Porter v. Bowers

• Decision Date: 20 March 1947
• Docket Number: No. 4144.,4144.
• Citation: 70 F. Supp. 751
• Parties: PORTER v. BOWERS.
• Court: U.S. District Court — Western District of Missouri

70 F. Supp. 751

PORTER v. BOWERS.

No. 4144.

District Court, W. D. Missouri, W. D.

March 20, 1947.

Durward Brown and Ralph E. Griffith, both of St. Louis, Mo., for plaintiff.

Charles F. Lamkin, Jr., of Kansas City, Mo., for defendant.

RIDGE, District Judge.

Philip B. Fleming, Administrator of the Office of Temporary Controls, has filed in this action motion for his substitution as party plaintiff in the place and stead of Paul A. Porter, Price Administrator of the Office of Price Administration. Defendant objects to an order of substitution being made, for the following reasons:

I. That Executive Order 9809, 50 U.S. C.A. Appendix, § 601 note (11 F.R. 14281) issued by the President on December 12, 1946, transferring the functions of the Office of Price Administration to the newly created Office of Temporary Controls, is illegal and void.

II. Because the motion for substitution is premature, in that Philip B. Fleming has not been confirmed by the United States Senate as Administrator of the Office of Temporary Controls.

III. Because there is no substantial need for continuing and maintaining this action under Title 28, U.S.C.A. § 780, and Rule 25(d), Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c.

Disposing of the objections to the requested substitution in the order made by defendant, the following facts appear:

I. Under Title 1 of the First War Powers Act, Title 50 U.S.C.A. Appendix, § 601, the President was, on December 18, 1941, vested by Congress with power in the aid of the national security and defense and "for the more effective exercise and more efficient administration by the President of his powers as Commander-in-Chief of the Army and Navy" * * * 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, etc., in such manner as in his judgment would seem best.

Forty-three days after the passage of the First War Powers Act of 1941, Congress, "in the interest of the national defense and security" and as a necessity "to the effective prosecution of the present war", enacted the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, §§ 901-946. By Section 1(b) of said act the same was to terminate on a given date (later extended by subsequent acts of Congress to June 30, 1947), or upon the date of a proclamation by the President, or upon the date specified in a concurrent resolution by the two Houses of Congress, declaring that the further continuance of the authority created by such act was not necessary in the interest of the national defense and security, whichever date was the earlier. Regardless of the termination of said act, it was specifically provided therein "that as to offenses committed, or rights or liabilities incurred, prior to such termination date", the provisions of said act and "such regulations, orders, price schedules, and requirements" promulgated pursuant thereto were to be "treated as still remaining in force for the purpose of sustaining any proper suit, action or prosecution with respect to any such right, liability or offense", incurred by reason of the provision of said act. In section 201(b) the President was authorized and empowered "to transfer any of the powers and functions conferred (by) said act upon the Office of Price Administration, with respect to a particular commodity or commodities, to any other department or agency of the Government having other functions relating to such commodity or commodities, and to transfer to the Office of Price Administration any of the powers and functions relating to priorities or rationing conferred by law upon any other department or agency of the Government with respect to any particular commodity or commodities," except certain functions conferred by law upon the Secretary of Agriculture and other departments or agencies of the Government respecting agricultural commodities.

In support of his first contention, defendant makes the point, that Section 201(b) of the Emergency Price Control Act of 1942, supra, limits the power of the President to transfer functions of the Office of Price Administration to an existing department or agency of the Government "having other functions relating to" a commodity or commodities subject to regulation under the Emergency Price Control Act. In support thereof, defendant cites the cases of Porter v. Hirahara, D.C. Hawaii, 69 F.Supp. 441; Bowles v. Johnson (Cal.Mun.Ct., decided January 30, 1947); and Porter v. Wilson, D.C.Or., 69 F.Supp. 447. None of the authorities so cited are as yet officially reported. They are opinions of Courts having concurrent jurisdiction with the jurisdiction of this Court and, as such, are not binding authorities on this Court. Continental Securities Co. v. Interborough Rapid Transit Co., C.C., 165 F. 945.

By the First War Powers Act of 1941, supra, Congress intended to, and did, give to the President of the United States unlimited power to coordinate and redistribute the functions of executive agencies or departments of the Government one with another in aid of the national defense and the prosecution of the war. The powers so granted to the President included the right to transfer and redistribute functions, duties and powers previously existing and conferred by law upon any executive department or agency of the Government, as well as duties, functions and powers thereafter provided for subsequently created departments or agencies of the Government. This is manifest from a reading of Section 1 of said Act. As stated by the Emergency Court of Appeals, in California Lima Bean Growers Association v. Bowles, 150 F.2d 964, 966: "We think that a natural and unstrained reading of the language just quoted requires the conclusion that the power conferred upon the President to transfer functions from one to another executive agency was intended to extend to any and all functions whether existing before or after the passage of the First War Powers Act. The use in Section 1 of the clause `including any functions, duties, and powers hitherto by law conferred upon any executive department, commission, bureau, agency, governmental corporation, office, or officer' indicates that the general language of the section was intended to grant power to redistribute functions conferred after as well as before the passage of the act. This is also borne out by the provision of Section 5 that upon the termination of the act all executive and administrative agencies `shall exercise the same functions, duties, and powers as heretofore or as hereafter by law may be provided' regardless of any redistribution thereof made by the President under the act. Unless Section 1 authorizes the President to redistribute functions provided for by legislation enacted after the passage of the act, the reference to `the same functions * * * as hereafter by law may be provided' is wholly meaningless."

Such decision of the Emergency Court of Appeals, in the absence of other controlling authority, is one that is binding on this District Court and must be followed. New Amsterdam Casualty Co. v. Iowa State Bank, 8 Cir., 277 F. 713; Vacuum Cleaner Co. v. Thompson Mfg. Co., D.C., 258 F. 239; Warren Bros. Co. v. Evans, D.C., 234 F. 657; United States v. Flannery, 4 Cir., 106 F.2d 315. We accept it as such. Said decision affirmatively disposes of defendant's contention, that the power granted to the President in the First War Powers Act cannot be made to apply to an agency or department of the Government created by Congress subsequent to the passage of said Act.

It is defendant's further contention that if the First War Powers Act is applicable to the Office of Price Administration then Congress must be held to have modified the general power conferred on the President in the First War Powers Act by the subsequent enactment of Section 201(b) of the Emergency Price Control Act of 1942. It is defendant's position that by the terms of Section 201(b) of the Emergency Price Control Act, Congress specifically limited the power of the President to transfer functions of the Office of Price Administration to another agency or department of the Government, only when such other agency or department of the Government had other functions granted to it by law, relating to a commodity or commodities within the purview of the Emergency Price Control Act. Hence, the defendant says, that the Administrator of the Office of Temporary Controls, having no function or functions relating to any commodity within the purview of the Emergency Price Control Act prior to his appointment to the Office of Temporary Controls, such Administrator could not effectively be vested with any power granted to the Price Administrator under the Emergency Price Control Act of 1942. We find no such limitation existing in the power conferred on the President by the Emergency Price Control Act of 1942, as amended. The power to transfer functions of the Office of Price Administration to some other department or agency of the Government having other functions relating to a commodity subject to control by the Price Administrator is not an implied repeal of the general grant of power given to the President in the First War Powers Act. In United States v. Borden Co., 308 U.S. 188, 198, 60 S.Ct. 182, 188, 84 L.Ed. 181, Mr. Chief Justice Hughes, speaking for the Court, said: "It is a cardinal principle of construction that repeals by implication are not favored. When there are two acts upon the same subject, the rule is to give effect to both if possible. United States v. Tynen, 11 Wall. 88, 92, 20 L.Ed. 153; In re Henderson's Tobacco, 11 Wall. 652, 657, 20 L.Ed. 235; General Motors Acceptance Corp. v. United States, 286 U. S. 49, 61, 62, 52 S.Ct. 468, 472, 76 L. Ed. 971, 82 A.L.R. 600. The intention of the legislature to repeal `must be clear and manifest'. Town of Red...