Bowles v. McCRADY CONST. CO.
| Decision Date | 01 March 1946 |
| Docket Number | Civil Action No. 4973. |
| Parties | BOWLES, Price Administrator, v. McCRADY CONST. CO., PITTSBURGH, ALLEGHENY COUNTY, PA. |
| Court | U.S. District Court — Western District of Pennsylvania |
Thomas F. Garrahan, Dist. Enforcement Atty., and Emerson Samuels and Allen S. Gordon, all of Pittsburgh, Pa., for plaintiff.
W. F. McCrady, Jr., of McCrady, Nicklas & Hirschfield, all of Pittsburgh, Pa., for defendant.
This is a civil action brought by the Administrator of the Office of Price Administration against the defendant, McCrady Construction Company, under and pursuant to the provisions of Section 205 (a) of the Emergency Price Control Act of 1942, as amended, 56 Stat. 23, 765; 57 Stat. 566; Public Law 383, 78th Cong. 58 Stat. 632; Public Law 108, 79th Cong., 59 Stat. 306, 50 U.S.C.A. § 901 et seq.; Executive Order 9250, 7 F.R. 7871, and Executive Order 9328, 8 F.R. 4681, 50 U.S.C.A.Appendix § 901 note.
It is the contention of the plaintiff that the defendant knowingly violated Maximum Price Regulation No. 134, as amended (7 F.R. 3203 et seq.), and should be restrained by a permanent injunction as to future actions.
It was claimed by the defendant that the violation was merely technical and inadvertent, and was caused by the desire, on the part of the defendant, to accommodate the public at a time of emergency, and that the failure to file the price schedule promptly was due to lack of personnel and the pressure of other business. In addition thereto, the defendant claimed that it had complied with said Regulation prior to the filing of the complaint for injunctive relief, and that the defendant had fully complied with the provisions of said Regulation. It was further argued that nothing more than a mere suspicion or ungrounded fear on the part of the government exists that the defendant will continue or will permit a violation of said Regulation in the future.
This matter was presented for hearing before the court without a jury, and each of the parties to said proceeding have filed Suggested Findings of Fact and Conclusions of Law.
The Court, after hearing and consideration of the Suggested Findings of Fact and Conclusions of Law together with the arguments presented by counsel for the party litigants, makes the following Findings of Fact and Conclusions of Law:
Findings of Fact
1. On and after May 11, 1942, there has been and remains in effect Maximum Price Regulation No. 134, as amended (7 F.R. 3203 et seq.), establishing maximum prices for the leasing or furnishing for use, construction or road maintenance equipment.
2. On and after July 1, 1943, Section 5 of Maximum Price Regulation No. 134, as amended, sets forth the procedure for establishing a maximum charge for operating and maintenance services.
3. On and after July 1, 1943, said Section 5 of Maximum Price Regulation No. 134 prohibits any person from receiving payment for any operating and maintenance services, unless the supplier thereof has established a maximum charge therefor, by filing a report of his prices charged with the Office of Price Administration, Washington, D. C., and, where necessary, by having a charge approved or not disapproved by the Office of Price Administration, as provided by the aforesaid Maximum Price Regulation No. 134, as amended.
4. Under the provisions of the Emergency Price Control Act of 1942, 50 U.S.C. A.Appendix § 901, it is provided, inter alia, as follows:
"It is hereby declared to be in the interest of national defense and security and necessary to the effective prosecution of the present war, and the purposes of this Act are, to stabilize prices and to prevent speculative, unwarranted, and abnormal increases in prices and rents; to eliminate and prevent profiteering, hoarding, manipulation, speculation, and other disruptive practices resulting from abnormal market conditions or scarcities caused by or contributing to the national emergency; * * * to prevent hardships to persons engaged in business, to schools, universities, and other institutions, and to the Federal, State, and local governments, which would result from abnormal increase in prices; and to assist in securing adequate production of commodities and facilities; * * * and to permit voluntary cooperation between the Government and producers, processors, and others to accomplish the aforesaid purposes."
5. The defendant, during the period from December 14, 1944, to and including July 13, 1945, leased or furnished for use construction or road maintenance equipment, namely, four machines to twelve divers customers in twenty instances and charged the aforesaid customers for operating and maintenance services and received payment therefor, before establishing a maximum price for the said operating and maintenance services, as required by Section 5 of Maximum Price Regulation No. 134, as amended.
6. On July 27, 1945, a duly authorized investigator of the Industrial Materials Unit of the Pittsburgh District Office of the Office of Price Administration, visited the premises of defendant in the course of his official duties and at that time was informed by the defendant that it had not filed for a price for operating and maintenance service charges under the provisions of Section 5 of Maximum Price Regulation No. 134, as amended.
7. On July 30, 1945, the same investigator visited the offices of the defendant and was informed at that time that defendant was preparing a price schedule for approval of operating and maintenance charges.
8. On August 2, 1945, defendant first made application to the Office of Price Administration, Washington, D. C., for approval of a specific price for operating and maintenance services.
9. On August 28, 1945, the Office of Price Administration, Washington, D.C., approved specific charges for operating and maintenance services, filed by defendant.
10. On September 25, 1945, a complaint for injunctive relief was filed against the defendant.
11. During the period from July 1942 to and including July 27, 1945, defendant was familiar with the provisions of Maximum Price Regulation No. 134, as amended.
12. That although defendant violated the provisions of Section 5 of Maximum Price Regulation No. 134, as amended, said violations were not willful or deliberate, nor with the purpose of flouting the regulations, nor in defiance of the law, but were actuated by a desire to accommodate certain of its customers and the public in times of emergency.
13. On and after August 2, 1945, to and including the date of the hearing, defendant was in complete compliance with the provisions of Maximum Price Regulation No. 134, as amended.
1. During the period from December 14, 1944, to and including July 13, 1945, the defendant violated the provisions of Maximum Price Regulation No. 134, as amended, in that it charged and received payment for operating and maintenance services on construction or road maintenance equipment, leased or furnished for use to divers customers, before establishing a maximum price therefor, as required by Section 5 of Maximum Price Regulation No. 134, as amended.
2. That the leasing or renting of equipment due to an emergency, or an accommodation to a customer or customers of the defendant, is no excuse for failing to comply with the provisions of Section 1(b) and Section 5 of the Maximum Price Regulation No. 134.
3. The cessation of violations, whether before or after the institution of the suit by the Administrator of the Office of Price Administration, is no bar to the issuance of an injunction under Section 205(a) of the Emergency Price Control Act of 1942, as amended, 56 Stat. 23, 765; 57 Stat. 566; Public Law, 383, 78th Cong.; Public Law 108, 79th Cong.; Executive Order 9250, 7 F.R. 7871, and Executive Order 9328, 8 F. R. 4681.
4. That an amendment to Maximum Price Regulation No. 134, effective July 14, 1945, established dollars and cents ceiling prices for operating and maintenance charges on 90% of the equipment that would be owned, leased or rented by the defendant.
5. By the provisions of Amendment 19 to Maximum Price Regulation No. 134, it is unnecessary to comply with Section 1(b) of said Regulation except in about 10% of the cases where operating or maintenance equipment would be purchased by the defendant, and then leased or rented to third persons.
6. That the actions of the defendant in failing to comply with said Regulation were committed with full realization of the provisions of Section 5 of Maximum Price Regulation No. 134, as amended.
7. That there is no present reasonable likelihood of the defendant failing to comply with the provisions of said Regulation in the future, and the granting of an injunction against the defendant is not presently for the best interest of the public generally.
8. That the granting of an injunction is presently refused with the right, however, being given to the plaintiff, on reasonable notice to the defendant and a showing that the defendant has failed or neglected to continue to comply with said Regulation, or a showing that violations of the Act have been resumed, to again apply to the court for appropriate injunctive relief.
9. That the costs in the proceeding, which have accrued to date, are to be paid by the defendant.
The Office of Price Administration in its complaint averred that the defendant had violated the provisions of Maximum Price Regulation No. 134, since the effective date of said Regulation was May 11, 1942, and, more particularly, Section 1(b) and Section 5 of said Regulation No. 134, each of which became effective on July 1, 1943. It is, therefore, necessary to first consider the provisions of said Regulation:
a. Regulation No. 134 established maximum prices for the leasing or furnishing for use construction or road maintenance equipment.
b. Section 1(b) of said Regulation provided that on or after July 1, 1943, no person shall supply any operating and maintenance services or...
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