The opinion
CLARK, Circuit Judge
(dissenting).
As the opinion herewith makes clear, the ultimate outcome of this litigation cannot be in doubt, in view of the decision in United States v. Rock Royal Cooperative, Inc., 59 S.Ct. 993 , 83 L.Ed. 1446 . The moving papers herein, in showing the need of a preliminary injunction, stress the fact that “experience had demonstrated that marketing orders can work effectively only if promptly and vigorously enforced” and point to the demoralization of marketing control not merely in the Boston milk area after United States v. David Buttrick Co., D.C., 15 F.Supp. 655 (reversed in 1 Cir., 91 F.2d 66 ), but also in the New York area by the failure of summary enforcement against this defendant and other defendants prior to the decision of the Supreme Court in the Rock Royal case. Plaintiff claims that unless it can secure prompt enforcement of milk orders against the remaining recalcitrant handlers, like disorderly marketing conditions will be repeated with eventual general non-compliance. 1
The almost insurmountable difficulties of milk regulation are so well known that they need not be recited. Indeed, the newspapers call our attention to them daily. From Nebbia v. New York, 291 U.S. 502 , 54 S.Ct. 505 , 78 L.Ed. 940 , 89 A.L.R. 1469 , on, the problems appear recurrently in the decisions. State and federal legislatures have attempted to cope with them. Here the United States and the State of New York have united their efforts and have adopted identical regulations, in an endeavor to bring order to possibly the most chaotic distributing situation we have in this country. Congress has stated clearly its desire for speedy and summary enforcement of these orders. 7 U.S.C.A. § 608a (6), cited in the opinion. I do not know how successful the program will ultimately prove to be, but I am loath to put even temporary obstacles in its way, now that the responsibility of the administrators has been made clear by the Supreme Court’s affirmance of the legislative mandate. I think the need of a preliminary injunction has been shown.
It seems to me inconsistent to hold that the defendant’s position is now legally unsupportable and yet grant it a temporary respite to contest the governmental orders for a time, with the inevitable result of abetting the demoralization of control. Here on the hearing below the defendant’s real and only hope is to induce the Supreme Court to limit the Rock Royal decision. We may aid it to seek a speedy test of that hope, as we have done by giving it the benefit of a stay pending appeal, but that is all that is necessary. It has taken nearly four months for this action to get to its present point; it will certainly be back to us in a few months with the issues no more clearly framed than now. I think we shall not have aided the parties to a settlement of litigation by now reversing.
While a preliminary mandatory injunction is, of course, normally unnecessary, yet it is well within the equity powers of the court when the situation does call for it. Toledo, A. A. & N. M. R. Co. v. Pennsylvania Co., C.C., 54 F. 730 , 19 L.R.A. 387 , cited in Peoria & P. U. R. Co. v. United States, 263 U.S. 528, 535 , 44 S.Ct. 194 , 68 L.Ed. 427 . In H. P. Hood & Sons, Inc., et al. v. United States et al., 1 Cir., 97 F.2d *992 677 , such an injunction was granted covering back as well as future payments. In that cáse the .ruling below, United States v. Whiting Milk Co., D.C., 21 F.Supp. 321 , was modified to provide for payments into court, rather than to the market administrator. That was done in view of the then contemplated appeal to the Supreme Court. Now that constitutionality has been determined and also since the Milk Administrator retains sufficient funds in his equalization pool to make repayment, should that ever be required, a like modification here is less necessary.
The course of decision herein discloses, I believe, a defect in the new summary judgment rule, Rule 56, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. Under the rules of many jurisdictions a summary judgment may be entered for either plaintiff or defendant, on the appropriate showing, as soon as the action is brought to the court or the defendant appears. English Rules under the Judicature Act, O. 3, r. 6, O. 14, 14A, 15; Conn.Pr.Bk.1934, § 53, p. 34; Ill.Rev.Stat. 1939, c. 110, § 181; Mass.Gen.Laws1932, c. 231, § 59B; R.I.Gen.Laws 1938, c. 524, § 1; but not N. Y. Rule of Civil Practice 113; 1 N.J.Rev.Stat. 1937, 2:27-124 to 129, N.J.S.A. 2:27-124 to 2:27-129, and Supreme Court Rule 80, N.J.S.A. tit. 2; and Mich. Stat.Ann. 1935, § 27.989. The first published draft of the Federal Rules so provided. Preliminary Draft, May, 1936, Rule 43(a). But the novelty of the procedure to many lawyers led to suggestions limiting its scope, so that as adopted, though a defendant may move for such a judgment at any time, a plaintiff or claimant may move only after an answering pleading is filed. Subdivisions (a) and (b) _ of Rule 56. Under the circumstances no reason of substance barred a final judgment below, and it is unfortunate that mere limitations of procedure may have done so. Amendment of Rule 56(a) eliminating this restriction on the valuable remedy of the summary judgment appears to the writer hereof to be highly desirable in the interest of preventing the protraction of litigation. 2
It is not clear, however, why the plaintiff did not suggest avoidance of this difficulty, and the court did not take steps to that end. For the time for answer apparently had expired at the time the order below was made, and the court could have proceeded at once on the basis of a default unless the defendant speedily filed a formal answer saying in general language what its affidavits said specifically.
I would affirm.
“Unless the defendant and other handlers who are in default are immediately enjoined from continued violation of the Order, the inevitable result will be a resumption of disorderly marketing conditions followed by general non-compliance, the lowering of prices to producers and the disruption and burdening of commerce between the states.” Affidavit herein of O. M. Reed, Acting Chief of the Dairy Section, Division of Marketing and Marketing Agreements, United States Department of Agriculture.
The power of the Supreme Court to amend the new rules seems conceded by all, hut some disagreement has arisen as to. whether the Court may proceed by simple promulgation of the amendment, as in section 1 of the enabling statute, or must follow the cumbersome and delaying course of section 2 of that statute (transmittal to the Attorney General and report by him to Congress at the beginning of a regular session, with the change remaining non-effective until after the close of sueh session). Act of June 19, 1934, c. 651, §§ 1, 2, 48 Stat. 1064 , 28 U.S.C.A. §§ 723b, 723c. It is believed that the history of the legislation supports the construction indicated by the language of the statute itself that the procedure required by section 2 applies to the one act there provided for, namely, the uniting of the law and equity rules, and that any other changes are to he made pursuant to the simpler methods of section 1 and of other grants of rule-making authority to the Court. 45 Harv.L.Rev. 1303, 1309-10; 86 Pittsb.Leg.J. 8, 27; 15 Tenn.L. Rev. 584, 585; 3 Moore’s Federal Practice 3448-3452; but see A. B. A. Proceedings at Institutes, Vol. I, p. 179; Vol. II, p. 227 ; 24 A.B.A.J. 675; H.R. Rep. No. 2743, 75th Cong., 3d Sess.(1938) 3; Hearings before Committee on the Judiciary on H.R. 8892, 75th Cong., 3d Sess.(1938) 71.