                          OFFICE OF TIIEAl’TCRNEY0-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 vlola-
                                                    tlve of anti-trust laws and
                                                    related queetlons.’

    A newspaper publisher In n wet area of Trapie County h8.ebeen 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. P. R.
    #445, the celling prices fixed by the Office of Prloe’Admlnlstretion on this
    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 ‘Includedwere in fact determined by the Office
    of Price Administration pursuant to the terma’of its Maximum Price Regulation
l   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 lncldentol question concerns
    the power of Congress, 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, known es the Lever Act, that w8a in force during
    World War I. It empowered the Prealdent, ‘tiedoes,‘thepresent 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.
0   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.9end 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.3were 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
    Of 0081 8t $3.00. NW, OS then the appropriate ogenoy hevlng acted
tO,'l
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 unlow-
ful 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~.polloymade 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,hlngshe declared:

       %ny    of the recent orders end authorized conservation programs of the War
       Production Board, ,theOfflce.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'.88leof 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.erewith 1eg~tlmat.eegreements
       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:lnthe 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        4
       do not conflict with war emergency measures adopted by tho Federal
       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%!modltlesend 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-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
