Porter v. Mohawk Wrecking & Lumber Co.

• Decision Date: 12 August 1946
• Docket Number: No. 10254.,10254.
• Citation: 156 F.2d 891
• Parties: PORTER, Price Administrator, v. MOHAWK WRECKING & LUMBER CO. et al.
• Court: U.S. Court of Appeals — Sixth Circuit

156 F.2d 891 (1946)

PORTER, Price Administrator, v. MOHAWK WRECKING & LUMBER CO. et al.

No. 10254.

Circuit Court of Appeals, Sixth Circuit.

August 12, 1946.

Samuel Mermin, of Washington, D. C., (George Moncharsh, Milton Klein, and Samuel Mermin, all of Washington, D. C., Samuel Weiner, of Cleveland, Ohio, and Fred W. Lindbloom, of Detroit, Mich., on the brief), for appellant.

John W. Babcock, of Detroit, Mich., for appellees.

Before SIMONS, ALLEN, and MILLER, Circuit Judges.

MILLER, Circuit Judge.

This appeal by the Price Administrator of the Office of Price Administration is from an order of the District Court denying an application under § 202(e) of the Emergency Price Control Act for an order compelling compliance with a subpoena. § 922(e), Title 50 U.S.C.A.App.

In the course of an investigation being conducted by the Office of Price Administration into alleged violations by the appellee, Mohawk Wrecking and Lumber Company, of MPR 215, MPR 26 and GMPR, a document purporting to be an administrative subpoena duces tecum was issued on January 9, 1946 to said Company and the co-partners thereof, Harry Smith and Harry Jaffa. It was served on Harry Smith on January 9, 1946, and by its terms directed him to appear before Arthur J. Schuck of the Office of Price Administration in Detroit, Michigan, on January 11, 1946 and to bring with him certain documents designated therein. The designated hearing was adjourned by agreement first to January 25, 1946, and then to February 4, 1946, on which later date no appearance was made by Mohawk Wrecking & Lumber Company or by Harry Smith. The subpoena in question was executed as follows:

"In testimony whereof, the undersigned, an officer designated by the Price Administrator of the Office of Price Administration, has hereunto set his hand at Detroit, Michigan, this 9th day of January, 1946.

"(Sgd.) W. E. Fitzgerald."

W. E. Fitzgerald, who signed the subpoena, was the District Director of the Office of Price Administration, authorized to sign subpoenas by the Administrator's Revised Order 53 issued on May 13, 1944 (9 FR 5191).

On March 7, 1946, the Administrator, through his district enforcement attorney, applied for an order in the District Court under § 202(e) of the Act requiring the respondents to appear at the Detroit office of the Office of Price Administration and to produce all records required to be produced by the previously issued subpoena. The application was denied by the District Judge on the ground that there was no authority under the Price Control Act for the Administrator's delegation to the district director of the authority to sign and issue subpoenas. Other issues presented by the pleadings were not passed upon and are not involved in this appeal.

The Emergency Price Control Act, by § 202(a), § 922(a), Title 50 U.S.C.A.Appendix, authorizes the Administrator to make such studies and investigations as he deems necessary to assist him in prescribing any regulation or order under the Act. § 202 (c), of the Act, § 922(c), Title 50 U.S.C.A. Appendix, provides — "For the purpose of obtaining any information under subsection (a), the Administrator may by subpena require any other person to appear and testify or to appear and produce documents, or both, at any designated place." The appellant claims that his authority to delegate to regional and district directors the power to issue subpoenas is conferred by the following provisions of § 201 of the Act. § 201(a), § 921(a), Title 50 U.S.C.A.Appendix provides in part as follows:

"The Administrator may, subject to the civil-service laws, appoint such employees as he deems necessary in order to carry out his functions and duties under this Act, * * *."

§ 201(b), § 921(b), Title 50 U.S.C.A. Appendix, provides in part as follows:

"The principal office of the Administrator 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."

§ 201(d), § 921(d), Title 50 U.S.C.A.Appendix, provides as follows:

"The Administrator may, from time to time, issue such regulations and orders as he may deem necessary or proper in order to carry out the purposes and provisions of this Act."

The District Judge was of the opinion that his ruling was controlled by the opinion of the Supreme Court in Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895, where the Supreme Court had before it precisely the same question under the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., involving the authority of the Administrator of the Wage and Hour Division of the Department of Labor to delegate his statutory power to sign and issue a subpoena duces tecum. In that case the Supreme Court held that the Administrator did not have the authority to delegate such power to a regional director of the Wage and Hour Division. Appellant contends that the present case, arising under the Emergency Price Control Act instead of under the Fair Labor Standards Act, involves sufficient differentiating features to make that ruling inapplicable.

A consideration of the wording of the statutory provisions involved in the Cudahy case and of the broad scope of the principles announced by the opinion in that case shows how closely in point is the ruling of that case. The Fair Labor Standards Act contains in almost identical language the same provisions as are quoted above from §§ 201(a) and 201(b) of the Emergency Price Control Act. The Administrator of the Wage and Hour Division under the Fair Labor Standards Act is given authority to issue orders containing such terms and conditions as he finds necessary to carry out the purposes of such orders and to prevent the circumvention or evasion thereof, similar to the authority given to the Price Administrator, although the wording in the Fair Labor Standards Act is somewhat different from the wording of § 201(d) of the Emergency Price Control Act quoted hereinabove. The Supreme Court held that such provisions in the Fair Labor Standards Act, two of them being practically identical in wording with the provisions in the Emergency Price Control Act herein relied upon by the Price Administrator, did not confer upon the Administrator the authority to delegate his power to issue subpoenas, in that the power to so delegate was not expressly granted. It based its ruling upon a broad general rule of administrative law that the subpoena power can not be delegated by implication and that the right to delegate exists only when the authority to so delegate is expressly granted. In reviewing the statutes creating numerous administrative agencies, including the Interstate Commerce Act, 49 U.S.C.A. § 12; the National Labor Relations Act, 29 U.S.C.A. § 161(1); the Federal Trade Commission Act, 15 U.S.C.A. § 49; the Packers and Stockyards Act, 7 U.S.C.A. § 222; Veterans Administration Act, 38 U.S. C.A. § 131; Railroad Unemployment Insurance Act, 45 U.S.C.A. § 362(a, m); Walsh-Healey Act, 41 U.S.C.A. § 39; Merchant Marine Act, 46 U.S.C.A. § 1124(a); Federal Power Act, 16 U.S.C.A. § 825f (b); Securities Act of 1933, 15 U.S.C.A. § 77s (b); Securities Exchange Act of 1934, 15 U.S.C.A. § 78u (b); Public Utility Holding Act, 15 U.S.C.A. § 79r (c); Communications Act, 47 U.S.C.A. § 409; Bureau of Marine Inspection and Navigation Act, 46 U.S.C.A. § 239(e); Civil Aeronautics Act of 1938, 49 U.S.C.A. § 644; Motor Carrier Act, 49 U.S.C.A. § 305(d); and Longshoremen's and Harbor Workers' Comp. Act, 33 U.S.C.A. § 927, the Court summed up the rule of administrative law flowing from such legislation as follows:

"The entire history of the legislation controlling the use of subpoenas by administrative officers indicates a Congressional purpose not to authorize by implication the delegation of the subpoena power." 315 U.S. at page 364, 62 S.Ct. at page 655, 86 L.Ed. 895.

Further considering the same question, the Court repeated the rule in the following language:

"All this is persuasive of a Congressional purpose that the subpoena power shall be delegable only when an authority to delegate is expressly granted."

That such is the real basis of the ruling is made clear by the dissenting opinion in the case, which is devoted almost entirely to a vigorous dissent to such a principle of administrative law.

The Administrator's contention in the present case that the foregoing rule is not applicable because his authority to delegate the subpoena power is expressly conferred by the provisions of the Emergency Price Control Act set out hereinabove is directly contrary to the ruling of the Supreme Court in the Cudahy case that such provisions, practically identical in wording, did not expressly delegate such authority to the Administrator. Accordingly, unless the rule announced in the Cudahy case is to be set aside or modified, or unless distinguishing features in this case make it inapplicable, the Price Administrator lacked the claimed authority to delegate the subpoena power to the district director who issued the subpoena herein involved.

The Administrator contends, however, that the decision in the Cudahy case was based on the legislative history leading to the enactment of the Fair Labor Standards Act, rather than the rule above referred to. He points out that Congress in finally enacting that legislation rejected the wording of the bill passed by the Senate which expressly authorized the Administrator to delegate the subpoena power and adopted instead the wording quoted hereinabove. It is urged that the legislative history of the Emergency Price Control Act is entirely different, in that it does not involve any such choice between conflicting provisions dealing with the subpoena power, but on the contrary shows that the Senate Committee on Banking and Currency in reporting out the Price Control Bill stated that §§ 201(a) and 201(b) of the Act authorized the Administrator to delegate any of the powers given to him by the bill. We believe the...