which seeks to invade it will soon discover the error in the disaster which follows. The slight gain to the consumer, * * * is as nothing compared with his share in the ruin which would be brought about by denying to private property its just reward, thus unsettling values. * * * If hereafter it shall appear, under the actual operation of the ordinance, that the returns allowed by it operate as a confiscation of property, nothing in this judgment will prevent another application to the Courts."
After this statement of principles enunciated in a case where the Government started with the presumption in its favor, how could the decision in the Harvester case[1] have been otherwise, under the much more difficult conditions of estimating in the case of commodities, and in relation to a criminal statute, whether a price is in excess of "real value," or not, especially where there were no sales, or possibilities of real tests. And the Government labors under the burden of proof,—the duty to establish its case not by a mere guess, but also beyond all reasonable possibility of doubt. But the merchants under the Lever Act have thrust upon them, as will be seen hereafter, a far more delicate and dangerous function than ever before was imposed under any statutory or other enactment.
In the Wilcox case,[2] Mr. Justice Peckham says: "All these matters make questions of value somewhat uncertain; while added to this is an alleged prospective loss of income from a reduced rate, a matter also of much uncertainty. * * * And we have a problem as to the character of a rate which is difficult
