Bowles v. Wheeler

• Decision Date: 10 December 1945
• Docket Number: No. 10924.,10924.
• Parties: BOWLES v. WHEELER.
• Court: U.S. Court of Appeals — Ninth Circuit

152 F.2d 34 (1945)

BOWLES v. WHEELER.

No. 10924.

Circuit Court of Appeals, Ninth Circuit.

August 1, 1945.

Writ of Certiorari Denied December 10, 1945.

COPYRIGHT MATERIAL OMITTED

Samuel Mermin, Special Appellate Attorney, Thomas I. Emerson, Deputy Administrator for Enforcement, Fleming James, Jr., Director, Litigation Division, David London, Chief Appellate Branch, George Moncharsh, Deputy Administrator for Enforcement, all of Washington, D. C., W. Dunlap Cannon, Jr., Regional Litigation Attorney, of San Francisco, Cal., and Franz E. Wagner, District Enforcement Attorney, of Portland, Ore., for appellant.

Sidney J. Graham and John F. Reilly, both of Portland, Ore., for appellee.

Daniel B. Trefethen, Tracy E. Griffin, Rummens & Griffin, DeWolfe Emory, and Falknor, Emory & Howe, all of Seattle, Wash., amici curiae.

Before DENMAN, HEALY, and BONE, Circuit Judges.

Writ of Certiorari Denied December 10, 1945. See 66 S.Ct. 265.

BONE, Circuit Judge.

This is an appeal from a judgment dismissing an action instituted on February 3, 1944 to recover treble damages under Sec. 205(e) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 925(e), for alleged overcharging for log booming and rafting services.

Appellee is engaged in the business of booming and rafting logs on the Willamette River. Logs are brought to his boomsite where appellee unloads them onto the river and assembles them into log rafts taken away by others. He charges for this unloading and assembling service on the basis of a log scale agreed upon between the purchaser and seller of the logs or under a log scale of a Scaling Bureau. His contention throughout this case is that the "service" he performs is not a "commodity" coming under the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq., and therefore not subject to price control.

The complaint alleges that appellee sold his said services at prices exceeding maximum prices permissible under the applicable price regulations. Regulations relied on and asserted as applying are the General Maximum Price Regulation, effective May 1, 1942; Maximum Price Regulation No. 165 and amendment No. 23 to the latter regulation, which amendment became effective June 23, 1943.¹ These regulations provide generally that the basis of charges was the highest price charged during the month of March, 1942, for the same or similar services. The overcharges are alleged to have been exacted between February 1, 1943 and October 1, 1943. After trial, the lower court dismissed the action.

Both here and below, appellee challenges without qualification the application of the Act and the regulations to his business operations. If by the clear and unmistakable language of the statute, they are excluded from the scope of price control legislation, his position is sound. But we cannot read such a Congressional purpose in the plain and simple provisions of the Act. Clearly, it was intended to accomplish its announced purpose. (Section 1(a) of the Act.) The price stabilization program made necessary by the exigent demands of total war was well nigh all-inclusive. It was frankly designed to prevent the inflationary spiral so characteristic of war periods. That Congress had no illusions concerning such a danger is apparent. Cf. Senate Report No. 931, 77th Congress, 2d Session, p. 25. This contemplation of the pressing problem is emphasized in numerous impressive court pronouncements. We do not doubt that the business operations of appellee fall within the broad terms of the Act. (See Section 302 of Act for types of business excluded.)

With respect to the regulations issued pursuant to the broad powers granted the Price Administrator to issue "such regulations and orders as he may deem necessary or proper in order to carry out the purposes and provisions of the Act" (section 201(d) we find conclusive evidence of the clear intent of Congress to make anti-inflation controls as effective as legislative ingenuity could devise. We are specifically forbidden by the Act to "consider" the validity and legality of the regulations (section 204(d). Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892; Rosensweig v. United States, 9 Cir., 144 F.2d 30; Bowles v. Nu Way Laundry, 10 Cir., 144 F.2d 741, 746, certiorari denied 323 U.S. 791, 65 S.Ct. 431. It is, of course, the province and the duty of the court to determine for itself whether a defendant is within the coverage of the Act or regulation, but in the determination of that question it is not competent for the court to consider the fairness or the equity of any regulation or price schedule established thereby. Such consideration is reserved for the Emergency Court. Bowles v. Nu Way Laundry, supra.

As noted, the Act itself does not, eo nomine, exclude the services here considered. From the record it appears that the Administrator construes the regulations to cover such services and the regulations at no time excluded them by name. The construction given the regulations even prior to the adoption of an amendment (No. 23) to the Maximum Price Regulation 165, would bring booming and rafting services within the orbit of price control. Since the Act itself is void of language definitely excluding such services from the scope of the Act, we therefore hold such services to be within its terms. See Bowles v. American Brewery, 4 Cir., 146 F.2d 842, 845.

It would appear that the Administrator in the exercise of the undoubted power to promulgate regulations, elected later to remove any possible doubt concerning the coverage and applicability of the general regulations by specifically naming booming and rafting in the amendment (No. 23). His interpretation of the Act and the applicability of the regulations issued under authority of the Act are entitled to great weight and serious consideration.² Also where the regulations purport to apply, the issue of applicability of the Act is a question for the Emergency Court only. See United States v. Pepper Bros., 3 Cir., 142 F.2d 340, 343; Bowles v. Cullen, 2 Cir., 148 F.2d 621; Bowles v. American Brewery, supra; Bowles v. Texas Liquor Board, 5 Cir., 148 F.2d 265.

To sustain the district court's judgment, appellee maintains that the Act does not apply to log booms, but this argument, if sustained, would require us to determine whether the Act empowers the regulations to which we have referred. Only the Emergency Court may consider such questions. Nor may we question the validity of a regulation by the process of construing the statute. Bowles v. Case, 9 Cir., 149 F.2d 777.

Appellee questions the authority of the Price Administrator to delegate the function of instituting treble-damage actions. Sec. 205(e) of Emergency Price Control Act. The Act (Sec. 201(a) authorizes the appointment of employees "to carry out the functions and duties" of the Administrator. Other provisions of this Section empower his authorized representatives to exercise any or all of his powers in any place, and the Administrator is authorized to issue such regulations and orders as he deems necessary to carry out the purposes and provisions of the Act. This language is sufficient to give the Administrator power to delegate the suit-bringing function to any "authorized representative".

The legislative history of the price control bill gives persuasive weight to this view. The Senate Committee on Banking and Currency in reporting out the Price Control Bill (1942), described Section 201(a) and (b) as follows (Sen.Rept. No. 931, 77th Cong. 2nd Session pp. 20, 21):

"Section 201(a) authorizes the Administrator to hire such employees, utilize and to establish such regional, local, or other agencies, and to accept such voluntary and uncompensated services as he deems to be necessary. He may perform his duties through such employees or agencies by delegating to them any of the powers given to him by the bill. * * *

"Section 201(b) provides that the principal office of the Administrator shall be in the District of Columbia but authorizes the Administrator, or any representative or other agency to whom he may delegate any or all of his powers, to exercise such powers in any place. * * *" Emphasis supplied.

In the 1944 House Hearings on the proposed extension of the 1942 Act, the Deputy Administrator for Enforcement, OPA, frankly told the Committee having charge of the bill that the national office did not institute litigation, "that is done in the field offices * * * each district office has authority * * * to institute litigation * * * we cannot review all of the activities which go on in the field. As a matter of morale, if we have given them the job to do, we cannot substitute our judgment for theirs." With this frank and illuminating explanation and interpretation of departmental procedure before it, Congress extended the life of the Act. When re-enactment of the statute occurs, legislative ratification of the administrative interpretation may well be inferred. See Green Valley Creamery v. United States, 1 Cir., 108 F.2d 342; Brewster v. Gage, 280 U.S. 327, 50 S.Ct. 115, 74 L.Ed. 457; McCaughn v. Hershey Chocolate Co., 283 U.S. 488, 51 S.Ct. 510, 75 L.Ed. 1183. If Congress was averse to this type of enforcement operations, it could have amended the enforcement provisions but it did not. Courts are not barred from the use of such legislative history which are pertinent aids to statutory construction and legislative intent. See United States v. Dickerson, 310 U.S. 554, 562, 60 S.Ct. 1034, 84 L.Ed. 1356; United States v. American Trucking Ass'n, 310 U.S. 534, 539, 549, 60 S.Ct. 1059, 84 L.Ed. 1345. Administrative construction of an act is always entitled to weight and serious consideration. See United States v. American Trucking Ass'n, supra; White v. Winchester Country Club, 315 U.S. 32, 41, 62 S.Ct. 425, 86 L.Ed. 619.

General Order No. 3 of the OPA,...