Brief for the Respondent in Opposition — Midland Cooperative Wholesale, Inc. v. Ickes

INDEX

Opinions below

Jurisdiction. _-..--.

Questions presented

Statute involved_

Statement -

Argument

Conclusion

CITATIONS

Cases

Apex Hosvery Co. v. Leader, 310 U.S. 469

Carter v. Carter Coa! Co., 298 U.S. 238

Co-operative Central Exchange v. Commissioner, 27 B. T. A

17 (1932

Currin v. Wallace, 306 U. 3.1

Garden Homes Co. v. Commissioner, 64 F. (2d) 593

National Outdoor Advertising Bureau v. Helvering, 89 F

(2d) 878

Quality Bakers of America v. Federal Trade Commission,

114 F. (2d) 393

Schechter Poultry Corp. v. United States, 295 U. 8. 495

Sunset Sceveager ( v. Commissioner, 84 F. (2d) 453

Swift & Co. v. Wallace, 105 F. (2d) 848

Unton Pacific Co. v. Unitea States, 313 U.S. 450

United States v. Ferger, 250 U.S. 199

United States v. Union Stock Yard, 226 U.S. 286

United States v. Wrightwood Dairy Co., Inc., Nos. 744, 783,

present Term, decided February 2, 1942

Walla Walla v. Walla Walla Water Co.. 172 U.S. 1

Statutes:

Clayton Act (ce. 323, 38 Stat. 731,15 U.S. C., see. 17), See. 6

Capper-Volstead Act (c. 57, 42 Stat. 388, 7 U.S. C., see. 291),

Sec. 1

Agricultural Credit Act of 1913 (c. 252, 42 Stat. 1479, 12

U.S. C., sec. 351)

Securities Act of 1933 (c. 38, 48 Stat. 75, 15 U.S. C., see

77 (c)), Sec. 3

Agricultural Marketing Act (c. 164, 49 Stat. 317,12 U.S.C.,

sec. 1141 (j)), See. 15

453276— 42 1

Page

13,

Ns WN eS =

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intel tn

.

Il

Statutes—Continued.

“a Carrier Act (c. 498,49 Stat. 544, 49 U.S. C., see.

PE ROA Rs MOR wanes amanevinsdves cua cwecueskunn as

Robinson- Fotman Act (c. 592, 49 Stat. 1528, 15 U.8.C.,

Bituminous Coal Act of 1937, « ¢. 127, 50 Stat. 72- 90, 15

U.S.C. sees. 828-851, extended April 11, 1941, Pub. No.

a 77th re gg Ist Sess.:

Sec. 4 IT (h)__

Sec. 4 IT (i)... _.---

District of Columbia Cooperative Association Act (ec. 397,

54 Stat. 480) __-

Miscellaneous:

87 Cong. Rec. 2664-2665, 3039_ __ _-

H. Rep. No. 324, 77th Cong., Ist Sess., p. 8 -

H. Rep. 2287, 74th Cong., 2d Sess., Part I, p. 17, and Part

II, pp. 18-19_._-___- baste

H. Rep. 2951, 74th Cong. “24 ‘Gees... sii

In the Matter of Prescribing Due and Reasonable Mazimum

Discounts or Price Allowances by Code Members to “ Dis-

tributors,’’ General Docket No. 12, pp. 4-7- _ _-

S. Rep. No. 169, 77th Cong., Ist Sess., p. 3___-

Page

Inthe Supreme Court of the nited States

OcToBER TERM, 1941

No. 1058

MIDLAND COOPERATIVE WHOLESALE, PETITIONER

v.

Harotp L. Ickes, SECRETARY OF THE INTERIOR,

BituUMINoUs CoaL DIVISION OF THE DEPARTMENT

or INTERIOR, AND H. A. Gray, DrreEcTOR THEREOF,

RESPONDENTS

ON PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE EIGHTH

CIRCUIT

BRIEF FOR RESPONDENTS IN OPPOSITION

OPINIONS BELOW

The opinion of the court below (R. 141-170) has

not yet been published. The opinion of the Di-

rector of the Bituminous Coal Division appears in

the Record at pages 114-121.

JURISDICTION

The decree below was entered on January 27,

1942 (R. 170-171). The petition for a writ of cer-

tiorari was filed on March 20, 1942. The jurisdic-

tion of this Court is invoked under Section 240 (a)

a)

2

of the Judicial Code, as amended by the Act of Feb-

ruary 13, 1925, and under Section 6 (b) of the

Bituminous Coal Act of 1937, ¢. 127, 50 Stat. 85, 15

U.S. C., see. 836 (b).

QUESTIONS PRESENTED

1. Whether the Director was correct in holding

that a consumers cooperative is not entitled to dis-

counts from the minimum prices as a ‘‘distributor’’

under the Bituminous Coal Act of 1937.

2. Although we do not believe that any such

question need be decided,’ petitioner also claims

that the case involves the question whether the

intrastate payment or use of patronage dividends

based upon savings from interstate purchases is

a practice in or direetly affecting interstate com-

merece in coal.

STATUTE INVOLVED

The statute involved is the Bituminous Coal Act

of 1937, «. 127, 50 Stat. 72-90, 15 U.S. C., sees.

828-851, extended April 11, 1941, Pub., No. 34,

Tith Cong., Ist Sess... The provisions of the Act

primarily involved here are:

Section 4 II (h). The Commission shall,

by order, prescribe due and _ reasonable

‘See p. 15, infra.

* The Act, as initially passed, was to be administered by

the National Bituminous Coal Commission. However, by

the terms of the Executive Order (Reorganization Plan No.

II, submitted by the President to the Congress on May 9,

1939, Sections 4 (a) and (b), effective July 1, 1989, Pub.

Res. No. 20, 76th Cong., Ist Session, c. 193, approved June 7,

maximum discounts or price allowances that

may be made by code members to persons

(whether or not code members), herein re-

ferred to as ‘‘distributors’’, who purchase

coal for resale and resell it in not less than

cargo or railroad carload lots; and shall re-

quire the maintenance and observance by

such persons, in the resale of such coal, of

the prices and marketing rules’ and regula-

tions established under this section.

Section 4 II (i). The following practices

with respect to coal shall be unfair methods

of competition and shall constitute viola-

tions of the code:

* * * * *

12. Selling to, or through, any broker,

jobber, commission account, or sales agency,

which is in fact or in effect an agency or an

instrumentality of a retailer or an industrial

consumer or of an organization of retailers

or industrial consumers, whereby they are

[or] any of them secure either directly or

indirectly a discount, dividend, allowance, or

rebates, or a price other than that deter-

mined in the manner prescribed by this Act.

13.* * * It shall not be an unfair

method of competition or a violation of the

1939), made pursuant to authority granted in the Reorgani-

zation Act of 1939 (Pub., No. 19, 76th Cong., 1st Sess., ap-

proved April 3, 1939, c. 36, 53 Stat. 561, 5 U. S. C., sec. 133)

the functions of the Commission were transferred to the

Department of the Interior and the Act is now being ad-

ministered by the Bituminous Coal Division of the Depart-

ment of the Interior, hereinafter referred to as the

“Division.”

4

code or any requirement of this Act (1) to

sell to or through any bona-fide and legiti-

mate farmers’ cooperative organization duly

organized under the laws of any State, Ter-

ritory, the District of Columbia, or the

United States whether or not such organiza-

tion grants rebates, discounts, patronage

dividends, or other similar benefits to its

members; (2) to sell through any interven-

ing agency to any such cooperative organiza-

tion; or (3) to pay or allow to any such

cooperative organization or to any such

intervening agency any discount, commis-

sion, rebate, or dividend ordinarily paid or

allowed, or permitted by the code to be paid

or allowed, to other purchasers for pur-

chases in wholesale or middleman quantities.

STATEMENT

The essential facts here are not disputed.’ Mid-

land Cooperative Wholesale, petitioner, is a non-

profit wholesale cooperative organized in 1926

under the laws of Minnesota (R. 7, 91, 102). It is

owned by approximately 200 retail cooperative as-

sociations operating in Minnesota, Wisconsin,

Iowa, and South Dakota (R. 40-41). Those retail

associations are composed of approximately

110,000 individual members of whom over 85 per-

cent are farmers. All these constituent associa-

tions are not farmers’ cooperatives, many falling

° A more detailed statement of facts is found in the Di-

rector’s Findings of May 22, 1941 (R. 116-121), with which

petitioner does not take issue.

5

within the category of consumers’ cooperatives (R.

40-41). Midland serves in the capacity of a whole-

saler to (or purchasing agent for) its member co-

operative associations, supplying them with many

types of commodities (R. 133). Since 1934 Mid-

land has been supplying bituminous coal to about

45 of its constituent retail associations (R. 68).

The coal purchased by petitioner is purchased

chiefly from mines operating in West Virginia and

eastern Kentucky and shipped to the retail asso-

ciations by rail or lake (R. 71). Petitioner’s an-

nual sales to its retail associations have amounted

to about 600 carloads or about 24,000 tons of coal

(R. 90). All coal handled by Midland is pur-

chased for resale and is resold in not less than cargo

or railroad carload lots (R. 47).

Under the Minnesota Law (R. 102)* and its By-

laws (R. 129-130), petitioner is required annually

to distribute its “‘undivided surplus”’ or ‘‘net in-

come”’ on the basis of patronage. Patronage div-

idends are distributed to each constituent retail

association on the basis of gross operating mar-

gins on the total quantity of each major commodity

purchased by it; a portion is left with petitioner

as loan eapital (R. 25, 103).

On December 9, 1940, petitioner filed an applica-

tion (R. 7, 115), pursuant to Section 304.11 of the

Rules and Regulations for Registration of Dis-

tributors, seeking permission to register as a dis-

* Exhibit 2, not printed (R. 43, 139).

|

|

:

6

tributor within the meaning of Section 4 IT (h) of

the Act.

After a hearing (R. 35-101) and waiver of an

examiner’s report (R. 99-100, 116), Director How-

ard A. Gray of the Bituminous Coal Division on

May 22, 1941, made and entered his Findings of

Fact and Conclusions of Law (R. 116-121). He

found that petitioner did not come within the

exception for ‘‘bona fide and legitimate farmers’

cooperative organizations’’ contained in Section 4

II (i) 13, and that petitioner could not qualify as

a ‘‘distributor’’ because the benefits of any dis-

counts would accrue to the ultimate consumer in

violation of Section 4 II (i) 12 (R. 120-121).

The Director concluded, however, that petitioner

could qualify as an ‘‘intervening agency’’ pursuant

to paragraph 13 of Section 4 II (i) in connection

with that portion of the coal which was resold to

bona fide and legitimate farmers’ cooperatives.

To that end the Director entered an order (R.

115), as follows:

It Is OrnpeRED That petitioner, Midland

Wholesale Cooperative may qualify as an

intervening agency under paragraph 13 of

Section 4 II (i) of the Act, for all sales of

coal in not less than cargo or railroad car-

load lots to retail associations which are

bona fide and legitimate farmers’ coopera-

tive organizations, in the following manner.

(a) By certifying to the Bituminous Coal

Division, under oath, the nam’. of all its

4

7

retail associations which are bona fide and

legitimate farmers’ cooperative organiza-

tions duly organized under the laws of the

state in which they are incorporated ;

(b) By agreeing, under cath, that it will

not accept or retain any discount, price

allowance or commission on any bituminous

coal which it purchases for resale to others

than the bona fide and legitimate farmers’

cooperative organizations whose names are

filed with the Division.

On July 19, 1941, petitioner filed in the Circuit

Court of Appeals for the Eighth Circuit a petition

to review this order (R. 1-2). On January 27,

1942, the Circuit Court of Appeals affirmed the

Director’s order (R. 141-170).

ARGUMENT

1. Section 4 II (e) of the Bituminous Coal Act

prohibits the sales of coal below the minimum

prices established. Section 4 IT (h) provides that

the Commission shall prescribe reasonable maxi-

mum discounts for persons ‘‘herein referred to as

‘distributors,’ who purchase coal for resale and

resell it in not less than cargo or railroad carload

lots,’ and shall require such persons to observe

the ‘prices and marketing rules and regulations”’

established under the Act.

The position of a distributor in the marketing

process is substantially the same as that of a pro-

ducer’s own selling organization or outside sales

agency, in that he performs a selling service for

453276—42——-2

8

the producer.’ Accordingly, although he trades

independently rather than on commission, the dis-

tributor is deemed to be entitled, by way of dis-

count, to a share of the producer’s price. This

reason for allowing a discount to distributors has

no application to persons who act as agents for the

purchaser. On the contrary, the allowance of dis-

counts to the latter would impair the effectiveness

of the basic statutory objective of requiring all

purchasers to pay the established minimum prices.

Section 4 II (i) 12 shows that Congress did not

>The function of the distributor as wholesale marketer

for the producer is described in the Findings of Fact of the

Director of the Bituminous Coal Division in Jn the Matter

of Prescribing Due and Reasonable Maximum Discounts or

Price Allowances by Code Members to “Distributors,” Gen-

eral Docket No. 12, pages 4-7, as follows:

“Producers of bituminous coal market their coals in three

general ways: (1) through their own sales organizations,

(2) through sales agents, and (3) through distributors. In-

deed, it is almost always true that any given producer does

not market all of his coal through any one channel. Instead,

he generally markets part of his production through his own

sales organization, another part through a sales agent, and

still another part through distributors. * * *”

* * * * *

“* * * The ordinary and usual method by which a

distributor conducts his business is to acquaint himself with

the prices at which he could probably purchase coal at the

mines and then to seek a buyer or buyers for such coal at

prices that would give him a profit. Thus, before attempting

to sell the coal, he obtains reasonable assurance of his ability

to buy it at a price below the current market price. Once

orders are secured by him, he purchases the coal at the prices

previously ascertained to be available, or canvasses for still

lower prices. The prices at which he has purchased the coal

9

intend the distributors’ discount to be available to

agents of the purchaser. Under that section the

Code is violated by

12. Selling to, or through, any broker,

jobber, commission account, or sales agency,

which is in fact or in effect an agency or an

instrumentality of a retailer or an indus-

trial consumer or of an organization of

retailers or industrial consumers, whereby

they are [or] any of them secure either di-

rectly or indirectly a discount, dividend,

allowance, or rebates, or a price other than

that determined in the manner prescribed

by this Act.

Petitioner, concededly a ‘‘purchasing agent for’’

its members (Pet. p. 3), is an ‘‘ageney’’ of an

‘organization of retailers’? whereby the latter may

‘secure directly or indirectly” a ‘‘discount”’ or

‘“‘dividend’”’ on the price of coal, within the mean-

ing of the above paragraph.

That Congress considered and determined the

extent to which the above statutory provisions

have generally been the current market prices less a discount

on account of the prospective resale. * * *”

*

* * * *

«* * * in certain areas, rather than maintain selling

organizations, producers and sales agents frequently sell

some of their coal to distributors, for the reason that the

volume of such producer’s or sales agent’s tonnage sold there-

in is insufficient to warrant the expense incident to the main-

tenance of a sales organization. The distributors to whom

such coal is sold are usually either other producers or sales

agents for other coal producers, or for the producers of other

commodities, whose sales volume in these areas warrants

the maintenance of selling organizations therein. * * *”

10

should apply to cooperative organizations appears

plainly from the second paragraph of Section 4

II (i) 13. That paragraph provides that the Act

shall not be violated by sales to ‘‘any bona-fide and

legitimate farmers’ cooperative organization’’ by

sales ‘through any intervening agency to any such

cooperative organization’? or by paying or allow-

ing any such organization or “any such intervening

agency any discount, commission, rebate, or divi-

dend ordinarily paid or allowed * * * to

other purchasers for purchases in wholesale or

middleman quantities.’” This paragraph demon-

strates clearly, as both the Director and the lower

court found, that Congress intended farmers’ co-

operatives to be exempt from the restrictive pro-

visions imposed on purchasers and their agents by

Section 4 II (i) 12. The last clause, in particular,

shows that Congress intended the equivalent of a

distributor’s discount to be available to an agency

purchasing on behalf of a farmers’ cooperative.

The presence of this specific exception limited to

farmers’ cooperatives indicates that other pur-

chasers, including other types of cooperative or-

ganizations, were not to be exempt. Expressio

unius est exclusio alterius. Walla Walla v. Walla

Walla Water Co.,172 U.S. 1, 22.

Petitioner claims that the paragraph does not

constitute an ‘exception’’ or ‘exemption’’ for

farmers’ cooperatives, but that it is ‘‘merely an in-

terpreting or clarifying provision for the purpose

a RR PCE SE A RG BEA PETE EDI S A I EER ENE OPT RIDDLED KIRA ROE OEE: een

11

of preventing misunderstanding”’’ (Pet. pp. 22-

23) ; it is contended that, entirely apart from para-

graph 13, cooperatives, whether for farmers or

consumers, are not subject to paragraph 12 of See-

tion 4 II (i). This forced interpretation would

make paragraph 13 unnecessary, and is hardly con-

sistent with the restriction of the paragraph to

farmers’ cooperatives alone. If Congress in-

tended that consumer or other cooperatives be

given the same advantages as agricultural coopera-

tives it would undoubtedly have said so. The

courts have frequently held that such phrases as

‘farmers’ cooperative’’ are not to be construed as

including other types of cooperative organizations.°

And the reference in some federal statutes to farm-

ers’ cooperatives and in others to cooperative

organizations generally * or to consumers’ coopera-

*E. g., Garden Homes Co. v. Commissioner, 64 F, (2d) 598,

596 (C. C. A. 7, 1933); Sunset Scavenger Co. v. Commia-

sioner, 84 F. (2d) 453, 455 (C. C. A. 9, 1986) ; National Out-

door Advertising Bureau v. Helvering, 89 F. (2d) 878, 880

(C. C. A. 2, 1937) ; Co-operative Central Exchange v. Com-

missioner, 27 B. T. A. 17 (1982).

* Section 6 of the Clayton Act (c. 323, 38 Stat. 731,15 U. S.

C., see. 17) ; Section 1 of the Capper-Volstead Act (c. 57, 42

Stat. 388, 7 U. S. C., see. 291); the Agricultural Credit Act

of 1913 (c. 252, 42 Stat. 1479, 12 U. S. C., sec. 351) ; Section

15 (a) of the Agricultural Marketing Act (c. 164, 49 Stat.

317, 12 U. S.C., sec. 1141 (j)) ; Section 203 (b) of the Motor

Carrier Act (c. 498, 49 Stat. 544, 49 U. S. C., sec. 303 (b));

and Section 3 (a) (5) of the Securities Act of 1933 (c. 38,

48 Stat. 75,15 U.S. C., see. 77 (c)).

‘Section 4 of the Robinson-Patman Act (c. 592, 49 Stat.

1528, 15 U. S. C., sec. 13b). That section 4 of the Robinson-

12

tives alone* demonstrates that Congress is fully

conscious of the difference between the types of

cooperatives and able to discriminate between

them.

That consumer cooperatives were deliberately

omitted from paragraph 13 appears from the leg-

islative history set forth in detail in the opinion of

the court below (R. 151-160). In summary, it is

sufficient to say that an unsuccessful attempt was

made when the first coal act was adopted in 1935

to enlarge the present paragraph 13 so as to make

it applicable to consumer cooperatives (see R. 153+

155), and that when the present Act was passed

in 1937 the question of whether farm or consumer

cooperative organizations should be entitled to

special treatment was debated before the present,

limited paragraph 13 was again ineluded in the

statute (see R. 155-157). Furthermore, when the

present Act was extended in 1941, after committee

hearings at which a large amount of testimony, in-

cluding that of petitioner's general manager, was

taken on this very subject, both House and Senate

Committees declined to recommend a proposed

amendment which would have brought consumer

cooperatives within paragraph 13 (see R. 157-160),

Patman Act was intended to encompass consumer coopera-

tives as well as farmers’ cooperatives is clear. See H. Rep.

2287, 74th Cong., 2d Sess., Part I, p. 17, and Part II, pp.

18-19; H. Rep. 2951, 74th Cong., 2d Sess.

* District of Columbia Cooperative Association Act (c. 397,

54 Stat. 480).

ee ee

13

The Senate committee report stated (S. Rep. No.

169, p. 3, 77th Cong., Ist sess.)

The testimony also showed that any

amendment designed to allow discounts to

wholesale consumer cooperatives might de-

stroy established wholesale and retail coal

dealers and provide industrial consumers

with a means of evading the basie provisions

of the act. More experience in the admin-

istration of the act and more detailed con-

sideration than is possible in advance of the

expiration of the act are necessary before

the committee can recommend such legisla-

tion, if any, as is necessary to deal with these

problems.

See to the same effect H. Rep. No. 324, p. 8, 77th

Cong., Ist sess. The amendment rejected by the

committees, which would have expressly permitted

consumer cooperatives to obtain distributors’ dis-

counts, was subsequently offered, debated, and de-

feated on the floor of the House (87 Cong. Ree.

2664-2665, and withdrawn after debate on the floor

of the Senate (87 Cong. Ree. 3039). In view of

this legislative history it is plain that petitioner is

secking to have this Court read into the statute the

substance of what Congress has repeatedly

rejected.

Petitioner claims (Pet. pp. 19-21) that the deci-

sion below is in conflict with Quality Bakers of

America v. Federal Trade Commission, 114 F. (2d)

393, 399-400 (C.C. A. 1). That case held that See-

a

14

tion 4 of the Robinson-Patman Act (¢. 592, 49 Stat.

1528, 15 U.S. C., See. 13b), which expressly ex-

empts patronage dividends from the operation of

that statute, did not exempt purchasing coopera-

tives from the prohibition in Section 2 (e) (15

U.S. C. See. 13 (¢)) against the receipt of dis-

counts from the seller of the commodity.” Ex-

cept for the indication that exemptions for cooper-

atives are to be strictly construed, the case has no

pertinence here.

2. Petitioner contends (Pet. p. 24) that the de-

cision below conflicts with Schechter Poultry Corp.

v. United States, 295 U. 8.495; Carter v. Carter Coal

Co., 298 U.S. 238, and Apex Hosiery Co. v. Leader,

310 U. S. 469. The claim apparently is that peti-

tioner’s practices in refunding or allocating pa-

tronage dividends occur entirely within one state

and thus are not in or directly affecting interstate

commerce. Petitioner purchases its coal from

producers in West Virginia and Kentucky (R.

71) and distributes the coal throughout four mid-

western states (R. 40-41). If a patronage divi-

dend is based upon the price paid for coal sold in

interstate commerce, it is intrinsically related to

the interstate sale, irrespective of whether the divi-

dend itself crosses state lines. Cf. United States

Vv. Ferger, 250 U. S. 199; Currin y. Wallace, 306

© The court assumed, for purposes of its decision, that peti-

tioner in the Quality Bakers case was a cooperative organi-

zation. 114 F, (2d) at 399-400. The Federal Trade Com-

mission had decided to the contrary (id., at p. 397).

15

U. 8.1; United States v. Wrightwood Dairy Co.,

Inc., Nos. 744, 783, present Term, decided Febru-

ary 2, 1942. No federal regulation of interstate

prices or rates could be effective if a rebate on

the interstate price could go unpunished if so con-

trived as not to cross a state border. Cf. Union

Pacific Co. v. United States, 313 U. S. 450, 464;

United States v. Union Stock Yard, 226 U. S.

286, 308; Swift & Co. v. Wallace, 105 F. (2d) 848,

861 (C. C. A. 7).

In any event, the record does not present the

question which petitioner seeks to raise, and the

Court would not be required to pass upon it. The

Director held that petitioner was not entitled to

the distributor’s discount on its purchases, not that

petitioner could not distribute patronage divi-

dends. ‘The discount on the purchase price of coal

shipped interstate is plainly an integral part of the

interstate price. Furthermore, since petitioner’s

members are located in four states, petitioner can-

not properly assume, in the absence of specific

supporting evidence, that the dividends paid are

not themselves transmitted in interstate commerce.

Finally, petitioner may not raise the point since

the objection was not urged before the Commis-

sion (ef. R. 108-113, 167n). Section 6 (b) of the

Act provides, inter alia, that ‘‘No objection to the

order of the Commission shall be considered by the

court unless such objection shall have been urged

below.”’

SS AR aL

16

3. Petitioner asserts (Pet. pp. 13-14) that the

Director’s order is ‘‘self-conflicting.’’ The order

(R. 114-115) indicates that petitioner will be per-

mitted to obtain distributor’s discounts for coal

resold to those of its members which are bonda fide

and legitimate farmers’ cooperatives. In order to

insure compliance with the statutory provision pro-

hibiting discounts to agents of purchasers other

than farmers’ cooperatives, petitioner was re-

quired to agree not to accept such discounts on

coal to be sold to others. The order thus gives

effect to all of the pertinent statutory provisions,

and contains no inconsistency.

4. Despite petitioner’s claim to the contrary

(Pet. pp. 12-13), this case does not involve the

status of patronage dividends under ‘‘various fed-

eral laws,”’ “‘war orders which are being issued to

control prices,”’ or state “‘Fair Trade Acts.’’ The

decision below properly rested upon the language,

purposes and legislative history of the Bituminous

Coal Act. The Director was not called upon to,

and did not, hold that the payment of patronage

dividends on coal to consumer members was gen-

erally unlawful, or was even in violation of the

Coal Act except where the cooperative obtained

the coal at a discount from the minimum price.

His decision was only that petitioner was not en-

titled to a special discount from the minimum

prices paid producers on coal resold to such mem-

bers. This is concededly (Pet. p. 12) the only ease

in which the point has been raised.

eae te eeu ™ PBN EEN LEO SAE IES TONLE EEL LIT TREE LS:

CONCLUSION

There exists no conflict of decisions. The deci-

sion below is plainly correct. Accordingly, the

petition for certiorari should be denied.

Respectfully submitted.

CHARLES FaHy,

Solicitor General.

Rosert L. STERN,

Attorney.

NatHAN R. MARGOLD,

Solicitor, Department of the Interior.

ARNOLD LEVY,

General Counsel,

WALTER FREEDMAN,

Attorney,

Bituminous Coal Division,

Department of the Interior.

APRIL 1942.

US GOVERNMENT PRINTING OFFICE: 1842