Porter v. Fleishman
Opinion
“In the United States, once Congress delegates authority to an administrative agency, the Congress loses effective control of the use to which that authority will be put, because it places the power in the hands of an independent and sometimes antagonistic Executive department of government. Hence, Congress legislates with wearisome and confusing details, designed to foreclose abuse, on the theory that every administrator will push his authority to the uttermost limits and as far beyond as the Courts will permit — an expectation seldom disappointed.”1 Mr. Justice Jackson,'Jan. 1947 A.B.A.Journal, Vol. 33, p. 25.
I am recording the facts in this case, so that the Bar may see how the administrative mind operates when working behind a barrier like the infamous provision ofl Section 204(d) 2 of the Price Control Act, 50 U.S.C.A.Appendix, § 924(d).
Albert H. Fleishman started a small lumber remanufacturing business under the name of Southwest Oregon Lumber Company. One of his sons went into the wholesale lumber business under the name of J. N. Fleishman Lumber Company. This is an OPA penalty suit against the father, to recover three times the gross amount paid him by his son for milling 49 cars of lumber. Injunction is also asked.
It is not claimed that the father’s milling charges exceeded the ceiling allowed for that service. The, claim is that the father could not do milling for his son on any terms, because, 1, the father was presumed, on account of the blood relationship, to be financially interested with his son;3 2, he was expressly forbidden to do business with his son by special clause written into his license to operate a “custom mill.” See Appendix “A”, particularly * sentence at end.
Of course, such a presumption could not be made conclusive, even by Congress, although conclusive effect was claimed for it at the trial.
It is equally plain that the Regional Administrator could not find the fact of financial connection against the father with[35] out a hearing, although this he seems to have attempted to do.
It was shown at the trial that there was no financial connection between the two firms. No evidence was offered to the contrary.
Certainly, presumptions declared by administrative agencies are not binding on the courts. They are no more binding than regulations fixing penalties. Porter v. Wright, D.C., 69 F.Supp. 46, 48, n. 3. No more binding than a regulation (11 F.R. p. 14103) purporting to declare the time within which prosecutions may be conducted after the expiration date of a regulation. Kirsch v. Quality Fruit Wines Corporation, - Misc. -, 68 N.Y.S.2d 120, per Justice Edgar J. Nathan, Jr.
I doubt if the average lawyer knows that the administratrists have been attempting to legislate in these respects. During the war and post-war years the profession has been the busiest in its history, and this explains, I think, why it has not stood better guard. As for the courts, they are beginning to emerge from the bomb cellars. Fleming v. Huebsch Laundry Corporation, 7 Cir., 159 F.2d 581.4
Judgment is for the defendants.
Appendix “A”
Office of Price Administration San Francisco Regional Office
Region VIII District Price Attorney Portland
Nov. 2, 1945
Southwest Oregon Lumber Company Grants Pass, Oregon.
Gentlemen: Re: Application for authorization to operate as a custom mill. File No.: VIII-539-4(b)-95 (Granted)
This is in reference to your application filed on or about September 11, 1945, pursuant to Section 4(b) of Maximum Price Regulation No. 539 wherein you request authority to operate as a custom mill under the regulation at your mill located at Grants Pass, Oregon.
Footnotes
71 F. Supp. 33 (Porter v. Fleishman) — published by Counsel Stack Legal Research, free access to 12M+ legal documents.