9. On one visit, the Official OPA List of Retail Meat Prices was adequately posted and on one visit it was not adequately posted. On two occasions the meat on display had no price or grade tags.
10. Three checks were made by the local War Price and Ration Board on February 16, 1945, March 20, 1945, and April 13, 1945. On each occasion the Official Price List was adequately displayed; on one occasion meats on display were properly tagged; go meats were on display on one occasion; and no record was made on one occasion as to tagging. On each check, meats on display were quoted at prices either at or below ceiling prices.
11. No evidence was offered as to actual sales in excess of the maximum ceiling prices.
Plaintiff contends that the evidence in this case discloses a course of continued, wilful violation, over a period from December 1, 1944, to April 13, 1945, of the maximum price, the price list posting and the price and grade labeling regulations, and that it warrants the issuance of a final injunction by this Court in the exercise of its discretion. With this contention I find it difficult to agree.
One Edgar Campbell, an OPA investigator, testified that he visited defendant's store on December 8, 1944, and March 15, 1945. On the first occasion, with respect to three meat items on display, two were quoted above the ceiling prices and one under the ceiling price; the items were not tagged with selling price and grade; and the price list was partially obscured. On the second occasion the price list was properly posted, and of the five meat items, all were quoted below the ceiling price, one as much as eleven cents.
Another investigator, Helen Shackelford, testified that she visited defendant's store on February 20, 1945, when she observed four meat items on display in the showcase without grade labels or price tags. Of the four items, two were quoted three and five cents, respectively, above the ceiling price, one at the ceiling price and one a penny under the ceiling price. She also testified that the official price list was so posted as to make it impossible to read. Her testimony on the latter score was rather doubtful.
One Charles Greene, an OPA investigator, testified that when he visited defendant's store on February 12, 1945, no ceiling price list was posted anywhere in the store, nor were the displayed meats tagged. This investigator, unlike the others in this case, had made no record of his observations, and testified from memory. The weight to be given this evidence is diminished in view of the testimony of one Leon Steinberg, a member of the Price Panel of the local War Price and Ration Board and President of the local Business Men's Association. Steinberg stated that he visited defendant's store several times a week, including February 12, 1945, the day on which Greene claimed to have been there, and saw meat price lists and price tags.
In addition to the testimony of Steinberg, defendant also produced three check sheets of the local War Price and Ration Board. These check sheets, dated February 16, March 20, and April 13, 1945, disclosed that on each occasion the official OPA ceiling Price List was adequately displayed. They also showed that, of a total of four meat items identifiable on the check list, three were offered for sale at from one to three cents below the ceiling price and one item at the ceiling price. The check sheet dated February 16, 1945, reveals that the selling price and grade tags were on the items displayed.
Finally, Katz testified that there are two ceiling price lists for meat items adequately posted in his store and that the meat items on display are tagged with the selling price and grade. As to those items which were reported by the investigators as being offered for sale at prices above the maximum, Katz asserted that the reason for the increased price was the fact that he had trimmed the fat from the meat before offering it for sale.
The plaintiff urges upon the Court the argument that the meat shortages render it unnecessary for defendant to sell at less than ceiling prices and that the unevenness of price arouses a suspicion that defendant does not know the ceiling prices. Inherent in the argument is the implication that selling honestly at below ceiling prices may cast unnatural suspicion upon the seller. When the seller offers and sells at below the ceiling price, the reason for his doing so is not important in a case, such as this, where the plaintiff does not contend that the prices quoted to the investigators were not the true offering prices. It is indeed difficult to construe as evidence against the defendant an honest offering price at less than the ceiling.
While defendant may have over-quoted on four items, the evidence, in my opinion, does not support the conclusion that such over-quotations constitute a practice of continuing violations warranting injunctive relief, especially where so many items were quoted at below the maximum. The evidence with respect to his failure to properly post the ceiling price lists, while it shows a violation on one, or at the most, two occasions, does not, in my estimation, require the equitable relief demanded.
On full consideration, I cannot say that the violations which were committed by the defendant are of such degree, both in quantity and quality, as to warrant the exercise by this Court of its discretion to grant the injunction prayed for. Moreover, the evidence fails to establish that these violations were of such a continuing, wilful nature as to justify the conclusion that the defendant will continue to violate the regulations involved unless injunctive relief is granted: Brown v. Standard Oil Co., 1 Price Control Cases, par. 50,991.
Accordingly, I state the following conclusions of law:
1. This Court has jurisdiction of this action brought by the Administrator of the Office of Price Administration pursuant to Section 205(a) of the Emergency Price Control Act of 1942, as amended, to enjoin acts and practices of the defendant constituting violations of Section 4(a) of the said Act, of Maximum Price Regulation No. 355, 'Retail Ceiling Prices for Beef, Veal, Lamb and Mutton Cuts and All Variety Meats and Edible By-Products' (8 F.R. 4423), issued April 5, 1943, effective May 17, 1943; and Office of Economic Stabilization Regulation No. 1, 'Grading and Grade-Labeling of Meats' (8 F.R. 10988), issued August 5, 1943, effective August 5, 1943, and any other regulation issued by the Office of Price Administration, pursuant to the Act, establishing maximum prices for beef, veal, lamb and mutton cuts.
2. This Court has jurisdiction over the defendant.
3. The evidence does not disclose violations of the Regulations involved in such degree as to warrant this Court, in the exercise of its discretion, to issue an injunction.
4. The evidence is not of such character as to warrant the conclusion that defendant will continue to violate the Regulations involved unless injunctive relief is granted.
An Order may be submitted in accordance with this opinion.
© 1992-2004 VersusLaw Inc.