This is an appeal from the order and decree of the chancery court confirming report of receiver Ona Dunlop of sale of assets in the winding up of the affairs of a partnership which had engaged in manufacture. We quote from the opinion of the trial judge:
"The exact question involved is this: Does the act of congress creating the office of price administration* give to that office power to fix maximum or *Page 56 ceiling prices which may be realized upon liquidation sales in State courts which are carried out in every particular lawfully under State laws?
"The carrying on of a continuing business by a receiver appointed by a State court is not involved here. Nor does this case require the examination of the rules and regulations adopted by the price administrator. Those regulations can rise no higher than their source. The act of congress is that source. Congress may by its acts, within its delegated powers, create administrative bodies. It may delegate the power to those bodies to adopt administrative rules and regulations, but those rules and regulations must be within bounds and rules laid down by congress in its enabling acts. To allow such bureaus and administrative bodies to go beyond the carrying out of the orders of congress would be to permit the former to legislate and the latter to delegate the power to legislate. * * *
"This court takes judicial notice of acts of congress, treaties, and presidential proclamations. These are the law of the land. It does not take notice of administrative rules and regulations. They are not the law of the land. They are merely administrative acts. The thing to be examined in order to find out the applicability of the price ceilings in question is, therefore, the act of congress. It is to be examined to learn the intention of congress as to what sales it meant to interfere with. Did it mean to hinder State courts in proceedings such as these, where sales are made once only, not in the course of business, in the carrying out of functions of winding up businesses and getting creditors paid? If it did so intend, that meaning must be gotten by construction, because it did not say so directly.
"Title 1, § 2, deals with the powers of the price administrator. The opening sentence of that section is as follows:
"`SEC. 2 (a). Whenever, in the judgment of the price administrator, the price or prices of a commodity *Page 57 or commodities have risen or threaten to rise to any extent or in a manner inconsistent with the purposes of this act, he may, by regulation or order, establish such maximum price or maximum prices as in his judgment will be generally fair and equitable and will effectuate the purposes of this act.'
"Section 1 (a) of the act discloses that its purposes are, among other things, to prevent speculative and abnormal increases in prices and rents, `to eliminate and prevent profiteering, hoarding, manipulation, speculation, and other disruptive practices, resulting from abnormal market conditions or scarcities caused by or contributing to the national emergency;' to protect persons from undue impairment of their standard of living; to prevent hardships to persons engaged in business, to schools, universities, and other institutions, and to governmental agencies, which would result from abnormal increases in prices; to secure adequate production; to prevent collapse of values; to stabilize agricultural prices; and `to permit voluntary cooperation between the government and producers, processors, and others to accomplish the aforesaid purposes.'
"This statement of purposes clearly indicates that the act is intended to apply to regularly conducted businesses. * * *
"In section 2 (d) the idea of control over continuing operations is still further emphasized in that the administrator is given power to regulate or prohibit speculative or manipulative practices or hoarding."
Section 204 (d) of the emergency price control act of 1942 is as follows:
"The emergency court of appeals, and the supreme court upon review of judgments and orders of the emergency court of appeals, shall have exclusive jurisdiction to determine the validity of any regulation or order issued under section 2, of any *Page 58 price schedule effective in accordance with the provisions of section 206 and of any provision of any such regulation, order, or price schedule. Except as provided in this section, no court, Federal, State or Territorial, shall have jurisdiction or power to consider the validity of any such regulation, order, or price schedule, or to stay, restrain, enjoin, or set aside, in whole or in part, any provision of this act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order or price schedule, or to restrain or enjoin the enforcement of any such provision."
The point involved is simply thus stated: Does the act forbid review by a State court of an attempted regulation which is beyond and outside the scope and provisions of the act?
As indicated by the trial judge in his opinion, the act is very evidently aimed at controlling prices at which goods are as a practice and customarily to be sold to the public in the ordinary course of business. That is the real intent and purpose of the act and it is further a matter of common knowledge that judicial sales are distress sales in which the price obtained is for the most part far less than the true value of the property offered for sale. It could scarcely be imagined that from these distress sales the market could by any means become inflated. It is a matter of common knowledge and observation that the contrary is the effect and the occasion of any article in a judicial sale selling at a price exceeding the price fixed by the office of price administration would be a rarity. It is inconceivable that congress really intended to take away from the State courts the right to control their own receivers in a field of activity where deflation instead of inflation is practically the universal rule. *Page 59
It is not to be presumed that congress intended that each and every official under the guise of the authority of the office of price administration could do as he pleased in the whole field of price fixing and be immune from all accountability save only to one court for the whole United States as a court of review of his actions in the first instance. The very fact that only one court is provided of itself would tend to indicate a contrary intention. The section quoted does not in any explicit terms so provide. A careful review and analysis of section 204 (d) shows that only regulations that are issued under the act are protected against review by any tribunal other than the emergency court of appeals and Federal supreme court on appeal from that tribunal. The words "such regulations" thrice recurring in the section can only refer to the regulations and orders preceding in the same section and those are under the act. Regulations issued not under the act are not so protected. In other words, an officer or authority who does some act not authorized by the emergency price control act is not protected therein. He may not do an unauthorized act and receive immunity. Acts ultra vires are not placed in the jurisdiction of the emergency court of appeals and it is ultra vires for the office of price administration to fix maximum prices at which goods may be sold at judicial sales.
It appears from statements contained in the answer of the intervening defendant that of the items shown by the report of sale by the receiver, all but 12 are either exempted from price control or the prices bid were below the applicable ceiling price and that of these 12 items the amount of the excess bid above the regulation is $2,605.25. The parties stipulate the accuracy of these statements contained in the answer of the intervener. The decree appealed *Page 60 from approves such sales at such prices.
The intervening defendant claims that the regulations and orders of the office of price administration were all published in the Federal register and therefore entitled to judicial notice. However, it seems they were admitted in evidence at the hearing on the order to show cause why the sale should not be confirmed. It is unnecessary to rule on the question whether we should take judicial notice of these regulations. They are in the record:
For the reasons hereinbefore set forth in this opinion, the decretal order appealed from is affirmed. It is to be expected that the receiver's expenses incident to this appeal will be an item in his account. No costs are allowed. The price administrator was an active party defendant and his intervention was caused by public interest.
NORTH, C.J., concurred with REID, J.
* See 56 Stat. at L. 23, as amended by 56 Stat. at L. 767 and 57 Stat. at L. 566 (50 USCA, § 901 et seq.). — REPORTER.