Pinkus v. Porter

• Decision Date: 02 May 1946
• Docket Number: No. 9039.,9039.
• Citation: 155 F.2d 90
• Parties: PINKUS et al. v. PORTER, Adm'r, OPA.
• Court: U.S. Court of Appeals — Seventh Circuit

155 F.2d 90 (1946)

PINKUS et al. v. PORTER, Adm'r, OPA.

No. 9039.

Circuit Court of Appeals, Seventh Circuit.

May 2, 1946.

Harry A. Kovenock and Harry J. Weisfeldt, both of Milwaukee, Wis., for appellants.

George Moncharsh, Milton Klein, and David London, OPA, all of Washington, D. C., and Amos J. Coffman, Jacob Cohen, and George E. Leonard, OPA, all of Chicago, Ill., and Samuel Mermin, Chief, Special Litigation Branch, OPA, of Washington, D. C. (Lee K. Beznor, Dist. Enforcement Atty., OPA, of Milwaukee, Wis., of counsel), for appellee.

Before SPARKS and MAJOR, Circuit Judges, and LINDLEY, District Judge.

SPARKS, Circuit Judge.

Appellants appeal from an order entered by the District Court, February 18, 1946, directing them to appear at the Milwaukee Office of the Office of Price Administration, on February 25, to testify concerning the purchase and sale of commodities by the Wisconsin Packing Company, and to produce all books and records showing the purchase of livestock since January 1, 1945, and sale of beef from January 1, 1943. Application for the order was made after both appellants had refused to comply with administrative subpœnas requiring the same information. On the return day, as extended at the request of counsel for appellants, counsel appeared without his clients or the records and asked for a three-week adjournment, stating that if appellee would specify the parts of the records desired, he would furnish copies or would stipulate as to their contents.

Appellants first contend that there was no necessity for the subpœnas, there being no showing that the information sought was not available otherwise, and that in the absence of a showing of necessity, the Administrator was not entitled to the order complained of. Section 202(b) of the Emergency Price Control Act, 50 U.S.C.A. Appendix, § 922(b), authorizes the Administrator to require any person engaged in the business of dealing with any commodity to furnish information, keep records, and make reports, and to permit the inspection and copying of records and other documents. It also authorizes him, by subpœna, to require any such person to appear and testify or produce documents at any designated place, "whenever necessary." Appellants construe this to require that the Administrator make a showing of necessity before his request for enforcement is granted by the court, and urge that such requirement was not met by the affidavits which were presented in this case. They rely upon the difference between the language quoted from subsection (b), and that of subsection (a). The latter permits the Administrator to conduct hearings and obtain such information as he deems necessary. However, as appellee points out, such difference in language does not necessarily mean a difference in meaning, as held in Colgate-Palmolive-Peet Co. v. United States, 320 U.S. 422, 64 S.Ct. 227, 88 L.Ed. 143. And the effect of making such a distinction between the subsections here involved would be to give the Administrator less authority over persons dealing in commodities, whose own activities were the subject of the investigation, than over other persons not dealing with such commodities.

We are convinced that the Administrator was acting within his authority in requiring appellants to appear before him to testify concerning the matters stated, and in calling upon them to bring books and records dealing with transactions within the limited period fixed. They did not appear, but sent their attorney who asked for an itemized list of the books and records desired, and for three weeks in which to prepare for the investigation. Under these circumstances we think there was ample authority for the Administrator to ask for, and the court to issue the subpœnas which, we note, allowed them a full week before compliance. Cf. Fleming v. Montgomery Ward and Co., 7 Cir., 114 F.2d 384.

Appellants also contend that the subpœnas were invalid because signed and issued by the District Director under a purported delegation of the Administrator not in fact authorized by the Act. The subpœnas were issued in the name of the Administrator and signed with his name, by the District Director, in accordance with the provisions of Order No. 53, as revised May 13, 1944, 9 F.R. 5191.

Appellants base their attack on the validity of the delegation on the ruling in Cudahy Packing Co. of Louisiana v. Holland, 315 U.S. 357, 788, 62 S.Ct. 651, 86 L.Ed. 895. There the Court held that the Administrator of the Wage and Hour Division of the Department of Labor was not authorized by the Fair Labor Standards Act, 29 U.S.C.A. § 201 et seq., to delegate the power to sign and issue a subpœna duces tecum conferred upon him by that Act. In reaching its decision, from which four Justices dissented, the Court emphasized the fact that a provision of the House bill specifically authorizing any employee designated by the Administrator to subpœna witnesses, and one of the Senate bill lodging the subpœna power in a Labor Standards Board specifically authorized to delegate that power, were stricken from the bill as finally enacted, and in their place, there was inserted a provision granting to the Administrator the subpœna powers of the Federal Trade Commission Act, 15 U. S.C.A. § 41 et seq., which permits that Commission to require the attendance and testimony of witnesses and the production of documents by subpœna which may...