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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 ofmoxlmum 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 odvertlsementby ~8dls.tlller.& addition to 8n Il&tra.tion;.of t& product and other descriptivematter the advertisement la captioned “O.‘P.A. Celllm Prices”. Thle Is followedwith 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 ofbottled-In-bond whiskey ond $1.81 for 8 pint of 93 proof whiskey.
You confirm the representationa of factmade In the proposed odvertlsementby 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, issuedAugust 9, 1943 and became effective onAugust 14, 1943. Upon your statement of the matter, 88 above outlined, you desire to be advised whether acceptance and publication of the advertisementwould be violative of the anti-trust or any other laws of the state. Aa we view the mettcr there la 8n incidentaland 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 ControlAct of 1942 is en emergencywar measure. In the lntereet of the’nntlonel defenee and securityand for the purpose of making effective the proeecution of the preaentwar, the President 1s given extraordlnory powere to’st8blllEe prices. These powers arc to terminate on June 30, 1944. ~Tltle:.50,-App. .Sectlon9131,

:UIS. C. A, ~. Section 902 speolficelly authorizes the President, through the PriceAdministrator, by regulation or order, to establish suchmaximum commodity prloee aa in his judgmentwill be fair.ond equitable and 8swlll’~.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, thatw8a in forceduring

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’sorderwa8 questioned In Highlandv. Russell Car & Snw Plow Co;, ‘279U. S. 601; 73 L, Rd. 688.
Yn that case the Supreme Court of theUnited States 68ld; s ‘.Poge 2. 

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'%der the Constitution, and'subject to the s8fegU8rdsthare set for the protection of life, liberty and property . . the congree.9 end the President exert the W8r pwer of the nation, inA they havewide discretion es to themeens to be employed to terry on . ; . .The meosures hore ohallengedere supported by 8 strong presumptionOfVelidity, ond theymay not be set 8Side unlese clearly shown tobe arbitraryend repugnont tp the Constitution * * . .The prlncipelpurpose of the Lever

### ActWee to ennblc the President to provide
. . . '. thingsnecessery to prosecute tha:W8r. As epplied to tho 008Lin question,the statute8nd executive order.3 were not

. ..a .repugnant to the due process clause of the 5thAmendment." We think under the reosonlng of that high authority thera surely 18 et least 3s muchwarrant in 1943 for en executive ordo* fixing themaximum price of 8 pint of bottled-in-bondwhiskey et $2.00 es therewas in 

### 1917for fixing the price of a tO,'l Of 0081 8t 

### $3.00.NW, OS then the appropriateogenoyhevlng acted presumptively in aooordencewith 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 tobooapt and publish the some as such, it is difficult to perceive hw such an actwould contravenethe 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 denouncedby Chapter 

### 3,of Title 

### 19, v. P. C. of Texas, but is fiRed end imposedupon 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 circumstanceswhere It is Innocent or free of 6ny agreements, arrangements or conspiracloswithin the ,: maXimUm range of piices fixed by executive euthority to accomplish any unlowful purpose denouncedby the anti-trust laws of Texas, itmay be donewithout 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 'statementof~.polloy made by theAttorqey 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 conservationprograms of theWar Production Board, ,theOfflce.of Dcfenee Transportation, and .otherFederel agencies,while dealgned solely for the purpose of furthering the conduct of thewer, .Brein direct conflictwith the enti-truet lows of.Texas, inasmuchas they euthorlze egreementswhich will reduce competition In the productlcui,

distribution '9nd'.88le of commodities end servloea. But when such orders end suthorlzed programs ere promulgatedby 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 complyingwith such order8 end 8UthOriz8tirXiS.WC adhere and aubsoribe to.the doctrine that 'thepwer .ofCOIIgre89:ln

the emergency Ofw3r 18 supreme, 8nd 10081 18W8 IqUSt yield when they conflictwith it.'
'But the anti-trust 18WS of thi8 State ore still in PO&e lnsofer 88'they do not conflictwith war emergency measures adoptedby 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 anyway which is prohibitedBy suoh laws, end lenot directly related to the conservation of such cc%!modltles

end servicea. Tho legality of the plan end operation of nny iidUStri8l conservetionprogramwill dgpend uponwhether, 88 deelgned and put into effect, it exists for the sole purpose of complyingwith Federal war emergency reguletlona, or in fact includesunreesonablereatroints upon trade not related to the conservationprogem. Pertlculor core shouldbe exercised to see that euch 8 program does not operate towork a practical exclusion 0r 8I-goompetitor 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