Suwannee Fruit & Steamship Co. v. Fleming

• Decision Date: 09 April 1947
• Docket Number: No. 116,317.,116
• Parties: SUWANNEE FRUIT & STEAMSHIP CO. v. FLEMING, Temporary Controls Administrator.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals

160 F.2d 897 (1947)

SUWANNEE FRUIT & STEAMSHIP CO. v. FLEMING, Temporary Controls Administrator.

Nos. 116, 317.

United States Emergency Court of Appeals.

Heard November 12, 1946.

Decided April 9, 1947.

Rehearing Denied May 8, 1947.

Before MARIS, Chief Judge, and MAGRUDER and LAWS, Judges.

Thomas B. Adams, Louis Kurz, and Charles H. Murchison, all of Jacksonville, Fla. (John A. Selby, of Washington, D. C., on the brief), for complainant.

James A. Durham, Atty., O.P.A., of Washington, D. C. (Richard H. Field, Gen. Counsel, Carl A. Auerbach, Associate Gen. Counsel, William R. Ming, Jr., Chief, Court Review Price Branch, and Benjamin Freidson, Atty., all of O.P.A., all of Washington, D. C., on the brief), for respondent.

Heard at Jacksonville November 12, 1946.

MARIS, Chief Judge.

Maximum Price Regulation No. 285, imported Fresh Bananas, Sales Except at Retail,¹ established maximum prices of $4.50 per cwt. for bananas from Costa Rica, Panama, Guatemala, Honduras and from the southern Mexican states of Chiapas and Tabasco; $3.25 per cwt. for bananas from other parts of Mexico; and $4.00 per cwt. for bananas from all other countries, which included those from the Dominican Republic. The maximum prices for bananas from the four Central American countries and from Chiapas and Tabasco was increased to $5.50 per cwt. by Amendment No. 2,² decreased to $5.00 per cwt. by Amendment No. 4³ and further decreased to the original figure of $4.50 by Amendment No. 9.⁴ Neither MPR 285 nor Amendments 2, 4 and 9 thereto were approved by the Secretary of Agriculture.

During 1942 and 1943 the complainant was engaged in the importation of bananas from the Dominican Republic. It ceased operations in December, 1943. On May 8, 1943 the complainant filed a protest against Amendment No. 2 to the regulation, which amendment had increased the differential in maximum prices for bananas from the Central American countries over prices for those from the Dominican Republic from $0.50 to $1.50 per cwt. The Price Administrator denied the protest and the complaint in this court in case No. 116 followed. Following a hearing by this court in No. 116 the proceedings were stayed to await disposition by the Price Administrator of a second protest filed by the complainant on September 19, 1944 and amended March 28, 1945. In this protest the complainant attacked the validity of the regulation as well as the amendments thereto. The second protest, as amended, was denied and the complaint in No. 317 in this court followed. Rehearing was then ordered in No. 116 and the two cases were consolidated for hearing.

The complainant contends that the regulation and its amendments are invalid because they were promulgated and issued by the Price Administrator without the approval of the Secretary of Agriculture or of the War Food Administrator⁵ as required by Section 3(e) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 903(e). Subsection (e) of Section 3 of the Act, commonly referred to as the Bankhead Amendment, as originally enacted and in force during the period here relevant read:

"(e) Notwithstanding any other provision of this or any other law, no action shall be taken under this Act by the Administrator or any other person with respect to any agricultural commodity without the prior approval of the Secretary of Agriculture; except that the Administrator may take such action as may be necessary under section 202 and section 205 (a) and (b) to enforce compliance with any regulation, order, price schedule or other requirement with respect to an agricultural commodity which has been previously approved by the Secretary of Agriculture."

The language just quoted would seem to be so clear as to leave no room for construction.⁶ If each word in the section is given its ordinary meaning it would follow, as contended by the complainant, that the approval of the Secretary of Agriculture was a condition precedent to the validity of the regulation by which the Price Administrator established maximum prices for bananas since they are unquestionably an agricultural commodity in the normal meaning of those words. The Administrator urges, however, that the words "any agricultural commodity" as used in the Bankhead Amendment should not be given their usual meaning but rather should be read as words of art so limited in scope as to exclude agricultural commodities imported into the United States. If the phrase "any agricultural commodity" does not apply to imports then a regulation which establishes maximum prices for imported bananas would not require the prior approval of the Secretary of Agriculture. It would follow, the Administrator argues, that MPR 285 and its amendments were not invalid by reason of the fact that they were issued by the Price Administrator without the approval of the Secretary of Agriculture. The issue between the complainant and the Administrator on this point is, therefore, reduced to the narrow question as to the meaning which is to be given the phrase "any agricultural commodity" as that phrase is used in Section 3(e) of the Act. We shall accordingly examine the reasons which the Administrator advances for his assertion that the phrase in question is not to be given its plain and ordinary meaning.

The Administrator asserts that when Congress used the phrase "any agricultural commodity" in Section 3 of the Act it meant only those commodities for which the Secretary of Agriculture had power to fix parity or comparable prices. He argues that the Secretary of Agriculture had neither the duty nor the authority to fix parity or comparable prices for any agricultural commodity not grown in the United States and he asserts that it necessarily follows that an imported commodity could never be an "agricultural commodity" within the meaning of the Bankhead Amendment. In support of his suggested construction of the Bankhead Amendment the Administrator primarily relies upon the proposition that the phrase "any agricultural commodity" is used as a term of art in that restricted sense throughout the whole of Section 3 of the Emergency Price Control Act, including subsection (e) thereof. He also claims to find support for his view in the reports of the debates in Congress on the Bankhead Amendment, in his own administrative practice, in an opinion of a federal district court, and in an advisory opinion of the solicitor for the Department of Agriculture.

In advancing his primary contention the Administrator points out that the phrase "any agricultural commodity" is used in four of the subsections of Section 3 and asserts, as we have said, that the phrase is used as a term of art in all of them. He argues that in subsections (a), (b) and (c) the phrase is used in the restricted sense for which he contends and he urges that it is necessary to the proper and unified construction of the section that the phrase be given that restricted meaning in subsection (e) also. Basic to this contention is the Administrator's assertion that Congress intended to give the phrase exactly the same meaning when using it in each of the subsections preceding subsection (e). For, as he thus recognizes, by a term of art is meant one which is used in a particular field with a precise technical meaning.⁷ In testing the soundness of the premise upon which the Administrator's contention is based, therefore, it is necessary only to examine the preceding subsections to which he points in order to determine whether the phrase "any agricultural commodity" is used in each of them in exactly the same sense.

Subsections (a), (b) and (c) of Section 3 are as follows:

"(a) No maximum price shall be established or maintained for any agricultural commodity below the highest of any of the following prices, as determined and published by the Secretary of Agriculture: (1) 110 per centum of the parity price for such commodity, adjusted by the Secretary of Agriculture for grade, location, and seasonal differentials, or, in case a comparable price has been determined for such commodity under subsection (b), 110 per centum of such comparable price, adjusted in the same manner, in lieu of 110 per centum of the parity price so adjusted; (2) the market price prevailing for such commodity on October 1, 1941; (3) the market price prevailing for such commodity on December 15, 1941; or (4) the average price for such commodity during the period July 1, 1919, to June 30, 1929.

"(b) For the purposes of this Act, parity prices shall be determined and published by the Secretary of Agriculture as authorized by law. In the case of any agricultural commodity other than the basic crops corn, wheat, rice, tobacco, and peanuts, the Secretary shall determine and publish a comparable price whenever he finds, after investigation and public hearing, that the production and consumption of such commodity has so changed in extent or character since the base period as to result in a price out of line with parity prices for basic commodities.

"(c) No maximum price shall be established or maintained for any commodity processed or manufactured in whole or substantial part from any agricultural commodity below a price which will reflect to producers of such agricultural commodity a price for such agricultural commodity equal to the highest price therefor specified in subsection (a)."

It will be observed that subsections (a) and (c) are similar in that each imposes a specific limitation upon the power of the Administrator to establish maximum prices for "any agricultural commodity", or commodity processed therefrom, as the case may be. Subsection (b) on the other hand is directed to a different object. Its purpose is to impose upon the Secretary of Agriculture the duty to determine and publish parity or comparable prices.

It will be seen that subsections (a) and (c), impose a limitation upon the maximum prices which may be fixed for the agricultural commodities to which the subsections refer. If read...