charged them for large
amounts of chicken feet, skins and gizzards which they had not asked for at all
and which for the most part they had never before sold as separate items. While
the butchers paid in addition to the ceiling price charged for the turkeys the
price charged for the chicken skins and feet, they did so only because they
understood that unless they bought these unwanted items they could get no
turkeys. Only one of the butchers sold all the chicken skins to his customers.
He explained that he operated his store in a poor neighborhood where the food
shortage had become so acute that people were willing to buy anything they
could get. As to the rest of the butchers, some simply dumped the chicken
skins and feet while others, after diligent efforts, sold a few pounds and then
gave the rest away either to their customers, or to charitable institutions.
Certainly these particular butchers forced to buy these unwanted items for the
first time were not the regular retail outlet for disjointed chicken feet and peeled
chicken skins, if there ever was such an outlet on a voluntary basis. It is clear
therefore that as a result of petitioner's forcing his customers to buy the feet and
skins along with the turkeys, the retailers' cost price of the turkeys was in effect
increased beyond the ceiling.
41

In my opinion petitioner's practice in forcing the butchers to buy unwanted

chicken feet in order to get wanted turkeys amounted to a direct violation of the
Price Control Act. It certainly was no less a violation of the Administrator's
regulation against evasion. In promulgating this regulation the Administrator
could not possibly foresee every ingenious scheme or artifice the business mind
might contrive to shroud violations of the Price Control Act. The regulation
does not specifically describe all manner of evasive device. The term 'tying
agreement' nowhere appears in it and a discussion of such agreements is
irrelevant. We need not decide whether what petitioner did would have violated
every possible hypothetical regulation the Administrator might have
promulgated. The regulation here involved prohibits every evasion of the Price
Control Act. It thus condemns all actions that are 'on the wrong side of the line
indicated by the policy if not by the mere letter of the law.' Bullen v.
Wisconsin, 240 U.S. 625, 631, 36 S.Ct. 473, 474, 60 L.Ed. 830. What petitioner
did here is on the wrong side of both letter and policy. The Court does not deny
that there was ample evidence to support the jury's finding that petitioner did
what the information charged in with doing. In my opinion that was a crime.

42

Had butchers been required to buy bags of stones as a condition to buying

turkeys, I think it would have been hard to persuade them, or anybody else, that
the seller who forced them to do so was not guilty of violating and evading the
law. Had people who wanted and needed bacon, at the time when bacon was

almost impossible to purchase, been required to buy dog hoofs and hog skins
with each purchase of a pound of bacon, I think the sellers would have violated
the law. If the wholesaler can require the retailer to purchase unwanted items
the retailer can force the ordinary consumer to do the same thing. A restaurant
could then force its customers to purchase used kitchen fats along with their
meals. It would be little consolation to a customer forced to do so to learn that
soap factories can use these fats and would be willing to purchase them. He
would pay the price, and either dump the fat into the nearest ashcan or tell the
waiter to take the smelly substance away. The result would be increased cost of
meals in that restaurant. Thinly disguised subterfuges like the one here adopted
should not be sanctioned by courts. Once they are sanctioned, laws enacted by
Congress for the public welfare are no longer respected.
43

When food is scarce and people are hungry it is a violation, both of the letter
and spirit of the Price Control laws, to require consumers or retail stores where
they make their purchases, to buy things that they neither need nor want as a
condition to obtaining articles which they must have. I dissent from the Court's
disposition of this case.

44

Mr. Justice REED and Mr. Justice BURTON join in this opinion.

56 Stat. 23, 50 U.S.C.App. 901 et seq., 50 U.S.C.A.Appendix, 901 et seq.

7 Fed.Reg. 10708; reissued with amendments, 8 Fed.Reg. 13813.

Reissued with amendments on October 8, 1943. See note 2.

Section 205(b) is somewhat inartistically drawn. It does not specifically impose

criminal liability on those who violate the regulations and orders of the
Administrator. But the hurdle of United States v. Eaton, 144 U.S. 677, 12 S.Ct.
764, 36 L.Ed. 591, is cleared by the reference in Section 205(b) to Section 4,
which makes it unlawful, among other things, to sell or deliver and commodity
in violation of any regulation or order. See In re Kollock, 165 U.S. 526, 17
S.Ct. 444, 41 L.Ed. 813; United States v. Grimaud, 220 U.S. 506, 31 S.Ct. 480,
55 L.Ed. 563; United States v. George, 228 U.S. 14, 33 S.Ct. 412, 57 L.Ed.
712; Singer v. United States, 323 U.S. 338, 65 S.Ct. 282. Congress has
subsequently emphasized this reference even more clearly when, in adding
Section 204(e)(1) to the Emergency Price Control Act, it spoke of a criminal
proceeding 'brought pursuant to section 205 involving alleged violation of any
provision of any regulation or order issued under section 2.' Section 107(b),
Stabilization Extension Act of 1944, 58 Stat. 639. See also Section 6, Act of

June 30, 1945, Public Law 108, amending Section 204(e)(1) of the Emergency
Price Control Act.
5

Cf. United States v. George F. Fish, Inc., 2 Cir., 154 F.2d 798.

The Price Administrator has consistently maintained the position that

compulsion to purchase a secondary product is an evasion of the maximum
prices fixed for the primary product. Thus, in an interpretation issued
November 5, 1943, applicable to all maximum price regulations, the
Administrator, in discussing violations and evasions, made the following
interpretation as to tying agreements:
'(a) As to freeze regulations: A purchaser may not be required to buy a
combination of commodities if he was not required to do so during the base
period, because such an arrangement is a tying agreement which results in the
seller receiving a larger consideration for his commodity than he charged
during the base period.
'(b) As to regulations other thna base period freeze regulations: OPA has also
consistently held that any arrangement by which a seller conditions the sale of a
commodity in any manner upon the purchase by the buyer of any other
commodity is a tying agreement, and constitutes a violation.
'For example, it is a violation for a seller to compel a purchaser of a load of
corn to also purchase a load of alfalfa, even though the total price for the corn,
plus the alfalfa, does not exceed the aggregate of the ceiling price for each item,
or another example: It is a violation for a seller to compel a purchaser of nylon
hose to also purchase a war bond.'
O.P.A.Service (Pike & Fischer) vol. I, p. 2:812.