# Brief for the Respondent in Opposition — Wheeler v. Bowles

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## Record

- **Collection:** Supreme Court brief
- **Document type:** Brief for the Respondent in Opposition
- **Published:** January 1, 1945
- **Citation:** 326 U.S. 775

## Text

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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

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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

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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

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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

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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 —

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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),

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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

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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

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386416_0373%3A3. Public record. Not legal advice.