Bowles v. Insel

• Decision Date: 12 March 1945
• Docket Number: No. 8776-8778.,8776-8778.
• Citation: 148 F.2d 91
• Parties: BOWLES, Price Adm'r, v. INSEL. SAME v. FELD. SAME v. KRESSLER.
• Court: U.S. Court of Appeals — Third Circuit

148 F.2d 91 (1945)

BOWLES, Price Adm'r, v. INSEL.

SAME v. FELD.

SAME v. KRESSLER.

Nos. 8776-8778.

Circuit Court of Appeals, Third Circuit.

Argued February 12, 1945.

Decided March 12, 1945.

Milton B. Conford, of Newark, N. J. (I. Edward Amada, of Newark, N. J., on the brief), for appellants.

Nathan Siegel, of Washington, D. C. (Thomas I. Emerson, Deputy Adm'r for Enforcement, Fleming James, Jr., Director, Litigation Division, and David London, Chief, Appellate Branch, all of Washington, D. C., Paul L. Ross, Regional Enforcement Executive, John Masterton, Regional Litigation Atty. and Wm. Sherman Greene, Jr., Enforcement Atty., all of New York City, on the brief), for appellee.

Before PARKER and GOODRICH, Circuit Judges, and BARD, District Judge.

PARKER, Circuit Judge.

These are appeals from orders of the District Court of New Jersey ordering appellants to appear before the enforcement attorney of the Office of Price Administration and produce records showing sales of meat items subject to Revised Maximum Price Regulation No. 169 from January 1, 1944 to August 1, 1944, including names and addresses of buyers, with quantity, grade, weight and price of meat sold. On failure of appellants to submit their records to inspection, the Administrator caused subpœnas duces tecum to be issued requiring them to testify and to produce the records; and, on their failure to obey the subpœnas, he applied to the District Court for an order requiring them to do so. The records in question are records required by OPA regulations to be kept and to be open to inspection. See General Maximum Price Regulation of April 28, 1942, sec. 1499.12.

We think that there can be no question as to the correctness of the order requiring appellants to obey the subpoenas. The Emergency Price Control Act authorizes the Administrator to adopt regulations requiring dealers in commodities to keep records, authorizes the inspection of such records, and authorizes the Administrator, by subpoena, to require persons having possession of the records to appear and produce them. 50 U.S.C.A.Appendix, § 922(b). In case of any refusal to obey such subpoena, the District Court is given jurisdiction to enforce compliance therewith. 50 U.S.C.A.Appendix, § 922(e).

The principal contention of appellants is that the records which they are required to produce are private records; that there is no showing of probable cause to believe that they have been guilty of any violation of law; and that under such circumstances an order to produce the records is violative of the rights protected by the Fourth Amendment to the Constitution of the United States. If the records required to be produced were in fact mere private records, this contention of appellants would be well grounded; for it is settled that without a showing of probable cause to believe that the law has been violated and specific description of the papers and records to be produced, a subpoena requiring the production of private papers is violative of the provision against unreasonable searches and seizures. Boyd v. United States, 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Hale v. Henkel, 201 U.S. 43, 77, 26 S.Ct. 370, 50 L.Ed. 652; Federal Trade Commission v. American Tobacco Co., 264 U.S. 298, 44 S.Ct. 336, 68 L.Ed. 696, 32 A.L.R. 786; Jones v. Securities and Exchange Commission, 298 U.S. 1, 27, 56 S.Ct. 654, 80 L.Ed. 1015.

It is perfectly clear, however, that the records required to be produced are not private but public or quasi public records; and the mere fact that they are records of the sort which a private person would ordinarily keep with regard to his private business transactions does not detract from their public character. It was within the power of Congress, as a war measure, to regulate prices of commodities to guard against ruinous price inflation; and, since the keeping of records open to public inspection was necessary to any effective enforcement of such price regulation, it was well within the Congressional power to require that records of sales and prices be kept and be subject to inspection by public officers. Records so kept pursuant to statute and regulation are clearly public or quasi public in character; and the constitutional guaranties protecting private papers have no application to them. As said by the Supreme Court in Wilson v. United States, 221 U.S. 361, 380, 31 S.Ct. 538, 544, 55 L.Ed. 771, Ann.Cas. 1912D, 558, "The principle i. e. that public records may not be withheld from inspection applies not only to public documents in public offices, but also to records required by law to be kept in order that there may be suitable information of transactions which are the appropriate subjects of governmental regulation, and the enforcement of restrictions validly established. There the privilege which exists as to private papers cannot be maintained."

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