Utah Junk Co. v. Bowles, 184.

• Decision Date: 06 August 1945
• Docket Number: No. 184.,184.
• Court: U.S. Temporary Emergency Court of Appeals Court of Appeals
• Parties: UTAH JUNK CO. v. BOWLES, Price Adm'r.

150 F.2d 963 (1945)

UTAH JUNK CO. v. BOWLES, Price Adm'r.

No. 184.

United States Emergency Court of Appeals.

Heard July 14, 1945.

Decided August 6, 1945.

Writ of Certiorari Granted November 5, 1945.

Keith L. Seegmiller, of Washington, D. C. (Ernest L. Wilkinson, of Washington, D.C., on the brief), for complainant.

Jacob D. Hyman, Asst. Gen. Counsel, of Washington, D. C. (Richard H. Field, Gen. Counsel, Nathaniel L. Nathanson, Associate Gen. Counsel, Carl H. Fulda and John J. Downey, Jr., Attys., of the OPA, all of Washington, D. C., on the brief), for respondent.

Before MAGRUDER, McALLISTER, and LAWS, Judges.

Heard at Washington July 14, 1945.

Writ of Certiorari Granted November 5, 1945. See 66 S.Ct. 139.

PER CURIAM.

Complainant, a junk dealer, operates in and around Salt Lake City, Utah. Its operations involve the processing of heavy scrap metal into pieces of small size, known as fluxing scrap, suitable for lead smelting. In this case it challenges the validity of Revised Price Schedule No. 4 by which ceiling prices were established for iron and steel scrap, on the ground that the Schedule failed to permit an allowance for the extra cost of processing fluxing scrap.

Maximum prices for iron and steel scrap were first established by Price Schedule No. 4, issued on April 2, 1941, under executive authority. 6 F.R. 1767. After the enactment of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix § 901 et seq., that Schedule was reissued, pursuant to the Act, as Revised Price Schedule No. 4, Iron and Steel Scrap, and republished on February 21, 1942. 7 F.R. 1207. As originally issued the Revised Schedule permitted no allowance for the processing of heavy scrap into fluxing scrap. However, on December 21, 1943, an allowance of $1.50 per gross ton for such processing was made available upon application to a Regional Office of the Office of Price Administration. Complainant made application for the allowance in January, 1944; the application was granted as to future sales by the Salt Lake City office in February, 1944; and the granting of the application was confirmed by the national office on April 5, 1944. On June 30, 1944, the Schedule was revised and reissued as Maximum Price Regulation No. 4, so as to permit the allowance for processing, as to future sales, without the need for special application.

From April 25, 1942, to February 10, 1943, a period during which no allowance for processing was permitted, complainant sold a substantial amount of fluxing scrap to United States Smelting Refining & Mining Company. Complainant collected only the ceiling price permitted, but billed the Company at a rate which included a charge for preparation of the fluxing scrap, apparently with the expectation that if the regulation were subsequently held invalid, the Company would pay the additional charges. On August 7, 1944, complainant filed its protest against the Schedule. Upon the denial of that protest, the present complaint was filed.

Complainant makes no objection to the amount of allowance authorized by the regulation, nor does it object to the regulation on the ground that it failed to grant the $1.50 allowance retroactively. But complainant asserts that, if the invalidity of the Schedule is established, the Smelting Company is willing to pay, for the sales between April 25, 1942, and February 10, 1943, a sum equivalent to $1.50 per gross ton processing charge. In this proceeding, therefore, complainant seeks to establish that Revised Price Schedule No....