Searching over 5,500,000 cases.


searching
Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.

BOWLES v. SACHNOFF

March 28, 1946

BOWLES, Price Administrator,
v.
SACHNOFF et al.



The opinion of the court was delivered by: GOURLEY

In this proceeding, Chester Bowles, Administrator of the Office of Price Administration, now Paul A. Porter, his successor in office, has filed a Complaint against Meyer Sachnoff and Louis Fineberg, individually and as partners, trading as Federal Paper Company.

The complainant prays that the license of the defendants be suspended pursuant to the provisions of Section 205(f)(2) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, ยงยง 901-946.

 It is alleged in the Complaint that the defendants are operating a wholesale and jobbing store and, in connection with said business, sell cleansing tissues, paper bags, work gloves, brooms, clothes lines, galvanized ware, mops, and other commodities. That the sale of said commodities is governed by the provisions of General Maximum Price Regulation No. 182, effective July 28, 1942, and Revised Maximum Price Regulation 506, effective May 16, 1944.

 That at all times prior to October 1, 1943, by the provisions of Section 1499.16 of General Maximum Price Regulation, every person selling at wholesale or retail any commodity for which a maximum price is established by General Maximum Price Regulation, or by any other price regulation making applicable the provisions of said Section 1499.16, was granted a license as a condition of selling said commodity.

 That at all times prior to October 1, 1943, by the provisions of Section 1347.308(a) of Maximum Price Regulation No. 182, distributors of paper and paper products were granted a license as a condition of selling such commodity.

 That at all times pertinent hereto, subsequent to October 1, 1943, by Licensing Order No. 1 (effective October 1, 1943, 8 F.R. 13240), every person selling any commodity subject to price control was automatically granted a license to make such sales, and every license theretofore granted by the Office of Price Administration and in effect when said Licensing Order became effective, was merged and continued in the license granted by said Licensing Order. At the time said Licensing Order became effective, the licenses granted to the defendants pursuant to said Section 1499.16 of GMPR, and Section 1347.308(a) of MPR 182, were in effect. Upon the effective date of RMPR 506, to-wit: May 16, 1944, a like license was granted to the defendants by said Licensing Order, incorporated by reference in Section 11 of RMPR 506. All said licenses are in full force and effect.

 It is contended by the Government that the defendants have:

 (a) Violated the provisions of their license and of MPR 182, in that between August 2, 1943, and to and including January 27, 1944, the defendants sold and offered for sale paper bags at prices higher than those established for said commodities by the provisions of MPR 182, as set forth in the license warning notice.

 (b) On June 26, 1944, a license warning notice was sent to the defendants by registered mail pursuant to the provisions of Section 205(f)(2) of the Act and was received by the defendants.

 (c) Violated the provisions of their license and of GMPR and RMPR 506, in that (a) on or about December 15, 1944 and on dates previous thereto, they required the purchase of an additional commodity with sales of Lydia Grey tissues, in violation of the provisions of GMPR; and in that (b) on or about January 19, 1945, they failed to supply each retailer of work gloves, to whom they made sales thereof, with a list, not later than the first invoicing or billing, stating the manufacturer's lot or brand name thereof, defects, if any, the retail ceiling price, a description of the gloves, and the section of RMPR 506 governing the price thereof, which failure was in violation of RMPR 506; all of which violations were set forth in the license warning notice referred to in the next paragraph.

 (d) On February 16, 1945, a license warning notice was sent to the defendants by registered mail pursuant to the provisions of Section 205(f)(2) of the Act and was received by the defendants.

 (e) Subsequent to the receipt by the defendants of said license warning notices, the defendants at their place of business and in connection with the operation thereof violated Section 202(b) of the Act, violated the provisions of all of their licenses under said Licensing Order No. 1, and violated Sections 1499.11, 1499.12 and 1499.16 of GMPR, Sections 1347.305 and 1347.308(a) of MPR 182, and Sections 8 and 11 of RMPR 506, in that, on September 5 and 6, 1945, the defendants wilfully refused to permit Arthur R. Koppel and Joseph P. Findley, as duly authorized investigators of the Office of Price Administration, for and on the behalf of the Price Administrator, to inspect and copy the defendants' business records and other documents concerning mops and other commodities, sold and being sold by the defendants, which were and are under price control; all of said business records and documents the defendants were required, by Section 202(b) of the Act, and by Sections 1499.11 and 1499.12 of GMPR, Section 1247.305 of MPR 182, and Section 8 of RMPR 506, to prepare, keep and make available for examination by the Office of Price Administration.

 The Government prays that this Court enter an Order:

 (1) Suspending the license granted by Licensing Order No. 1, as amended to the defendants, as a condition of selling commodities subject to price control, for which maximum prices are established by GMPR, MPR 182, RMPR 506, and by any other maximum price regulation of the Office of Price Administration, said suspension to be for a period not to exceed twelve months;

 (2) Enjoining the defendants from directly or indirectly selling or offering to sell any commodities with respect to which said license to sell is suspended, during the period of suspension;

 (3) Requiring the defendants to prepare, keep and make available for examination by the Office of Price Administration all records and documents which they are required to so prepare, keep and make available, in accordance with Section 202(b) of the Act, Sections 1499.11 and 1499.12 of GMPR, Section 1347.305 of MPR 182, Section 8 of RMPR 506, and in accordance with like provisions of any other maximum price regulations of the Office of Price Administration establishing maximum prices for other commodities which were, are, or may be sold by the defendants;

 (4) Enjoining the defendants, during the pendency of this proceeding, as follows:

 (a) Requiring the defendants, within five days after the issuance of the order herein prayed for, to prepare, keep and make available for examination by the Office of Price Administration, the records and documents which they are required to so prepare, keep and make available in accordance with Section 202(b) of the Act, Sections 1499.11 and 1499.12 of GMPR, Section 1347.305 of MPR 182, and Section 8 of RMPR 506, and in accordance with like provisions of any other maximum price regulations of the Office of Price Administration establishing maximum prices for other commodities which were or are being sold by the defendants;

 (b) Restraining the defendants from selling any commodities the maximum prices of which are established by GMPR, MPR 182, RMPR 506, or by any other regulations of the Office of Price Administration establishing maximum prices for other commodities which were or are being sold by the defendants, after five days from the entry of the preliminary injunction herein demanded, so long as the defendants fail to prepare, keep, and make available for examination by the Office of Price Administration the records and documents they were and are required to so prepare, keep and make available in accordance with the provisions of said regulations;

 (5) Granting such similar, other, further and different relief as to the Court may seem just, equitable and proper in the circumstances;

 (6) Requiring the defendants to pay the costs of this proceeding.

 The only legal question before the Court for consideration is: Is a refusal, by a person licensed under licensing orders of the OPA, to permit duly authorized investigators of the OPA, for and on behalf of the Price Administrator, to inspect and copy the defendant's business records and other documents concerning commodities sold and being sold by the defendant, which were and are under price control, a violation of the Emergency Price Control Act of 1942, as amended, and of the OPA Regulations which pertain to the licensee's business; and is this true even in the absence of a subpoena issued by the Administrator?

 It was admitted by counsel at the time of the argument that under the provisions of Section 205(f)(2) of the Emergency Price Control Act, that in order for the license of the defendants to be suspended, it is necessary for the Government to prove that the defendants have violated the provisions of the Act or the regulations which apply to the commodity or commodities in question subsequent to the time that the defendants have been issued a license warning notice. In this case, the defendants were first issued a license warning notice on June 26, 1944, and were again issued a license warning notice on February 15, 1945.

 It is contended by the defendants that the only violation which it is claimed by the Government existed after the last warning notice of February 15, 1945, was the refusal of the defendants to permit authorized investigators of the Office of Price Administration for and on behalf of the Price Administrator, to inspect and copy the defendants' business records and other documents concerning mops and other commodities. This refusal, on the part of the defendants, it is claimed occurred on September 5 and September 6, 1945, and, for the purpose of considering the motion to dismiss, said facts are admitted to be true.

 It is contended by the Government that the business records and documents in question were required to be kept and maintained by the defendants under the provisions of Section 202(b) of the Emergency Price Control Act, and by Section 1499.11 and 1499.12 of GMPR, Section 1347.305 of MPR 182, and Section 8 of RMPR 506.

 It is, in substance, the contention of the Government that the refusal of the defendants to permit the investigation requested, even without a subpoena duces tecum, constitutes a violation of the Act, of the Licensing Order, and of the Regulations involved in this proceeding, all of which justified the Government in requesting the court to suspend the license of the defendants, and to enjoin the defendants from engaging in the sale of any of the commodities in question during the period of suspension which might be imposed by the Court.

 The motion filed by the defendants to dismiss the Complaint under the provisions of Rule 12(b) of Federal Rules of Civil Procedure, 28 . U.S.C.A.following section 723c, supplements the general demurrer in the action of law, said motion admits all facts which are well pleaded for the purpose of disposing of the motion.

 Said motion should not be granted unless it appears to a certainty that the plaintiff would not be entitled to any relief under any state of facts which could be proved in support of its claim. Federal Rules of Civil Procedure do not sanction disposition of doubtful issues of fact or law upon motions to dismiss for insufficiency of pleadings, but the Rules contemplate a determination of all such issues by a district court after hearing. In weighing the motion to dismiss the Complaint, the Court should consider all facts well pleaded in the light most favorable to the plaintiff, and then ascertain if any allegation in the complaint is sufficient to constitute a valid claim. American Viscose Corp. v. Rothensies, 3 Cir., 121 F.2d 186; Cohen v. United States, 9 Cir., 129 F.2d 733; Publicity Realty Building Corp. et al. v. Hannegan, 8 Cir., 139 F.2d 583; Berghane v. Radio Corp. of America, D.C., 4 F.R.D. 446; Tahir Erk v. Glenn L. Martin Co., 4 Cir., 116 F.2d 865, 869; Kohler v. Jacobs, 5 Cir., 138 F.2d 440 and 441, and Leimer v. State Mutual Life Assurance Co., 8 Cir., 108 F.2d 302, 206.

 It is therefore, necessary for the Court to first consider the various provisions of the Emergency Price Control Act which have application to the matter at issue.


Buy This Entire Record For $7.95

Download the entire decision to receive the complete text, official citation,
docket number, dissents and concurrences, and footnotes for this case.

Learn more about what you receive with purchase of this case.