Penn Dairies v. Milk Control Commission of Pennsylvania/Dissent Douglas

Mr. Justice DOUGLAS dissenting.

The contract with Penn Dairies was made by the War Department acting through the Quartermaster of the Army. The Quartermaster Corps, one of the statutory branches of the Regular Army (41 Stat. 759, 10 U.S.C. § 4, 10 U.S.C.A. § 4) is charged 'under the authority of the Secretary of War' with the 'purchase and procurement for the Army of all supplies of standard manufacture and of all supplies common to two or more branches' of the Army, with exceptions not material here. 39 Stat. 170, 41 Stat. 766, 10 U.S.C. § 72, 10 U.S.C.A. § 72. The procedure which controls purchases of supplies by the Quartermaster Corps is governed by the statutes and by the Army Regulations. There are statutory requirements for competitive bidding as respects the purchase of 'all supplies' and with particular reference to supplies purchased 'for immediate use'. The only exception relevant here is the case 'where it is impracticable to secure competition.' 10 U.S.C. § 1201, 10 U.S.C.A. § 1201. The policy is plain-it is intended that the United States should get the full benefit of price competition in its purchases of Army supplies. See United States v. Purcell Envelope Co., 249 U.S. 313, 318, 39 S.Ct. 300, 301, 63 L.Ed. 620.

Statutory authority is vested in the Secretary of War to prescribe rules and regulations covering the preparation, submission, and opening of bids 'for contracts under the War Department.' 20 Stat. 36, 22 Stat. 487, 5 U.S.C. § 218, 5 U.S.C.A. § 218. The Secretary pursuant to this authority has issued numerous regulations governing competitive bidding. Regulation No. 5-100, Par. 11d, August 7, 1940, specifically prohibits use of appropriated funds for payments under contracts containing prices fixed by state law 'until there has been an authoritative and final judicial determination that such State statutes are applicable to such contracts.' The policy of the War Department had been well-established. The Judge Advocate General stated in April 1941 that 'the War Department has consistently taken and maintained the position that price-fixing measures of the states have no application to procurements by the War Department'. Whatever ambiguity may have existed in other regulations has been removed.

We have then regulations of the War Department made pursuant to powers delegated by Congress and which prohibit the Army's contracting officers from waiving competitive bidding merely because prices are fixed by the states. I am unable to see why they are not valid regulations. Congress has said that competitive bidding 'shall' be required except where it is 'impracticable to secure competition'. 10 U.S.C. § 1201, 10 U.S.C.A. § 1201. The word 'impracticable' does not suggest that wherever there is state price-fixing competitive bidding is not required. A thing is 'impracticable' to do when it is infeasible or incapable of being done. The contract which the Quartermaster made with Penn Dairies is conclusive of the fact that it was not 'impracticable' to obtain the milk through competitive bidding. A regulation which interprets 'impracticable' so as not to preclude competitive bidding because of state price-fixing stays well within the scope of the rule making power. These War Department regulations accordingly 'have the force of law'. Standard Oil Co. v. Johnson, 316 U.S. 481, 484, 62 S.Ct. 1168, 1169, 86 L.Ed. 1611, and cases cited. Their application in this case therefore has no less force and effect than if it was specifically directed by Congress. We have then an assertion of federal power in the field of price control which by reason of the supremacy clause excludes any exercise of a conflicting state power. See Sinnot v. Davenport, 22 How. 227, 16 L.Ed. 243; McDermott v. Wisconsin, 228 U.S. 115, 33 S.Ct. 431, 57 L.Ed. 754, 47 L.R.A.,N.S., 984, Ann.Cas.1915A, 39; Pennsylvania R. Co. v. Illinois Brick Co., 297 U.S. 447, 56 S.Ct. 556, 80 L.Ed. 796; Hines v. Davidowitz, 312 U.S. 52, 61 S.Ct. 399, 85 L.Ed. 581; Cloverleaf Butter Co. v. Patterson, 315 U.S. 148, 62 S.Ct. 491, 86 L.Ed. 754.

Mr. Justice BLACK and Mr. Justice JACKSON join in this dissent.