*1 leave to in forma pendently application appeal Hudspeth, Cf. Walleck pauperis. 2d 343. F. v.

Affirmed. took no part the consideration Rutledge Me. Justice this decision of case. INC., et MILK DAIRIES, PENN CONTROL al. v. OF PENNSYLVANIA. COMMISSION Argued January 13, No. 399. 1943. Decided March 1943. *2 Fahy argued Solicitor General the cause for the United States; Mr. Harris C. for Penn Arnold Dairies, Inc. As- Attorney Cox, sistant General Shea and Messrs. Archibald Liftin, Morton Gerald A. Gleeson were with them on brief, appellants. *4 Coho, Deputy Attorney General of Penn- Frank E. Mr. Attorney Reno, T. Messrs. Claude with whom sylvania, Shockley E. Russell brief, were on General, appellee. *5 opinion

Mr. Chief Justice Stone delivered Court. question case on the whether the

Decision of this turns Pennsylvania minimum Milk Con- April 28, 1937, trol Law of P. L. Pa. Stat. Purdon’s may Tit. Ann., 7OOj, constitutionally applied § of milk a dealer the sale to the United States, the sale being within the territorial consummated limits of the a place subject jurisdiction. to its state Milk Pennsylvania Law Control establishes a milk commission, 201, authority § control fix prices milk wherever produced, sold within state 801-803, §§ including minimum wholesale and retail prices for milk consumers, milk dealers to sold to issue rules, regulations and orders to effectuate this authority, § 307. *6 under established, United States In the fall of 1940 the a Pennsylvania, of permit from the Commonwealth a the belonging to Common- on lands military encampment no surrender conceded, the involved permit wealth. As is occupied the area jurisdiction authority of or over state the by February 1, purchasing On camp. 1941, the an of the contracting encampment, officer the officer at the invited Quartermaster Corps Army, of United States from to milk for the March supply period bids for a by troops stationed at the 30, 1941, consumption June the Milk camp. February On Control Commission sent including appellant, a to Penn parties, notice interested a Dairies, Inc., Pennsylvania corporation, addressed to' in submitting “all milk dealers bids furnish interested to milk the at encamp- to United States Government” the by ment. The accompanied notice was the Commission’s 4-B Official General Order No. A-14, pre- scribed the “minimum wholesale prices charged by be or paid to milk The dealers.” notice that announced the prices specified unit for sales to institutions that section of the order should be considered in the preparation of bids prices and that sales of milk at below the prescribed minima would be construed as violations of milk con- trol The dairy law. offering submitted a bid to sell milk quantities wholesale at prices substantially below those prescribed by the Commission. Its bid was accepted by a Department War Purchase Order of March 1941, the contract was awarded it as the lowest bidder, and it performed the contract deliveries of the milk at the contract within the state. —all On March 1941, the Commission, pursuant §§ 405 of Milk Control Act, issued a citation to the dairy to show cause why application its for a dealer’s milk year license for the beginning May 1, 1941, not should denied because of its sale and delivery of the at milk prices below the minima fixed by the Commission’s order.

268. mandatory save a license grant 404 makes the

Section material, provides but now in circumstances ap- where license or cancel a may deny Commission any provisions violated or licensee “has plicant of the or orders rules, of the Act this . . Commission challenged con to the citation dairy’s answer charged prices regulate state to authority

stitutional Commission hearing After United to the States. of its because sale dairy’s application license denied those fixed prices below United States at of milk *7 order was sus The Commission’s Commission. by the Pleas of Lan the Court of Common by on review tained judg Court affirmed this Superior County. The caster opinion 2d in an 261, 24 A. Super. 717, 148 Pa. ment, Pennsylvania, 344 Supreme Court of adopted was holding that the Com 635, 431, A. 2d both courts Pa. 26 of milk applicable to price-fixing order was sales mission’s thus States, applied to that as made the United and impose an on the did not unconstitutional burden statute infringe otherwise the Constitution United States or appeal the United States. The case comes here on laws of government 237 of the Judicial Code. was under in Common granted Pleas, to intervene the Court of leave stages of the participated subsequent and has all litigation. Pennsylvania urge that Milk

Appellants Control selling to dealer applied as to the United Act, States, immunity a constitutional States, violates United legislation regulating and also conflicts with federal pur- chases the United States and therefore cannot consti- tutionally purchases. to apply such proposition first

Appellants’ proceeds on the assump- price regulations normally controlling tion that local milk carry on their who business within the state, dealers when made to the applied government, sales so it burden

269 or so conflict the Constitution as to the regu render lations may unlawful. We assume Congress, aid granted of its power support armies, to raise and Ar I, ticle 12, § cl. support with the supremacy clause, VI, Article 2,§ could declare state like present inapplicable government. to sales to the Cf. Pittman Home Corp., v. Owners’ Loan 308 U. S. 33; Federal Bank Co., Land v. Bismarck 314 U. 95, 101-04; S. Brown, Parker v. 350-351, U. cases S. cited. But no there is clause of the Constitution which purports, Congressional unaided by enactment, such prohibit and the regulations, question with which we are now concerned is whether prohibition such a be implied from the relationship governments of the two established by the Constitution.

mayWe assume also that, Congres absence of consent, sional there implied is an constitutional immu nity government of the national from state taxation and from regulation state federal of performance, by agencies, governmental ficers and functions. Ohio v. Thomas, U. 276; Maryland, Johnson v. U. S. 51; States, United Hunt v. 278 U. S. v. Cali 96; Arizona fornia, 283 S. 423. U. But those who to furnish contract supplies or render services are such *8 agencies do perform governmental functions, Eddy Mitchell, & v. 269 U. 514, 524-5; S. James Metcalf Contracting v. Dravo Co., 134, U. S. 149; 302 Buckstaff McKinley, Co. 358, v. 308 U. 362-63 and cf. cited; S. cases Comm’n, Susquehanna Co. 291, Tax 283 U. Hel 294; v. S. vering Corp., 376, v. Mountain Producers 303 U. 385- non-discriminatory mere fact taxation regulation or of the imposes contractor an increased eco government regarded nomic burden on the longer is no within, as bringing immunity the contractor implied government regulation. of the from state taxation or King Boozer, Alabama & 1, 9, cited; v. 314 U. S. and cases Lichtenberg, & R. Annapolis Baltimore Co. v. Md. An c., A. 2d s. United States v. Baltimore & Co., napolis R. 308 U. S. 525. regulation imposes prohibition

Here the state no on the government They may national or its officers. purchase milk from whom in price they will, and at what without curring any penalty. opinion below, See the 148 Pa. in Super. 270-71. As the case of state taxation of the seller, government only regu is affected as state’s may government lation increase the price which the must pay By seller, for milk. the exercise of control over the regulation imposes may impose an increased eco government, nomic burden may on the for it be assumed regulation that the if enforcible and enforced will increase of the milk purchased consumption in Penn sylvania, government unless the procure sup able to a ply from without state, Seelig, see Baldwin v. 294 U. S. 511. in if burden, Congress But this has not acted to it, forbid we can find no greater different or impairment of federal in authority govern than the tax on sales a Boozer, ment contractor in King sustained Alabama v. & supra; or regulation the state of the operations of a truck ing ifi company performing its contract with govern ment to transport employed workers on a Public Works in project, upheld Administration & Annapolis Baltimore Lichtenberg, R. supra; Co. v. building regula or the local applied engaged constructing tions to a contractor postoffice building government, for the sustained in Stew Sadrakula, art & Co. v. 309 U. S. 94. governmental trend our decisions is not to extend

immunity from state regulation beyond taxation and national governmental itself and functions performed by its officers and agents. recognized We have that the presupposes Constitution the continued existence functioning states coordination with the na- government, tional authority lay states *9 taxes and regulate their internal affairs and policy, regulation that state like state taxation inevitably imposes some burdens on the government national same kind as those imposed on citizens of the United States within the borders, state’s see Eddy& Mitchell, v. Metcalf supra, 523-24. And we have held that those burdens, Congress save as may act to remove them, are to be re garded as the normal incidents of the operation within the same territory of a system dual of government, and immunity no government national from such burdens is to implied from the Constitution which es tablished the system, see Graves v. New York ex rel. O’Keefe, 306 U. 466, 483, S. 487.

Since the Constitution has Congress left free to set aside local taxation regulation contractors which burden the national government, we see no basis for from implying the Constitution alone a restriction upon regulations which Congress such has not seen fit to impose, unless the are shown to be inconsistent with Congressional policy. Even the case of agencies created appointed government’s or to do the work we have been immunity Congress slow to infer an granted has not Congressional and which policy does not require. Recon Corp. struction Finance Menihan Corp., v. 312 U. S. 81, Bedford, Colorado Bank v. cited; and cases U. S. cf. Baltimore National Bank v. Tax cited; and cases Commission, inquiry 297 U. 209. Our here, therefore, regulation whether the of this must be state’s contractor with Congressional legis a matter of local concern conflicts Congressional policy. lation or with discernible government places a conflict the To establish such its Congress requiring competitive bidding on reliance Acts Army. Section purchase supplies in the 5, requires public adver Statutes, 41 U. S. C. the Revised save “when immediate government purchases tising for all ex- required by public delivery performance *10 272 A

igency.”1 similar in provision appeared had § 5 of the 2 3, 1809, Act of March 536, required pur Stat. which all by Treasury, or Navy Departments chases War to be “by by advertising made or open purchase, previously respecting proposals Appropriation the same.” The Act of March Stat. 2, 1901, subsequent 31 and appropria tion included a acts, provision requiring advertising public for the of all purchase supplies for use of the Army, not in exceptions material, “except now case of emer impracticable it gency competition” or where is secure supplies of such “where the requiring purchase and cheapest, quality can be cost purchased same of the con transportation of and the interests Government enacted as provision U. C. 1201. And a § sidered.” 10 July 5, 1884, Act of 23 Stat. part Appropriation of purchases quarter that all 1200, requires 10 § U. S. C. notice by public made contract after supplies master’s responsible “the lowest made to that the award be article, right being most suitable for the best and bidder all bids.” reject any and reserved to govern- direct while these statutes It is to be noted bidding contractors competitive invite ment officials to Army supplies, require and also undertaking furnish bid if is ac- responsible the lowest accept them to regu- purport price to set aside local they do cepted, taking from punitive the states prohibit or to lations regulations. They such are measures for violations with the continued existence of wholly consistent such acceptance by govern- and with the regulations, price regulated price ment officers of the where that the low- is 1 Appropriation provision was derived from Act This 10 § 2, 1861, 12 Mar. Stat. turn was a reenactment of 3 of the 23, 1860, Appropriation Act 12 103. Like the Act of of June Stat. inapplicable 2, 1901, 3709 has construed as where March R. been S. § Atty. Op. Atty. impracticable. Op. 164, 174; 39 competition Gen. 84, 87. 111; Op. Atty. Gen. Gen. bidding competitive omission bid, or the

est it “im- render regulations price where local circumstances able to are we Nor competition.” to secure practicable these or legislative history language discern, contracts, any regulating related statutes controlling considera- was that low cost such indication that Con- justify an Congress as to inference tion with affecting the gress displace intended to state The rea- government. purchased of articles *11 1809, 3, has the Act March the of 5 of of passage son for § around safeguards additional been to be “to throw said give to the to favoritism, and subject; prevent to this 2 Op. ...” competition of the benefit United States Atty. 257, Gen. 259. Congress in which any statute are not advised of

We affecting price laws to set aside state has undertaken in to secure a order government goods supplied of to And than otherwise be obtainable. price lower would government required the inclusion Congress has often of directly related to interests of terms not contracts effect of which have the government purchaser, as 3, 2 March III, of the Act of increasing cost. Title § requires (a)-10 (c), 41 10 1520, §§ U. S. C. 1933, 47 Stat. public works goods on all American-produced of use finds that the department head of the contracts unless the “un- or would “impracticable” use of materials is such Eight Hour of The Law reasonably increase the cost.” amended, 40 U. S. C. August 1, 1892, 340, 27 Stat. as day per- the work of 321-326, eight per limits to hours §§ government with the and by contractors employed sons provisions contracts to include all requires 1931, March 46 3, Davis-Bacon Act of effect. The that requires all as-amended, (a), U. S. C. 276 1494, § 40 Stat. mini- buildings prevailing to contain public for contracts Walsh-Healey Act, 49 Stat. wage provisions, and the mum gov- the inclusion in all 2036, 35, requires 41 U. § S. C. 274 $10,000 in excess of re- provisions contracts

ernment prescribed adherence minimum contractor’s quiring hours, on employment maximum restrictions wages, requirements labor and for safety working child conditions.2 wanting Congress, that authorizing

Evidence com- been petitive bidding, has so concerned with securing the possible price lowest articles govern- furnished to the it ment wished set aside all local affecting price. Congress On the contrary regarded has public the field of contracts as over one which to exercise supervisory legislative its powers in safeguarding interests 2 Military Appropriation 1941, requires Act of 55 372, Stat. purchase clothing produced of food and unless United States none satisfactory quality is available in quantity sufficient at “reason prices.” able And Appropriation materially successive Acts restrict appropriated Quartermaster the use Corps purchase funds oleomargarine or g. butter substitutes. 1285, 449, E. Stat. 50 Stat. Stat. Stat. 54 Stat. 55 Stat. 372. also R. See 3716, 10 (preference production U. S. C. 1202 to articles of domestic § quality being “conditions of equal”). *12 by Department, 4, February 9, War Procurement Circular No. 1938, 10, January 26, 1942, pur- and Procurement Circular No. issued (h) 5-140, provided Par. 5 Army suant to of AR the inclusion provisions requiring compliance of to certify contracts the bidder to his any applicable marketing agreement, license, order, with or executed by Agriculture pursuant Secretary Agricultural or issued the of to the Agreement seq. Marketing 1937, Act of C. 7 601 et All Pro- U. §§ rescinded, Circulars 3. curement have since been see n. infra May 18, (convict 325-A, labor), See Executive No. 1905 also Order temporarily suspended July 9196, 9, 1942; Executive No. Order 6246, Aug. 14, 10, 1933, 6646, Orders Nos. and March Executive 1934 (compliance Competition). Fair with Codes of Despite Act, the First 18, enactment of 201 of War Powers Dec. empowering 839, to 55 Stat. President authorize contracts to law, regard provisions existing of be into without to entered Walsh Act, Eight Healey Act, Law the Davis-Bacon and Hour remain government applicable contracts, to all Executive Order No. 27, 1941. Dec. may

which conflict with needs An purchaser. unexpressed viewed as solely purpose Congress to set aside statutes of the regulating states their lightly internal affairs is not to be inferred ought implied legislative where the command, read light history, ambiguous. its remains Consider- ations which lead not to favor repeal us of statutes implication, Co., v. United States Borden U. S. United 198-9; Jackson, States 628, 631; v. 302 U. S. v. City Bank, Posadas National 497, 503-5, U. S. should be persuasive at least as when question is one of the nullification of state power by Congressional legislation. in the absence of some

Hence, evidence of inflexible an Congressional policy requiring government contracts to be awarded on the lowest bid despite noncompliance state applicable, otherwise say cannot that we Pennsylvania milk regulation Congres- conflicts with legislation sional policy merely must be set aside be- cause it increases the milk government. to the It would be more speculation no than for us say Congress would government’s consider the pecuniary in- terest purchaser as a milk more important than the interest by Pennsylvania asserted in the stabilization of her milk supply through control of price. Courts should guard against resolving competing these considerations of policy by imputing Congress a decision quite which clearly it has not undertaken to make. Furthermore we should be legislation slow to strike down which the state concededly power enact, had because of its asserted bur- on government. den the federal For the power- state is less to ill remove the of our decision, effects while the national government, has the ultimate power, *13 remains free to remove the burden. government, in support of its to position, points Regulation 5-100, Paragraph which was in lid,

||rmy 276 per- contract was entered into and time this

effect at the read as follows: formed,3 and which may not funds price-fixing Appropriated “State laws.— upon under invitations payments be used for awards showing com- containing requirements bids restrictive relating services, laws to price-fixing with pliance State by the necessary purchased to be commodities, or articles there an authoritative and has been United until States judicial State are final determination that such statutes re- duty It or applicable to such contracts. is not contracting officers of Federal Gov- sponsibility of ernment, enforce specifications, of restrictive means comply requirements price- contractors to fixing Comp. See Gen. 17 id. 97, 348; acts of State. 16 19 id. 287; 614.” made with this respect

Two are to be observations authorizing regulation. The statutes Secretary prescribe “to rules and to be War observed opening in the and submission and preparation of bids the War Department,” for contracts under 20 36, Stat. give 218, § C. no hint of 487, any delega Stat. U. S. Secretary tion to the his subordinates of power to do Congress failed what to do—restrict has application regulations, of local otherwise applicable increase contractors, price. And the regulation direction contracting itself is at most a officers not to Regulations Army All of the and Procurement Circulars referred to adoption opinion Department were rescinded on the War in this y1, Regulations, 1942, Procurement effective Code of Federal Jul Reg. Regulations, 10, § 81, 7 Title Fed. 8082. See Procurement Regulation 1, 102, Paragraph 103. Regula Pars. 209 of Procurement authority tion 2—issued under the 201 of the Powers First War Act, 18, 1941, December 55 Stat. and Executive Order No. provides placed by December contracts that all shall be 1941— negotiation advertising formal save where is authorized '' Director of Purchases of War Production Board. *14 by assume their specifications for bids responsibility requiring compliance price regulations with local be- fore it judicially is determined whether such applicable government are contracts.

That meaning such of the regulation is made plain by reference the opinions of the Comptroller in General, regulation. cited All rest on the reason- ing Knox, of Panhandle Oil Co. v. 277 U. S. 218, and cases, like which were in overruled King Alabama v. & Boozer, supra. The Comptroller General held that since the constitutional applicability of local price regulations government contractors doubtful, right was of the government to challenge their validity should not be fore- closed contractual provisions, and that in the absence judicial of a determination of their applicability a bid comply failed to price regulations such could not for rejected. that reason be

When Paragraph lid was adopted, Paragraph 4g of Army Regulation 5-240 defined the in situations which, because it was deemed “impracticable to secure competi- tion,” supplies might, under 10 U. S. C. pur- chased the open market without advertising. Paragraph 4g (3) declared that such a situation arose “when the price is fixed by federal, state, municipal or other competent legal a authority,” clear indication that state price regulations thought were inapplicable not to be to sales Army under contracts.4 After present suit

4 In Undersecretary April 16, memorandum to the of War dated present litigation Judge after the instituted, been Advo had expressed apparent opinion cate General that view 4g 5-100, conflict between the 5-240, (3) terms of Par. AR and AR (at regulation Par. lid lie), that time renumbered as Par. the former applied only exceptional to make situations and was effective applicable price-fixing regulations as such contractors to the Judge that here referred involved. Advocate General price-fixing position” Department “that “consistent taken the War 3 was eliminated. The begun subparagraph only was effect elimination was to remove the conflict of of this policy” Depart- with the “hands off of the War paragraph Regulation adopted by Army 5-100, Paragraph ment lid. *15 though Secretary

Even that the could it be assumed legislation which by regulation price set aside the state’s government applicable contractors, it has made to he question has not done He has left the of its plainly so. applicability by to be settled this Court’s determination government’s scope immunity of the of the the laws under Constitution the United In and of States. the meantime he adopted specific gov- has a of not in policy including, ernment requiring terms the contracts, contractor’s com- pliance with price-fixing legislation, avoiding state thus any which action could be construed as the an assent to application legislation government of such contractors in circumstances, if any, where it would without affirmative assent be inapplicable.

We are Congressional unable to find in legislation, in light either as read history by the of its or as construed the charged executive officers with the exercise of the con- tracting power, any disclosure a purpose of to immunize government price-fixing regulations contractors from local which would applicable. Nor, otherwise the cir- case, Constitution, cumstances of this can we find that the Congressional by enactment, unaided an im- confers such munity. Pennsylvania It follows that the courts rightly held that the Constitution and laws of the United States the preclude application Pennsylvania did not of Milk procurements application by have no measures the states Department.” But do understand from this or other War we Judge position memoranda of the Advocate General referred expressed in Par. broader than that lid of AR 5-100 opinions Comptroller paragraph General to which that refers. Inc., denial appellant Dairies, Penn Law to

Control application. its license Affirmed. Rutledge in the considera- no part Me. Justice took this case. or decision of tion Murphy, concurring:

Mr. Justice neither Con- agree I with the the Court that opinion of nor the Constitu- gressional legislation implications re- minimum of the prevent application tion Milk Law to Pennsylvania Control quirements of the but wish to States, milk the United sale of a dealer to I which believe is most question emphasize phase a important. just ordinary an state are here with

We not concerned character non-diseriminatory regulatory statute degree, but with some federal affects the health designed safeguard general measure *16 insuring adequate supply an well-being public of the of preservation prices.1 milk at stable wholesome of grave concern primary of and health a matter public is times, all but even more at the nation the states and healthy citizenry is es- indeed a Then in time of war. so waging of modern for the survival, to national sential effective- with maximum to be done war,” if it is “total as well as healthy people, a sound and requires ness, sturdy fighting force. Pennsylvania the law that the in 101 of declares milk Section affecting

dustry public affected with a “is a business the health and regulate purpose and interest,” and that the of the Act is to public industry protection public “for the of the health and control requires prevention fraud.” the Milk welfare and for the of Section prices and milk Commission to ascertain maintain such Control protect milk public interest, best “as will be most beneficial quantity insure of industry and a sufficient of Commonwealth having Commonwealth, milk to inhabitants of the pure and wholesome residing regard of therein.” health and welfare children special to the In country this with heterogeneous its population liv- ing under diverse conditions widely separated areas, state and local are qualified authorities best to determine what measures are most appropriate necessary and to pro- mote health well-being and within people their borders, they given and possible should be the widest lati- tude to solve their special problems they think as best. The whole framework system of our federal upon based this principle. It strength has contributed to our as solidarity one It people. should be the aim all of fed- procurement eral military officers, civilian, to harmo- nize their work so far as possible with policy this broad of government. Such an aim is accord with the spirit of our laws and the character of our institutions and will best insure support whole-hearted of the military program.

In my opinion greater importance it is of the nation at high war and to its military establishment that stand- public ards of health be maintained that the military than procurement have the authorities benefit of unrestrained competitive bidding prices purchase and lower in the milk supplies. needed That the United must pay States in Pennsylvania per quart hardly more for milk means 1.60 it collapse the war effort. But is common knowl- edge ravages suffer frequently that armies more from combat, from perils disease sickness than dealing if milk and, vendors with the United States need price require- minimum comply Pennsylvania’s law ments, Pennsylvania’s is consid- effectiveness erably reduced for it the instant is conceded order *17 largest single given is milk within the one ever for the may This reduced effectiveness State. have serious and only repercussions upon unwanted not civilian health but military personnel that of the stationed there as well. relations, In conduct of as well the the war as other the and larger interests of the federal the nor will constitutional suffer, as a whole will nation if are procurement officers prejudiced, arrangements general the within to their activities obliged conduct limits within reasonable enacted framework of state laws health, safety. If Alabama and public to the safeguard consistently with of revenue can, for purpose pay require government contractors sales Constitution, fee plus materials used a cost a fixed upon and use taxes of which is to increase the effect contract, construction (Alabama federal government to the cost of construction States, 314 Boozer, Curry United King 1; v. & U. S. v. Pennsylvania, 14), why the more reason there all U. is S. until health, require, can Con- acting protect public selling otherwise, a dealer gress clear wishes makes its to its minimum price milk to the United States to adhere may say that is not to States requirements. This officials, the actions of federal exercise direct control over Congress may not military or or that invalidate otherwise, they or insofar as affect trans- suspend local If Congress with the federal authorities. deter- actions Pennsylvania the enforcement of the law mines selling with against dealers United States interferes wage war, application them, its forbids its power to See Federal Land question. we a different Bank v. have Co., it yet so, 314 U. 95. As has not done Bismarck no measure, perceive of such a I can neces- the absence justification either in law or constitutional sity adequate regulation holding Pennsylvania’s void as theory applied here. Douglas, dissenting:

Mr. Justice Penn the War The Dairies was made contract acting through Quartermaster of Department statutory Corps, one of the Quartermaster Army. C. Army (41 of the Stat. U. S. Regular branches Secretary charged authority “under 4)§ *18 282

War” with “purchase the procurement and Army for the of all supplies of standard and supplies manufacture of all common to two or more branches” the Army, of with exceptions 766, not 39 170, material here. Stat. 41 Stat. 10 U. S. C. § 72. procedure The purchases controls of supplies by Quartermaster the Corps governed by is the by Army Regulations. statutes and the There are statutory requirements competitive for bidding as respects 1 the “all purchase supplies” of and particular refer- 2 ence to supplies purchased “for immediate use.” only exception relevant here is the case “where it is impracticable to secure 10 competition.” U. S. C. 1201. § The policy plain is is intended that the United States —it get should the full benefit of in competition its 1 “Except emergency in cases it impracticable of or where competition, or provided purchase secure in cases otherwise for, the supplies of all for the use of the departments, posts various and of Army Army only the and of the branches of the sendee made shall be advertisement; supplies purchased after shall and said be the where purchased cheapest, quality same can the and transporta cost of tion 905, and interests of Government considered.” 31 Stat. 514, 32 10 U. S. 1201. And C. Stat. C. see R. S. 41 U. S. § § §5. 2 purchases regular Army supplies “All of and miscellaneous for the by Quartermaster Corps furnished for immediate use shall be made Secretary the officers such corps, War, of under direction of the of they places points needed, at the nearest the where are the conditions quality equal: being of cost and Provided, purchases That of all except supplies, provided for, except said in cases otherwise and emergency, Secretary reported cases of which must be once at public approval, of for his shall be made War contract after notice days of not less than ten for small use, amounts immediate sixty days thirty whenever, opinion of less than from Secretary War, of the case circumstances and conditions every shall warrant such service extension time. The award responsible case shall be made to the lowest bidder for the best and article, right being reject any reserved to all most suitable 591, U. bids.” 23 S. C. 1200. Stat. Stat. purchases Army supplies. See United States Purcell v. Co., Envelope 249 U. 318. *19 authority

Statutory is vested of Secretary War prescribe regulations covering to rules and the preparation, submission, opening of bids “for contracts under the 20 22 Department.” War Stat. Stat. 5 U. S. C. Secretary pursuant to authority § 218. The this has regulations governing issued numerous competitive bid Regulation 5-100, No. Par. ding. lid, August 7, 1940, specifically prohibits appropriated pay use funds for containing prices by ments under contracts fixed state law judicial “until there has been an authoritative and final that statutes are applicable determination such State to 3 policy Department contracts.” The of the War has such Judge Advocate- been well established. General 1941 that “the War has con April Department stated position price- and maintained the that sistently taken have no to application pro measures of the states fixing Department.” Whatever am curements the War regulations in other has been biguity may have existed removed.4 Regulation “Appropriated may This reads as follows: funds not be upon containing payments

used under awards invitations for bids showing requirements compliance price-fixing with State restrictive commodities, necessary pur relating services, or articles to be laws to until has been an authoritative there chased United States applicable to State statutes are judicial determination that such final contracting duty responsibility of such contracts. It is not specifica Government, by means restrictive the Federal officers of price- comply requirements to tions, to enforce contractors fixing of a acts State.” February July 6, 1938, 11, 1936, as Army Reg. 5-240, amended No. “purchase may made in the (4) (g) (3) paragraph that provided by Federal, “price is fixed competition” open when market without authority.” It should be competent legal municipal, State, or other requirement. mandatory permissive and not a was that this noted (4) (g) paragraph was amended so as omit May 10, 1941, On fixing. governmental reference made Department of the War have then We delegated by Congress and which powers pursuant contracting from Army’s officers waiv prohibit bidding are fixed ing competitive merely prices because why they I am to see are not valid by the states. unable bidding competitive regulations. Congress has said “impracticable where it is required except “shall” be “im 10 U. C. 120Í. The word competition.” secure suggest that wherever there is state does not practicable” thing required. A bidding is not price-fixing competitive incapable is infeasible or “impracticable” to do when it Quartermaster contract which the being done. The it is conclusive of the fact that made with Penn Dairies milk com “impracticable” through to obtain was not “im regulation interprets A petitive bidding. *20 competitive bidding be preclude so as not to practicable” stays scope well within tñe price-fixing cause of state regula These making power. Department the rule War accordingly the force of law.” Standard Oil tions “have Johnson, Their and cases cited. 481, 484, Co. v. U. S. has no less force this case therefore application Congress. if directed We specifically effect than it was power federal the field of have then an assertion of supremacy clause excludes control which reason of conflicting Sinnot v. power. of a state See exercise Wisconsin, 228 22 How. McDermott v. Davenport, 227; Co., 297 Pennsylvania R. v. Illinois Brick 115; U. Co. Davidowitz, 312 447; 52; Hines v. U. S. U. S. Cloverleaf Patterson, Butter Co. v. 315 U. S. 148. join in Black Mr. Justice Jackson

Mr. Justice this dissent.