Rehearing Denied Aug. 15 1947.: May 19, 1947.
Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.
The Administrator brought this action against Douglas, pursuant to §§ 205(a), (c), and (e) of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, §§ 901 et seq., for statutory damages and injunction. From a judgment in favor of the Administrator, Douglas has appealed.
Douglas operated a retail grocery store and meat market at Stillwater, Oklahoma, in which he sold food items, including poultry, to ultimate consumers. In a small building directly back of, but separate from, his retail store, he received, killed, plucked, and dressed poultry purchased from farmers. Much of the poultry received, killed, plucked, and dressed in the separate building was sold over the meat counter of the retail store.
Less than ten per centum of the sales made by Douglas were to institutional, industrial, or commercial users. Douglas was a retailer who bought and resold food products, generally without changing their form, and for the most part to ultimate consumers who were not commercial, industrial, or institutional users. Douglas operated an independent store. His annual gross sales were in excess of $50,000, and less than $250,000. It is conceded that, except as to certain poultry sales, the store operated by Douglas was a Group 2 store, covered by Maximum Price Regulation 423.*fn1
During the period between January 23, 1945, and July 16, 1945, Douglas sold and delivered from such separate building to the Meat Supply Unit of the Oklahoma Agricultural and Mechanical College at Stillwater, Oklahoma, 28,152 pounds of live hens and fryers at prices which were $1,867.89 in excess of the ceiling prices established, for sales at wholesale, by Second Revised Maximum Price Regulation 269.*fn2 The items of poultry in each sale exceeded five in number.
The court concluded that the sales to the College were covered by 269, supra, and awarded judgment for $1,867.89, plus $100. That part of the judgment alone is here challenged.
The exact theory upon which the Administrator predicated his charge that Douglas sold the poultry to the College at prices in excess of ceiling prices fixed by 269, supra, is not clear. A price specialist in the Office of Price Administration, called as a witness by the Administrator, testified that the sales to the College were either retail sales, or sales by a processor.
However, in his complaint, the Administrator alleged that Douglas was engaged in the purchase and sale of poultry at wholesale, and apparently the trial court adopted that theory.
The pertinent regulations follow.
Section 1.1 of 269, supra, reads:
"What this regulation covers. This regulation establishes maximum prices at which live and processed poultry items shall be sold, purchased or delivered."
Section 1.4 of 269, supra, in part provides:
"* * * The following sales are exempt from the provisions of this ...