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WALTER BROWN & SONS v. BOWLES

DISTRICT COURT OF THE UNITED STATES FOR THE DISTRICT OF COLUMBIA


November 20, 1944

WALTER BROWN & SONS, Inc.,
v.
BOWLES, Administrator, OPA, et al.

Before ARNOLD, Associate Justice, United States Court of Appeals, District of Columbia, and LETTS and GOLDSBOROUGH, Associate Justices, District Court of the United States for the District of Columbia.

PER CURIAM.

Plaintiff, a Washington Corporation, was suspended from dealing in all commodities covered by Ration Order No. 16 issued by the Office of Price Administration. *fn1" It brought this suit in the District Court to enjoin the defendants as officials of the Office of Price Administration from enforcing the order of suspension. Among the grounds for injunctive relief set forth in the complaint is the assertion that the Second War Powers Act, 50 U.S.C.A.Appendix, ยง 631 et seq., is unconstitutional. For that reason, at the request of Mr. Justice Letts before whom the case was pending in the District Court, this three-judge statutory court was designated to hear the issues in this case. *fn2"

In asserting the unconstitutionality of the Second War Powers Act *fn3" plaintiff contends (1) that it unlawfully delegates legislative power permitting the suspension of plaintiff's business by administrative order; (2) that the procedure authorized under the Act does not constitute due process. There is no merit in either contention. *fn3"

 Section 2(a) (2) provides in part: "Whenever the President is satisfied that the fulfillment of requirements for the defense of the United States will result in a shortage in the supply of any material or of any facilities for defense or for private account or for export, the President may allocate such material or facilities in such manner, upon such conditions and to such extent as he shall deem necessary or appropriate in the public interest and to promote the national defense."

 Section 2(a) (8) authorizes the President to delegate the above described power. Executive Order No. 9125 *fn4" authorizes the exercise of that power by the Office of Price Administration. The standards set out in Section 2(a) (2) are adequate. The President must first find that a shortage exists in the supply of a material or of a facility for defense or for private account or for export. *fn5" When that situation appears allocations must be made which are appropriate to the public interest and necessary to national defense. *fn6" It is clear that in war Congress may fix standards under which the Executive may act in war emergencies which are flexible enough for speed and efficiency in an emergency. *fn7"

 The procedure set up under the Act and followed in this case does not lack due process. Plaintiff has had a full and adequate hearing after notice of the charges. There was ample opportunity to test the constitutionality of the Act itself by a complaint in the District Court before violation of the order. Plaintiff was granted a preliminary stay of the order of suspension in those proceedings after violating the order in order to raise the question of constitutionality. *fn8"

 We will next consider and decide plaintiff's other contentions which do not go to the constitutionality of the Act. *fn9"

 The complaint alleges that the proceeding before the Hearing Commissioner of the Office of Price Administration was invalid because the notice was signed by the District Enforcement Officer at a time when the regulations provided it should have been issued by the Regional Attorney. *fn10" If there was error in this notice it has been waived by the plaintiff's failure to object at the hearing. The notice gave the plaintiff adequate information as to the charges. Plaintiff was given every opportunity to cross-examine witnesses and put in evidence. He makes no claim of surprise or prejudice.

 A second contention of plaintiff is that since the livestock which he buys is not allocated his suspension from dealing in these commodities is not the suspension of an allocation under Section 2(a) (2) of Title 3 of the Second War Powers Act, supra. He asserts that the taking of excess ration points for meat did not affect the ration system because the amount of livestock which the plaintiff could slaughter was unrationed. There is no merit in this argument. As soon as the livestock is slaughtered it became a rationed commodity. The Office of Price Administration has set up a system of ration points as an effective means of regulating the supply of commodities to dealers. When plaintiff took an excess of ration points for his meat, that activity interfered with the rationing of that commodity.The supension of plaintiff from dealing with the commodities thereafter was a reasonable and necessary means of securing an effective allocation of rationed meat. *fn11"

 There was ample evidence to support the findings of the Hearing Commissioner and the Hearing Administrator of the Office of Price Administration. We find no merit in the other contentions urged by plaintiff.

 Defendant's motion that the complaint be dismissed with costs is granted.


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