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BOWLES v. STITZINGER

January 23, 1945

BOWLES, Adm'r, Office of Price Administration,
v.
STITZINGER et al.



The opinion of the court was delivered by: SCHOONMAKER

This is an action in which plaintiff seeks to recover treble damages pursuant to Section 205(e) of the Emergency Price Control Act of 1942, as amended, 56 Stat. 23, 50 U.S.C.A.Appendix, 901 et seq., 925(e), 56 Stat. 765, 50 U.S.C.A.Appendix, 961 et seq., which is hereinafter referred to as 'the Act.'

 The complaint charges that defendants sold and delivered southern pine lumber invoiced at approximately $ 11,522.35, at prices in excess of those permitted by maximum price regulation No. 19, and contrary to the requirements and prohibition of Article III, Sec. 14, Sec. (a) and (b), (4) thereof, and that such sales were accomplished by purchasing said lumber from the mill, by selling and shipping such lumber directly from the mill to customers without taking the same to their own place of business, and falsely upgrading and invoicing numerous sales thereof. They thereby exceeded the maximum prices permitted under such price regulation.

 The complaint asks for treble damages.

 The defendants, other than E. L. Stitzinger, Jr., filed an answer June 15, 1944, denying the charges made in the complaint; and on July 17, 1944, filed a motion to suppress the evidence obtained from the defendants by investigators of the Office of Price Administration, on the ground that it was obtained from them in violation of defendants' constitutional rights.

 The case came on to be heard on the motion to suppress, and evidence was taken in support of the motion and in opposition thereto.

 From the pleadings and the testimony thus taken, we find the facts with reference to this motion to suppress to be follows:

 On July 22, 1943, Reid and Rosen, duly accredited agents for the Office of Price Administration, went to the office of Stitzinger Brothers Lumber Company at New Castle, Pennsylvania, presented their credentials to defendants E. L. Stitzinger and Mary Kuttesch, two members of the defendant firm, and asked to see all the lumber records of that firm for the years 1942 and 1943. Defendant E. L. Stitzinger replied that the 1943 records were immediately available, but that the records for 1942 were stored in another room in the building, but that he could get them if the agents wanted them. Thereupon, the agents went into the private office of E. L. Stitzinger and were there furnished the records which they examined between July 22 and July 28, 1943. At the time the agents went to the office of defendant firm, they had no subpoena for the production of documents. It might be held under the evidence that the defendants consented to the examination of their records by the OPA agents. But it is not necessary to pass on that question, because, as we view the law, the records of this firm were kept under the requirements of the Emergency Price Control Act of 1942, Section 202(b), 50 U.S.C.A.Appendix, § 922(b), which provides:

 'The Administrator is further authorized, by regulation or order, to require any person who is engaged in the business of dealing with any commodity, * * * to permit the inspection and copying of records and other documents, the inspection of inventories, * * * .'

 Revised Maximum Price Regulation 19, Section 18, adopted under the Emergency Price Control Act, provides:

 'All dealers of southern pine lumber must keep records which will show a complete description of the items of lumber sold (i.e., grades, conditions of dressing, quantity, etc.), the names and addresses of the buyers, the date of sale, and the price for a period of two years * * * .'

 We are therefore of the opinion that no constitutional rights of the defendants have been violated. We are dealing here with the war powers of the Government, which may not be circumscribed if National security demands this exercise. United States v. Macintosh, 283 U.S. 605, 622, 51 S. Ct. 570, 75 L. Ed. 1302.

 Many courts have held that the OPA may investigate the records required to be kept under the Regulations, and that the statutes and regulations sanctioning such investigations do not violate the Fourth and Fifth Amendments to our Constitution. See Bowles v. Chew, D.C., 53 F.Supp. 787; Bowles v. Joseph Denunzio Fruit Co., D.C., 55 F.Supp. 9; Bowles v. Curtiss Candy Co., D.C., 55 F.Supp. 527; United States v. Tire Center, D.C., 50 F.Supp. 404.

 The only case to the contrary that has been called to our attention is Brown v. Glick Brothers Lumber Company, D.C., 52 F.Supp. 913. We decline to follow this decision, for in our opinion the court in that case overlooked the fact that records are ...


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