*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. Stаt. 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 statе 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 announсed 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 dеaler’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 Unitеd 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.
Here the state
no
on the
government
They may
national
or its officers.
purсhase
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.
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.
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, рreviously 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 thе 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 Prо- 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 pоlicy 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 оur 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.
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 datеd 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 apрlication 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 cоnditions 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 Congrеss 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 “undеr 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 Stаtes —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 applicablе 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 beеn 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.
gоvernmental
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.
Mr. Justice this dissent.