question in such cases is: Do the necessities of the kind of legislation to be enacted justify the measure of delegation? Or, to put it in another way: Has Congress itself exercised the power to legislate to the fullest extent reasonably practicable in view of the ends to be obtained? See Vogt & Sons v. Rothensies (D.C.) 11 F.Supp. 225.
In Panama Refining Company v. Ryan, 293 U.S. 388, 55 S. Ct. 241, 79 L. Ed. 446, the discretionary power vested in the President was entirely unfettered. The law itself was plain and definite. It prohibited interstate shipment of oil produced in violation of any state law. But the President was entirely free to decide when it should become effective or whether it should ever become effective at all. The Supreme Court decided that a delegation of this unlimited character was unconstitutional. Whether and to what extent a discretionary power limited in terms by a declaration of legislative policy may be sustained was not decided. The court examined the act in question and the majority found in it no such declaration.
Returning now to a consideration of the act of Congress which this case brings before us, it is plain that there is no delegation to legislate which is in any way comparable to that which was before the Supreme Court in the Schechter Case, and it follows that the discussion in the part of the opinion which deals with delegation is inapplicable. In the present case the forbidden acts and practices are specified in detail in section 202 of the Packers and Stockyards Act (7 U.S.C.A. § 192).Whatever general regulatory power is conferred by section 305 to 316 and 401 to 404 of that act (7 U.S.C.A. §§ 206 to 224) is of a kind which has been fully sustained in St. Louis, I.M. & S.R. Co. v. Taylor, 210 U.S. 281, 28 S. Ct. 616, 52 L. Ed. 1061, United States v. Grimaud, 220 U.S. 506, 31 S. Ct. 480, 55 L. Ed. 563, and other decisions, and, inferentially in connection with the Packers and Stockyards Act (7 U.S.C.A. § 181 et seq.), in Stafford v. Wallace, 258 U.S. 495, 42 S. Ct. 397, 66 L. Ed. 735, 23 A.L.R. 229.
It seems equally plain that what was actually decided in the Panama Refining Company Case does not reach the point here. Since there was no limit whatever to the discretion conferred in that case, it was not determined what degree of limitation was needed to make the delegation valid. In the present case there may be some degree of discretion involved in the selection of the area in which the act is to become effective, but it will be noted that the Secretary is not merely authorized but is directed from time to time to ascertain the cities where unfair practices exist and then to designate them. This appears rather plainly to place a duty upon the Secretary to inaugurate a program of investigation of the various centers of the poultry trade in order to subject the proper ones to the act -- a thought which is implicit in the command to ascertain, which is added to the mere authority to designate.
But this discussion may be somewhat beside the point, for I think the controlling decisions are those in which the delegation was that of a duty to ascertain the existence or nonexistence of a fact, upon which the law, enacted by Congress, automatically became operative, of which the Flexible Tariff Case (Hampton, Jr., & Co. v. United States) is an example.
The plaintiff, however, argues in effect that, since "unfair, deceptive, and fraudulent" are terms of rather general and indefinite meaning, the ascertainment of a situation to which they could apply is not really a fact finding at all, but amounts to the exercise of a purely discretionary power. If this were correct, then it would have to be conceded at least that they constitute the epitome of a declared policy and we would have to determine whether that policy was sufficiently defined in the act to sustain the delegation.
But I do not agree that these terms are so indefinite no fact finding can be made under them. The plaintiff refers to the opinion in the Schechter Case, but, when the Supreme Court in that case discussed the effect of the words "unfair competition," it was not dealing with the phrase in the relation in which it appears in this act. See page 533 of 295 U.S., page 844 of 55 S. Ct. What was held in the Schechter Case was that those words were too broad and general to serve as the framework for a code of laws which the President, not Congress, was to make -- that they were not an adequate contribution on the part of Congress to the performance of the legislative function. The words, even in their broader or statutory sense, have been held not too vague to be the basis of a finding by the Federal Trade Commission. Federal Trade Commission v. Raladam Company, 283 U.S. 643, 51 S. Ct. 587, 75 L. Ed. 1324, 79 A.L.R. 1191. See cases cited Schechter Poultry Corp. v. U.S., 295 U.S. 495, 532, 55 S. Ct. 837, 844, 79 L. Ed. 1570, 97 A.L.R. 947. And I do not think that they are too general to be susceptible of fact finding under the present act.
I therefore hold that the act in question does not contain an unconstitutional delegation of legislative power.
What has been said makes it unnecessary to discuss what would otherwise be a serious question in the case, namely, the right to equitable relief at the present time.
The statements of fact made in this opinion may stand as special findings of fact and the statements of law as special conclusions, under Equity Rule 70 1/2 (28 U.S.C.A. following section 723).
The bill may be dismissed.
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