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FREEMAN v. FIDELITY-PHILADELPHIA TRUST CO.

December 16, 1965

Orville L. FREEMAN, Secretary of Agriculture of the United States
v.
FIDELITY-PHILADELPHIA TRUST COMPANY



The opinion of the court was delivered by: LORD, III

 The Secretary of Agriculture petitions to have an administrative subpoena enforced, which the respondent complains is objectionable because: (1) it was not signed and issued by the Secretary himself, (2) it was issued to a corporation not subject to the Secretary's jurisdiction, and (3) it is too broad and burdensome.

 I.

 In Cudahy Packing Co. v. Holland, 315 U.S. 357, 62 S. Ct. 651, 86 L. Ed. 895 (1942), the Supreme Court held, four Justices dissenting, that the Administrator of the Wage and Hour Division of the Department of Labor had no authority under the Federal Trade Commission Act, whose subpoena provisions Congress had made applicable to the Administrator's functions, to delegate to a subordinate his power to sign and issue a subpoena duces tecum. In Fleming v. Mohawk Wrecking & Lumber Co., 331 U.S. 111, 67 S. Ct. 1129, 91 L. Ed. 1375 (1947), a somewhat differently constituted Court *fn1" unanimously decided that the Emergency Price Control Act did grant authority to its Administrator to delegate the same power to district directors. In neither case was the statutory authorization explicit. Our duty on this petition is to decide whether the subpoena power has been validly delegated by the Secretary of Agriculture to the Director of the Dairy Division of the Consumer and Marketing Service, who signed the instant subpoena.

 Essentially, this is a problem of statutory construction in the light of the underlying desideratum of administrative responsibility. In the Cudahy Packing case the majority opinion found that the "entire history of the legislation controlling the use of subpoenas by administrative officers indicates a Congressional purpose not to authorize by implication the delegation of the subpoena power" (315 U.S. at 364, 62 S. Ct. at 655). But in Mohawk Wrecking & Lumber the Court could find no provision in the Price Control Act "negativing the existence of such authority, so far as the subpoena power is concerned" and would not infer "the absence of such authority * * * from the history and content of the Act" (331 U.S. at 121-122, 67 S. Ct. at 1134).

 In Cudahy Mr. Justice Douglas wrote in dissent that:

 
"* * * if the policy underlying the [majority] opinion is a desire to see a more restrictive and discriminating use of the subpoena power, the requirement that the Administrator alone exercise the power seems idle. For his duties under this Act are manifold and far flung. * * *
 
"If the Administrator must issue subpoenas, it seems hardly likely that he can do anything but sign them in blank. If he tried to do anything but formulate the general policy to govern the exercise of the subpoena power, he could perform little more than ministerial acts. * * *" 315 U.S. at 367-368, 62 S. Ct. at 657.

 In Mohawk the same considerations became part of Mr. Justice Douglas' opinion for the Court:

 
"* * * We would hesitate to conclude that all the various functions granted the Administrator need be performed personally by him or under his personal direction. Certainly, so far as the investigative functions were concerned, he could hardly be expected, in view of the magnitude of the task, to exercise his personal discretion in determining whether a particular investigation should be launched. * * * To tempt the Administrator to solve the problem by supplying all his offices with subpoenas signed in blank would not further the development of orderly and responsible administration. * * *" 331 U.S. at 122-123, 67 S. Ct. at 1135.

 Thus, there are differences in the tenor of the two opinions. But the controlling difference is the legislative intent. See Fleming v. Mohawk Wrecking, supra, at 121-122, 67 S. Ct. 1129. Because the subpoena power is "capable of oppressive use, especially when it may be indiscriminately delegated and the subpoena is not returnable before a judicial officer," Cudahy indicates that "[unlimited] authority of an administrative officer to delegate the exercise of the subpoena power is not lightly to be inferred." 315 U.S. at 363, 62 S. Ct. at 655. But, as Mohawk makes clear, that does not mean that the power to delegate may not be inferred at all. The statutory scheme is controlling.

 As we read the statutes from which the Secretary of Agriculture derives his powers, how authoritative Cudahy remains in the face of Mohawk need not concern us here, *fn2" even though the same subpoena provisions of the Federal Trade Commission Act as were involved in Cudahy (15 U.S.C. §§ 48-50) have been made applicable to the Agricultural Marketing Agreement Act by their incorporation therein (7 U.S.C. § 610(h)). Cudahy does not conclude our inquiry, for the applicable authorizing statutes in each instance must be read together. See Goldberg v. Battles, 196 F. Supp. 749, 752-753 (E.D.Pa.1961), aff'd on opinion below, 299 F.2d 937 (C.A.3, 1962), cert. denied, 371 U.S. 817, 83 S. Ct. 32, 9 L. Ed. 2d 58 (1962).

 Since 1940, the Secretary of Agriculture has been authorized by statute to delegate "the whole or any part of any regulatory function which the Secretary is, now or hereafter, required or authorized to perform * * * to any officer or employee designated under this section." 5 U.S.C. § 516b. "Regulatory function" is defined in 5 U.S.C. § 516a(b) as

 
"* * * the making, prescribing, issuing, or promulgating, of a regulatory order; and includes * * * (2) any action which is required or authorized to be performed before, after, or in connection with, such ...

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