decision of the New York Court of Appeals in Lightbody v. Russell, 293 N.Y. 492, 58 N.E.2d 208.
The defendant relies largely on Brown v. Glick Bros. Lumber Co., D.C., 52 F.Supp. 913, as supporting its contention. However, the Circuit Court of Appeals for the Ninth Circuit, in an opinion filed January 4, 1945 ( Bowles v. Glick Bros., 146 F.2d 566), reversed Brown v. Glick Bros. Lumber Co., supra; and it may no longer be cited as an authority.
We shall therefore overrule this objection to the Complaint herein.
Next, as to defendant's second contention that there was no price-ceiling regulation in force affecting frozen strawberries of the 1943 pack, mentioned in Exhibit III of the Complaint, we see no merit in this contention.
Maximum Price Regulation 207, issued August 18, 1942, and effective August 24, 1942, clearly applies to the 1943 pack up to, and including, June 15, 1943. This is clearly established by Section 1341.201 of this Regulation which reads as follows:
'On and after August 24, 1942, regardless of any contract or other obligation, no packer shall sell or deliver any frozen fruits, berries or vegetables packed after the 1941 pack at a price higher than the maximum prices established pursuant to this Maximum Price Regulation No. 207.'
This Regulation remained in full force and effect until June 16, 1943, when it was in part superseded by Maximum Price Regulation No. 409. That Regulation 207 remained in full effect until June 16, 1943, is indicated by Section 5 of Regulation 409, which provides: 'However, Maximum Price Regulation 207 applied to frozen products packed after the 1942 pack for which maximum prices or permitted increases are not yet provided.'
Maximum Price Regulation 207 has been officially interpreted by the Office of Price Administration as follows:
'We have been advised by our Price Division that Maximum Price Regulation 207 covers all sales to June 16, 1943, and that Maximum Price Regulation 409 covers all sales made from June 16, 1943, of all of the 1943 pack.'
The weight to be given to this interpretation is thus stated in Bowles v. Nu Way Laundry Company, 10 Cir., 144 F.2d 741, 746, as follows:
' * * * Moreover, since the Administrator is empowered to fix and establish prices by promulgation and adoption of appropriate regulations he is also authorized to interpret such regulations for the guidance of those amenable to the Act and regulations, and such interpretations, if not controlling, are entitled to great weight so long as they do not distort or pervert the plain intendment of the Act. Cf. Norwegian Nitrogen Products Co. v. United States, 288 U.S. 294, 325, 53 S. Ct. 350, 77 L. Ed. 796.'
We therefore conclude that the plain language of the Regulations in question, supported by the official interpretation of the Administrator, clearly establishes that all the items of the 1943 pack mentioned in Exhibit III, are clearly covered by Regulation 207.
As to defendant's third contention that the evidence of its violations of the Act and the Regulations adopted thereunder, was obtained by compulsion and in violation of law, that question cannot be raised by demurrer. Nothing on the face of the complaint shows how the plaintiff obtained any evidence. This objection will be overruled.
The defendant's fourth objection is that this suit cannot be maintained because of the lack of approval of the Secretary of Agriculture before the suit was brought, as required by Section 3(e) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 903(e). This objection is without merit.
We are of the opinion that the commodities involved in this case are not 'agricultural commodities' within the meaning of Section 3(e) of the Act; but were, on the contrary, 'commodities processed from agricultural commodities' within the meaning of Section 3(c) of the Act.
This view is in accord with the opinion of the 4th Circuit Court of Appeals, decided January 3, 1945, in Bowles v. American Brewery, 146 F.2d 842. This case also holds that the prohibition of Section 3(e) of the Act has no relation to such actions as the institution of suits under Section 205(e).
We therefore conclude that the defendant's motion in nature of a demurrer must be overruled and that the defendant be required to answer the complaint herein.
© 1992-2004 VersusLaw Inc.