Brief for the Respondent in Opposition — Wheeler v. Bowles

wee ee ee ee

INDEX

i Page

' Opinions below- - -----.-.--------------------------------- 1

© Jurisdiction... --.--------------------------------------- 1

| Questions presented - - ------------------------------------ 2

Statute and regulations involved---.....--.------------------ 2

Fe een eee fn cennulewe au agua meee enn ality es 3

Te ee adobe auseihdared bee SN aice meus Wie e 6

pear Se A otis 2 ee a oo aes ae ed ths eae bcilee ae wy

Fea an kapha panned eeabaseuent iain w/e

3 CITATIONS

Cases:

% Automatic Fire Alarm Co. v. Bowles, 143 F. 2d 602-- -- .-- 14

Bowles v. NuWay Laundry Co., 144 F. 2d 741, certiorari

denied, 383 U. 8. 701... ... 2... 2. 2. nen enne enw neene- 16

Bowles v. Seminole Rock & Sand Co., No. 914, October

1944 Term, decided June 4, 1945_.......------------ a5

Bowles v. Texas Liquor Control Board, 148 F. 2d 265....-.. 15

Capitol Foundry Co. v. Bowles, 146 F. 2d 855... ....----- 16

Cedar Rapids Gas Light Co. v. City of Cedar Rapids, 223

TE, QiBne enna caw nc dcende ands padocnwetueeaucasune 17

Cudahy Packing Co. v. Holland, 315 U. 8. 357... --.--.- 7, 10, 11

Cullen v. Bowles, 148 F, 9d 631. .....-...-...---------- 15

Duquesne Club v. Bell, 127 F. 2d 363, certiorari denied,

RAT. 0 OR ic con woke dehareneakapnndnoeuetenn 17

Graham & Foster v. Goodcell, 282 U. 8. 409. .....-.------ 13

Hannibal Bridge Co. v. United States, 221 U. 8. 194.....--. ae

Lockerty v. Phillips, 319 U. 8. 182_.......-.------------ mr

Norris v. United States, 257 U. S. 77....---------------- 9

Rafferty v. Smith, Bell & Co., 257 U. 8, 226......-.-.--- 13

Rainbow Dyeing & Cleaning Co. v. Bowles, 150 F. 2d 273. - ae

Reeves v. Bowles, 151 F. 2d 16.....-------------------- 15

Southern Pacific Co. v. Schuyler, 227 U. 8. 601.........-- 17

Steuart & Bro. v. Bowles, 322 U. 8. 398. .....----------- 16

United States v. Hall, 145 F. 2d 781, certiorari denied, 324

Ee Le ee ae akae hen newnennewe 12

United States v. Heinszen & Co., 206 U.S. 370_...------ 13

United States v. Pepper Bros., 142 F, 2d 340.-....------- 15

Williams v. The United States, 1 How. 290. ~~ ----------- ee

Wright v. Vinton Branch, 300 U. 8. 440........--------- Le

Yakus v. United States, 321 U. 8S. 414......----- rea a wf

a)

678784—45——1

wisiaeee ENR DE TORR NIN Ts MIME N IG RY RG AINGI Ny ET OMT ARTIS PNR IRAE RG RNIN AIRE, INN RY

a

I

Statutes: Page

Emergency Price Control Act of 1942, 56 Stat. 23, as

amended by the Stabilization Extension Act of 1944,

Public Law 383, 78th Cong., 2d Sess.:

Seo. 4 (8). - .--------------------- 2-2-2 e een en ee OFS /¥,/;

Bee. BOL on cece wows cee ces eset eweege ce eses-=s OrF48 7,9, /

Bak: U8 teh cc eWeek has edewssonuwevewedesncse B20

Pett, BOG Gio oo onde ieee dec ead. ca cednewecesuas 2% 2/

Ben, SOG TOE ows Gece esa push eseeShineeesenae ee

Sec. DOE (A) oon ncn eee en ohn oe es ne wee +ep@2 23

a | eee eee een 3,28.23

Bae BO Gib oss icin wei erin qi ietnpndas paves setae eas 42

Fair Labor Standards Act, Sec. 4 (52 Stat. 1061, 29 U. S. C.

GOD) ic cS acceacuedtauuescupecksnewnaesennsypenes 10

Federal Trade Commission Act, Sec. 9 (38 Stat. 722, 15 U.

Be IRS acs ip adacdehdienanen sas nawhenn mans 10

Regulations:

General Maximum Price Regulation (7 F. R. 3153, 3330)... 4, 95 2¢

Maximum Price Regulation 165, as amended (7 F. R.

6428; 8 F. R. 8506).....-...------------------------ 4, 9B 29

Revised General Order No. 3 (8 F. R. 8027)... ---------- he90 /2,°

Second Revised General Order No. 3 (9 F. R. 11137). ---- tre 43,5

Miscellaneous:

Hearings on Extension of the Emergency Price Control Act,

Before House Committee on Banking and Currency, 78th

Cong., 2d Seas., Vol. 1....--------------------- wire 9

S. Rep. 931, 77th Cong., CR eetecy ap Sk pe oper 8

Inthe Supreme Court of the Hnited States

OcroBER TERM, 1945

No. 499

C. H. WHEELER, PETITIONER

0,

CuEsTER BowLes, ADMINISTRATOR OF THE OFFICE

oF Prick ADMINISTRATION

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE NINTH

CIRCUIT

BRIEF FOR THE RESPONDENT

OPINIONS BELOW

The District Court wrote no opinion. Its con-

clusions of fact and law appear at pages 28-32 of

the Record. The opinion of the Cireuit Court of

Appeals (R. 371-389) has not yet been reported.

JURISDICTION

The judgment of the Cireuit Court of Appeals

was entered on August 1, 1945 (R. 388-389). Pe-

_tition for a writ of certiorari was filed on October

10, 1945. The jurisdiction of this Court is in-

_ voked under Section 240 (a) of the Judicial Code,

as amended by the Act of February 13, 1925.

(1)

= PR TM IE LIAN RR REET OE LEI TIRE EIN TREE MANE TP Tig 1 LIM Ey i

2

QUESTIONS PRESENTED

1. Whether the Emergency Price Control Act

empowers the Price Administrator to delegate the |

function of instituting suits for damages under

Section 205 (e) of that Act.

2. Whether authority to institute the present

suit was given by the Price Administrator to the

attorney who instituted it, and if not, whether the

action of the attorney in instituting the suit was

subsequently ratified by the Price Administrator.

3. Whether Section 204 (d) of the Emergency

Price Control Act precludes the trial court and

the court below from (a) determining whether the

application of the regulations to booming and |

rafting services was authorized by that Act, and

(b) determining whether the denial of a price

adjustment to petitioner and the granting of an

adjustment to a competing company was an un-

constitutional administrative discrimination.

4. Whether all of petitioner’s customers were

‘“‘purchasers of the same class’’ within the mean-

ing of the General Maximum Price Regulation,

infra, p. 2% and Maximum Price Regulation ]

165 as amended, infra, p. 29.

STATUTE AND REGULATIONS INVOLVED

The pertinent provisions of the Emergenby

Price Control Act of 1942, as amended, and the

applicable regulations and orders involved appear

in the Appendix, infra, pp. 18-25.

eee mee WALLS Sap sY eS

3

STATEMENT

This action, instituted against the petitioner in

the District Court of the United States for the

District of Oregon, was brought in the name of

Chester Bowles, Administrator of the Office of

Price Administration, under Section 205 (e) of

the Emergency Price Control Act, as amended, to

recover treble damages’ amounting to approxi-

mately $20,000, on account of alleged violations

by the petitioner of the General Maximum Price

Regulation and Maximum Price Regulation No.

165.

Petitioner operates a log boom in the Willam-

ette River near Milwaukee, Oregon, performing

for the owners of logs the services of unloading

them from railroad cars into the Willamette

River and assembling the logs into rafts, ete.

During March 1942, the period established by the

regulations involved for determining maximum

prices, petitioner made charges for such service

varying from sixty cents to seventy-five cents * per

1 At the time this suit was instituted, February 3, 1944,

Section 205 (e) provided for treble damages only. On June

30, 1944, the section was amended to provide for less than

treble damages in the discretion of the court, and single dam-

ages if the violation is not willful or the result of failure to

take practical precautions against occurrence of the violation.

infra, p. 23.

*The pre-trial order shows eighty cents as the highest

charge. The Administrator moved to amend the pre-trial

order so as to correct this to seventy-five cents (R. 24-27),

and this contention was held by the court below to be correct

(R. 387).

v) RRL AT AS CORN Ft RTE LN LY UNBORN FERS, a LPN

a

4

thousand feet board measure among different cus-

tomers. During the period from February 1 to

September 30, 1943, inclusive, increases were made

in these rates by petitioner with the result that

some of the customers above referred to were

charged five cents more and some ten cents more,

per thousand feet. (R. 15-17.) It was alleged

in the Price Administrator’s complaint that these

increased charges during the above-stated period

were higher than the maximum charges permis-

sible under the General Maximum Price Regula-

tion and Maximum Price Regulation No. 165°

(R. 3).

The petitioner’s amended answer (R. 8-11)

raised, among others, the defenses (1) that the

Emergency Price Control Act did not authorize

the Price Administrator to delegate his author-

ity thereunder to bring suits; (2) that in this

ease the Price Administrator had not in fact so

delegated his authority; and (3) that the <Ad-

ministrator had denied to petitioner favorable

price adjustments while granting them to a com-

petitor furnishing identical service, and that if

the Emergency Price Control Act was applicable

to petitioner’s services, the manner in which the

* The General Maximum Price Regulation, infra, p. ob, in

which log booms were not expressly listed, was applicable

to the alleged violations that occurred during the period Feb-

ruary 1 to June 23, 1943. Maximum Price Regulation No.

165, as amended, infra, p. 29, which expressly mentioned log

booms, was applicable to alleged violations occurring from

June 23 to September 30, 1943.

REPT ROL LR EE LLG AY ORBIT BIL TOSS TL TRI BPG RAISES TE ORE TRE

5

said Act and the regulations issued under it

were being construed, was so discriminatory as

to deprive petitioner of his property without due

process of law, in violation of the Fifth Amend-

ment to the United States Constitution. At the

trial and in the court below the petitioner con-

tended that his customers were all purchasers of

the same class, and that since his price range

during March 1942 was sixty to eighty‘ cents

per thousand feet, any change of prices within

the limits of those figures would not violate the

regulations (R. 21, 383).

The District Court, after trial, dismissed the

suit, holding that the suit had been brought by

the Chief Enforcement Attorney of the Office of

Price Administration at Portland, Oregon, in his

sole discretion without authority from, and with-

out the exercise of any discretion on the part of,

the Administrator; that because the Administra-

tor had found that the competitor’s increased

prices had not affected the cost of living, the

petitioner’s increased prices likewise had not af-

fected it; and that the petitioner had not violated

the Emergency Price Control Act or any regula-

tion, order, or price schedule issued thereunder

(R. 31-32).

On appeal, the court below reversed the de-

cision of the District Court, holding that the

Emergency Price Control Act authorizes the Ad-

* See footnote 1 on p.3, supra.

6

ministrator to delegate his authority to bring

suits under that Act, that the Administrator had :

so delegated his authority in this case, and that,

in any event, he had subsequently ratified the en-

forcement attorney’s action in bringing it. The

court below further held that the services of

booming and rafting logs were within the purview

of the Emergency Price Control Act and the

maximum price regulations issued thereunder;

that the petitioner’s argument, if sustained, would

require the court below to determine whether the

Act authorizes the regulations, 29 question the

Emergency Court of Appealsy may consider;

that questions concerning the prices which a com-

petitor was permitted to charge were not perti-

nent, particularly since the Emergency Court of

Appeals was vested with exclusive jurisdiction to

review allegedly discriminatory or invalid admin-

istrative action; and that petitioner’s customers

were not all purchasers of the same class within the

meaning of the regulations so as to render the pe-

titioner’s price increases non-violative thereof.

(R. 371-389.)

ARGUMENT

I \

(A) In holding that the Emergency Price Con- |

trol Act authorized the Administrator to delegate

his power to institute suits for damages, the court

below adhered to the dominant rule to be followed

in the construction of statutes, 7. e., that the inten-

tion of the legislature must prevail. Subsection (a)

Toe yee me <¥ ‘ n Se re Se Pe Paw Ler wets.

7

of Section 201 of that Act provides that the Ad-

ministrator may appoint such employees as he

deems necessary to carry out his functions and

duties, and that ‘‘Attorneys appointed under this

section may appear for and represent the Ad-

ministrator in any case in any court.’’? Subsection

(b) provides that ‘‘The principal office of the Ad-

ministrator shall be in the District of Columbia,

but he or any duly authorized representative may

exercise any or all of his powers in any place.”

These subsections do not, of course, say in express

words that the Administrator may delegate, but

they do contain language stating that attorneys

appointed by the Administrator may represent

him in any court, and that any duly authorized

representative of the Administrator may exercise

any or all of his powers in any place. This broad

language, although lacking in clarity, may be rea-

sonably construed, especially in view of the mag-

nitude of the task contemplated by the statute,

to empower the Administrator to delegate to his

legal representatives authority to institute suits.

On the other hand, language identical to that ap-

pearing in Subsection (b) may be construed as

evincing a different intention on the part of the

legislature, as found by the majority of this Court

in Cudahy Packing Co. v. Holland, 315 U. 8. 357.

Hence, the entire language of Section 201 may be

characterized as ambiguous, and, under the well-

established rule, it was legally permissible for the

673784—45——_2

2 PEATE SME PLA IF IES TIPS ONAN SLES BRR TIM See BERN EE IES BC IT IN

a

8

court below to resort to proper extraneous mat-

ters for the purpose of ascertaining the intention

of the Congress. Wright v. Vinton Branch, 300

U. S. 440, 459.

The legislative history of Section 201 affirma-—

tively, and in express language, supports the con-

struction placed by the court below on the statute |

to the effect that the Congress intended the lan- |

guage of Section 201 to vest in the Administra- |

tor authority to delegate any of the powers given

to him by the Act. In reporting on the bill which

later became the Emergency Price Contol Act

(S. Rep. 931, 77th Cong., 2d sess., pp. 20-21), the

Senate Committee on Banking and Currency said,

concerning Section 201:

Section 201 (a) authorizes the Adminis-

trator to hire such employees, utilize and to

establish such regional, local, or other

agencies, and to accept such voluntary and

uncompensated services as he deems to be

necessary. He may perform his duties

through such employees or agencies by dele-

gating to them any of the powers given to

him by the bill. * * *

Section 201 (b) provides that the prin-

cipal office of the Administrator shall be

in the District of Columbia but authorizes

the Administrator, or any representative

or other agency to whom he may delegate

any or all of his powers, to exercise such

powers in any place. * * * [Italics

ours. |

ryt? ee eeied ty Caer an a Vg AI — " .

PROP B LE TL EGE LOTS SOTO EOS IS! ELLY ILENE BET IONE NE SB TORE Et ERR N N ee a —

9

And in 1944, at the hearings on the proposed ex-

tension of the Emergency Price Control Act, the

Deputy Administrator for Enforcement of the

Office of Price Administration told the House

Committee on Banking and Currency that ‘The na-

tional office does not institute litigation. That is

done in the field offices. * * * Each district

office has authority to * * * institute litigation

* * *,”? (Hearings on Extension of the Emer-

gency Price Control Act, Before the House Com-

mittee on Banking and Currency, 78th Cong., 2d

sess., Vol. 1, pp. 152-153.) With this knowledge

that the Act was being construed administratively

in a manner that authorized the Administrator

to delegate his power to institute suits, the Con-

gress extended the Act without change in this re-

spect. Thus, the construction placed on the section

by the court below is fortified by a legislative his-

tory of the statute, showing definitely and affirma-

tively that the Congress intended that the Admin-

istrator should have authority to delegate his power

to institute suits.

Whether or not the language of Section 201

is considered sufficiently broad to authorize the

Administrator to delegate his power to bring suits,

it is settled that administrative officers may dele-

gate duties without explicit statutory authoriza-

tion. See, e. g., Williams v. The United States,

1 How. 290; Hannibal Bridge Co. v. United States,

221 U. S. 194, 206; Norris vy. United States, 257

U.S. 77. Judicial approval of the implied power

10

to delegate is based on the recognition that the

volume and press of governmental business neces-

sitates delegation. There being no unequivocal

statutory prohibition in the Emergency Price

Control Act, the multitudinous duties of the Ad-

ministrator of the Office of Price Administration

should justify the application of the rule to him.

The petitioner’s argument against the Admin-

istrator’s power to delegate rests largely on the

decision of this Court in the case of Cudahy Pack-

ing Co. v. Holland, supra. We do not believe the

decision of the court below in the case at bar is

inconsistent with the decision of this Court in that

ease. The Cudahy Packing Co. case arose under

the Fair Labor Standards Act, and involved the

authority of the Administrator of the Wage and

Hour Division, Department of Labor, to delegate

to others his power to sign and issue subpoenas

duces tecum. There the power to issue subpoenas

granted in the Federal Trade Commission Act had

been made applicable by reference to the Fair

Labor Standards Act. Section 9 of the Federal

Trade Commission Act provided that the members

of that Commission might issue subpoenas, but it

contained no provision which authorized them to

delegate the power. Section 4 of the Fair Labor

Standards Act, however, like the Emergency Price

Control Act involved here, contained the provision

that ‘‘The principal office of the Administrator

1]

shall be in the District of Columbia, but he or his

duly authorized representative may exercise any

or all of his powers in any place.’’ The majority

of this Court were of opinion that these words,

“‘read in their statutory setting,’’ did not grant the

Administrator authority to delegate his power to

issue subpoenas. The Court, however, used the leg-

islative history of the Act involved to support its

construction, finding that express words granting

authority to delegate the power to issue subpoenas

had been expunged from the bill during the legis-

lative process. It is submitted that the construc-

tion announced by this Court in the Cudahy Pack-

ing Co. case was intended to be confined to the

language there construed when read in the partie-

ular statutory setting, and that the decision was

not intended to announce a rule to govern the con-

struction of those words when used by the Con-

gress in conjunction with other provisions under

different circumstances and conditions, and in

statutes not in pari materia with the one there

construed.

(B) Petitioner’s contention that the Admin-

istrator did not legally ratify the action of the

Chief Enforcement Attorney at Portland, Oregon,

in bringing this suit, was answered by the court

below on two grounds: (1) that the Administrator

did delegate his power to bring the suit, and (2)

that independently of the delegation, he effectively

~ General Order No. 3, infra, p. 36 (R. 132-134),

der No. 3, the Regional Enforcement Attorney at

12

ratified the action of the Chief Enforcement At-

torney in bringing it. On June 10, 1943, the Act-

ing Administrator promulgated an amendment to

in which he empowered Regional Enforcement

Attorneys to authorize any other attorneys em-

ployed by the Office of Price Administration to

institute suits in the name of the Administrator.

On June 4, 1943, a few days prior to the promul-

gation of the June 10 amendment to General Or-

San Francisco, California, authorized the Chief

Enforcement Attorney at Portland, Oregon, to

institute such suits without further authority from

him (R. 377-378). Several months thereafter, on

February 3, 1944, the Chief Enforcement Attor-

ney at Portland, Oregon, instituted this suit with-

out further authority from the Regional Enforce-

ment Attorney at San Francisco. The Regional

Litigation Attorney from the San Francisco office,

however, participated in the final argument in the

District Court (R. 378). We believe these facts

amply support the holding of the court below that

there was a sufficient administrative delegation of

authority to institute the suit. Cf. United States

v. Hall, 145 F. 2d 781 ( C. C. A. 9), certiorari de-

nied, 324 U. S. 871. The court below also held

that independently of the delegation, the Admin-

istrator had effectively ratified the action of the

13

Chief Enforcement Attorney in bringing the suit,

pointing out that on September 7, 1944, the Ad-

ministrator had promulgated Second Revised Gen-

eral Order No. 3 (9 F. R. 11137), infra, p. 33, rati-

fying, approving, and confirming all acts done and

all proceedings had or taken by attorneys-at-law

purporting to act in the name of the Price Ad-

ministrator in any suit, action, or proceeding

brought or purporting to be brought by the Price

Administrator in any court of the United States.

Petitioner’s contention that this ratification was

too general because the order failed to show that

the Administrator had considered each particular

case was, we believe, fully answered by the court

below in its holding that ratification may take

place at any time until the litigation is complete,

and that the rule of law requiring a principal to

consider personally all of the facts in a particular

case before he will be held to have ratified his

agent’s action is not available to a third party

where, as here, the curing of the defect in admin-

istration does not violate any substantial equity of

the third party. Graham & Foster v. Goodcell,

282 U.S. 409, 429; Rafferty v. Smith, Bell & Co.,

257 U.S. 226; United States v. Heinszen & Co., 206

U.S. 370, 387. It is true that these cases involved

legislative ratification, but there is no ineluctable

logie which requires that different rules shall ap-

ply to administrative ratification.

a) a ee ee ee

14 re

II

(A) Section 4 (a) of the Emergency Price

Control Act, infra, p. 1@ provides that it shall be

unlawful for any person to sell or deliver any

commodity in violation of any price schedule ef-

fective in accordance with the provisions of the

Act and Section 302 (c), infra, p. 2%, defines the

term ‘‘commodity”’ as including services rendered

otherwise than as an employee in connection with

the processing, distribution, storage, installation,

repair, or negotiation of purchases or sales of a

commodity, or in connection with the operation

of any service establishment for the servicing of

a commodity. Petitioner contends that the Act is

not applicable to the services which he supplies,

because ‘‘services’’ are not within the ordinary

meaning of the term “commodity.’’? From this

he argues that because booming is not expressly

mentioned in the statute as a service to be in-

cluded within the statutory definition of the term

‘“ecommodity’’ it should be excluded from the

operation of the statute. Petitioner’s contention

ignores the plain fact that logs are a commodity

within the ordinary meaning of that term, and

that the service which he supplies is plainly one

related to the distribution of logs, if not to some

of the other operations named in the statute. In

Automatic Fire Alarm Company v. Bowles, 143

F. 2d 602, cited by petitioner (Pet. Br., p. 32),

a

15

certain services rendered in maintaining burglar

and fire alarm equipment owned by the supplier

were held not to be services within the definition in

Section 302 (c), infra, p. 28; but petitioner’s boom-

ing and rafting services are clearly not mainte-

nance services, and are not rendered with respect

to logs owned by himself. In any event, the con-

tention is an indirect attack upon the regulations,

and the petitioner is not entitled to raise the ques-

tion in a court other than the Emergency Court

of Appeals. Lockerty v. Phillips, 319 U. S. 182;

Yakus v. United States, 321 U. S. 414; Bowles v.

Seminole Rock & Sand Co., No. 914, October

1944 Term, decided June 4, 1945; Cullen v.

Bowles, 148 F. 2d 621 (C. C. A. 2); Bowles v. Texas

Liquor Control Board, 148 F. 2d 265 (C. C. A. 5);

Reeves v. Bowles, 151 F. 2d 16 (App. D. C.); and

United States v. Pepper Bros., 142 F. 2d 340, 343

(0. C. A. 3).

(B) Petitioner urges that the Administrator’s

action in granting a favorable price adjustment

to his competitor, the Scott Rafting Company,

while denying a like adjustment to him, was dis-

criminatory to the extent that it amounted to a

violation of the Fifth Amendment to the United

States Constitution. On this point the trial court

held that because the Administrator had found

that the increased prices granted to the competi-

tor had not affected the cost of living, the in-

673784—45——_8

ee eee

16

creased prices charged by the petitioner had not

affected it. The court below concluded that what

the Administrator did in the Scott case was not

pertinent to this. proceeding, especially since dle-

nials by the Administrator of price adjustments

are made reviewable by the Act in the Emergency

Court of Appeals exclusively. The holding of the

trial court was plainfy tantamount to a review of

administrative action as to price adjustment, a ju-

dicial remedy which, in view of Sections 203 and 204

of the Emergency Price Control Act, petitioner

was entitled to receive only in a proceeding in

the Emergency Court of Appeals after denial of

a protest by the Administrator. The conclusion

of the court below is, therefore, clearly correct.

Questions involving the equity and fairness of

price schedules are matters exclusively within the

jurisdiction of the Emergency Court of Appeals.

Bowles v. Nu Way Laundry Co., 144 F. 2d T41 (C.

C. A. 10), certiorari denied, 323 U.S. 791. In any

event, the Emergency Price Control Act does not

require uniform maximum prices for all competing

members of an industry. Capitol Foundry Co. v.

Bowles, 146 F. 2d 855 (Em. App.).

The ease of Steuart & Bro. v. Bowles, 322

U. S. 398, cited by petitioner (Pet. Br., p. 36) is

not in point. That case arose under the Second

War Powers Act which contains no provision

comparable to Section 204 of the Emergency

Price Control Act.

17

III

The court below, reversing the holding of the

district court, concluded that the petitioner’s cus-

tomers were not all purchasers of the same class -

so as to permit the petitioner, without violating

the regulations, to establish as his price for boom-

ing the highest price charged by him to any of

them during the March 1942 base period. This

conclusion follows Rainbow Dyeing & Cleaning Co.

v. Bowles, 150 F. 2d 273 (App. D. C.) and Bowles

v. Nu Way Laundry Co., supra. Petitioner asserts

that the conclusion violates the rule that findings

of fact made by a trial court may not be disturbed

on appeal unless they are clearly and manifestly

wrong. The argument is unrealistic. The court

below applied the frank and uncontroverted state-

ments in the petitioner’s own testimony to the regu-

lations, and found that petitioner’s customers were

not all purchasers of the same class within the

meaning of the price regulations (R. 382). At most,

the question involved was one of mixed law and

fact. It was, therefore, properly reviewable on ap-

peal. Cedar Rapids Gas Light Co. v. City of Cedar

Rapids, 223 U. S. 655, 668; Southern Pacific Co.

v. Schuyler, 227 U. 8. 601, 611; Duquesne Club v.

Bell, 127 F, 2d 363, 364-365 (C. C. A. 3), certiorari

denied, 317 U. S. 638. The conclusion of the court

below is in consonance wifh the interpretation

placed on the regulations by the Administrator,

and is reasonable.

— ey LILA IER SEI RE EGE LIN PTT Sy SLT Be ONION ON ETI I

18

CONCLUSION

The decision of the court below is correct.

There are no conflicts of decision, and no question

of large public importance is involved. The peti-

tion should be denied.

Respectfully submitted.

J. Howarp McGratH,

Solicitor General.

JOHN R. BENNEY,

Attorney, Department of Justice.

GrorGE MoNCHARSH,

Deputy Administrator for Enforcement. |

Davin Lonpon,

Acting Director, Litigation Division.

SaMUEL MERMIN,

Special Appellate Attorney,

Office of Price Administration.

NovEMBER 1945.

TPN Ty, BET NE RAIN PO) DARE hg ONE Se ENR EN EL Re 0%

eS ae SS