Bowles v. Beatrice Creamery Co.

• Decision Date: 29 December 1944
• Docket Number: No. 3040,3041.,3040
• Citation: 146 F.2d 774
• Parties: BOWLES, Adm'r, Office of Price Administration, v. BEATRICE CREAMERY CO. SAME v. VOERDING.
• Court: U.S. Court of Appeals — Tenth Circuit

146 F.2d 774 (1944)

BOWLES, Adm'r, Office of Price Administration, v. BEATRICE CREAMERY CO.

SAME v. VOERDING.

Nos. 3040, 3041.

Circuit Court of Appeals, Tenth Circuit.

December 29, 1944.

David London, Chief, Appellate Branch, Office of Price Administration, of Washington, D. C. (Thomas I. Emerson, Deputy Adm'r for Enforcement, Fleming James, Jr., Director, Litigation Division, and Harold Craske, Atty., all of Washington, D. C., Max D. Melville, Regional Litigation Atty., of Denver, Colo., and James W. Brown, District Enforcement Atty., Office of Price Administration, of Cheyenne, Wyo., on the brief), for appellant.

Albert D. Walton, of Cheyenne, Wyo., for Beatrice Creamery Co.

Albert D. Walton, of Cheyenne, Wyo. (L. E. Armstrong, of Rawlins, Wyo., and Norman B. Gray and C. R. Ellery, both of Cheyenne, Wyo., on the brief), for N. F. Voerding.

Before PHILLIPS, BRATTON, and MURRAH, Circuit Judges.

PHILLIPS, Circuit Judge.

These actions were brought by Chester Bowles, as Administrator of the Office of Price Administration.¹ In No. 3040 he sought to recover damages under § 205(e) of the Emergency Price Control Act of 1942,² 50 U.S.C.A.Appendix, § 925(e), against the Beatrice Creamery Company³ for alleged violations of Revised Maximum Price Regulation No. 269, as amended,⁴ establishing maximum prices for wholesale poultry items. In No. 3041 he sought to recover damages under § 205(e) against N. F. Voerding for alleged violations of General Maximum Price Regulation, as amended,⁵ establishing maximum prices for commodities and services respecting the sale of ice cream.

In each case the defendant therein filed a motion to suppress certain evidence. The trial court sustained the motions to suppress. The Administrator, through his counsel, then advised the trial court that he had no additional evidence to present. Whereupon, the actions were dismissed. The Administrator has appealed in each case.

In support of its motion to suppress, Beatrice filed the affidavit of Harold F. Fairley in which he averred that he was the manager of the Wyoming and Northwestern Nebraska territory of Beatrice; that as such he had supervision and management of the plant and office of Beatrice at Cheyenne, Wyoming, and its warehouses and sales offices at Casper, Wyoming, and Scottsbluff, Nebraska; that the sales records and books for such territory were kept in the Cheyenne office; that on May 8, 1943, Andrew Royce and Jack Lawson, investigators for the OPA, came to the Beatrice office at Cheyenne, Wyoming; that Royce told Fairley they were investigators for the OPA and showed him his written credentials; that Royce, in his official capacity, demanded that Fairley show him the sales tickets for all merchandise sold by Beatrice from December, 1942, to date; that believing that Royce could legally demand inspection of such sales tickets and believing he was compelled to show them to Royce, he unwillingly and through official pressure, showed such tickets to Royce and Lawson and permitted them to inspect and examine such tickets; that he would not have exhibited the "sales tickets for poultry sold by Beatrice" had it not been for the fact that Royce introduced himself as an investigator for the OPA and showed him his written identifications as such "and in his official capacity, demanded the right to inspect the sales tickets for poultry sold."

At the hearing on the motion to suppress, Fairley testified that Royce and Lawson came in, introduced themselves, showed him their cards of identification, "and said they wanted to check my sales and record books. I hesitated about it but they had their credentials giving them authority to look at our records and copy them or whatever they wanted to do with them. * * * After that I went ahead and let them, the office gave them the records and they made copies of them."

In response to the motion to suppress, the Administrator filed the affidavits of Royce and Lawson. In his affidavit, Royce averred that he and Lawson went to the office of Beatrice on the morning of June 2, 1943, and contacted Fairley, the manager; that he told Fairley he and Lawson were investigators for the OPA; that he and Lawson showed Fairley their identification cards; that he requested Fairley to permit them to examine and copy the books, records, and other documents of Beatrice relating to poultry sales, and particularly to sales and purchases of quickfrozen and eviscerated poultry items during the period from December 18, 1942, to June 2, 1943; that Fairley made no objection to such request, said he would let them work in the office as long as they wanted to, called in one Lengel, introduced Lengel to them, and instructed Lengel to let them see the records; that thereupon he and Lawson inspected several files containing sales slips, and that Fairley and employees of Beatrice cooperated with and aided them in such examination. The affidavit of Lawson was substantially to the same effect as the affidavit of Royce.

In support of the motion to suppress in No. 3041, Voerding filed an affidavit in which he averred that on a number of occasions during the summer and fall of 1943, certain persons, who informed him that they were duly authorized agents of the OPA, visited him at his place of business in Rawlins, Wyoming; that such persons demanded that he make available to them his books, records, files, and papers kept by him in connection with the operation of his creamery business and as a dealer in ice cream and dairy products so that they might inspect such books, records, files, and papers; that he protested and objected; that thereupon such agents stated they had authority under the Act and regulations and orders of the Administrator to make such inspection and that he was bound and required by law to make available to them such books, records, files, and papers; that such investigators thereby overcame his protest and objection and caused him to produce and make available to them his books, records, files, and papers, and such agents inspected them; that such agents "particularly demanded the production of affiant's books, records, files and papers pertaining to purchases of ice cream made from him from by various and divers persons and said agents obtained from his books, records, files and papers the names of said purchasers and the quantity or quantities of ice cream purchased and the price charged by affiant therefor."

In response to the motion to suppress in No. 3041, the Administrator filed the affidavits of Jack L. Ankney and Stanley Blackburn, Jr. In his affidavit, Ankney averred that on December 29, 1942, pursuant to instructions, he called at Voerding's place of business in Rawlins, Wyoming, identified himself as an investigator for the OPA and asked Voerding for his "base period records, meaning his sales tickets and invoices showing sales during the month of March, 1942, and also for his records of sales to various and divers establishments located in Rawlins, Saratoga, and Parco, Wyoming"; that to such request Voerding replied that "all of his records were there," meaning his office, and "that affiant was free to look at them"; that he then and there inspected the statement filed with the Local War Price and Rationing Board setting forth the prices charged by Voerding for various quantities of ice cream during the month of March, 1942, and also inspected and examined sales slips relating to sales of ice cream by Voerding; that Voerding further stated that as far as he was concerned any records which he had in his office "which were connected with the Office of Price Administration were an open book and that affiant was free to look at them at any time."

In his affidavit, Blackburn averred that on April 29, 1943, he went to Voerding's office in Rawlins, Wyoming, introduced himself to Voerding as an investigator for the OPA, presented his identification card to Voerding, and requested Voerding to allow him to examine sales tickets, invoices, and other documents relating to the sale of ice cream for and during the month of March, 1942; that Voerding inquired of him by what right he was authorized to make such inspection; that he replied that his authority was pursuant to the provisions of the Act; that thereupon he accompanied Voerding to the office of an attorney by the name of Armstrong; that some general discussion was had by him, Armstrong, and Voerding regarding his right to examine and inspect such records; that thereupon he went to the waiting room in the office of Armstrong and further discussion was had between Armstrong and Voerding in the former's private office; that Voerding then came out of the private office and gave him permission to examine and inspect such records; that he returned to Voerding's office where certain invoices and sales tickets were furnished him by Voerding for his examination and inspection; that he interviewed Voerding on several occasions thereafter and at no time was he refused the right to inspect sales tickets, invoices, books, and records of Voerding.

Other than by the general averments in his affidavit, Voerding did not challenge the averment of Blackburn's affidavit that Voerding consented after consulting with his counsel.

The trial court made no formal findings, but, in a memorandum opinion filed in the cases, he stated, in effect, that the demand and examination were too broad and embraced books, records, and papers, without showing their relevancy, and amounted to a fishing expedition, and that the consent given by Fairley and Voerding was in the nature of a peaceful submission to the officers of the law and was not a consent amounting to a waiver of their constitutional rights.

Section 202(b) of the Act, 50 U.S.C.A. Appendix, § 922(b), authorizes the Administrator, by regulation or order, to require any person engaged in the business of dealing with any commodity to make and keep records and other documents and to permit the inspection and copying of...