In reaching the above conclusion on the question of legislative intent the Court considered all the materials submitted on the issue and took into account all the references cited by the parties. The portions of the statements by Representative Floyd and Senator Culberson are pointed out to illustrate that the Court cannot interpret the remarks of Representative Floyd urged upon the Court by the Government in support of its position, in its briefs and in its oral argument, as wholly and clearly dispositive of the issues in the manner contended for by the Government. Nor is the Court persuaded otherwise by the memorandum submitted by the Government following the oral argument, setting forth comments by members of Congress made at the time of the discussion of the question as to whether the Clayton Act should be amended to increase the penal provision. The Court is unable to discern any helpful enlightenment on the instant issue from the comments by members of Congress quoted in the memorandum.
In arriving at the conclusion that the Government's exclusive remedy against the individual defendants is Section 14 of the Clayton Act the Court was also guided by a few well settled principles of statutory construction. The first of these is that often the words of a statute are sufficient in themselves to determine the legislative purpose. United States v. American Trucking Ass'n, 1939, 310 U.S. 534, 543, 60 S. Ct. 1059, 84 L. Ed. 1345. In determining the legislative intent, whether the statute be penal or otherwise, 'if the language is clear it is conclusive.' Osaka Shosen Kaisha Line v. United States, 1936, 300 U.S. 98, 101, 57 S. Ct. 356, 358, 81 L. Ed. 532. Section 14 clearly states that it pertains to 'the individual directors, officers * * * of such corporation who shall have authorized, ordered, or done * * * acts constituting in whole or in part' a violation by a corporation of any of the penal provisions of the anti-trust laws. These words, are used by the Government in the indictment. The words of Section 14 appear to the Court to be clear and unambiguous and, as a result, in the Court's opinion, the case at hand comes within the above stated rule.
The only reference Section 3 makes to individuals is that 'every person who shall make any such contract or engage in any such combination or conspiracy' shall be subjected to the punishment set out in the statute. Person, aside from referring to corporations, could include individuals acting in their corporate capacities or individuals acting in their individual capacities or both. However, if the Court were to give the most comprehensive meaning (e.g. hold the word 'person' in Section 3 to apply to individuals acting in their corporate capacities) it would violate another well settled principle of statutory construction; to wit: courts should avoid a construction that would render a statute ineffective and nugatory. Bird v. United States, 1902, 187 U.S. 118, 124, 23 S. Ct. 42, 47 L. Ed. 100. In construing a statute 'if it can be prevented, no clause, sentence, or word shall be superfluous, void or insignificant.' Washington Market Co., v. Hoffman, 1884, 101 U.S. 112, 115, 25 L. Ed. 782. The Court is persuaded that to apply the word 'person' as used in Section 3 to individuals acting in their corporate capacities would have the effect of nullifying Section 14. In this connection it is to be noted that the indictment as to the individual defendants is in the words of Section 14 of the Clayton Act and that nowhere are words of this nature found in Section 3 of the Sherman Act.
The second point raised by the Government in the instant situation which was not presented in National Dairy is that even if the individual defendants can only be indicted under Section 14 the indictment should not be dismissed because the defendants have suffered no prejudice from the absence of any reference to Section 14. This contention will be considered in light of the Court's ruling that the remedies against a corporation and the remedies against a corporate official acting in his corporate capacity are mutually exclusive.
The basis of the Government's second contention is twofold; namely, 1. '* * * a miscitation of the statute under which the indictment properly falls is not grounds for dismissing the indictment in the absence of prejudice to the defendants' rights.' Memorandum in Opposition, pg. 18. 2. The defendants cna sustain no prejudice until they have requested and been refused an instruction under Section 14 which is more favorable to them than the Section 3 instruction proposed by the Government. In the Court's judgment both of the above contentions are without merit.
This is not a mere miscitation of a statute but one involving a one count conspiracy indictment which, the Government contends, is sufficient as to the two groups of defendants in this case, namely the corporations and the corporate officials acting in their representative capacities, who are liable under two mutually exclusive statutes, namely, Section 3 of the Sherman Act and Section 14 of the Clayton Act respectively.
The Court is of the opinion that this contention of the Government involves the application of Fed.R.Crim.P. rule, 8(a), 18 U.S.C.A., and not Rule 7(c) as the Government argues since the indictment would include two offenses in the same count in violation of the rule against such inclusion. Frankfort Distilleries v. United States, 10 Cir., 1944, 144 F.2d 824, reversed on other grounds, 324 U.S. 293, 65 S. Ct. 661, 89 L. Ed. 564. This Court has held that such an indictment is duplicitous and that it becomes subject to a motion to dismiss. United States v. Bachman, D.C.D.C.1958, 164 F.Supp. 898, 900. The Court concludes that to adhere to the Government's contention concerning lack of prejudice with respect to the miscitation of a statute would demand a ruling sustaining a duplicitous indictment in that it would allow the Government in one count to charge the commission of two separate offenses. Since the Court has held that the indictment is duplicitous it is unnecessary to consider the contention that the defendants can sustain no prejudice until they have requested and been refused an instruction under Section 14 which is more favorable than the Section 3 instruction proposed by the Government.
It is the judgment of the Court that the indictment in so far as it relates to the individual defendants should be dismissed on the ground that it does not, as to the individual defendants, state an offense under Section 3 of the Sherman Act.
Counsel for the defendants will submit an appropriate order in conformity with the Court's ruling.
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