156 F.2d 781 | 1st Cir. | 1946
This is an appeal by the Administrator of the Office of Price Administration from a judgment of the District Court dismissing his application for enforcement of a subpoena duces tecum issued by a District Director of the Office of Price Administration.
On January 15, 1946, the District Director signed and issued a subpoena duces tecum requiring the defendant who was doing business as the Victory Lumber & Supply Company in Londonderry, New Hampshire, to appear at the District Office of the Office of Price Administration in Concord, New Hampshire, and produce certain books and documents relating to the purchase and sale of lumber, between May 23, 1943 and January 15, 1946. The defendant failed to comply with this subpoena and the Administrator applied to the District Court for enforcement thereof, alleging that de
The defendant filed a motion to dismiss the Administrator’s application on two grounds: first, because the Act does not authorize the Administrator to delegate his power to issue subpoenas; and, second, because the subpoena in question is so broad and indefinite that enforcement of it would constitute a violation of the Fourth Amendment to the Constitution of the United States. The District Court granted defendant’s motion on the first ground above designated.
Under § 202(a) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 922 (a), hereinafter referred to as the Price Control Act, or the Act, the Administrator of the Office of Price Administration, hereinafter called the OPA, “is authorized to make such studies and investigations, to conduct such hearings, and to obtain such information as he deems necessary or proper to assist him in prescribing any * * * regulations, orders, and price schedules thereunder.” Section 202 (c), 50 U.S.C.A.Appendix, § 922(c), provides that “The Administrator may by subpena requires any other person to appear and testify or to appear and produce documents, or both, at any designated place” for the purpose of obtaining any information under subsection (a) of § 202. Section 202(e), 50 U.S.C.A.Appendix, § 922(e), of the Act gives the district court “jurisdiction to issue an order requiring such person to appear and give testimony or to appear and produce documents, or both” where any person referred to in § 202(b)
In construing the Labor Standards Act,
Not only is there a lack of evidence of Congressional intent to prohibit a delegation of his subpoena power by the Administrator, but there is substantial evidence of Congressional intent to allow such a delegation. In its report on the Price Control bill, the Senate Committee on Banking and Currency stated that § 20,1 (a) authorizes the Administrator to “perform his duties through such employees or agencies (as he hires or utilizes) by delegating to them any of the powers given to him by the bill,” and that § 201(b) “authorizes the Administrator, or any representative or other agency to whom he may delegate any or all of his powers, to exercise such powers in any place.” Sen. Rep. No. 931, 77th Cong., 2d Sess. pp. 20, 21. The fact that this is a report of a committee of only one House of Congress does not deprive it of considerable weight. It is true, as the Court below pointed out, that there is no specific mention of the subpoena power in this report. But we cannot say that the Committee meant that only some powers could be delegated, when it has said that “any or all” powers may be delegated, at least in the absence of a showing that an application of this construction in a particular instance would produce an absurd result.
Congressional intent to allow a delegation of the subpoena power is further emphasized by the fact that Congress fully cognizant of the Administrator’s practice of delegating this power, re-enacted the statute without change. On June 29, 1943, the Administrator issued General Order 53 (8 F.R. 9037) delegating authority to Regional Administrators and District Directors to issue subpoenas which had been signed in blank by the Administrator; on May 13, 1944, he issued Revised Order 53 (9 F.R. 5191) delegating both the authority of signing and issuing subpoenas to the Regional Administrators and District Directors. On June 22, 1944, a representative of the OPA testified before a Special Congressional Committee setting forth this practice.
It is impossible to conceive of anything close to an effective administration of Price Control without a power in the Ad-, ministrator to delegate many of the functions of the OPA. The magnitude of the task of effective Price Control is overwhelming. In 1944, the Administrator stated to a Senate Committee that OPA controls over 8,000,000 prices and regulates, in one form or another, 3,000,000 businesses and 14,000,000 rented dwelling units, occupied by 45,000,000 people.
It might be well to point out that the Supreme Court decision in the Cudahy case was handed down after Congress had enacted the Price Control Act, so that Congress cannot be deemed to have accepted that court’s interpretation of the similar language in the Fair Labor Standards Act.
In Pinkus v. Porter, 155 F.2d 90, the Seventh Circuit had before it the same question presented here. That Court found that the Administrator had the authority to delegate his subpoena power on reasoning similar to that above.
In view of its determination on the question of delegation, the District Court did not consider appellee’s defense that the subpoena issued by the District Director was so broad and indefinite that it constituted a violation of the Fourth Amendment to the Constitution. The subpoena required the defendant to appear before an enforcement attorney in Concord, New Hampshire, and to bring with him the following documents: “Any and all books, records, ledgers, invoices, purchase orders, receipts, sales slips, bills of lading, waybills, and any and all other documents relating to the purchase, sale, delivery, or transfer by you of lumber from May 1, 1943, to date, and any and all tally sheets, cards, or other records pertaining to grade, working, or other specifications showing the complete description of said lumber, and any and all records required to be kept by 3d Revised Maximum Regulation 219, 2d Revised Maximum Price Regulation 215, Maximum Price Regulation 368, and Revised Maximum Price Regulation 467, or any one of said Regulations, of the Victory Lumber Company of Londonderry, New Plampshire.”
We do not believe that under all the circumstances here involved that the subpoena was so broad and indefinite as to constitute a violation of the Fourth Amendment. All the documents requested were relevant to the investigation being conducted.
The judgment of the District Court is reversed and the case is remanded to that court for further proceedings not inconsistent with this opinion.
SWEENEY, J., dissents,
Emergency Price Control Act.
§ 202(b), 50 U.S.C.A.Appendix, § 922(b). “The Administrator is further authorized, by regulation or order, to require any person who is engaged in the business of dealing with any commodity, or who rents or offers for rent or acts as broker or agent for the rental of any housing accommodations, to furnish any such information under oath or affirmation or otherwise, to mako and keep records and other documents, and to mako reports, and he may require any such person to permit the inspection and copying of records and other documents, the inspection of inventories, and the inspection of defense-area housing accommodations. The Administrator may administer oaths and affirmations and may, whenever necessary, by subpena require any such person to appear and testify or to appear and produce documents, or both, at any designated place.”
Revised General Order 53, 9 F.R. 5191.
“(a) Order delegating authority to sign and issue subpoenas and inspection requirements in rent and price investigations. In connection with any investigation related to the administration or enforcement of the Emergency Price Control Act of 1942, as amended, or any regulation or order issued thereunder, the several Regional Administrators and the several District Directors of the Office of Price Administration are each authorized within their respective regions, or districts to sign and issue: (1) Subpoenas requiring any person to appear and testify or to appear and produce documents, or both, at any designated place; (2) inspection requirements requir
Lowell Sun Co. v. Fleming, 1 Cir., 1941, 120 F.2d 213, affirmed, 1942, 315 U.S. 784, 62 S.Ct. 793, 86 L.Ed. 1190, decided by this Court and affirmed by the Supreme Court, denied the Administrator of the Fair Labor Standards Act the authority to delegate his subpoena power to a Regional Director. No discussion of this case is necessary since its import is precisely the same as that of the Cudahy case. The decision in the instant case rests on an entirely different legislative history and the two cases are not in conflict.
Emergency Price Control Act § 201. Administration
(a) “ * * * The Administrator may, subject to the civil-service laws, appoint such employees as he deems necessary in order to carry out his functions and duties under this Act * * *. The Administrator may utilize and establish the services of Federal, State and local agencies and may utilize and establish such regional, local, or other agencies, and utilize such voluntary and uncompensated services, as may from time to time be needed.”
Fair Labor Standards Act of 1938
§ 4. Administrator.
“(b). The Administrator may, subject to the civil-service laws, appoint such employees as he deems necessary to carry out his functions and duties under this chapter * * *. The Administrator may establish and utilize such regional, local, or other agencies, and utilize such voluntary and uncompensated services, as may from time to time be needed.”
§ 201(b):- “The principal office of the Administrator shall be in the District of Columbia, but he or any duly authorized representative may exercise any or all of his powers in any place. * * * ”
Fair Labor Standards Act of 1938.
§ 4(c). “The principal office of the Administrator shall be in the District of Columbia, but he or his duly authorized representative may exercise any or all of his powers in any place.”
See also Footnote 3, 315 U.S. 357, 362, 363, 62 S.Ct. 651, 86 L.Ed. 895, where the Congressional history is described in detail.
Many court decisions have authorized the delegation by the Administrator to his subordinates of powers other than the power to issue subpoenas. See Bowles v. Wheeler, 9 Cir., 1945, 152 F.2d 34, 38, 39 (delegation of authority to institute enforcement actions); Bowles v. Griffin, 5 Cir., 1945, 151 F.2d 458, 460 (delegation of power to issue regulations and orders). If other powers granted to the Administrator are delegable, then a delegation of the power to sign and issue subpoenas eannot be beyond the intention of Congress, at least in the absence of an unreasonable exercise of the power by virtue of the delegation.
Hearings Before The Special Committee to Investigate Executive Agencies, 78th Cong., 2nd Sess., Part 3, pp. 2421-2438.
Hearings on Extension of the Emergency Price Control Act Before the House Committee on Banking and Currency, 78th Cong., 2nd Sess., Vol. 1, pp. 51, 52, 84, 152, 153.
House Doc. No. 761, 78th Cong., 2nd Sess., p. 62.
58 Stat 632.
59 Stat. 306.
§ 105(b) of the Stabilization Extension Act of 1944, 58 Stat. 638, 50 U.S.C.A. Appendix, § 922(i), added a provision giving “any person subpoenaed” under § 202 “the right to make a -récord of his testimony and to be represented by counsel.”
§ 105(a) of the Stabilization Extension Act of 1944 added to § 202(a) a specific authorization to the Administrator to “conduct such hearings” as he deems necessary to effectuate the enforcement of the Act.
Report of Senate Committee on Banking and Currency, App., Part III, Sen. Rep.No.922, 78th Cong., 2nd Sess., p. 113.
This decision was handed down after the District Court, in the instant case, had rendered its judgment.