# Brown v. Hecht Co. > Court of Appeals for the D.C. Circuit · October 18, 1943 · 137 F.2d 689 URL: https://www.frixlaw.com/law-library/cases/9638237 ## Case - **Full name:** BROWN, Adm’r of Office of Price Administration, v. HECHT CO. - **Court:** Court of Appeals for the D.C. Circuit - **Decided:** October 18, 1943 - **Citations:** 137 F.2d 689 - **Precedential status:** Published - **Opinion:** Dissent by Groner - **Judges:** Groner, Edgerton, Eicher - **Cited by:** 47 later opinions in the Frix Law Library ## Citator (automated) - **Red flag:** Reversed on other grounds by Hecht Co. v. Bowles, 321 U.S. 321 (1944). - Negative treatments: 1 - Distinguished by: 0 - Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9638237 ## Opinion text GRONER, C. J. (dissenting). I think it not improper to state briefly the reason I am unable to concur in the. Court’s opinion. The record shows that after extensive hearings the District Court made findings to the effect that though violations of the Price Control Act had been shown, they were, in the circumstances, neither numerous nor wilful and that defendant at all times after the passage of the Act attempted in good faith to comply with its provisions and took vigorous steps to do so, and that in those instances in which errors of overcharge were made the mistakes were corrected as soon as discovered. I mention these findings merely as background. I am far from thinking that, alone, they are enough. The significant thing to me is that the Court also made findings that prompt and proper steps had been taken by defendant to improve its control system so *696 as to insure as nearly as possible future compliance with the provisions of the Act, and as a result of which there was no likelihood of avoidable violations and no reason to apprehend them. 1 Based on these findings and conclusions, the Court held that it was not in the public interest to issue an injunction and that to do so would be unjust to the defendant and “would have no effect by way of insuring better compliance in the future.” As the findings are abundantly supported by the evidence, it seems to me the conclusion that nothing would be accomplished by an injunction, and that therefore there was no necessity for it, was well within the District Court’s judicial discretion and in accordance with established equitable procedure. The Administrator, however, insists that established equitable principles have no place in a case brought under the Price Control Act, because, as he says, Congress in using the word “shall” obviously intended to coerce judicial action. This brings me then to the single question for decision — Does the Act, properly construed, command the granting of the injunction? Section 205(a) provides: “Whenever in the judgment of the Administrator any person has engaged or is about to engage in any acts or practices which constitute or will constitute a violation of any provision of section 4 of this Act, he may make application to the appropriate court for an order enjoining such acts or practices, or for an order enforcing compliance with such provision, and upon a showing by the Administrator that such person has engaged or is about to engage in any such acts or practices a permanent "or temporary injunction, restraining order, or other order shall be granted without bond.” As the opinion very well points out, the use by Congress of the word “may” in the forepart of the section, authorizing the Administrator to apply for an injunction, followed by the word “shall” in providing' the action to be taken by the court, may, if taken literally, be said to indicate a compulsory purpose and as excluding the ideai of discretion in the court to decide whether in a particular case the relief asked is-necessary or proper, and that is what the-opinion holds. Then, too, this view may be-said to be strengthened when it is considered that the bill as it passed the House-contained the provision authorizing an injunction “upon a proper showing,” whereas-these words were later stricken in conference and omitted in the bill as finally passed. But, notwithstanding all of this,. I am by no means convinced either that the word “shall” of itself, or that the conference change to which I have referred,, should be given the significance of exclusion of the idea of judicial discretion. I think it is more reasonable and proper and', more consonant with authority to consider-both as subject to the necessary limitation, that an equitable case has been made for-the exercise of the, power. More than appears, I think, is necessary to justify the assumption that Congress intended to coerce judicial action and to destroy judicial: discretion and hence to require an injunction to issue, even where the court finds, as. it did here, that the facts are such that to. do so would accomplish no other result than-is already accomplished by the voluntary-action of the defendant. In saying this I am not unmindful that, the statutory use of “shall” ordinarily carries a mandatory connotation. But while-this is true, it is also true that one of the outstanding and recognized exceptions is-that in cases where the legislative direction is addressed to a court or to a judge with, relation to a proceeding in its nature equitable, peremptory phrasing which would operate to preclude the exercise of traditional judicial discretion is not and ought not to be given a literal interpretation, unless- *697 it is clearly certain that the legislature so •intended. Becker v. Lebanon & M. Ry. 'Co., 188 Pa. 484 , 41 A. 612 ; In re Rutledge, 162 N.Y. 31 , 56 N.E. 511 , 47 L.R.A. 721 ; 'Clancy v. McElroy, 30 Wash. 567 , 70 P. ¡1095; Sutherland, Statutory Construction '(3d Ed.), Sec. 5810; Crawford, Statutory Construction, Sec. 267. Even where the legislature has used the unambiguous '“must”, courts have reached the same conclusión. State v. District Court, 106 Mont. .272, 76 P.2d 634 . Some cases create a superficial, contrary impression. These are distinguishable, "however, as cases in which the terms of the •applicable statute are not addressed to the court, or the type of proceeding is not in Its nature equitable. See for example Mack v. State, 203 Ind. 355 , 180 N.E. 279 , ■S3 A.L.R. 1349, which involved the mandatory death penalty statute; Lynn v. Lynn, 256 Pa. 563 , 100 A. 975 , involving an action of replevin; State v. Mavrikas, 148 Wash. 651 , 269 P. 805 , statutory confiscation of equipment used in illegal fishing. But with exceptions of this character the rule stated above is generally applied; and this rule obtains even as to statutes in which in addition to the direction that the court “shall”, the word “may” is also elsewhere used. State v. Braun, 62 Idaho 258 , 110 P. 2d 835 . Nor do I find anything in the Act, taken as a whole, which indicates a purpose to make the injunction provision mandatory in every case. Specific punishments are otherwise provided for in other sections for wilful violations of the Act. And it is not going too far to assume that these cover the punishment field. To adopt the majority view would add, as the District Court found, an additional punishment for an inadvertent and innocent violation. And this, contrary to the well established rule that the writ of injunction is used only to stop existing or threatened violations and not to punish past offences. Swift & Co. v. United States, 276 U.S. 311, 326 , 48 S.Ct. 311 , 72 L.Ed. 587 ; Walling v. Shenandoah-Dives M. Co., 10 Cir., 134 F.2d 395 . Considered in this view, I think the language of the section should be taken only as a grant of authority to act in accordance with well established and well understood equitable procedure; and my view, to some extent at least, is fortified by the Report of the Senate Committee on the section in question, where it is said: “Such courts are given jurisdiction to issue whatever order to enforce compliance is proper in the circumstances of each particular case.” And this view of the Committee is grounded on the language used in Section 205, where it is said that upon a showing by the Administrator that the person proceeded against has engaged in the unlawful practice denounced, the court shall grant a permanent or temporary injunction, restraining order, “or other order ” — additional words, which to me imply discretion rather than coercion, and which otherwise are useless and redundant. And I find neither in the opinion nor in the Administrator’s brief any authority convincingly to the contrary. The Supreme Court case of National Labor Relations Board v. Pennsylvania Greyhound Line, 303 U.S. 261, 265 , 58 S.Ct. 571, 574 , 82 L.Ed. 831 , 115 A.L.R. 307 , relied upon in the opinion, I think more persuasive of the view I have stated than the view for which it is cited. There the language of Chief Justice Stone that “notwithstanding the mandatory form of section 10(c), its provisions in substance leave to the Board some scope for the exercise of judgment and discretion in determining, upon the basis of the findings, whether the case is one requiring an affirmative order, and in choosing the particular affirmative relief to be ordered”, indicates to me that there may properly be found in the present Act, as applied to the facts of this case, compelling reasons for “some scope” in the exercise of judicial discretion. 2 Without more, therefore, I am of opinion that the District Court had authority, upon the finding that the practices complained of were innocently done and would not be repeated, to exercise discretion to refuse injunctive relief. But I am also of opinion that the District Court should not have dismissed the complaint, but should have entered an order retaining it on the docket, with the right to the Administrator, on reasonable notice and a showing that violations of the Act had been resumed, to again apply to the court for injunctive relief. The opinion makes much of the fact that the trial court in stating that there was no likelihood of further violations of the statute, granted that the element of “human frailty”, to which all flesh is heir, might possibly make for occasional future mistakes in the practical application of the complicated and often contradictory price regulations. This so-called concession the court obviously made as the result of its own finding that even the Administrator’s experts in their examination of the defendant’s methods had themselves made numerous mistakes. With this in mind the court very properly qualified its absolute finding that there would be no future violations by defendant, by adding, except such as resulted from human frailty. And this in turn was no more than the recognition by the court of the verity of Pope’s Criticism that— “Whoever thinks a faultless piece to see, Thinks what ne’er was, nor is, nor e’er shall be.” It is therefore altogether inadmissible to argue the legal question which is the heart of this case from any other premise than the one stated in this dissent, namely, the finding of the court of a manifestation of good faith by the defendant and no likelihood of further violation by it. Because of tlie conjunctive union of the terms “cease and desist” and “affirmative relief” in the Labor Board Act, it would seem a more reasonable inference that whatever the Supreme Court stated concerning the one would apply with equal force to the other. --- Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9638237. Public record. Not legal advice.