Porter v. Murray, 4159.

• Decision Date: 28 June 1946
• Docket Number: No. 4159.,4159.
• Citation: 156 F.2d 781
• Parties: PORTER v. MURRAY.
• Court: U.S. Court of Appeals — First Circuit

156 F.2d 781 (1946)

PORTER v. MURRAY.

No. 4159.

Circuit Court of Appeals, First Circuit.

June 28, 1946.

Samuel Mermin, of Washington, D. C. (George Moncharsh, Deputy Adm'r for Enforcement, and Milton Klein, Director, Litigation Division, both of Washington, D. C., and William B. Sleigh, Jr., Regional Litigation Atty., of Boston, Mass., and Clinton S. Osgood, District Enforcement Atty., of Manchester, N. H., on the brief), for appellant.

Ernest R. D'Amours, of Manchester, N. H., for appellee.

Before DOBIE, Circuit Judge (by special assignment to this Circuit), MAHONEY, Circuit Judge, and SWEENEY, District Judge.

MAHONEY, District Judge.

This is an appeal by the Administrator of the Office of Price Administration from a judgment of the District Court dismissing his application for enforcement of a subpoena duces tecum issued by a District Director of the Office of Price Administration.

On January 15, 1946, the District Director signed and issued a subpoena duces tecum requiring the defendant who was doing business as the Victory Lumber & Supply Company in Londonderry, New Hampshire, to appear at the District Office of the Office of Price Administration in Concord, New Hampshire, and produce certain books and documents relating to the purchase and sale of lumber, between May 23, 1943 and January 15, 1946. The defendant failed to comply with this subpoena and the Administrator applied to the District Court for enforcement thereof, alleging that defendant had "in his possession certain records of the type described in the subpoena duces tecum relating to the purchase and sale of lumber" and that defendant had "refused to permit the inspection and copying of said records" and "had not furnished the Administrator with a copy of the documents and record referred to in the aforesaid subpoena, nor stipulated with the Administrator as to the information contained therein".

The defendant filed a motion to dismiss the Administrator's application on two grounds: first, because the Act does not authorize the Administrator to delegate his power to issue subpoenas; and, second, because the subpoena in question is so broad and indefinite that enforcement of it would constitute a violation of the Fourth Amendment to the Constitution of the United States. The District Court granted defendant's motion on the first ground above designated.

Under § 202(a) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 922 (a), hereinafter referred to as the Price Control Act, or the Act, the Administrator of the Office of Price Administration, hereinafter called the OPA, "is authorized to make such studies and investigations, to conduct such hearings, and to obtain such information as he deems necessary or proper to assist him in prescribing any * * * regulations, orders, and price schedules thereunder." Section 202 (c), 50 U.S.C.A.Appendix, § 922(c), provides that "The Administrator may by subpoena requires any other person to appear and testify or to appear and produce documents, or both, at any designated place" for the purpose of obtaining any information under subsection (a) of § 202. Section 202(e), 50 U.S.C.A.Appendix, § 922(e), of the Act gives the district court "jurisdiction to issue an order requiring such person to appear and give testimony or to appear and produce documents, or both" where any person referred to in § 202(b)¹ or (c) has refused to obey a subpoena served upon him. Section 201(a), 50 U.S.C.A.Appendix, § 921(a), authorizes the administrator to "appoint such employees as he deems necessary in order to carry out his functions and duties" under the Act, subject to the civil service laws. Section 201(b), 50 U.S.C.A.Appendix, § 921 (b), of the Act establishes the principal office of the administrator in the District of Columbia, but provides that "he or any duly authorized representative may exercise any or all of his powers in any place." On May 13, 1944, pursuant to the authority vested in him by § 201(d), 50 U.S. C.A.Appendix, § 921(d), of the Act to "issue such regulations and orders as he may deem necessary or proper in order to carry out the purposes and provisions" of this Act, the Administrator promulgated an order delegating his authority to sign and issue subpoenas to the Regional Administrators and the District Directors of the OPA.²

The principal basis of the determination of the District Court was the decision of the Supreme Court in Cudahy Packing Co. v. Holland, 1942, 315 U.S. 357, 62 S.Ct. 651, 86 L.Ed. 895. In that case, the Supreme Court held that the Fair Labor Standards Act of 1938 did not authorize the Administrator of the Wage and Hour Division of the Department of Labor to delegate his power to sign and issue subpoenas duces tecum.³ The relevant portions of § 4(b) and (c), 29 U.S.C.A. § 204(b) and (c), of the Fair Labor Standards Act contain almost precisely the same language as is found in § 201 (a) and (b) of the Price Control Act.⁴ The Court, in the Cudahy case, placed great stress on the Congressional history of the Fair Labor Standards Act. It pointed out that "the authority to delegate the subpoena power was eliminated by the Conference Committee from the bills which each House had adopted. Such authority expressly granted in the bill which passed the Senate, was rejected by the Conference Committee. It also discarded the provisions of the House bill which committed the administration of the Act to the Secretary of Labor, who has a general power of delegation under Rev. Stat. § 161, 5 U.S.C. § 22, 5 U.S.C.A. § 22, and placed in his stead the Administrator, who was given only the subpoena powers of the Federal Trade Commission incorporated in the House bill." 315 U.S. at page 357, 62 S.Ct. 656, 86 L.Ed. 895.⁵ The Court concluded that the legislative history of the Fair Labor Standards Act established "that Congress has withheld from him (the Administrator) authority to delegate the exercise of the subpoena power, and that this" precluded its restoration by judicial construction. 315 U.S. at page 367, 62 S.Ct. at page 656, 86 L.Ed. 895. We are not unmindful of the statement of the Supreme Court in the Cudahy case that "Unlimited authority of an administrative officer to delegate the exercise of the subpoena power is not lightly to be inferred." 315 U.S. at page 363, 62 S.Ct. at page 655, 86 L.Ed. 895. But we feel that the legislative history and the function of Price Control are so different from the legislative history and the function of the Fair Labor Standards Act that the Cudahy case does not control the case at bar.

In construing the Labor Standards Act, the Supreme Court took note that § 11 of that Act, 29 U.S.C.A. § 211, authorizes the Administrator to delegate his power of investigation to his designated representatives and that a construction granting to the Administrator unrestricted authority to delegate all of his powers "would render meaningless and unnecessary the provisions of § 11 * * *." 315 U.S. at page 361, 62 S.Ct. 653, 86 L.Ed. 895. No provision of the Price Control Act expressly authorizes a delegation of any of the powers of the Administrator to subordinates. The words of the Act vest all powers in the Administrator. Were we to construe the Act to deny any delegation of power by the Administrator, the administration of Price Control would be not only difficult but impossible. The Supreme Court in the Cudahy case said in reference to § 4(c) of the Labor Standards Act, that it could not read the words "any or all" to mean "some". 315 U.S. 357 at page 361, 62 S.Ct. 654, 86 L.Ed. 895. Similarly, we cannot read the words "any or all" in § 201(b) of the Price Control Act to mean "some". We do not believe that Congress intended to require the Administrator to perform personally all the powers vested in him by the Act, and this is borne out by the Congressional history, as shown hereinafter. We cannot say that some of the Administrator's powers can be delegated and others cannot. Nor can we say that the Administrator can delegate his power to conduct investigations or institute enforcement actions, but cannot delegate his power to sign and issue subpoenas.⁶

Not only is there a lack of evidence of Congressional intent to prohibit a delegation of his subpoena power by the Administrator, but there is substantial evidence of Congressional intent to allow such a delegation. In its report on the Price Control bill, the Senate Committee on Banking and Currency stated that § 201 (a) authorizes the Administrator to "perform his duties through such employees or agencies (as he hires or utilizes) by delegating to them any of the powers given to him by the bill," and that § 201(b) "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." Sen. Rep. No. 931, 77th Cong., 2d Sess. pp. 20, 21. The fact that this is a report of a committee of only one House of Congress does not deprive it of considerable weight. It is true, as the Court below pointed out, that there is no specific mention of the subpoena power in this report. But we cannot say that the Committee meant that only some powers could be delegated, when it has said that "any or all" powers may be delegated, at least in the absence of a showing that an application of this construction in a particular instance would produce an absurd result.

Congressional intent to allow a delegation of the subpoena power is further emphasized by the fact that Congress fully cognizant of the Administrator's practice of delegating this power, re-enacted the statute without change. On June 29, 1943, the Administrator issued General Order 53 (8 F.R. 9037) delegating authority to Regional Administrators and District Directors to issue subpoenas which had been signed in blank by the Administrator; on May 13, 1944, he issued Revised Order 53 (9 F.R. 5191) delegating both the authority of signing and issuing subpoenas to the Regional...