Fleming v. Mohawk Wrecking Lumber Co Raley v. Fleming

Citation331 U.S. 111,67 S.Ct. 1129,91 L.Ed. 1375
Decision Date28 April 1947
Docket NumberNos. 583 and 512,s. 583 and 512
PartiesFLEMING, Temporary Controls Administrator, v. MOHAWK WRECKING & LUMBER CO. et al. RALEY et al. v. FLEMING, Temporary Controls Administrator
CourtU.S. Supreme Court

Mr. David London, of Washington, D.C., for Philip B. Fleming.

[Argument of Counsel from page 112 intentionally omitted] Mr. John W. Babcock, of Detroit, Mich., for Mohawk Wrecking & Lumber Co. and Harry Smith.

Paul Flaherty and C. L. Dawson, both of Washington, D.C., for James G. Raley and Thomas E. Raley.

Mr. Justice DOUGLAS delivered the opinion of the Court.

These cases present the question whether the Emergency Price Control Act, 56 Stat. 23, as amended, 50 U.S.C.App.Supp. V, § 901 et seq., 50 U.S.C.A.Appendix, § 901 et seq., authorizes the Administrator to delegate to district directors authority to sign and issue subpoenas. In the first of these cases the Circuit Court of Appeals for the Sixth Circuit held that such authority did not exist, 156 F.2d 891; in the second, the Court of Appeals for the District of Columbia held that it did. 156 F.2d 561. The cases are here on petitions for writs of certiorari which we granted to resolve the conflict.

First. After we granted the petitions we ordered, on motion on the Acting Solicitor General, that Philip B. Fleming, Temporary Controls Administrator, be substituted as a party in each case in place of Paul A. Porter, Administrator, Office of Price Administration, resigned. Thereafter respondents in the first of these cases filed a motion to vacate the order of substitution, a motion which we deferred to the hearing on the merits.1 The question has now been briefed and argued and we conclude that the motion to vacate the order of substitution should be denied.

The Act was amended in 1946 to provide for its termination not later than June 30, 1947, saving, however, rights and liabilities incurred prior to the termination date.2 By November 12, 1946, almost all commodities (including services) were by administrative order3 made exempt from price control. 4 Price control had thus entered a temporary transition period. On December 12, 1946, the President issued an Executive Order 'for the purpose of further effectuating the transition from war to peace and in the interest of the internal management of the Government.' That order consolidated the Office of Price Administration and three other agencies into the Office of Temporary Controls5—an agency in the Office for Emergency Management of the Executive Office of the President. The latter had previously been established pursuant to the Reorgani- zation Act of 1939, 53 Stat. 561.6 The Executive Order provided a Temporary Controls Administrator, appointed by the President, to head the Office of Temporary Controls and vested in him, inter alia, the functions of the Price Administrator, including the authority to maintain in his own name civil proceedings, whether or not then pending, relating to matters theretofore under the jurisdiction of the Price Administrator Petitione r is the Temporary Controls Administrator appointed by the President.

It is argued that the President had no authority to transfer the functions of the Price Administrator to another agency and to vest in an officer appointed by the President the power which the Emergency Price Control Act, § 201, had conferred upon an Administrator appointed by the President by and with the advice and consent of the Senate. And it is said that even though such authority existed, it came to an end with the cessation of hostilities.

By § 1 of the First War Powers Act of 1941, 55 Stat. 838, 50 U.S.C.App.Supp. V, § 601, 50 U.S.C.A.Appendix, § 601, the President is 'authorized to make such redistribution of functions among executive agencies as he may deem necessary, including any functions, duties, and powers hitherto by law conferred upon any executive department, commission, bureau, agency, governmental corporation, office, or officer, in such manner as in his judgment shall seem best fitted to carry out the purposes of this title, and to this end is authorized to make such regulations and to issue such orders as he may deem necessary * * *.' That power may be exercised 'only in matters relating to the conduct of the present war,' § 1, and expires six months after 'the termination of the war.' § 401, 50 U.S.C.A.Appendix, § 621.

On December 31, 1946, after the creation of the Office of Temporary Controls, the President, while recognizing that 'a state of war still exists,' by proclamation declared that hostilities had terminated.7 The cessation of hostilities does not necessarily end the war power. It was stated in Hamilton v. Kentucky Distilleries & W. Co., 251 U.S. 146, 161, 40 S.Ct. 106, 110, 64 L.Ed. 194, that the war power includes the power 'to remedy the evils which have arisen from its rise and progress' and continues during that emergency. Stewart v. Kahn, 11 Wall. 493, 507, 20 L.Ed. 176. Whatever may be the reach of that power, it is plainly adequate to deal with problems of law enforcement which arise during the period of hostilities but do not cease with them. No more is involved here.

Section 1 of the First War Powers Act does not explicitly provide for creation of a new agency which consolidates the functions and powers previously exercised by one or more other agencies. But the Act has been repeatedly construed by the President to confer such authority.8 Such construction by the Chief Executive, being both contemporaneous and consistent, is entitled to great weight. See United States v. Jackson, 280 U.S. 183, 193, 50 S.Ct. 143, 146, 74 L.Ed. 361; Billings v. Truesdell, 321 U.S. 542, 552, 553, 6 S.Ct. 737 , 743, 744, 88 L.Ed. 917. And the appropriation by Congress of funds for the use of such agencies stands as confirmation and ratification of the action of the Chief Executive. Brooks v. Dewar, 313 U.S. 354, 361, 61 S.Ct. 979, 982, 85 L.Ed. 1115.

Nor do we think there is merit in the contention that the First War Powers Act gave the President authority to transfer functions only from agencies in existence when that Act became law. It is true that § 1 authorizes the President 'to make such redistribution of functions among executive agencies as he may deem necessary, including any functions, duties, and powers hitherto by law conferred upon' any agency. But the latter clause is only an illustration of the authority granted, not a limitation on it. It makes clear that the authority extends to existing agencies as well as to others. That construction is supported by § 5 of the Act which states that upon its termination all executive and administrative agencies 'shall exercise the same functions, duties, and powers as heretofore or as hereafter by law may be provided, any authorization of the President under this title to the contrary notwithstanding.' As stated by the Emergency Court of Appeals, unless § 1 authorizes the President to redistribute functions of agencies created after the passage of the Act, the reference in § 5 to functions 'hereafter' provided by law is 'wholly meaningless.' California Lima Bean Growers Ass'n v. Bowles, Em.App., 150 F.2d 964, 967. Nor is that result affected by the subsequent enactment of the Emergency Price Control Act which in § 201(b) authorized the President to transfer any of the powers and functions of the Office of Price Administration 'with respect to a particular commodity or commodities' to any government agency having other functions relating to such commodities. Whatever effect that provision may have, it does not purport to deal with general enforcement functions and so restricts in no way the authority of the President under the First War Powers Act to transfer them. Yet enforcement functions are all that are involved in the present cases.

We need not decide whether under the First War Powers Act the President had authority to transfer functions of an officer who need be confirmed by the Senate to one appointed by the President without Senate confirmation. For § 2 of that Act provides:

'(That) in carrying out the purposes of this title the President is authorized to utilize, coordinate, or consolidate any executive or administrative commissions, bureaus, agencies, governmental corporations, offices, or officers now existing by law, to transfer any duties or powers from one existing department, commission, bureau, agency, governmental corporation, office, or officer to another, to transfer the personnel thereof or any part of it either by detail or assignment, together with the whole or any part of the records and public property belonging thereto.'

The authority to 'utilize * * * offices, or officers now existing by law' is sufficient to sustain the transfer of functions under the Executive Order from Porter, resigned, to Fleming. For prior to the Act Fleming had been appointed by the President and confirmed by the Senate as Federal Works Administrator. 9 He thus was the incumbent of an office 'existing by law' at the time of the passage of the Act and by virtue of § 2 could be the lawful ecipient t hrough transfer by the President of the functions of other agencies as well. To hold that an officer, previously confirmed by the Senate, must be once more confirmed in order to exercise the powers transferred to him by the President would be quite inconsistent with the broad grant of power given the President by the First War Powers Act. Any doubts on this score would moreover, be removed by the recognition by Congress in a recent apporopriation of the status of the Temporary Controls Ad- ministrator.10 That recognition was an acceptance or ratification by Congress of the President's action in Executive Order No. 9809. Swayne & Hoyt, Ltd. v. United States, 300 U.S. 297, 301, 302, 57 S.Ct. 478, 479, 480, 81 L.Ed. 659; Brooks v. Dewar, supra.

For these reasons Fleming is a successor in office of Porter and may be substituted as a party und...

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