CUDAHY PACKING CO., LTD. v. HOLLAND, ADMINISTRATOR OF THE WAGE AND HOUR DIVISION, U. S. DEPARTMENT OF LABOR
No. 245
Supreme Court of the United States
March 2, 1942
315 U.S. 357
Argued February 4, 1942.
Mr. Warner W. Gardner, with whom Solicitor General Fahy and Messrs. Richard S. Salant, and Irving J. Levy, and Miss Bessie Margolin were on the brief, for respondent.
MR. CHIEF JUSTICE STONE delivered the opinion of the Court.
Of the several questions raised by this record only one requires our attention: Whether under the
On application of respondent, pursuant to § 9 of the Act, the District Court for Eastern Louisiana ordered petitioner to show cause why it should not be compelled to obey a subpoena duces tecum. The subpoena, issued by a regional director of the Wage and Hour Division,
The District Court denied petitioner‘s motion to dismiss the proceeding for want of jurisdiction, and ordered it to produce the demanded books, papers, and records relating to wages and hours, but left undecided, until again presented to the court in the course of investigation, the further question whether the books and records relating to purchases and shipments specified in the subpoenа should be produced. The Court of Appeals for the Fifth Circuit affirmed, 119 F. 2d 209, specifically ruling that the subpoena was validly issued and that the court had jurisdiction to enforce it. We granted certiorari, 314 U. S. 592, on a petition which presented as a ground for reversal the want of authority in the regional director to issue the subpoena and, as a reason for allowing the writ, the conflict on this point of the decision below with that of the Circuit Court of Appeals for the First Circuit in Lowell Sun Co. v. Fleming, 120 F. 2d 213, certiorari granted, 314 U. S. 599.
By § 11 of the Act the Administrator and his designated representatives are authorized to conduct investigations which he may deem necessary “to determine whether any person has violated any provision of this Act, or which may aid in the enforcement of the provisions of this Act.” The Act does not define the Administrator‘s power to issue subpoenas or specifically authorize him to delegate it to others. But, for the purposes of any hearing or investigation, § 9 of the Act makes applicable to the powers and
The Administrator argues that he is given authority to delegate to regional directors the signing and issuance of subpoenas by § 4 (c) of the present Act, and that, in any case, this authority is to be implied from the structure of the Act and the nature of the duties which are imposed upon him. Section 4 (c) provides: “The principal office of the Administrator shall be in the District of Columbia, but he or his duly authorized representative may exercise any or all of his powers in any place.” On its face this seems no more than a definition of the geographical or territorial jurisdiction of the Administrator and his representatives. The designation of the District of Columbia as the location of the Administrator‘s principal office is qualified by the рrovision that either the Administrator or his representative may exercise “his powers” in “any place.” Only if such is its meaning does § 4 (c) comport with the structure and related provisions of the Act.
If such is the meaning of the Act, he could delegate at will his duty to report periodically to Congress (§ 4 (d)), to appoint industry committees and their chairmen, to fix their compensation and prescribe their procedure (§ 5), to approve or disapprove their reports by orders whose findings of fact, if supported by substantial evidence, are conclusive (§ 10), to define certain terms used in the Act (§ 13), to provide by regulations or orders for the employment of learners and handicapped workers (§ 14), as well as other duties. A construction of the Act which would thus permit the Administrator to delegate all his duties, including those involving administrative judgment and discretion which the Act has in terms given only to him, can hardly be accepted unless plainly required by its words.
The Administrator seeks to meet this difficulty by construing § 4 (c) as authorizing the delegation of some but not all of his administrаtive functions. But we cannot read “any or all” as meaning “some.” And in any case if only some functions can be delegated, we are afforded no legislative guide for determining which may and which may not be delegated. We think that the words of the section, read in their statutory setting, make it reasonably
Unlimited authority of an administrative officer to delegate the exercise of the subpoena power is not lightly to be inferred. It is a power capable of oppressive use, especially when it may be indiscriminately delegated and the subpoena is not returnable before a judicial officer. Under the present Act, the subpoena may, as in this case, be used to compel production at a distant place of practically all of the books and records of a manufacturing business, covering considerable periods of time. True, there can be no penalty incurred for contempt before there is a judicial order of enforcement. But the subpoena is in form an official command, and even though improvidently issued it has some coercive tendency, either because of ignorance of their rights on the part of those whom it purports to command or their natural respect for
The subpoena power differs materially in these respects from the power to gather data and make investigations which is expressly made delegable by § 11. Without the subpoena that power is, in effect, a power of inspection at the employer‘s place of business to be exercised only on his consent. It is much less burdensome than the requirement of his selection of great numbers of books and papers and their production at other places. Because of these differences, it seems to us fairly inferable that the grant of authority to delegate the power of inspection, and the omission of authority to delegate the subpoena power, show a legislative intention to withhold the latter. Moreover, if a subpoena power in the regional directors were to be implied from their delegated authority to investigate, we should have to say that Congress had no occasion expressly to grant the subpoena power to thе Administrator, who also has the power to investigate, and that the grant to him was superfluous and without meaning or purpose.
The entire history of the legislation controlling the use of subpoenas by administrative officers indicates a Congressional purpose not to authorize by implication the delegation of the subpoena power. The
The grant of the subpoena power by the Fair Labor Standards Act to the Chief of the Children‘s Bureau and to the industry committees
All this is persuasive of a Congressional purpose that the subpoena power shall be delegable only when an authority to delegate is expressly granted. That purpose has been emphasized here not only by the authority expressly given to delegate the power to conduct investigations, and in the adoption by reference of the subpoena provisions of the Federal Trade Commission Act, which contain no authority to delegate, but by the legislative history of the present Act, which shows that the authority to delegate the subpoena power was eliminated by the Conference Committee from the bills which each House had adopted.11 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
Reversed.
MR. JUSTICE DOUGLAS, dissenting:
We have here the narrow but important question as to the power of the Administrator to delegate his power to issue a subpoena. That problem does not involve questions as to the scope of the subpoena issued or the fact that it required documents in Shreveport to be produced at New Orleans. Statements in the opinion of the Court as to the “oppressive use” of the subpoena introduce issues wholly irrelevant to the single question before us. Those issues would not be changed one iota had the Administrator himself signed this subpoena. And if the policy underlying the opinion is a desire to see a more restrictive and discriminating use of the subpoena power, the requirement that the Administrator alone exercise the power seems idle. For his duties under this Act are
The problem of enforcement is intricate and exacting. If the Administrator must issue subpoenas, it seems hardly likely that he сan do anything but sign them in blank. If he tried to do anything but formulate the general policy to govern the exercise of the subpoena power, he could perform little more than ministerial acts. Certainly he cannot be expected to relieve his regional offices of all questions as to where hearings shall be held, what documents are necessary for a hearing, what asserted violations should be investigated, which employer will make full and free disclosure, which will act only under the compulsion of a subpoena, and similar minutiae of daily administration. The Administrator in Washington cаn hardly exercise an independent judgment as to what the range or course of a particular investigation should be in remote Alaska or Puerto Rico. At least, he cannot do so unless the processes of law enforcement are to come to a standstill. Yet those matters control the nature, scope and content of subpoenas issued. Such functions must of necessity rest largely with the investigating and enforcement representatives of this kind of an administrative agency.
It would seem that his functions in this regard must of necessity largely lie in the formulation of a general рolicy which is to govern the exercise of the subpoena power. He has formulated that policy. The instructions to his
We need not, however, rest on that alone. The subpoena power is the concomitant of the power to investigate. Congress has specifically provided that the power to make and conduct investigations may be delegated. Sec. 11 (a) provides in part:
“The Administrator or his designated representatives may investigate and gather data regarding the wages, hours, аnd other conditions and practices of employment in any industry subject to this Act, and may enter and inspect such places and such records (and make such transcriptions thereof), question such employees, and investigate such facts, conditions, practices, or matters as he may deem necessary or appropriate to determine whether any person has violated any provision of this Act, or which may aid in the enforcement of the provisions of this Act.”
But now we are told that that power when delegated is only a power to be exercised with the employer‘s consent; that if resistance is encountered, the only one who can sign the subpoena to obtain that data is the Administrator. The power to delegate the authority to make investigations is certainly the greater of the two powers. In fact, the decision to make the investigation is the significant and controlling one. Once that is made, the decision to issue a subpoena under this Act must rest with the regional offices if it is to be an informed one. Without the subpoena power the power to investigate will often be an empty one.
Hence, in view of the naturе of the Administrator‘s functions and the fact that the power to make investigations can be delegated, the lesser but companion power to delegate the issue of subpoenas should be implied as an incident of the office.
A subpoena of course exerts a coercive influence. So does an investigation. So does all law enforcement. And any power, including the judicial power, may be abused. But as I have said, we have here no question of abuse of power. We cannot assume that the Administrator would haul a business into court where the representative of the Administrator abused the subpoena power. At least, we should assume that where the Administrator
The reasons for holding that authority to delegate this power is an incident of the office are certainly no less cogent than those underlying the cases which hold that an administrative officer may delegate the function of holding hearings without express statutory authority. As stated by Chief Justice Hughes in Morgan v. United States, 298 U. S. 468, 481, “Assistants may prosecute inquiries. Evidence may be taken by an examiner.” Such a delegation has been approved under the
The legislative history of this Act does not stand in the way. There is no indication whatsoever that the choice of the House bill as against the Senate bill was in any
Nor can it be inferred that, because Congress has expressly granted delegation of the subpoena power under some statutes but not under others, the power may not be implied. The omission of that power in a particular statute may be an historical accident or a matter of design. Whether or not the power can fairly be implied as an incident of a particular office must depend on the nature of that office, the other statutory provisions which govern it, and the legislative history of its creation. The farthest we need go here is to say that where the legislative history is inconclusive the power to delegate is not necessarily precluded.
A requirement that the Administrator himself exercise the subpoena power at this stage of the enforcement of
I am authorized to state that MR. JUSTICE BLACK, MR. JUSTICE BYRNES, and MR. JUSTICE JACKSON join in this dissent.
Notes
The Conference put the Administrator rather than the Secretary in charge of Administering the Act, and included the present § 4 (c). The Conference also retained the House bill‘s adoption by reference of §§ 9 and 10 of the Federal Trade Commission Act, but extended their operation to investigations as well as hearings, and made them applicable to the powers and duties of the Administrator, the Chief of the Children‘s Bureau, and the industry committees. 83 Cong. Rec. 9247-8.
The inclusion of § 4 (c), closely resembling § 3 (e) оf the Senate bill and § 3 (d) of the recommitted House bill, both of which gave separate specific authority to delegate the subpoena power, indicates that the purpose of the Conference, and of Congress in adopting the Act, was not to grant a general substantive power of delegation, including that over subpoenas, but to define the places where powers otherwise granted should be exercised. The addition in § 4 (c) of the phrase “or his designated representative,” the equivalent of which did not appear in either the House or Senate bills, must be taken merely as recognizing that the Administrator or his subordinates could exercise elsewhere than in the District of Columbia the powers which each had under other provisions of the Act.
“The person subpoenaed must be given a reasonable time to produce the records or to appear. The place at which he is requested to appear should be accurately described and be reasonably nearby. The time at which he is to appear should be a reasonable hour and one fixed so that any possible interference with the individual‘s business will be reduced to a minimum.” Id.