*3 EDGERTON, Before WILBUR K. PRETTYMAN, MILLER Associate Justices. EDGERTON, Justice, Associate dis-
senting. PRETTYMAN, Associate Justice.
Appellee company brought a civil action in the District Court enjoin appellants, Tempo- of the Office of rary Controls, authority successor in to the Administration, Officeof Price Sec- retary Agriculture, enforcing from cer- provisions tain relating order to al- sugar, lotments so far those quotas dependent upon made visions practices processors, historical milk prevent contained restrictions which would capable plant par- and desirous of small ticipating expansion, resumption, use, initiation for participating production. Trial had, was and the District Court find- fact, ings law, conclusions of reached plaintiff- judgment for the and rendered appellee. appealed. defendant officials Auerbach, Mr. Washington, Carl A. company Appellee is a C, producer sweet Counsel, branch, D. OPA Office Gen. bakeries, for Controls, bulk ice cream Temporary ened milk with whom Messrs. Ming, enterprises. Jr., Drey- makers, began William and similar R. Albert M. er, Washington, C., both of D. OPA May, principal business Its ma 1946. branch, Controls, Temporary Officeof sugar terials and skimmed From milk. brief, appellant on Fleming. November, 1946, September, until al George Fay, sugar by Morris were made Atty., Mr. U. S. locations Ad Washington, C., was on the in this in brief ministrator manufacturers D. appellant “provisional dustry on allowance Anderson. basis.”2 Amendment Third of Third 24 to Revised Ra 19.8 Revised Ration Section 11 F.R.
tion Order issued October No. 3. 334. No. Order F.R. upon subject per Step 5, computed at proportioned was an allotment
This was 6% users, 263,320 annual as cent pounds, projected various the estimated needs raw shown monthly Each allotment amount of unrationed total. indicated per This As cent. foregoing was cut 50 commodity available each. (milk) chang used was because 1, 1946, Administrator amount of November average industry of allocation twice the basis” in 1946 was ed to “historical-use period user is al Under amount used in base 1943-1945. industry.3 for this percentage put users on The reduction the basis of a located actually comparable used basis with users. quantity 1943-1945 *4 which period.4 Concerns past him in some indisputable. simple Two facts seem 1, 1945, were January before sugar used company’s production of sweet- First: The was “base,” of proportion allotted depends upon The sugar. Ad- milk ened sugar in of use computed from their actual sugar, thus direct- ministrator controls 1943, 1944 and 1945. production ly company’s controls the company’s The appellee company did not use sweetened Second: milk. Because 1945, Or- October, sugar its allotment allotment of under the amended sugar prior to computed upon its 1946, is actual 1, was der from deter- beginning November it sugar May-August, in 1946. If the amended Or- use of- by provision mined had been in existence and used users. Its allotment had to such applicable der 1943-1945, under in it would come under dif- the Administrator computed by was Order, steps: (1) The ferent in and its rule the amended in five Order the amended long in by company allotment for future time so all sugar used amount 1946, effect, in have been August, was Order would July remained May, June, upon 127,710 different, pounds. (2) depending actual use its This totaled stated.5 years. If, perchance, May- sugar in it had average those percentage which the The 1946, sugar May-August, more than industry bore to used in of the August production use, actually its future annual and in- it did average annual of the monthly per been corre- computed. This allotments have was dustry, was 48% less, more; and if it had used By percentage spondingly of this (3) the use cent. by allotments would have been less.6 sugar actually used amount of its figure, the 1946, appellee says by was blown May-August, company in amended The yearly “projected” pro its into theoretical or has made up Order 263,320 pounds. (127,710 dependent upon This was sweetened milk total. duction of 263,320 pounds.) 1946, per pounds May-August, cent existence in its 48% yearly total was in “projected” upon operations period. Fact (4) its This according possible months spread ually, the calendar there is denial of that over production percent- that, average monthly company says there The conclusion. Thus, average, fore, industry. on the is in direct vio ages of the the amended Order September provision industry production for was lation of the of War Mobili 7 produc- average says: per annual Act which cent of the zation and Reconversion 6% resumed, September per [expanded, was allotted “Such So initiated] tion. 6% * * * use year. production amount allotted for the for nonwar of the cent allowance, upon dependent Appellee company’s September be made apart “adjustment” 3 by Ra- from 24 Third Revised an Amendment company’s proceeding, annual allot- was effective October tion Order No. 3 48,354 pounds 1, by 1946, ment was increased but as November 1946. computation eliminating tha from 4 description of the historical-use This May. used “ad- amount in The appellants’ brief. from is taken basis justment” was the com- made because ap description allotment of the The days May pany three used in appellants’ pellee from brief. is also fair treat and it deemed three 5 Although Amendment was effec- days’ month’s use as a whole use. 1, 1946, prescribed November tive as U.S.C.A.Appendix, Stat. §§ monthly use fixed actual “base” a through 1658,1659, 1660. 31,1946. August fact, doubly clear This brief, Administrator’s recited cenlage a con shall be determined head or the of a concern agency giving full activity at after consideration cern in a ” * * * to the chairman presented claims
time; of the War board directors Smaller upon impression Certainly the initial Corporation Plants and shall be fair light the facts reading the statute equitable.” in its was correct District Court that the company This latter sweetened contention of the of bulk The view. expanded is based amend- milk, three sugar, use of had features a nonwar 198,463 (1) tons ment. ter- 82,467 The of a base tons company August had minates of this and which thus production automatically after 1946. So excludes new users been “initiated” who one, expanded part participate produc- initiated that date desire was an provision specific amended made that tion. Order one. dependent the existence duction amended new users. Order excludes prior August company provision reads, person “Any did That who *5 the com- Moreover, purpose any the non-existence of not use for such 31, 1945, and thus pany January 1, August to December 1943 prior through time from May-Au- period 31, in eligible register.”11 its the 1946 A is not to in gust, 1946, determining was factor the register user any must in order to secure computation permitted of its production. (3) percentage allotment. No of the avail- operations, which would The extent of its able for the exclu- available speci- “functioning” between plants. seem to be sive of small use “a to be fied dates would seem Appellants do not contradict the factual milk, production time”, of in the sweetened premises company’s position, of the hut be “a field of which would seem to seek rather to avoid conclusion se- the sugar. activity”, of its allotment determined (1) They jur- veral deny contentions. the production. allotment of fixed its They District (2) isdiction of the Court. clear-eyed seems what to be “a read- This is say provisions that quoted the of the Act ing the statute”.9 of have not into effect and will be- come company says also that the amended operative come until the total amount that section statute Order violates of the sugar available for nonwar industrial use :10 provides over has increased available amount resump- expansion, “(a) Whenever 1944, for in when that use Act tion, initiation of for nonwar passed. They base this contention authorized, basis, use restricted expansion statutory provision as to any agency having executive control over production say for nonwar They use. materials, production, manpower, concern, “existence” that within imposed restrictions shall not be to such as statute, meaning of the is its bare exis- any plant prevent capable small and de- in presently form tence it participating expansion, sirous of such business; example, corporate for does resumption, or initiation of for they say “functioning” form. And that nonwar use from so participating such operation means bare fact of and production. quantitative e., meaning; no i. it does “'(b) agency such amount, Whenever executive refer to method other fea- allocates available materials for the operation apart simple tures from the any group item or of items for duction functioning. (4) They fact of admit that use, per- it shall make available Amendment would invalid in its centage such materials for the exclusive exclusion new to users its failure plants small special provision plants, make for small group per- Such operative. item items. were now reply if the Act In 8 (b) tem, of the Act. 203 See. 311 61 S.Ct. U.S. L.Ed. 87. expression of Mr. Frank Justice Ail of the Act. Sec. 204 Federal furter Communications Com (a) Broadcasting Sys- 24.1 of Amendment v. Columbia See. mission company, prohibition. a correlative Executive of the contention that law, except argument has cannot so as the the Act make far rely their that implement Congress leg- operative. yet him to authorizes become prescribed islation within the bounds jurisdiction. question of We first the meet Congress specifically standards. When the procedure statutory provides The Act no prohibits particular the Executive from a judicial as of an Order such review scope gener- act within the conceivable- of a the availa- question is Amendment 24. The enactment, power al legislative he has examination in the ab- bility judicial power to do that act. inherent is an It statutory provision specific for it. sence of judiciary enjoin federal act. an inquiry must part of the The first power there That be such was one of appellee alleges, and es whether prime compelling reasons for the creation interest suffi tablishes, it has direct that judicial independent branch complain. ciently enable it substantial equal branch Government. found, alleged, the trial court says The Administrator reduced action of Congress provided fact immediately preceding allot company’s extension Powers Act12 Second War per cent, causing ment more than “suspension might the courts review 250,000 dump sewer between into the orders” but was review silent as 300,000 pounds milk and skimmed priority other form allocation day approximately since $120 lose order, not intend shows that did caused will and has November *6 that courts review such as that the action irreparable company injury and cause the involved case The in the bar. doctrine at sus damage. clear that a continued It is upon expressio relied is familiar unius the company’s will pension business de argument But est exclusio alterius. the stroy estab most in asset its a valuable ignores outstanding the characteristic suppliers relationship lished its question question the before The here us. disputed upon milk. are These facts not is the whether administrative act was to appeal establish and are sufficient specific prohibition. a direct violation of complain, appellee if right of to the Congress merely If had omitted mention of right the exists. resort to courts orders, suspension orders other than and is inquiry The next is whether there more, nothing done Administrator’s the judicial power challenge to the consider argument would have But Con substance. challenge company. is by the The prohi gress specific into wrote the statute speci- Administrator has violated a that the against bition a described of action. course prohibition the It that he fic statute. is alleged review an act to be Judicial specifically Congress told has done what prohibition not de violation that does question posed him do. thus to The not pend upon pre to failure of the its actualities. It is
must be delimited to
power,
scribe such
but
inherent
the
general.
suc-
It is
vague
not
broad
power of
to
the
restrain executive
courts
cinct,
specific.
and
narrow
specific
action in direct violation of a
direc
judicial
Congress.
the
Whether
tion
person
is
when
Our answer
that
power
review an administrative
exists to
concretely, substantially and irre
affected
lies
framework
action which
within the
action, complains
by administrative
parably
grant
power,
legislative
broad
direct violation of
the action
that
question before us.
the
pow
the
prohibition,
statutory
courts have
says
“Congress
complaint,
the
The' Administrator
er
and if it is
entertain
to
safeguards against
ample
was satisfied
proved
be well founded in
and in
to
fact
powers
enjoin
arbitrary
the allocation
law,
The
exercise of
the action.
answer
to
by procedures
afforded
within
immediately
ultimate
would be
funda
flows
the
legis
agencies
Constitution.
themselves and
administrative
mentals of the
supervision
Congress.
general
over adminis-
power
per
is in
It can
lative
permission
its
action exercised
President
and
can delineate
with trative
mit
20,1944,
U.S.C.A.Appendix,
§
Act of December
58 Stat.
prior period
pre-
may not some
be
their
may
vouchsafed
Congress.”
That
and the
standings by freezing
vious relative
to
within
allocation orders
be
as to
so
proportions
their account
materials
statutory permission,
broad standards of
prior
shown
their
uses. On
con-
If
question here.
does
meet the
but it
trary,
purpose
have
appear
would
to
prohi-
specific Congressional
applied to a
ready
been
are
spell
those who
now
executive
bition, that doctrine would
produce
willing
permitted
to
concept
law.
should
absolutism, a
unknown to our
so,
supply
do
of ma-
proportionately to the
enactment, Congress has
By
prohibitory
its
persons
pre-
terials. That
except
were not in
restraint,
such
power of
exercised its
pur-
war
is immaterial
impeachment or
penal
measures
pose.
somebody
pre-
That
else
was in
who
apply.
If
contempt
might
as it
partici-
war business does not now care to
matter, the
power
judiciary
has no
pate would also seem
immaterial.
to be
self-
practical
would be
restraint
To allocate available materials to the latter
branch. Such
executive
restraint
deny
them to the former would seem
concept
foreign to our
result
program.
to be the direct antithesis of the
government.
powers of
division of the
That
is true whether
the materials be
the authori
We need not review
plenty. The
scarce
in'
criterion
for al-
ample.13
length.
ties
We think
location
of available
a recon-
materials
appellants’
con
We come next
program
seem,
version
matter
as a
yet opera
tention that
the statute is not
legislative intent,
readiness, ability,
depends
tive.
answer
mean
produce,
willingness
present
at the
ing of
statute. We must look
both
time
future.
purpose
language.
to its
economic conflict reflected
This
Reconversion
is a
Act.
between the
difference
historical-use basis
future,
past.
looks to
Its
provisional-allowance
basis is be-
prime
orderly
consideration was
“re
prior
tween those concerns
had
*7
healthy
establishment
expanding
and
establishment
and
those
in the
14
peacetime economy.”
par postwar
was
produc-
era are anxious to enter
ticularly concerned
small businesses
with
quo
tion.
It is between status
and
ex-
objective
returning
and with
veterans.
economy.
Its
panding
doWe
not
find
perpetuation
prewar
was
Congressional
status.
history
any
statute
Its concern
not that
Congressional
those in
in signs
business
intent to constrain
13 They begin
110,
94,
33, 39,
with Chief Justice Mar
U.S.
23 S.Ct.
47 L.Ed.
Marbury Madison,
90,
shall’s
agency
discussion
v.
96. Whether
acts with
1803,
137, 162, 163,
goes
1
authority
Cranch
2 L.Ed.
in the
conferred
be
68,
60,
69,
yond it,
compliance
the immediate
excitement
whether
there is
with
judiciary-
legal requirements
prov
about
about
centered
fix the
relationship
agency,
appropriate
ques
executive
rather
than the
ince of
judiciary-legislative
relationship.
judicial
1
tions
War
for
decision. Federal Radio
ren,
Supremo
Co.,
1933,
Court in
Commission
United States
v. Nelson Bros.
History
(1923)
seq. They
266, 276,
627,
et
233
280
con
U.S.
53 S.Ct.
77 L.Ed.
present.
agency
1166,
406, quoted
tinue down to the
“An
A.L.R.
89
in Federal
may
finally
decide the limits
Communications Commission v. Pottsville
statutory power.
judicial
Broadcasting Co., 1940,
334,
That is a
func
039 U.S.
Security
Nierotko,
144,
437,
tion.” Social
Board v.
60 S.Ct.
L.Ed.
84
656. See full
1946,
358, 369,
637,
327 U.S.
Estep
and
66 S.Ct.
discussion
cases cited in
v.
643,
-,
States, 1946,
90
114,
L.Ed.
existence or re- declaration The whole of principles legislatively enunciated of policy. to be business, part relevant is:18 garding reconversion of'small Maverick, Chairman Maury the then Vice production “Curtailments of war ter- Corporation, Plants the Smaller War in- minations of war shall be contracts Special House Committee to the said expan- synchronized tegrated with the Planning Policy Ppst-War Economic sion, resumption, production or initiation of 13, 1944: on June and, greatest purposes, war to the for other compatible pros- extent the effective civilian material for “Allotments of war, production ecution of the for non- must be made producers duction small policy— war use. To effectuate this possible operations. large enough to ensure ;K v H» ^ H» arbitrary per- quota using some A uniform pre-war production, can never centage of “(b) agencies exercising The executive point in There is no adequate or be fair. manpower, production, control over or ma- open his business permitting a man to permit expansion, resump- terials shall bankruptcy is if operate period tion, a short production or initiation of for non- be his reward. production war use does not whenever facilities, require materials, components, percent- “Quotas based on be should purposes, labor or will not needed for war quotas— ages pre-war business. Such adversely otherwise affect interfere with first clauses—are a grandfather known as purposes. war Such in- step forming American business toward permit- shall nonwar use be All monopolies. cartels seek cartels and regardless ted of whether one or more preferred position their to maintain competitors engaged in normally the same fight vigorously against Let quotas. us type engaged are still encourage any procedure which tends performance under contract which is enterprise free in Ameri- cartels and stifle war, prosecution needed for the Furthermore, quotas eliminate ca. dependent upon not made the ex- in- new business is an new business and istence of concern or the economy part American must tegral activity concern at a protected.” time;” Ways report Committee o.n *8 “production” Obviously, does Means,16 reported final out its production itself, the mean of Mobilization Re version the War of government there was over control House, stated that it Act in the conversion production. The statute to control refers upon the recommendations of relied had “production, or over “Produc materials”. Committee,17which the Special were the the tion” must manufacture of refer to hearings just referred the culmination of sugar, processing from or the commodities just hearings the refer of culmination into the raw material other com of some red to. This form. conclusion made mercial purposes ap- of the broad Act the Thus doubly by 204 certain reference Section They decisive, they are not but pear us. speaks Act, “plants” en of the upon passages. light controverted shed “production”, gaged in and of “materials production”. the statutory language. the for examine We now apparent say quoted provisions already Appellants that the noted its mean- haveWe urge opera- Act appellants a mean that the does become different con- ing, but “expansion, there has been until an tive struction. d Before, 17 Special H.R.Rep.No.1759, Cong., Hearings the 78th House 2 Policy (1944). on Post-War Economic Sess. Committee Planning, Cong., Part 78th 2d Act, Stat. Sec. (1944) 542. U.S.C.A.Appendix, Sess. § 1658. 16H.R.Rep.No.1798, Cong., 78th 2d (1944). Sess. phrase for the production “production us for nonwar resumption, or initiation of have, simply “ex- say that use” cannot They in this last sen- nonwar further use”. tence, meaning urged by appellants. the pansion, resumption, initiation of And meaning the total what is not the last use” means the duction nonwar meaning material, not the in the production given likewise sentence a preceding phrase In other the uses. sentences. The sugar, case for all nonwar meaning prior ex- same words, throughout, be no the say can mean- that there ing incorporated etc., meaning being in the pansion, within last sentence by statute, opening increase until there is “Such”. for all non- total available amount of hand, pro On the other if “Such hand, Appellee, on the other war uses. production duction” be read refer to the etc., resumption,” “expansion, says that given commodity given a or of a con etc., expansion, given refers to the cern, sentence does make sense. Per use, production in this case for nonwar expand, pro mission to resume or initiate milk, production or to bulk sweetened given very commodity might duction production a given concern. been well have influenced the fact that appreciate argument fully able We competitors normally engaged some appellants’ counsel addressed to production engaged per still provisions, quoted opening sentences of formance of needed war So the contracts. policy general and to the considerations prohibition against consideration of that expansion, re- what would indicate Similarly, fact permission makes sense. production for sumption, initiation given expand, to a concern to resume or might properly mean in nonwar use given commodity initiate aof attempted provisions. But when might dependent have been ap- carry meaning into itself the the statute the concern or function pellants give disputed phrase, ing given field at a So time. appear. two fatal defects prohibition against consideration of those facts makes sense. place, may In first the last sentence Whatever quoted paragraph provides relative merits of the two contentions on basis, production” is, pro “Such whatever theoretical it seems to us that the —that meaning meant indisputably duction was the first sentence— is fixed dependent “shall not made the ex the last sentence of Section (b). us, therefore, concern regardless istence or the of seems theoretically concern in what activity might term properly (Italics ours.) provi That mean, “expansion, time”. resumption, or initiation clearly contemplates sion that whatever for nonwar use” must neces “production” the preceding meant sarily refer to the for except might, prohibition, sentence given commodity use of a or by particu *9 dependent upon have been made the exist given lar in concern a field. ence of functioning concern or the a a The other fatal given given appel defect in concern field at in a time. a point lants’ contention how is do not see the total that We the words, statute three sugar possibly dependent up from uses “expansion, could be re initiation”, concern, sumption, or in on the a describing existence of the func the production, read, in tioning concern. critical event of a Thus the and sen each word must, possible, given if be tence make sense. a does not It meaning. Ap would read: resumption, pellants say brief, expansion, in their “The or initiation “Obviously there sugar ‘resumption’ has the total from been no of all ‘initiation’ of commodities nonwar the use of for all purposes not be dependent upon any specific purpose. the or for of a existence None the functioning concern or the of a concern in nonwar uses to which presently is activity given given permitted put a field of at a to be were time.” ever completely may, Try we as we cannot find rational eliminated at time during a the war. meaning Thus, in such a It question sentence. seems to policies whether the set specified considerations are denied of Those (a) (b) in Sections forth making of allot- entirely be the Administrator operative here Act are ments, by provided means which given the he meaning to by the determined ” or con- Congress withholding, for giving, thus as argument ‘expansion.’ term trolling permission produce. If the itself. appellants answers stated “production give words meaning point, As next his op- reducing results use” for nonwar operative, it says if Act is that even (b) and impulse of Sections erative the Amendment com- does not invalidate meaning “expansion”, that (a) to the word plained says He “existence” of. erroneous. be must statute, corporation to in the of a referred “existence, entity, corporate as is its a “pro- interpretation of appellants’ That prior says August 1946.” He fur- “re- the words eliminate would duction” “the reference to statutory ther that the the statute from sumption, or initiation” given a concern in a was which material There was clear. a activity given “that uses, time” means its so that absorbed.by war totally existence, corporation was which “re- purposes could be civilian use for 26, 1946, corporate entity August prior to has heretofore sumed”, which and none receiving an which, be from excluded could purposes and for civilian been used because it So, was if allocation therefore, “initiated”. could producing business of bulk sweetened total means “production” prior August “resumption, condensed milk 1946.” material, words given aof concern” argues that “existence On He meaning. have no would initiation” form, in a certain means mere hand, many were concerns there “functioning” merely be- means production and suspended nonwar which ing the business. resume; therefore, could, and there production was many products of fallacies in There several resumed; and, of suspended could (1) The as to argument. contention many concerns course, new there are meaning enough “existence” is well production. if initiate So could it corporation, when illustrated but given con- that of “production” means apply attempt to a is made fails when commodity, given the whole or of cern says The statute “con proprietorship. sole read, meaning. Thus sentence obviously, reasons, in many cern” arid resumption, or “expansion, words three say pro But to cludes individuals. meaning. all have initiation” de an individual not be duction should find the words meaning we pendent his mere “existence” in hu analysis whole given time not make man form at statute 'of the says find Appellee company that which we coincides with sense. section phrase into what seems reading, complete fits statute is “exist in a mere purpose ob- given dominant in a field of activ be the of a to us to ence concern meaning time”, pres of the Act. at a means the jective ity Court, agree participation District and we the concern in a ence found activity at a particular industrial it. read, expression Thus makes time. to us that meant It seems is reasonable. sense and *10 per are materials available to when that “functioning” 'The contention that resumption, expansion, or initia themit merely being in the means business and has given a com tion of use, or other quantitative additional mean- produc no for nónwar modity respects. in concern, fails several To permission ing, function so by given a to tion function; act; op- “to fulfill its to resume, or initiate not be means de expand, ; work; engines as the failed to engagements erate func- of other because nied dependent New Webster’s International competitors, or made tion.” Dic- particu tionary. means something “Function” functioning of the or the existence being; quanti- mere it means any than a given field in that at time. more concern lar sequent persua- accomplishment. passage But more to the of the Reconver- tative Act, “functioning” Congress in- give to sion times that was several sive the fact merely being busi- formed that Administrator was meaning in the the Price allocating users, separation requires queer to some industrial ness although industry not to in phrases sentence. The Administra- involved case, upon frankly. says the this He that the historical-use basis. tor meets “exist- These phrase given modifies were to time” statements made Committees “at by phrase given “in a field officials of the Admin- but that the Office Price ence” istration, say so, incorporated activity” reports does not. He must in were because, otherwise, Congress have two ex- the Committees to he would at the time Congress “functioning”, investigating shortages. pressions, “existence” and food “functioning Subsequent dates, meaning thing. Congress If to those the same reen- activity” Act, in a acted the given a concern field War Powers which was the business, rationing. say being authority Appellants “ex- merely means in that nothing by mean that istence” that field would these facts constitute concurrence in Congress different. We think both ex- in additional or the administrative action. meaning pressions that the statute have deny Several circumstances force in a to concern refers the existence to that Act under consid contention. time, activity given given field of at a was not this Act. Nowhere does it eration to its appear statements made as “functioning” also think that time. We coupled of allocation were with methods means, includes elements method and prohibitions policies reference to the extent, in mere “existence”. not included Congress the Reconversion Act. That read, Thus the statute clear and reason- must have when hear had mind one able. assumption. ing Again, the other is an the statements made in the midst of (3) The contention that the stat- long con official recitations Committees August ute refers cerned with the food situation a whole any specific by date selected the Ad- problem entirety. and as national ministrator, would render the statute mean- conclusion, wholly would be strained ingless. any given “A time” means experience, at variance common time. The Administrator cannot select say ap us to that because such statements 26, 1946, August making allot- hearings pear midst of on another depend upon ments existence or function- problem Act, Congress under another must thereby ing day, validly on that make them deemed have concurred in an ad dependent upon or functioning greatly limiting, ministrative construction period or some other fully negativing, specific prohibi if not time or date. tory proposition is made enactment. Appellants press upon argument us the new clear reference to users their construction of the Act must be specifically Amendment 24 plants. small to have been Congress taken ratified August 31, 1946, new users excludes after subsequent to the enactment of the Act. special provision and makes no for small They entirely presenta- candid in their plants. Surely Congress cannot be said to They specific tion. find legislative in such have concurred clear contradiction statements as meanings to the of Sec- prohibitory of its enactment. tions 203 (b) and (a) of the Act in this Moreover, there is foundation for the respect prior passage, to its and so state. contention derived a contra- point Neither do specific impression ry testimony cited reference after the Moreover, enactment. appellants. The same witnesses who told the reenactment which they rely is Committees about the use of the his- *11 Act, particular not of this but of the Sec- basis, explained also torical-use the use of ond War Powers Act. provisional-allowance the basis in- in some upon appellants facts rely dustries, specifically on mentioning the one point this are that in 1945 bar, emphasized and sub- the case at involved and 270 this ambiguous, insofar as sufficiently cases. are in those necessity basis the of such concerned, mu- to invite narrow issue is Deputy Administrator example, For the dialectic, strong sugar tually to destructive but Committee, “Issuance told the the enough strengthen or weaken quite either to any other basis would these users Congress has enacted.” important quantities force of what likely result in loss example, make failure to For of foods. spe Even reenactment of a the process sur- adequate to sugar available clause after that cific clause of statute con- supplies sweetened plus into bulk milk administratively judicial itself has been would, many instances, re- milk densed “merely' ly one factor in construed, is 19 milk.” loss of the sult in the lan give meaning to to fair total effort 23 give That must guage.” circumstance Exactly was made statement the same way purpose. plain language to or basic report Com- of the witnesses. other reenacted, but has Where statement, firms “These contains the mittee silent, force of merely remained per unit specified quota have explain the argument is even less. “To they sugar as much product get as by Congress Con when of non-action cause upon the amount need, depending light to in gress itself sheds no venture during calendar produce able to 24 cannot speculative unrealities.” We to to statements year.”20 Here are direct Congress for an of the search mind Committee Congressional implied a re upon so tenuous concurrence industry in- sugar to the allocation con lationship premise between the present case. volved Act with We must construe the clusion. Acting Administrator of Assistant to us. other aids available Marketing Administra- Production impressed by the terrorem We are tion, Department Agriculture, told the the order of the District argument that Investigate the Na- Committee to Select sugar rationing wreck the Court would Depart- Program, that his tional Defense years, to four from 1942 program. For the Reconversion understood that ment allotted Administrator operative respect ato became
Act basis”, “provisional under allowance materials, industry the allocation when said, which, each manufacturer we have oils, inedible fats and to in that instance process to needed was allotted the 21 industry increased sure, milk he received. To had from tes- If conclusions are be drawn to applied an unrestricted to method was then matters, justifi- some timony on these other industry.' nothing But allotment to the total contention that as to appears cation could not be to us is shown convince industry Congress company and this this precision equal facility and applied with provi- approved specifically among concerns individual the allotment basis. sional-allowance industry. total Under restricted method, the individual Supreme said in the “historical-use”' As the Court predeter- case,22 conformed to both sides the allotment “That invoke another application aids, total fortify one to and the restricted mined same extrinsic per case simple (in cent) 50 nullify factor the conclusion we have premise. We see reached, proves itself what dubious the “historical-use” why similar factor could not be they shed. What said in Com reason light computed by premise current Reports, applied remarks some mittee unreduced, Senate, needs, figure which, same measure proponent 79th pursuant Sess. Representatives, Investigate 19Hearings H.R.Rep.No.602, Hearings Cong., (1945) H.Res. 2d Executive before before Sess., 79th Special Committee 79th Part VII (1945) Agencies, Cong., Cong., Committee, 1st 868. House Sess., 1st v. Columbia Ed. 87. 311 106, 119, 22 A.L.R. 1368. Federal Communications Commission Helvering Ibid. U.S. 60 S.Ct Broadcasting v. 61 S.Ct. Hallock, 1940, 444, 451, 152, 154, System, L.Ed. 309 U.S. 85 L. *12 prior to No- use basis is only allotting was the measure of allotment the method of among the needs specific, users vember, 1946. To if total. industry be a restricted Nor industry, computed appear accordance does it necessary the the indus- that 24, try computed total before Amendment an historical-use Order 200,000 industry formula. available materials are the The tons amount, presently been that those Their would have allotted available. allotment the among upon pres- each obviously user would have been allotted industries is pres- no rea- ent amount of his We see A actual need. considerations. translation of why, Secretary if ent son the Administra- circumstance into a mathematical determine, upon performance portion tor of the past consideration does not seem necessary. total available sugar and the needs of industries, industry that this should receive point We note at the in this 100,000tons, the allotments individual junction order the is not District Court computed per should upon cent of a sweeping rationing or al invalidation figures the need of each. That the are It language lotments. is couched in the process available fa- and usable and enjoins appellants the statute. only from industry, miliar to the authorities carrying provisions out such as make the proven by years’ four use of them. dependent upon quota any upon effect procedure of such concern or the any concern whole national economy would be same in bulk sweetened condensed milk man formulae, as the effect of the historical-use ufacturing time, industry any given sugar total going since amount of to contain prevent restrictions any small industry this would be the same in either plant, capable participating and desirous of great event. difference would be that expansion, resumption, or initiation whereas, basis, under the historical-use of bulk sweetened condensed a given concern is made de- participating milk produc from so in such pendent past perform- existence and tion. prohibi Those the terms under ance, some such provisional- modified tion of injunction the statute. The of the allowance method the allotment would de- merely injunction court places pend upon present readiness, ability and Congress power enforcing of the willingness, permit would judiciary. It directs the Administrator not by new concerns. The statute seems do what directed him not to do. require prohibit the latter and former. judgment and order of the District are not We be understood the fore- will be Court affirmed. going suggesting to Affirmed. merely explor- wliat should do. We are he EDGERTON, (dis- Associate Justice argument, ing earnestly pre- his and ably senting) . counsel, sented his the enjoining I judgment think the should be reversed provisions those of Amendment 24 which reasons, independent for three each
make individual allotments of de- other two. pendent upon operations of a concern at past time, deprives him pos- of all jurisdic The District Court had allocating sugar methods of sible and de- review the tion to Administrator’s order. rationing stroys program. authority We cannot The Administrator’s to ration justification the factual protes- find of his is derived 301 of the Second § Act, do question, tations. We Powers 56 Stat. War U.S.C.A. attempt control, his Appendix, determination This, same section as § industry amended, U.S.C.A.Appen as whole should 58 Stat. receive sup- provides during amount “The dix, restricted short district courts § ply. hereby In his accompanying “Rationale” the United States are ex enjoin jurisdiction aside, Amendment he-asserts that determina- or set clusive part, tion as the reason suspending order Amendment. whole or in * * * why any priority do not see how or We historical- or allocation This *13 272 complicated system a rationing hist legislative tion of a is
provision shows,1 knowledge and intention business that dispute, the demands ory2 beyond confirms experts the field. Courts are other skill of orders Congress that allocation of system or such a equipped sub create be either to should not suspension orders than of consequences appreciate fully Act there The jected review. judicial orders, Congress destroying Accordingly one. precludes fore review “except court gave This them neither function. For in suit. including the order strength it, system on judicial destroying is requires when the Constitution compli- interpretation of disputed be may action of administrative review 3 despite Administra- cated statute and chooses.” granted Congress or withheld as timely of a substitution “Congress tor’s warning has Supreme Court said: system may impossible. This different be officers or delegated executive long contrary law and to the seems to me both to agencies the determination executive public Congress sought interest. It what and of is of fact law. complicated questions prevent. is Judges to whom a statute provided review was judicial And where understand it necessarily novel has often refused to do this Congress Court officers who have better than executive questions of law where one even furnish 4 on years. for acted with it lived involved.” might be that, theory except with re- reasonable true, out, points this court that the It is gard suspension orders, possible su- order question rationing whether periority judicial under- over executive War with the Mobilization suit consistent outweighed by of the law would be standing depends Act how and Reconversion delay, obstruction which confusion and upon disputed and not that Act construed produce. judicial rationing review true, may appar court be as the facts. requirements 203(b) 2. The ently assumes, §§ substitution 204 Reconver- War Mobilization court’s for the Administrator’s construction appellee sion Act5 on are not relies profitable appellee. prove the Act will case, applicable not, in this because there has that, pre does for all The Constitution “expansion, resumption, initia- been no making Congress from the Administra vent production requires nonwar tion” of State final. of Louisiana tor’s construction following sugar. The discussion relates to 627, 938, 234 58 McAdoo, U.S. 34 S.Ct. v. 203(b). The point is even clearer 1506; § Work v. United States ex rel. L.Ed. regard 175, 252, 204. Rives, to § 69 L.Ed. 267 U.S. 45 S.Ct. George & 561; States S. Bush United v. provides: 203(b) Section “The executive 944, 371, 84 L.Ed. Co., U.S. S.Ct. 310 60 manpower, exercising control over agencies other words Constitution does 1259. In production, permit or materials shall program which require rationing that a resumption, expansion, pro- initiation attempt comply at least a reasoned nonwar use whenever such duction for judicial subjected to law shall be with the materials, require duction does not com- question arbitrary is no review. There facilities, ponents, or labor needed for' war case. this action purposes, adversely otherwise will not sugar supply bulk the total interfere with the great affect purposes. Such is allocated on a histor- users war industrial present permitted regardless If decision whether ical-use basis. alone, long competitors and all normally engaged one or more it will not stand stands changed. type crea- same are still tire have to will 3 Estep 114, 1 States, v. United 327 U.S. of North America Union Switchmen’s 120, 423, Board, 426. 66 Mediation 320 U.S. S.Ct. National v. 61, 95, 305, 297, illus 4 S.Ct. L.Ed. Union North America Switchmen’s principle. Board, trates Mediation National U.S. v. 98, 297, 303, Cong., Report L.Ed. No. 64 S.Ct. 61. 78th Senate Sess., 2; Hearings p. before Com 2d U.S.C.A.Appendix, 58 Stat. Judiciary, Rep House on the mittee §§1658,1659. Sess., resentatives, Cong., 2d H. 78th p. No. Serial R. *14 telligible had any answer one con and vital. To it under performance engaged in sugar also supply determine total prosecution to of and for 'is which needed tract nothing The dependent sugar, war needs but else. war, be for not and shall of question sugar pro or of to when allocation a concern upon the existence of candy, or candy, of or chocolate given in duction a concern of of peppermint candy, chocolate sweet or bulk time.”6 at activity milk, aby ened condensed toor effective become 203(b) does not (cid:127)That § particular concern, could for nonwar use resumption, initia- “expansion, or until an using be increased materials needed without use” nonwar production for tion of purposes for not have been war would from its appears both permitted been7 vital and intelligible; less less it would from the statement sentence and opening impossible completely have been to answer. 203, of on beginning policy at the of § question For in order to answer such with depends: 203(b) directly statement which § any use, regard particular to one nonwar production or termi- war of “Curtailments regard to concern, with one the Ad integrated war nations contracts of ministrator have had to determine would expansion, re- synchronized and with previously sugar the amount of that was to production for sumption, or initiation every be allocated use, to nonwar other and, greatest to. purposes, war every to Appellee’s other concern. inter prose- compatible the effective extent polation in 203(b) would therefore make § war, non- of the cution it required like the fabulous which statute policy use. To this effectuate war —” that whenever ap railroad two trains very is a for nonwar use” “Production proached crossing time, a grade same There limit general and term. are no broad stop proceed neither each should should and context, open words in its either in ing proceeded. ap until the other had Without policy ing or in it 203(b) statement § pellee’s interpolation, propounds 203(b) § self, except preclude use ma those “production riddle. no such The for non- etc, required purposes. for war Yet terials use” with simply war which it deals is non- give and court to the appellee requires war critical “ma general spe and narrow and broad term terials, components, facilities,” etc. The meaning, “production if it read cific par Act does not the court should not any particular commodity par or by any ticularize the term further. concern for nonwar I ticular use.” can interpolation. 1944, no basis for this The find October Since when the War suggest purpose does not it8 and context Mobilization and Reconversion Act was purpose passed, it. That lias 203(b) “expansion, excludes was there been no re- § for nonwar sumption, produc- make materials initiation” available use of nonwar longer requires ques sugar. no for war tion which needed use. Because such whether a given production, tion amount ma unlike various other sorts of longer production, terial is needed for war never it stopped, use nonwar can be entirely diverted nonwar use is not resumed initiated. It has could independent particular expanded. commodity, contrary, On the not been concern, likewise particular allocated to civilian in- amounts which it be diverted. At time the were less dustrial also use9 passed question, Act was they when were 1944. Since there alloca than “production tion of variations in the industrial use are seasonal use” could be increased amounts using without ma it is also relevant purposes,” quarter terials “needed for war in each was in were less allocated so par- produce conformity following Italics in this and the with their fence graph supplied. understanding second. If the two Appellee’s are road the order sentences Congress Or should be. contention is them, wrote per there no occa- should modify expansion, etc., either. sion mit but has ac he tually so. done the amounts Also allocated to civilian majority court read of all sorts. § (b) backward, modify sen- its first Accordingly, critical. does quarter order in each appellee or- production. in the exclude from quarter first than produc- appellee der does not quarters corresponding exclude tion either because it was in existence contains 203(b) The second sentence of § time, at a was not different or because chiefly appellee words relies: *15 time, any * functioning * * at or for a different production for nonwar “Such other cencern reason. That some dependent upon shall the exist- not be made history might or would be with different ence of a concern or the of a production by Admin- from excluded given activity concern in course, appel- give can, istrator’s order given production” time.” “Such means standing sue. lee no production”; production “that sort top- with expanded Section deals two 203(b) which of the sort in'accordance etc., expansion, how far preceding (1) 203(b).10 sentence of ics: when with § per- production shall be require for nonwar use Congress did not entitled to mitted, constant, merely divide who or a diminish- expanded production participate in such ing, sugar supply among available un- permitted. Appellee assumes when it limited number of new industrial users. an addi- section deals also with So wasteful a this use of so essential re- principles topic, (3) on what tional viz. promote source would but not retard “war supplies proportions available and in what and reconversion.” mobilization ‘ the concerns among shall be distributed production requires Since participate in are to be entitled to expanded, been sugar has not second per- expanded when 203(b) has come into sentence not § assumption is erroneous. The mitted. This sugar. regard effect topic. this The legis- does not touch section 3¡ Even if order Administrator’s history the Act that Con- lative shows judicially 203(b) were reviewable and §§ gress consider it. did even presently applicable appellee were applicable, when it becomes Section would be entitled to relief. These sec- require Administrator to allocate will tions, applicable, if would not percentage” available “a appellee anything of which entitle plants.” “small does use of exclusive deprives Administrator’s order it. has not been appear that this done. On appellee contrary, appellants say sentence 203(b), second when the § applicable, engaged will forbid all exclusion deny concerns does not concern bulk sweetened condensed ground statutory plants it was existence or was within not milk are small * * * viz., “functioning “employing in a concerns two given definition, field of fifty activity” appellee or less.” given wage at a time. But earners hundred percent was functioning was in “in that 100 It follows activity industry field of at a is allocated to time” allocated plants. Administrator’s order makes — U.S.App.D.C. recently States, —, held that United We have word in a “such” different sort of F.2d statute precisely this sort Nieves v. effect.