*1 e.j person- power, legal investigating Secretary had made the i. Commerce successor, nel, necessary prosecute one other that successor effectively than litigation”, plaintiff. in could be we “price substituted Hence control enforcement question reach litigation by the Since conduct abatement. lieu of of such Administration, Congress govern- has not authorized staff Office of disappeared repeal price ment conduct civil enforcement which had suits in States, the name control; this, irrespective of of the United whether the Court criminal, dismissed rightfully the suits all of which obvi- the suits. prosecuted ously must be brought and judgments are affirmed. States, the name United civil, prosecutеd brought and they are to be party manner and in the name
“provided by words, law”. other Department President directed prosecute all should enforcement
Justice suits such manner and in such names as prescribed. Any
Congress had other would result in a determination that
clusion transcended the Chief Executive his own SWIFT & CO. RECONSTRUCTION authority and encroached that of the FINANCE CORP. department. This we legislative are unwill- No. 9832. do; ing to are sure that we such was Appeals United purport intent or not the he said. what , Seventh Circuit. caprice” -upon it a his Nor was “whim prosecut- to transfer the function of Depart- ing such suits to the Commerce
ment, government suggests as the it would contrary, been. was the On the discretion, for it was exercise executive illogical, of Price when the Office Con- abolished, its to transfer activities trol Commеrce, Department for sales prices part of ceiling are a in excess fact, Nor does it be
commerce.
fact, department was that that not staffed employees legal repre-
with sufficient im- enforcement to effectuate
sentatives propriety conclu- of this
pinge
sion, it is from Order No. evident it was President’s intent that should, Department Justice staff, perform the investigating legal
necessary enforcement functions involved litigation. prоsecuting enforcement plain
Such, order’s intent. is the litigation
And Order name the Secre- prosecuted in the
tary Commerce. was, therefore,
Inasmuch, as the court justi- Congress, not of the acts
in view prosecute these anyone to permitting fied his Administrator than the
suits the President
successor, inasmuch *2 C., for Washington, D. Justice,
partment appellant Jenner, E. Albert Johnston, R. Edward 111., Chicago, Hatton, all Jr., H. Edward Strack, Kixmiller, N. Byron William Edgar Thompson Ray- & Johnston, Poppenhusen, counsel, for 111., mond, Chicago, all of appellee. Judge, MAJOR, Before Chief Judges. SWAIM, Circuit LINDLEY and LINDLEY, Judge. Circuit 30, 1947, plaintiff filеd its com- On judgment declaratory and other plaint for authorized appropriate relief Act Emergency Price (m) of amended, U.S.C.A.Appendix, that, prior price 902(m), averring termination, continuously pur- had trol it pro- slaughtered livestock and chased and sold meats and meat cessed therefrom; thereby it entitled became to time for which time subsidiеs its claims filed and received unpaid except that there remained due and $221,861.51; sum claims the valid defendant, March on or about control, subsequent to termination of 1,” had issued its “Announcement No. wherein it stated that the Tem- Office of porary Price Controls had determined (4) of Section the Price view Act of Extension unjust note, in order to avoid enrich- рackers, ment allocable to the inventory meat held volume 14, 1946, on October the date of termination meat, paid control on should not be or, paid, recaptured. prayed Plaintiff judgment declaratory determining that An- and defendant’s action in pursuance conformity thereof were not in provisions the terms of the Emer- gency Price Control as amend- ed, U.S.C.A.Appendix, seq., 901 et unlawful, capricious, were “otherwise arbi- Asst, effect,” trary, and of no void and that the Friedman, Sp. Atty. Joseph M. enjoin defendant from court carrying out Gen., Morison, Attorney H. G. Assistant and, enforcing the announcement enter General, Handelman, Assistant Maurice C. requiring judgment plain- defendant to Attorney, Kerner, Jr., pay Otto United Statеs $221,861.51. sum of tiff the Attorney, Lulinski, P. U. U. Asst. S. John 111., Atty., Chicago, Anthony Mon- S. L. plain- answer defendant In its admitted Fruit, George Attys., Arthur dello and De- existence tiff’s averments payments through subsidy program previous Plaintiff’s and the October insisting 'for and that its claim of the trial court claim mentioned is Section of the Price Control rep- paid, had been should *3 denied resenting, said, on pearing as defendant subsidiеs in the footnote. processed by the time goods held at It will 2(m), that Section observed However, of termination control. de- conditions, grants, cer- under named juris- fendant denied the District Court’s jurisdiction Court, tain to the District ground diction on the that as to all com- * * * confined to “the sums plaints regulations, attacking the relating production agricul- to or sale оf orders, pur- rules, and lists issued Admittedly; tural commodities.” before suance of of the Section Price proceed jurisdiction District Court has to Act, by 204(d) jurisdiction was Section, under this is essential that it exclusively in the United States vested pear subject that the the suit matter of Appeals denied Court of and “production agri- relates to or sale of Court, and to thе District that Section “agri- cultural commodities.” the term If apply did the suit. the Act not to cultural commodities” be considered in findings specific The trial court made sense, embrace, it will strict literal law, expressly find- and fact conclusions prod- livestock and other raw farm jurisdiction to entertain ing it had products but not the or ucts manufactured effect, and, in held cause of action An- such raw processed from commodities. and entered invalid . However, plaintiff insists From judgment prayed. this defend- as existing the term in- circumstances appeals. ant processed by slaughtering meat cat- cludes by the we are confronted At outset primary par- Upon question tle. question jurisdiction the Dis- as to the contrоversy. sharp ties are to entertain the suit. An- trict R. specific question No. 1 issued under F. nouncement was before the This Regulation No. issued in turn un- C.’s of the First Circuit Co., Inc. der Section Meat v. Reconstruc- in Atlantic amended, as 50 U.S. Act of where Reg. 902(e). length C.A.Appendix, incor- considered at the conten- the court Rev.Reg. porated reference 3 as to tion that intended regulations prescribed products resulting process- apply These to from amended. agricultural commodities, ing and declined governing sub- conditions terms support. give it period September to1 from for sidies by any any agency, aggrieved department, department, officer, action agency, em- or “No officer, employee pay- or Government, ployee contrary provisions to tbe Government hereof, this or other sums authorized ment any the failure or to act of Congress relating produc- to Acts officer, agency, department, commodities, or agricultural em- such sale of tion or petition may ployee, any the district purchase court for in contrаcts or in which resides the district he or or the Government such commodities any place of business for order agency thereof, has his department or or judgment declaratory or a to determine any facili- of materials or allocation any production such action or failure fixing quotas ties, for or in conformity provisions any with commodities, act is shall such sale of lawful; and and otherwise hereof penalties any impose not conditions grant court shall have provisions authorized provisions appropriate relief. The Acts, or lawful or thereunder, monetary in- amount Code Judicial sums are under which such necessary give volved made, authorized, ma- such contracts apрlicable court shall district allocated, quotas and facilities terials case.” such production or such for the sale Any person imposed. commodities are Con “A clear, page F.2d 343 at as follows: It is commodity’, gress, legislation providing ‘agricultural live itself, steer is an in its produced stabilization, price control, a farm a farmer and sold rаw, made relating control, in its natural state. unprocessed matters agricultural cut, carcass, com A beef retail cuts clear a wholesale distinction between brains, processed roasts, goods therefrom. steaks or beef kid- modities (a) neys, hearts, livers, by- subsection or other edible Thus Section of products, resulting as well dealt as meat processing, from (c) “commodities still further saus- subsection such as ages or in substantial or manufactured in whole are all distinct commodities —these any agricultural produced on commodities.” not the farm sold farm- *4 agricul Equally ‘agricultural clear between ers. They distinction commodi- pro ties’, products ‘processed and food but tural commodities commodities or manu- in sub part’ cessed or manufactured whole factured in whole or substantial from part agricultural from commodities agricultural commodity, stantial an the live steer.” Act, portions appears in other as We 2(m) conclude that Section 3(e) 2(e). and We think Section Section vested the jurisdic District Court with no Congress intend it obvious that whenever action, tion to entertain the for this suit is “ag general to include within term ed agricultural relating not one to sale of com goods processed commodity,” ricultural Consequently, any ju modities. commodities, express such it made from risdiction the District Court must be 1945 effect, as in the statement to that found elsewhere in Congress. the Acts of 302 1946 amendment Section and in the question, There is but that amendment, (4) (e) known as Section la Section Act, Price Control B, (e) (4) 50 901a § Emergency the United States Court of (B), and that the Act reflects a clear inten given Appeals is exclusive Congress to exclude validity orders, review the regulations goods pro and schedules established or entered except cessed manufactured therefrom proper body administrative under provided expressly contrary. where it to the 2 Section of Act.. same section ex- In Tambasco v. Reconstruction Finance pressly denies 283, Corporation, Cir., 285, 2 178 F.2d federal, court whether territorial, state or court said: “It settled is statute that pass upon questions. these Consequently, ‘agricultural commodity’ livestock is an Announcement 1 if comes within the act, meaning within the 50 subject category matter, juris- exclusive Appendix, 942(1) ; but it has been author § diction of is which vested in the United itatively determined that meat meat Emergency Appeals Court of Superior are not. Packing Co. v. validity, the suit involves it is clear that the Clark, Em.App., 164 F.2d while 343. And District had Court regulation herе couched was slaughter in terms of livestock as a matter plaintiff However, asserts that An convenience, industry 1, though it contends that Schluderberg-T. on meat. really Wm. J. justified the same is not by the law and is C., Em.App., Co. F.2d Kurdle v. R. F. arbitrary, is not order, such an ruling or certiorari denied U.S. 69 S.Ct. other as action comes within category 396], L.Ed. To stretch meaning [93 only matters reviewable thе Emergen commodity’ ‘agricultural as so include cy Appeals. That court has held plaintiff’s activities here would do violence that Announcement No. 1 imple and the' legislative in writing intent sec menting action were regulations orders or C., Cir., Atlantic Meat tion. Co. v. R. F. issued under specifically Section Section 51.” 2(e), of the Price Control in Schluder persuasive Equally the language berg-T. is Kurdl eCo. v. Reconstruction J. Clark, Superior Packing Em.App., v. Co. Finance Em.App., 169 F.2d The court Corporation U.S.C.A.Appendix, §x902.” The Reconstruction computing saying tinued had ruled there * * * in the ap an plaintiff, had said subsidy payments Section regulation ac case under must made on propriate deduction them- prior authority are slаughter orders issued under count meat derived from the Act re Section selves orders under but control to termination reviewable ter such their maining of such on hand at the time protest mination, under being free to sell prices. 204.’ ;under Section Armour The court in this court at uncontrolled R.F.C., Em.App., 162 F.2d had & Co. said: “Since the It “And if meat were even 2(e) of the Emer 923.” added: pursuant to been issued commodity,’ ‘agricultural (56 held to an Stat. gency Price Control support is doubtful would determination 26), foregoing action, independent present since it in effect a thereunder was R.F.C. application 2’, provision sub cases ‘regulation order under aggrieved where the felt at admin- protest of the Act under ject to terms of the action taken istrative review *5 regulation. Packing It was 204(a). or under a valid Illinois act Appeals under § grant 554; jurisdiction of to determine Bowles, Em.App.1945, F.2d not a 147 v.Co. regulation. challenged Em.App. validity a Packing Snyder, Co. v. the of Illinois C., 605, Cir., 337; 10 165 F.2d 1945, Bros. & v. R. F. Greenhouse Samett 151 F.2d 812, 68 Finkelstein, Finance certiorari 334 U.S. S.Ct. Reconstruction denied Inc. v. 1743; Packing 712, 1017, F.2d Illinois Co. Corporation, Em.App.1947, 159 92 L.Ed. 812, Cir., 1947, C., 156 331 67 S.Ct. F.2d 875.” dеnied, v. R. U.S. F. 7 cert. 1832; Re 1200, Armour & Co. v. 91 L.Ed. C., F. in Duncan Coffee v. R. Again, Co. Corporation, Em.App. Finance construction 926, 928, Emergency the Court 178 F.2d 918, 1947, 162 923.” F.2d case, the instant Appeals commented: “In regulation Appeals for issued The United States Court was 2 under Section Circuit, Recon in Tambasco the Price Emergency the Second Control Act. How- 283, Corp., ever, F.2d fol for the authоrity payment Finance 178 of subsi- struction words: reasoning in these is 2(e) statute, in Section the same dies found of that lowed argument persuasive is and an order relative to “There another the or court nonpayment subsidy would, therefore, that the district a against a conclusion 2,’ in this action. an issued jurisdiction ‘order under has section jurisdiction. Price Control Emergеncy this which court has In 204(d) the this Emergency gives the of 1942 case, Act the determination the RFC jurisdiction determine Appeals exclusive respect complainant’s subsidy claim regulation order is court, the an order.” amounted to The same expressly Act, the 2 of under sued the was § where situation and RFC reversed the to consider contending withdraws that Emergency was or orders from validity of such jurisdiction, in Packing had no Merchants Even and state courts. C., other federal Em.App., all 908, R. F. F.2d Co. v. 2, which is chal Order though No. 912, held, said: “We hitherto in a may initially have been lenged cases, regulation the subsidy that series Act, Price Control under issued pursuant was § Emer- directive of pursuant a made gency Control Act 56 Stat. Stabilization, Economic Dirеctor U.S.C.A.Appendix, 902(e), § 11 F.R. Directive 4 to a determination by RFC Amendment denying a Slaugh thereunder claim regulation, Livestock R.F.C. an ‘regulation is a whole or Revised, Regulation Payments effect ter 2,’ subject protest order under section which were issued or 7003.10(a)(4), both § Act, Price Control 2 of the § under § dismiss directions to reversed with Appendix, 923(a), review and to § 204 cause for want of Appeals under Belle 924(a). U.S.C.A.Appendix, (a), 50 dissenting. Judge, MAJOR, Em.App.1948, Chief C., City Packing F. v. R. Co. page 414. cases cited who tried opinion Sullivan Judge The interpreta- by may Such us involve review reported. is case the District Court regulation, tion of the terms of Swift & Co. v. Reconstruction of law regulation has force for the opin- D.C., F.Supp. In that agency; binding subsidy-paying on the of the facts ion is an accurate statement deny- if RFC’s determination or ‘order’ agree main I and issues involved. er- ing a claim based is at reasoning by he arrived with the regulation, such application of roneous jurisdic- the conclusion court had in ac- aside ‘not may order be set us as tion under Section Likewise, deter- a cordance with law’. Aсt and that Price Control denying subsidy claim mination order prevail merits. Such entitled to on the findings lacking is factual based case, good purpose could being evidentiary support, order substantial my by any served extended discussion being, in the may us be set aside part. capri- statute, ‘arbitrary or words of the jurisdictional depends upon issue Though ter- the Price сious’. “relating those whether subsidies were 30, 1947, minated on Stat. production sale of ” this court in such cases * * * the lan- within Act, 50 preserved 1(b) urged by guage of Section pro- 901(b), since plaintiff, or they were *6 upon an test are founded meat, the processed on as claimed de- complainant, ‘right’ with a cor- asserted my clearly judgment, they In fall fendant. ‘liability’ subsidy-paying responding category, within former as found regula- agency, incurred under the fact, Judge record Sullivan. fur- prior to such termination date.” ample grounds the belief nishes for that agree We decisions that these position now taken the defendant ruling announcement constituted a afterthought, designed was an to meet the body charged sub- administration of еxigencies rate, of a law any suit. At pay sidies that would not sub- it allow or paid plaintiff defendant to the more than in- slaughtered goods sidies held in $1,300,000 subsidy claim, latter’s expiration ventory on the date it parently before became aware that This was a having control. and, was on there- same or- effect as administrative fore, not recoverablе on such meat as re- parties der binding revoked until plaintiff’s storage expira- mained in at the inevitably, set we aside. It follows me, tion of controls. To is an think, brought inasmuch as explainable astounding situation only on aside held in- this suit to set and to have position defendant arbitrary an admin- valid unlawful and long now was conceived takes after its pursuance istrаtive order liability its own di- Control Act direc- definitely become rectives established. thereby, plaintiff sought re- tives authorized predicament I realize that the Of wrong wrong forum and lief in which defendant finds itself now is not procedure. legal presented. decisive of issues How- follows, ever, It that the District discovery significant its belated deprived was, Congress, recognized act of prior thereto that what proclaimed proceed plainly matter and and what power to in this directives industry everybody dismissed concerned that should have been there- the suit understood, is, judgment is with must want of slaughterers payable producers for the benefit livestock so pay- production, that such stimulate required passed were to be on to
ments
producers. judgment.
I affirm the would BOARD RELATIONS LABOR
NATIONAL Inc., SALANT, al. et & v. SALANT
United Circuit. Sixth 2, 1950.