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PORTER v. HASHINSKY

July 3, 1946

PORTER, Adm'r, OPA,
v.
HASHINSKY et al.



The opinion of the court was delivered by: BYERS

Motion to punish respondents for contempt of court for their alleged failure and refusal to comply with the terms of a temporary injunction entered in effect upon consent on May 19, 1945, the material provisions of which are that the respondents are enjoined from:

'(1) Selling or delivering any * * * onions unless and until each sale is accompanied with a notification in writing showing the base price for such sale, the variety and grade of * * * onions being sold, and the state or district within a state where the * * * onions were produced.

'(2) Selling or delivering any * * * onions covered by Revised Maximum Price Regulation 271 unless or until respondents first prepare, keep and make available for examination by the Office of Price Administration, records showing as precisely as possible the basis upon which the respondents determine maximum prices for such commodities hereafter sold.

 '(3) Doing or omitting to do any other act in violation of said Regulation.'

 Then follow affirmative directions conforming to Nos. (1) and (2) above.

 The motion is based upon an order to show cause supported by an affidavit by the Enforcement Attorney for the New York Office, asserting that investigation disclosed that the respondents had violated Section 11(b) of Revised Maximum Price Regulation 271 in that they 'failed to accompany each sale of * * * onions by a notification in writing showing the base price for such sale, the variety and grade of * * * onions being sold and the State or District within a State where the * * * onions were produced. Said investigation disclosed among other things that such practice on the part of respondents made it an impossible task on the part of the Office of Price Administration to determine at what prices the respondents could sell onions * * * under said regulations. The respondents' failure to adhere to the requirements of Revised Maximum Price Regulation 271 could often result in a sale of onions * * * at prices in excess as established under the regulation.'

 The affidavit recites the visit of an investigator at the respondents' premises on January 31, 1946, and an examination of their invoices from December 5, 1945, to February 28, 1946, which disclosed that 'all such invoices failed to meet the requirements as prescribed by the regulation and ordered by this Court. That in the sale of onions respondents failed to accompany each sale by a notification in writing showing the base price for such sale, the variety and grade of * * * onions being sold and the State or District within a State where the onions were produced.'

 The answering affidavit quotes the regulation in question and points out that the moving affidavit fails to show that no 'such notification in writing' was given to any purchaser from the respondents. Further, that the base price required to be placed on a notification was impossible of ascertainment unless respondents' suppliers advised respondents of its base price on respondents' purchases of onions.

 The affidavit continues that efforts were made to secure such base price from their suppliers without success, and that the base price was unnecessary in any case, since the ceiling price of onions governing the respondents' sales results from consulting a chart issued by the Office of Price Administration 'which gives the dollar and cents ceiling price for intermediate sellers'. That intermediate sellers do not, nor have they been required to compute their ceiling price from the country shipping point price, since this is all prepared for intermediate sellers on such chart.

 Further, that onions are sold in 50 lb. knitted sacks which have imprinted thereon the grade and the state of origin, and that the respondents had inquired of their attorney whether 'the written matter contained on the sack itself was sufficient notification to the customer within the meaning of the regulation. Said attorney advised that said sack contained all the elements which were required by the regulation except a statement as to variety.'

 As to the latter requirement, the affidavit recites that the respondents deal in only the cheapest and lowest type onions for which a ceiling price is prescribed, and that 'We have been informed by the Office of Price Administration that it is only necessary to show the variety in our notification where the ceiling price of the onions is higher than that affecting the least expensive variety. * * * In all of the sales which are the subject of this inquiry, Premium onions (those involving a higher ceiling price than appears upon the bulletin above referred to) were not involved. * * *

 'We did not deliberately, consciously or willfully violate the regulation or the injunction pendente lite.

 'Although we have not been in default and although we have not violated the injunction or the regulation, we respectfully submit that we will gladly conform to any practice which the Office of Price Administration will prescribe, within the scope of the regulation. It is not our purpose to be uncooperative. We are laboring under great difficulties at the present time. While our sales clerks have neither the background, education or capacity to write a form of notification, nevertheless, we will arrange to have this done by our bookkeeper if the Court feels that such practice would be necessary or helpful.'

 Testimony was taken on May 9 and May 23, 1946, in an effort to bring to light all attendant circumstances, since it was agreed by counsel that this case should be deemed dispositive of three ...


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