In re Mohawk Wrecking & Lumber Co.

• Decision Date: 12 April 1946
• Docket Number: No. 5630.,5630.
• Citation: 65 F. Supp. 164
• Parties: In re MOHAWK WRECKING & LUMBER CO. et al.
• Court: U.S. District Court — Western District of Michigan

65 F. Supp. 164

In re MOHAWK WRECKING & LUMBER CO. et al.

No. 5630.

District Court, E. D. Michigan, S. D.

April 12, 1946.

Theron M. Hall and Arthur J. Schuck, Enforcement Attorneys, both of Detroit, Mich., for Office of Price Administration.

Brown, Fenlon & Babcock, and John W. Babcock, all of Detroit, Mich., for respondent.

KOSCINSKI, District Judge.

The Office of Price Administration issued a subpoena duces tecum directed to Mohawk Wrecking & Lumber Company, Harry Smith and Harry Jaffa requiring them to appear before Arthur J. Schuck of the Office of Price Administration at 600 Griswold Street in the City of Detroit on the 11th day of January, 1946, with certain business records therein described. The subpoena is tested as follows:

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

(s) W. E. Fitzgerald".

Return of service indicates that the subpoena was served on January 9, 1946 on Harry Smith — copartner of the Mohawk Wrecking & Lumber Company.

Under date of March 18, 1946 the Price Administrator, through his attorney, filed application in this court for an order compelling compliance with the subpoena so issued.

The respondents, in their answer to the Administrator's application, challenge the Administrator's authority to delegate the power of issuing subpoenas to a subordinate, and this court's jurisdiction to enter the order requested.

Under 50 U.S.C.A.Appendix § 922(b) the Administrator is authorized to "whenever necessary, by subpoena require any such person to appear and testify or to appear and produce documents, or both, at any designated place."

For validity on delegated power of subpoena applicant relies on 50 U.S.C.A. Appendix § 921(b) which provides: "(b) 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."

In Cudahy Packing Co. v. Holland, 315 U.S. 357, 788, 62 S.Ct. 651, 86 L.Ed. 895, the court had before it precisely the same question under the Fair Labor Standards Act, 52 Stat. 1060, 29 U.S.C. Sec. 201 et seq., 29 U.S.C.A. § 201 et seq. — 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.

The force of authority claimed for delegation of the subpoena power in the Cudahy case was Section 4(c), 29 U.S.C.A. § 204(c), which is as follows: "(c) The principal office of the Administrator 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."

This clause is nearly identical with 50 U.S.C.A.Appendix § 921(b) of the Emergency Price Control Act of 1942. In construing the meaning of that clause the court said in the Cudahy case, 315 U.S. at p. 360, 62 S.Ct. 653: "On its face this seems no more than a definition of the geographical or territorial jurisdiction of the Administrator and his representatives."

The subpoena power under the Fair Labor Standards Act is found in 29 U.S. C.A. § 209 which makes Sections 49 and 50 of Title 15 U.S.C.A. (relating to the attendance of witnesses and the production of books, papers, and documents) applicable to the jurisdiction, powers, and duties of the Administrator. The relevant provision of the Federal Trade Commission Act referred to is Section 49 and provides: "And the commission shall have power to require by subpoena the attendance and testimony of witnesses and the production of all such documentary evidence relating to any matter under investigation. Any member of the commission may sign subpoenas, and members and examiners of the commission may administer oaths and affirmations, examine witnesses, and receive evidence."

The members of the Commission were specifically designated to sign subpoenas and though under Section 43 of that Act (15 U.S.C.A.) the Commission was authorized to exercise its powers through examiners appointed by it, "in any part of the United States", the power of subpoena was not granted to such examiners.

After reviewing Congressional legislation in which power of subpoena was either expressly granted or withheld by Congress, Chief Justice Stone said (315 U.S. at p. 366, 62 S.Ct. 656 of Cudahy case): "All this is persuasive of a Congressional purpose that the subpoena power shall be delegable only when an authority to delegate is expressly granted."

Unless, therefore, there are features in this...