l 

0 

OFFICE OF TIIE Al’TCRNEY 0-L OF TEXAS 

Honorable Renton Coopwood 

Metriot Attorney 

Travis County 

Austin, Term 

Ds8r Sir: Oplnim No. O-5611 '. 

Re: Whether publlaotlon of moxlmum 

commodity prices fixed by Office 

of Price Admlnlstraticn 18 vlolatlve of anti-trust laws and 

related queetlons.’ 

A newspaper publisher In n wet area of Trapie County h8.e been tendored 8 whiskey 

odvertlsement by ~8 dls.tlller. & addition to 8n Il&tra.tion;.of t& product and 

other descriptive matter the advertisement la captioned “O.‘P. A. Celllm Prices”. 

Thle Is followed with the representation in effect that under Regulation M. 

#445, the celling prices fixed by the Office of Prloe’Admlnlstretion on this 

P. R. 

product are amow others, $2.00 for n pint of bottled-In-bond whiskey ond $1.81 

for 8 pint of 93 proof whiskey. 

You confirm the representationa of fact made In the proposed odvertlsement by 

stating thnt the maximum prloea 80 ‘Included were in fact determined by the Office 

of Price Administration pursuant to the terma’of its Maximum Price Regulation 

No. 455, issued August 9, 1943 and became effective on August 14, 1943. 

Upon your statement of the matter, 88 above outlined, you desire to be advised 

whether acceptance and publication of the advertisement would be violative of the 

anti-trust or any other laws of the state. 

Aa we view the mettcr there la 8n incidental and an ultimate queetlon of low 

involved In deciding the answer to your inquiry. 

the power of Congress, 

The lncldentol question concerns 

under the circumstances,’ to fix the maximum prices of 

commodltlea In this state. The Emergency Price Control Act of 1942 is en 

emergency war measure. In the lntereet of the’nntlonel defenee and security and 

for the purpose of making effective the proeecution of the preaent war, the 

President 1s given extraordlnory powere to’st8blllEe prices. These powers arc to 

terminate on June 30, 1944. ~Tltle:.50,-App. .Sectlon 9131, :UI S. C. A, ~. 

Section 902 speolficelly authorizes the President, through the Price Administrator, 

by regulation or order, to establish such maximum commodity prloee aa in his 

judgment will be fair.ond equitable and 8s wlll’~.effectuate the high purposes of the 

act. There Ie ample authority under the Federol Constitution for the exertion 

by the Congress and the President of such of the nation’8 war pwera ae fixing 

ocmmodlty prices. 

The C-e88 pasaed 8 almllor law, 

World War I. 

known es the Lever Act, that w8a in force during 

It empowered the Prealdent, ‘tie does,‘the present law, to fix oonvnodlty 

prices. Under it8 terma the President fixed the price of $3.00 per ton for 0081 

at the minee. The validity of the President’s order wa8 questioned In Highland v. 

Russell Car & Snw Plow Co;, ‘279 U. S. 601; 73 L, Rd. 688. 

Yn that case the Supreme Court of the United States 68ld; s 

‘. 
Poge 2. 

, 

9 . . . 

'%der the Constitution, and'subject to the s8fegU8rds thare set for the 

protection of life, liberty and property . . the congree.9 end the 

President exert the W8r pwer of the nation, inA they have wide discretion 

es to the meens to be employed to terry on . ; . . The meosures hore 

ohallenged ere supported by 8 strong presumption Of Velidity, ond they may 

not be set 8Side unlese clearly shown to be arbitrary end repugnont tp 

the Constitution * * . . The prlncipel purpose of the Lever Act Wee to ennblc 

the President to provide . . . '. things necessery to prosecute tha:W8r. 

As epplied to tho 008Lin question, the statute 8nd executive order.3 were not 

. ..a . repugnant to the due process clause of the 5th Amendment." 

We think under the reosonlng of that high authority thera surely 18 et least 3s 

much warrant in 1943 for en executive ordo* fixing the maximum price of 8 pint of 

bottled-in-bond whiskey et $2.00 es there was in 1917 for fixing the price of a 

tO,'l Of 0081 8t $3.00. NW, OS then the appropriate ogenoy hevlng acted 

presumptively in aooordence with the act of Congross, it8 order $8 the eupremc 

1~ of the land' on thls.~8ubject. 

Since, under your statement of the cese, the price' in question 18 fixed by law 

and it 18 proposed by:the affected porties to booapt and publish the some as such, 

it is difficult to perceive hw such an act would contravene the laws of Texos 

prohibiting truats and consplroolee against trade. The price here i8 fixed, not 

by any agreement or understondlng between those engaged In the liquor bUSine88 

or between them end the publisher es Is denounced by Chapter 3, of Title 19, 

v. P. C. of Texas, but is fiRed end imposed upon them by the President of the 

United States,pursuant to the act of the Congress. And so long 3s such on 

advertisement is prepored, accepted and published under circumstances where It is 

Innocent or free of 6ny agreements, arrangements or conspiraclos within the ,: 

maXimUm range of piices fixed by executive euthority to accomplish any unlowful purpose denounced by the anti-trust laws of Texas, it may be done without tho 

parties being subject to criminal prosecution upon that ground. 

.WhlLb the acts you describe do not suggest 3 violation of law, we think it 

eppropriate to quote from 8 'statement of~.polloy made by the Attorqey Generel of 

Texas on May 28, 1942, upon.the subject of the relation of Federal war meeeurea 

>o.the Texas enti-trust lewe..~Among ot,her.t,hlngs he declared: 

%ny of the recent orders end authorized conservation programs of the War 

Production Board, ,the Offlce.of Dcfenee Transportation, and .other Federel 

agencies, while dealgned solely for the purpose of furthering the conduct 

of the wer, .Bre in direct conflict with the enti-truet lows of.Texas, 

inasmuch as they euthorlze egreements which will reduce competition In the 

productlcui, distribution '9nd'.88le of commodities end servloea. But when such 

orders end suthorlzed programs ere promulgated by virtue of executive order 

Of the Fres&dent,.issued under authorlzstlon of Federal lew In view of the 

war emergency, this Department will not lnterf.ere with 1eg~tlmat.e egreements 

made end used for the Bole purpose of complying with such order8 end 

8UthOriz8tirXiS. WC adhere and aubsoribe to.the doctrine that 'the pwer 

.of COIIgre89:ln the emergency Of w3r 18 supreme, 8nd 10081 18W8 IqUSt yield 

when they conflict with it.' 

'But the anti-trust 18WS of thi8 State ore still in PO&e lnsofer 88' they 

do not conflict with war emergency measures adopted by tho Federal 

4 

Government. And qo group of persona is authorized to use the coneervetion 

of tires, tr3nsport8tlon, or any other essential 6ommodlty or eervice, 88 8 

Cloak for 8 conspirecy to reetrain competition in any way which is prohibited 
By suoh laws, end le not directly related to the conservation of such 

cc%!modltles end servicea. Tho legality of the plan end operation of nny 

iidUStri8l conservetion program will dgpend upon whether, 88 deelgned and 

put into effect, it exists for the sole purpose of complying with Federal 

war emergency reguletlona, or in fact includes unreesonable reatroints upon 

trade not related to the conservation progem. Pertlculor core should be 

exercised to see that euch 8 program does not operate to work a practical 

exclusion 0r 8I-g oompetitor tiom 8coess to the market, nor place unnccessory 

reStriotions on eelee efforts, nor del1berst.Q: handlcop one consumer or 

group of consumers for the benefit of another.” 

Yours very truly 

.I 

ATTORNEY GFNERAL OF TEXAS ’ 

By (Signed) 

Elbert Hooper 

Assistant 

EH:FO 

EH:pm 

APPROVED SEPTEMBER 21, 1943 

GERALD C. MhNN 

ATTORNEY GENERAL OF TFXAS 

APPROVED 

Opinion 

Cormalttee 

By BJB 

Cheirmnn