Petition for Writ of Certiorari — Wheeler v. Bowles

Page

Petition for writ of certiorari... .............-..c.ccccceccecc0-0-.----.. 1

Summary statement of matter involved... 1

Jurisdictional statement 222.0... cee ccececccceececececceceee 6

S| ance Wi gmrh ana eE RL Ser ae Mae 6

Reasons relied on for allowance of writ...................... 7

UN Nr Ee ad 14

Brief in support of petition for writ of certiorari... 17

Cptens of courts below... 17

aN set ee Uonccinticchaseipanis ated tanta al

a RE CME IT eT eT coe 18

Rr tr i Ryle a 18

Argument:

pammary of Argoment.. 19

Point A—Discretionary Authority of the Adminis-

trator to bring treble damage actions may not be

I sae Sa ee Bee ae 29

Point B—The unauthorized exercise by the Dis-

trict Enforcement Attorney of the suit-bringing

function could not later be ratified without the

exercise of the personal discretion of the Adminis-

SO: Se pidiasnablnciicctipinscepdedé eonatienaa esis Lae a 28

Point C—Booming is not a service covered by the

WIE NEE once s e ae e Ie 31

Point D—The District Court and the Circuit

Court of Appeals had jurisdiction to determine

whether the Administrator unconstitutionally dis-

criminated against the petitioner........................ 85

Point E—Petitioner’s customers were all of the

NY SUID icichnidinenceincnsakcg once 38

Re itiicistnasiadeen ces ca ea

ak

—

TABLE OF AUTHORITIES CITED

Page

1. Cases

Automatic Fire Alarm Company v. Bowles, Emergency

Court of Appeals, 143 Fed. (2d) 602, 605............ 11, 18, 32

Bowles, Administrator v. Brannagan, 60 Fed. Supp. 897.

CERT Sy I Oy IUD es ccicctcicteniniveniniovirrnesiniciomenns 27

Bowles, Administrator v. Farmers National Bank, 147

MR Bet le Re | eee eta woe 32

Bowles, Administrator v. Nasif, 58 Fed. Supp. 644.......... 32

Bowles, Administrator v. NuWay Laundry Company,

Emergency Court of Appeals, 144 Fed. (2d) 741, 746 12

Bowles, Administrator v. Silverman, 57 Fed. Sup. 990... 32

Bowles, Administrator v. Simon, 145 Fed. (2d) 334,

i: Eg WI cscs ccidoscs ohiemnsactoaiaeaichiscievaspanaaeacibinens 39, 40

Brown, Administrator v. Mars, 135 Fed. (2d) 843 (C.

Al TR, Sgn anne ES Be PNP ese Pah ee es nn 37

Butte & Superior Copper Co. v. Clark-Montana Realty

Co., 249 U.S. 22, 30; 68 L. Ed. 447, 469........................ 38

Cudahy Packing Company v. Holland, 315 U.S. 357, 62

'. 3f | RESP CUR oe a mleaws tote ot 8, 17, 19, 20, 21, 28, 26

General Oil Company v. Crain, 209 U.S. 211, 52 L. Ed.

Oa ea cal 36

Guess v. Montague, 140 Fed. (2d) 500, 503 (C.C.A. 4th) 33

Hecht v. Malley, 265 U.S. 144, 44 S. Ct. 462, 465............ 34

Lowell Sun Co. v. Fleming, 120 Fed. (2d) 213 (C.C.A.

1st) affirmed 315 U.S. 784, 62 S. Ct. 793.................. 25, 28

Midstate Co. v. Penna. R. Co., 320 U.S. 356, 359, 363,

367, 64 S. Ct. 128, 88 L. “> sh Seta Sener 31

Minnesota Mines, Inc. v. Holland, 126 Fed. (2d) 824 (C.

eS aS ee ee aaa Rate ae eee Ae Seen EE UA 25

Rainbow Dyeing & Cleaning Company v. Bowles, United

States Circuit Court of Appeals, D.C., 150 Fed. (2d)

Bs sa ccnisccksac chien tacehembasinnea edieaaked 13, 14, 27, 39, 40

Steuart & Bro. v. Bowles, Administrator, 322 U.S. 398,

> a a a nea cman

Strand v. Garden Valley Telephone Co., 51 Fed. Supp.

TR SRR teers enc ca wanna 1S eect TSP rO ne en 34-5

U. S. v. Siegel Bros., 52 Fed. Supp. 238............................ 32

U. S. ex rel Texas Portland Cement Co. v. McCord, 233

U.S. 157, 84 8. Ct. 560, 66 L. Ed. 898..........................

Walsh v. Mayer, 111 U.S. 31, 4 S. Ct. 260, 28 L. Ed. 338 31

Yick Wo v. Hopkins, 118 U.S. 356, 30 L. Ed. 220, 6 S.

TI or iciciersenincmiininastniiennaimeaiainicinisipamnivctmnnnniate 35-6

POLAR IMG MIL BOLE LI LENE © PME SG LOL IS OREO NTE LOIS DM BA AIEEE IER TET

2. Statutes and Regulations

Agricultural Adjustment Act of 1938, 7 U.S.C.A., Sec.

i ESE OAS TEE ENO etcct SEA MKD IR MOT AES EOE TD 8

Emergency Price Control Act of 1942 as amended (56

Stat. 23, 50 U.S. Code App., Secs. 901-946, amended

by Pub. Law 383, 78th Cong., 2nd Sess.) :

ek EC ee 22, 24

RSENS Sis Sp eae sa ea: 22, 23, 24

A i SET eI aca RR eis eS EU a il

SSCS sei eat Rea 6, 7, 10, 20, 21, 26

302, Title III (50 U.S.C.A. 942)... 11, 31

Emergency and War Shipping Acts, 50 App. U.S.C.A.

a ee et ea g

Fair Labor Standard Act (29 U.S.C.A. Sec. 204)... 23, 25

Farm Labor Supply Appropriation Act, 1944, 50 App.

fk ee gS Sa ee eee

First War Powers Act, 1941, 50 App. U.S.C.A., Sec. 601 8

General Maximum Price Regulation (7 F. R. 3153) .......... 14

General Order No. 3 (7 F. R. 7910) 0000000000000 eee 2

Regulation No. 165 (Services) 7 F. R. 6428:

as I I 4, 12

og) Be | SRR onante me re Se ne 13

Re-negotiation Act of April 28, 942, 50 App. U.S.C.A.,

_ SRE ga a eae tes SS UR 8

Re-pricing of War Contracts, 50 App. U.S.C.A., Sec.

Ree Biome anaes OE ian the ae aoe 8

Revised General Order No. 3, issued June 10, 1943 (8

2h & | pene 2

Second War Powers Act, 1942, 50 App. U.S.C.A., Sec.

SERRE TEES TE CLD TES AE ESTO CLI EL Bais 8

Selective Training and Service Act of 1940, 50 App. U.

ot ag TS kk en ae rans ene 8

Surplus Property Act of 1944, 50 App. U.S.C.A., Sec

OE sole MR SAL. kOe BE ome, MOIRA. A Be Oe NEI TN be a 8

United Nations Relief and Rehabilitation Act, 50 App.

U.S.C.A., Sec. 1571 IV (1) (2) (4)... 8

iv.

TABLE OF AUTHORITIES CITED

War Explosives Act, 50 U.S.C.A., Secs. 137, 140..............--

War Mobilization and Reconversion Act of 1944, 50

App. U.S.C.A., Sec. 1651 (d) .......-..-.--.----------c-ecseeeeneneee

War Pay and Allowance Act of 1942, 50 App. U.S.C.A.,

Se sclenedapomciaieceidietoebieligainneliins

3. Other Authorities

Page

Administrator’s Manual interpreting maximum price

BORUIAON -.....----.2n-2na-n--nnoenvennnenenencnnsennsenennnsonencennerenanaceanes

Oe ie Oe I cs nssmsiscaicniooeenpeiasnneeguiceiiventibanntencinmennitieediaiiitane

Oe Re EE TE. cencancachavncticlanpieeeononmainnonmreininidnentseaniinipsaitat

ee, I Face cick secknenecevlevsineennnmanctncinaisnemperttanaiaial 10, 30

SE CE, Ba: BI nici ve seteecersejecestecctsvitiwlemnpmsnsapionen

PEI ARIF OR PIECE EASE INE RIT BEE EN 5 FOIE LSA LEONEL DPT GENE IN E81 a RE

a far PRE

aa

Iu the Supreme Cowt

of the United States

OctosEer Term, 1945

Di cee.

C. H. WHEELER,

Petitioner,

v.

CHESTER BOWLES, Administrator of the

Office of Price Administration,

Respondent.

PETITION FOR WRIT OF CERTIORARI TO THE

UNITED STATES CIRCUIT COURT OF

APPEALS FOR THE NINTH CIRCUIT,

To the Honorable Harlan F. Stone, Chief Justice

of the United States, and the Associate Justices of

the Supreme Court of the United States:

Your petitioner respectfully shows:

Summary Statement of the Matter Involved

This action was brought in the name of Chester

Bowles, Administrator of the Office of Price Adminis-

tration, against the petitioner for alleged overcharges

neh 2S,

Fear

2

for booming services performed between February 1,

1943, and October 1, 1943, (R. pp. 2, 3). It was com-

menced without any specific authorization from

the Administrator of the Office of Price Ad-

ministration and without the exercise of his discre-

tion and on the sole discretion of the District Fn-

forcement Attorney of the Office of Price Administra-

tion at Portland, Oregon (R. pp. 28, 29).

Authority for the institution by the District En-

forcement Attorney of this and like sanction cases is

claimed by reason of a blanket authorization by wire

from the Regional Attorney to the District Enforce-

ment Attorney under date of June 4, 1943 (R. pp.

210, 211). Under the General Orders of the Adminis-

trator the Regional Attorney was without any au-

thority to authorize any such subdelegation until

June 10, 1943. General Order No. 3 of the Office of

Price Administration, as amended October 6, 1942

(7 F. R. 7910) (R. pp. 148-150) Revised General Or-

der No. 3 (8 F. R. 8027) (R. pp. 150-153) issued June

10, 1943.

Petitioner operates a log boom in the Willamette

River, near Milwaukie, Oregon, performing services

for the owners of logs consisting of unloading logs

from railroad cars into the Willamette River and

assembling the logs into log rafts. In March 1942

petitioner charged his customers for such services

varying charges fixed in each case by individual ne-

gotiation which ranged from 60¢ to 75e per thousand

CRORE IP SOHN. = ' = =

om ’ . PF PPR S YN PESTS ILE PT STE BT a a a gee nnn ONE

? i Gey . 5.

3

feet board measure. In December 1942 he commenc-

ed serving one customer at an 80¢ rate. Respondent

agreed that the 80c rate was a proper charge to this

customer (R. pp. 19, 47).

Effective as of February 1, 1943, petitioner in-

creased his rates so that some of his customers were

charged 5c more and some 10¢ more than the previous

rate. The highest rate charged any of his customers

was an 85c rate, and this but to two customers in-

volved in the complaint, representing but a small

portion of the logs boomed (R. p. 245). On September

50, 1943, petitioner reduced his rates to the rates

prevailing prior to the increase (R. p. 333).

During the period embraced in the complaint and

for some time prior thereto Scott Rafting Company

was operating a boom adjacent to petitioner’s boom

and furnishing identically the same character of

service furnished by petitioner. This company was

controlled by the Reconstruction Finance Corpora-

tion. In December 1942 it increased its March 1942

rates from 70¢ per thousand feet board,measure to

80c. In the latter part of October 194%, at the re-

quest of the Administrator, it restored its rates to

the March 1942 level. On November 12, 19437 the

Administrator authorized it to and it did increase its

rates to all of its customers to 90¢ per thousand

feet board measure. In the order allowing the in-

crease the Regional Administrator expressly found

that the increase would not affect the cost of living

or be in violation of Executive Order No. 9328 issued

by the President on April 8, 1943, (R. pp. 29, 30, 31).

The respondent denied to petitioner any increase

in rates although Section 1499.114 (c) and (d) of

Regulation No. 165, the only authority in the regula-

tion for granting the Scott Rafting Company an in-

crease in rates, required like treatment of like sellers

of the same service (R. pp. 93, 94, 252).

In dismissing the action the District Court found

the facts substantially as we have stated them, and

also that the petitioner acted in good faith; that the

respondent at the time it permitted the increase of

the rates of the Scott Rafting Company knew the

rates charged by petitioner; that petitioner was a

competitor, and that they were sellers of identical

service to the same character of customers; that the

respondent had the same knowledge at the time the

action was instituted against petitioner but no action

was brought by the respondent against Scott Rafting

Company for any penalties or overpayments. (R. pp.

28-31).

The District Court likewise found that all of

petitioner’s customers during March 1942 and during

the period from February 1, 1943, to and including

September 30, 1943, were purchasers of the same

class. The District Court also found that respondent

in allowing increases in rates to the Scott Rafting

Company expressly determined that such increases

would not affect the cost of living. The court like-

ee ed nes OP ERSTE Saeed Se eet eel

5

wise found that the increases made by the petitioner

did not affect the cost of living and were consistent

with Executive Order No. 9328 issued by the Presi-

dent on April 8, 1943 (R. pp. 28-31).

The Circuit Court of Appeals reversed the judg-

ment of the District Court dismissing the action.

In so doing the Circuit Court held that the Price

Control Act was applicable to booming during the

whole period of time covered by the complaint; that

neither the District Court nor the Circuit Court of

Appeals had jurisdiction to determine whether the

action of the Administrator in increasing the rates

of the Seott Rafting Company authorized an increase

in petitioner's rates or constituted administrative dis-

crimination against petitioner in violation of the

Fifth Amendment to the Constitution; that petition-

er’s customers were not purchasers of the same class

but in different price classes; that the Administrator

could lawfully delegate to Regional Attorneys and

later to any other attorneys the full discretion and

authority of the Administrator to determine what

action should be brought and if brought whether for

single or treble damages; that the Second Revised

General Order No. 3 of the Administrator (9 F.R.

11137) effectively ratified the bringing of the action

(R. pp. 371-585).

wae

STAN IRCA REE EN A AS SPEARS TOEE

6

Jurisdictional Statement

The action was attempted to be brought pursuant

to the provisions of Section 205 (e) of the Emergency

Price Control Act of 1942, as amended, (Pub. L.

421, 77th Cong., 2nd Sess., 56 Stat. 23). The decree

of the Circuit Court of Appeals reversing the judg-

ment of the District Court was filed and entered

August 1, 1945 (R, p. 389). It is contended that the

Supreme Court has jurisdiction to review the judg-

ment here in question under Section 240 of the Code

of Civil Procedure, as amended by 28 U.S.C.A. Sec-

tion 347.

Questions Presented

The questions herein presented are:

1. Whether the discretionary authority of the

Administrator to bring treble damage actions may

be delegated.

2. Whether if subject to delegation the unauthor-

ized exercise by the District Enforcement Attorney

of the suit-bringing function could be later ratified

without the exercise of the personal discretion of the

Administrator.

3. Whether the Emergency Price Control Act

covers booming services.

4, Whether exclusive jurisdiction is vested in the

Emergency Court of Appeals to determine whether

the action of the Administrator in increasing rates

_

7

of the Scott Rafting Company authorized the rates

charged by petitioner or constituted an unconstitu-

al administrative discrimination.

5. Whether petitioner’s customers are of the same

class or in different price classes.

Reasons Relied on for the Allowance of the Writ

1, The discretionary authority of the Administra-

tor to institute treble damage actions may not be

delegated.

The action is based on Section 205 (e) of the

Price Control Act (50 U.S.C.A. See. 925 (e) ), provid-

ing that in certain cases of violation of price orders

“the Administrator may institute such action on

behalf of the United States within such one year

period”. This clearly vested in the Administrator

discretionary as distinguished from purely minister-

ial duties which may not be delegated without express

statutory authority.

At the time the instant action was_ instituted

(February 3, 1944, R. p. 4) the exercise of the Ad-

ministrator’s choice to sue amounted to the imposition

of a self-exrecuting penalty of three times the amount

of the overcharge in the event the court found an over-

charge to exist. This penalty was imposed not by

the court but by the Administrator because the court

at that time was powerless to reduce the treble dam-

ages even though the overcharge was in entire good

faith.

8

The discretionary character of the suit-bringing

function is made clear by the fact that by the amend-

ment of June 30, 1944, to Section 205 (e) the de

termination of the amount of damages in treble dam-

age actions is in so many words measured by “the

discretion” of the court. What is now discretionary

with the court must necessarily have been a dis-

cretionary function with the Administrator at the

time this action was brought.

Cudahy Packing Company v. Holland, 315 U. 8.

357, 62 S. Ct. 651, and other cases under the Fair

Labor Standards Act are direct authority that statu-

tory language, admittedly the same on its face as

that here involved, neither directly nor impliedly war-

rants the delegation of a function capable of op-

pressive use such as this suit-bringing function.

Where Congress intended that the discretionary

power could be delegated it said so. For example,

Re-negotiation Act of April 28, 1942, 50 App. U.S.C.A.,

Sec. 1191 (4), Re-pricing of War Contracts, 50 App.

U.S.C.A., Sec. 1192 (e), Emergency and War Shippine

Acts, 50 App. U.S.C.A., See. 1295 (8), Farm Labor

Supply Appropriation Act, 1944, 50 App. U.S.C.A.,

1353 (d) 1, United Nations Relief and Rehabilita-

tion Act, 50 App. U.S.C.A., See. 1571 IV (1) (2) ( 4),

Surplus Property Act, 1944, 50 App. U.S.C.A. Sec.

1617, War Mobilization and Reconversion Act of 1944,

50 App. U.S.C.A., Sec. 1651 (d), Agricultural Adjust-

nient Act of 1938, 7 U.S.C.A., Sec. 608 (a), War Ex-

wi

Rab ct ton ae sete Seen Pye >

—_

9

plosives Act, 50 U.S.C.A., Sees. 137, 140, First War

Powers Act, 1941, 50 App. U.S.C. A., See. 601, Second

War Powers Act, 1942, 50 App. U.S.C.A., Sec. 633, Se-

lective Training and Service Act of 1940, 50 App. U.S.

C.A., Sec. 310 (b), War Pay and Allowance Act of

1942, 50 App. U.S.C.A., See. 1009.

2. If subject to delegation the unauthorized exer-

cise by the District Enforcement Attorney of the suit-

bringing function could not be later ratified without

the exercise of the personal discretion of the Ad-

ministrator.

It was agreed between the parties (Pre-trial Order

Agreed Facts, R. p. 18) and found by the District

Court (Par. 1, Findings of Fact, R. pp. 28, 29) that

the bringing of this action was not authorized by the

named plaintifl but that it was brought on the sole

authority of the Enforcement Attorney of the District

Office of the respondent at Portland, Oregon, without

the exercise of any discretion by the Administrator.

It is not claimed that the Administrator at any

time thereafter and up to the present time has ever

exercised any personal judgment with respect to this

action. On September 7, 1944, one month after the

entry of judgment of dismissal, Second Revised Order

No. 3 (Vol. 9 F.R. No, 181 p. 11137) was issued by

the Administrator in which he undertook to ratify

“all acts done ... by an attorney at law regularly

admitted to practice in any state... purporting to

act in the name or on behalf of the Price Administrat-

a LORRI RIARURS SA NTUSTAL oF WORE NEM

ae ee eee eee eee el eC eee

10

or in any suit...... said ratification, approval and

confirmation to have the same force and effect as if

specific authority to institute and conduct such suit

... had been expressly granted by the Price Ad-

ministrator.”

This constitutes no ratification or adoption of the

institution of the present action by the District En-

forcement Attorney because on the record neither the

instant suit nor the action of the Enforcement At-

torney in bringing it has yet been submitted to

the Administrator for the exercise of his discretion.

Again the attempted ratification is general in its

terms, does not apply particularly to the instant ac

tion and it does not appear that it was made with

knowledge of this case. Under these circumstances,

the rule announced in 43 Am. Jur. page 74, is par-

ticularly in point. “An act of ratification to be ef-

fective, must be direct, explicit, unequivocal, and

with full knowledge of the facts”.

Again under any view of the matter it was too

late in September 1944 to attempt to ratify the action

as to any alleged violations occurring before Septem-

ber 1943 inasmuch as an action under Section 205 (e)

must be brought within one year from the date of the

alleged violations. The Price Control Act contains

within itself a limitation of one year on the bringing

of actions like the instant action. This is not a

statute of Imitations affecting only the remedy but

a limitation on the right to bring action. As said in

PSL OE Se ee omnes

Sea EROS ERS INS POEL TE ERIE MC NS S ARE SENET HE SEER ORO SI CIR ft OI LEO. 1g BON BARNES RE

11

34 Am. Jur. page 17:

“The statute is an offer of an action on condition

that it be commenced within the specified time.

If the offer is not accepted in the only way in

which it can be accepted, by a commencement

of the action within the specified time, the action

and the right of action no longer exist, and the

defendant is exempt from liability.”

3. The Emergency Price Control Act does not

cover booming services.

The Emergency Price Control Act (Jan. 30, 1942,

06 Stat. 25, 50 U.S.C.A. 901-946) governs rents and

the prices of commodities. By Section 942 of 50 U.

S.C.A. the term “commodity” is defined as also in-

cluding certain designated services. Booming or

rafting are not “expressly directed by the Act to be

considered as commodities.” Until June 23, 1943,

the price schedules and regulations issued by the

Administrator of the Office of Price Administration

likewise failed to name booming or rafting as a

service covered. By an amendment effective on that

date, booming was added as a service covered. (Am.

23 to M.P.R. 165 (8 F.R. 8506.) )

The Emergency Court of Appeals in Automatic

Fire Alarm Company v. Bowles, 143 Fed. (2nd) 602,

at page 605, has ruled that services were not com-

modities in the ordinary and accepted meaning of

that term and are not within the spirit or purpose of

the Price Control Act except to the extent that they

are expressly directed by the Act to be considered

RET PRE OEE IE TL I EN En TO TEN ne

12

as commodities. In the opinion of the Circuit Court of

Appeals for the Ninth Circuit (R. pp. 372, 374) it is

held that services are included unless expressly ex-

cluded.

Supporting the conclusion of the Emergency

Court of Appeals is the decision of the Circuit Court

of Appeals for the Tenth Circuit in Bowles, Adminis-

trator v. NuWay Laundry Co., 144 Fed. (2nd) 741,

where the court said at page 746:

“Tt is of course the province and the duty of

the court to determine for itself whether the

party sought to be enjoined under Section 295

(a) is within the coverage of the Act or Regu-

lation, but in the determination of that ques-

tion it is not competent for the court to consider

the fairness or the equity of any regulation or

price schedule established thereby.”

4, The action of the Administrator in increasing

rates of the Scott Rafting Company authorized the

rates charged by the petitioner. Under Section

1499.114 (c) and (d) of Regulation No. 165 the in-

crease in rates allowed to the competitor required a

like allowance to petitioner rendering like services.

(R. pp. 93, 94). If the Administrator is not precluded

by his administrative construction of the Act and re-

gulations in prosecuting the action then his discrim-

ination against petitioner violated the Fifth Amend-

ment to the United States Constitution which pro-

hibits discrimination between persons in similar cir-

cumstances.

PEARSE AEE EN OL EOE E MOE HID LE LET INSEL NER YEN AONE OS WSO. F | EIN SEU TS REA : 7 %

13

5. Petitioner’s customers were all of the same

class. This was the finding of the District Court

(Ii. p. 31). The service to his customers was the

same, that is, unloading logs from railroad cars and

assembling the logs into log rafts (R.p.15). Petition-

er contended at the trial that if he was subject to the

Price Control Act and regulations thereunder his

customers were all in one classification and that he

was entitled to charge all of his customers the high-

est applicable rate (R. p. 31).

Not until 1944 did the Administrator amend his

definition of what constituted a purchaser of the

same class (9 F.R. 74483 (1944).) Prior thereto the

definition read as follows:

“ “Purchaser of the same class’ refers to the

practice adopted by the seller in setting different

prices for services for sales to different pur-

chasers or kinds of purchasers (for example,

wholesaler, jobber, retailer, government agency,

public institution, individual consumer) or for

purchasers located in different areas or for dif-

ferent quantities or grades or under different

conditions of sale.” Maximum Price Regulation

No. 165, Section 1499.116 (a) (10), 7 Fed. Reg.

4734 (1942).

As pointed out by Associate Justice Arnold in his

dissenting opinion in Rainbow Dyeing & Cleaning Co.

v. Bowles, United States Court of Appeals, District

of Columbia, 150 Fed. (2nd) 273, at page 279, the

very fact that an amendment was made by the Office

of Price Administration is evidence that it felt that

an amendment rather than an interpretation was

14

necessary.

For the greater part of the period of the alleged

violation the respondent contended that the petitioner

was subject to the General Maximum Price Regula-

tion (R. p. 40). In connection with this regulation

the Administrator of the Office of Price Administra-

tion issued a manual entitled “What Every Retailer

Should Know About the General Maximum Price Re-

gulation”. In that manual the Administrator said:

“The mere fact that a retailer may have sold

merchandise to a particular customer during

March at a price lower than the price he charg-

ed other customers does not necessarily make

that purchaser a separate class of purchaser.

Thus, if a retailer charged all his customers a

certain price in March, but in order to induce

a particular customer to buy some merchandise

he sold it to him at a lower price, he is not re-

quired to continue to sell to such customer at

a lower price.” Gen. Max. Price Reg. Bulletin

No. 2 (May 1942), p. 3.

The reasoning of Associate Justice Arnold in

Rainbow Dyeing & Cleaning Co. v. Bowles, supra, is

most pertinent. To now say that petitioner is bound

by an amended definition adopted after the institu-

tion of this action is to place a premium upon am-

biguous language and encourage arbitrary and cap-

tious administrative procedure.

WHEREFORE, your petitioner prays that a writ

of certiorari issue under the seal of this court, direct-

ed to the Circuit Court of Appeals for the Ninth Cir.

cuit, commanding said court to certify and send te

Sab as 4

SQLS LECLERC ET auumennll

15

this court a full and complete transcript of the record

and of the proceedings of the said Circuit Court had

in the case numbered and entitled on its docket No.

10,924, Chester Bowles, Administrator of the Office

of Price Administration, Appellant v. C. H. Wheeler,

Appellee, to the end that this cause may be reviewed

and determined by this court as provided for by the

statutes of the United States; and that the judgment

herein of said Circuit Court be reversed by the Court,

and for such further relief as to this court may seem

proper.

Dated October 8th, 1945.

JOHN F, REILLY

Carut E. Davipson

S. J. GRAHAM

Attorneys for Petitioner