Gordon v. Bowles
| Decision Date | 19 February 1946 |
| Docket Number | No. 264.,264. |
| Citation | 153 F.2d 614 |
| Parties | GORDON v. BOWLES, Price Administrator. |
| Court | U.S. Temporary Emergency Court of Appeals Court of Appeals |
Daniel G. Marshall, of Los Angeles, Cal., for complainant.
Benjamin Freidson, Atty., Office of Price Administration, of Washington, D. C. (Messrs. Richard H. Field, Gen. Counsel, Jacob D. Hyman, Associate Gen. Counsel, and John O. Honnold, Jr., Chief Court Review Price Branch, all of Washington, D. C., on the brief), for respondent.
Before MARIS, Chief Judge, and McALLISTER and LINDLEY, Judges.
Heard at Los Angeles January 14, 1946.
In a complaint filed under Section 204 (a) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 924(a), complainant attacks the validity of certain provisions of price regulations Nos. 422, 423 and 390 (8 F. R. 9395, 9407, 6428) and Los Angeles Order No. 5 having to do with the respective price ceilings of retail stores classified upon the basis of volume of sales. The Administrator included complainant in Group 4, which covers independent or chain stores having gross annual sales in the base period of over $250,000. Group 2, in which complainant claims he should have been placed, consists of independent stores of gross sales of from $50,000 to $250,000 per year. Complainant is proprietor of a grocery and retail liquor department in a store known as the Bargain Town Market, wherein there are two other retailers, Drummond, selling meats, and Balentine, fruits and vegetables. Complainant originally complained of a provision of MPR 422 and 423 that if a retailer sells food in a store in which there are other food retailers, none of whom sells a complete line of the same general class of food, he must "find his group" by taking the combined "annual gross sales" of all the food retailers in that store. He does not now insist that that basis for classification is invalid. See Safeway Stores v. Bowles, Em.App., 145 F.2d 836. Rather, his contention is that he has been deprived of due process of law in that, in determining his classification, as directed by the Administrator, he is compelled to rely upon information supplied by third parties not controlled by him and that to prescribe such a procedure for determining his classification and to deny him the opportunity of having the other retailers brought before the Administrator and examining them as to their volume of business deprive him of a hearing embracing the requirements of due process of law.
In discussing this contention, we should bear in mind that with the propriety of complainant's classification as such, involving, as it does, interpretation and application of the regulations to him, this court is not concerned. Those questions are left to the District Court for determination in enforcement or declaratory actions. Collins, et al. v. Bowles, Em. App., 152 F.2d 760; Conklin Pen Co. v. Bowles, Em.App., 152 F.2d 764, Jan. 11, 1946; Marlene Linens v. Bowles, Em. App., 144 F.2d 874; Veillette v. Bowles, Em.App., 150 F.2d 862.
We are primarily concerned with whether the method and procedure by which the Administrator determines his classifications is of such character as to deprive complainant of his day in court, upon questions vitally affecting his interests. Obviously, if the prescribed procedure is such as to amount to deprivation of due process of law, the regulations are unconstitutional unless complainant has a complete remedy in congressional provisions. As we view this case this is the only question properly within our province.
True it is that the regulations require complainant to obtain from those who are retailers under the same roof with him, information as to the amount of their annual sales; and true it is that there may be instances in which the personal relationship of these retailers is such that they will not willingly cooperate and that it is, therefore, impossible for one to obtain from the...
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