Amicus Curiae Brief — United States v. Fortier

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Porter vy. Warner Holding Company, 328 U.S. 399. .4, 5, 12

Urited States v. Babeock, 250° U. St. SRA AAE Eee ue

United States v. Moore, 340 U.S. 616..2..¢..... ya bo

Wilder Manufacturfng Co, v. Corn Produéts Refining

Oy 206 0. S168. ok: Pea pak eee Stee Pore 3.

‘Statutes: | as tae ;

56 Stat. 23...... Dee eee ae GER OA Rare oom Ss

60 Stat, Sai raet Watvts es: 38847

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30 American Jurisprudence, ‘See P. b. 596, p PP. 593, 594.. $

92 ( ‘ongressional Record, 3326, 3327.0... Sete eee i 10, 11

92 Congressional Record, 3430... ... Neat ge tees Nageiesece): AE

House Report No. 2000 (79th C ongress, 2nd Session) .. 12

Senate meet f No. I: 30 oe ee 2nd Session) - 9

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No. 14, .

OCTOBER TERM, 1951. «

"UNITED STATES OF AMERICA,

Petitioner,

> VS.

, esihte FORTIER et al.

- BRIEF -

_ Atiicus Curiae by Elmer G. Doernhoefer. oe

ad

_ CONSEN 4

The sudersliraed parties to the above: entitled cause, hy

and through their respective counsel of .record, hereby

consent and agree- that. Elmer G. Doernhoefer shall be per-

mitted to file a brief amicus curiae in the above- entitled

cause, provided said brief shall be filed with the Clerk of

the Supreme C gurt on. or before October 1, 1951.

(Signed) Philip B. Perlman,

Solicitor General of the United

States.

(Signed) Stanley M. Brown,

Couhsel for Respondent: Portier.

.

(Signed) Meyer Green,

me ‘ounsel for Re ‘sponde nts Marino,

} y! 7 a, aces

PRELIMINARY. STATEMENT.

Himer G. Doernoefer is ayppéllant in the case of Doern-

hoefer v. United States,?No. 14,263, now pending if. the

United States Court of Appeals, Kighth Cireuit. The facts

in that ease are $o substantially similar to the facts in the -

Fortier case that Docrnhoefer has secured the consent of ,

the parties to the latter case to file this brief. amieus curize,

On April 11,1946, Elmer G. :‘Doernhoefer filed an Ap-

plication. for Preference Rating to secure authorization

under the provisions of Priorities Regulation 33 to erect °

16 dwelling units in St. suis, Missouri. The Federal

_ Housing Administration review ed his application. and au-

thorized him to proceed with the project, assigning a

- projeet serial namber thereto and establishing a maximum

sales price for each unit. Doernhoefer started five units

in July, 1946, and started five other units in October, 1946.

Six units which had not been. started by Dec. 23, 1946,

“were removed from the project and built under Office of.

Housing. Expediter Regulation HPR, issued that. date,

which removed maximum sales prices: The ten. units were

“completed during the period. April to July, 1947, and were

deeded to purchas¢rs: thereof from May 6, 1947, to August

a ee oe ie Ay

On. May &, 1950, approximately | three years later, the

United States filed an action against Doernhoefer in the

United States District Court, Eastern District of Mi issouri,

Rastern Division, alleging that he had 4nade certain unau-

thorived changes in the construction of said dwelling units,

and that five of said dwelling units had been sold at prices

~ in excess of the maximum sales price’ fixed by the Federal

Housing Administration. Doernhoefer defended that ‘he’

had made A clerical mistake at the time he requested a

‘price increase on said teri identical units, ‘and sa’ nistake dee

was not discovered until just. prior to suit against him. -

The Unifed States maintained that ‘authority. to bring such

action w as given to the United States by Section 7 (a) of the

Veterans Emergency Housing Act of 1946. — sitaae 207).

eames omy

ARGUMENT.

The District Courts Do Not Havé Jurisdiction of This ies

of Action Because’ the United States Is Not Entitled

‘to Bring This Type of Action to Recover for Pur.

. . chasers Sums Paid by Them ‘in Excess of the Maxi-

mum Sales Price.

@:

oa

A. There is no specific provision in ihe Veterans Emer-

gency, Housing Act of 1946 authorizing either the United

States or the Housing Expediter to bring an action requir-

ing a builder to refund to purchasers . amounts paid in

excess of the maximum sales prices. It is well settled that

where a statute creates .a right which ‘provides a special ee

remedy, tliat remedy is exclusive.' The rule is stated ‘in

259 Am. Jur.; Statutes, Sec. 596; pp. 593, 594, as follows;

“Tt ig. an established principle, that if a statute

creating a new right or cause of action where none

existed before, also provides: an adequate remedy for

_«» the enforcement of the right-created, and the statutory

+ remedy is not by its terms cumulative, the remedy

—_—_thus prescribed | is exclusive. In such ease the remedy

must be pursued in the enforcement of the right to the

exe ‘Tasion of any’ other remedy.’ rs

Section .7 of. the Veterans Emergeney Housing et, of

1946 provides three different forms of enforcement:

(a) The Expediter may apply te*the appropriate court

for an order enjoining any acts or practices which consti-

.tute or will constitute a violation of Section 5. of said Act,

and in such proeeeding ‘may secure a permanent or: tempo-

rary injunction, restraining order or other order;

(b) The United States may bring criminal proceedings -

to punish willful violstions, and

.1 Wilder Manufacturing Co. v. Corn Products Retains Co., 236 U.S.

165,. 174, 175; Arnson vy. “Murphy, 109 U. S. 238; Barnet v. National Bank,

98 U. S. 555, 558; Farmers’ & Mechanics’ National Bank vy. \Dearing; 91°

U. S. 29, 35; United States y. Babcock, 250 U. S. 328, 331.

.

Ce

.

Bn ahs

(ec) A person purehasing housing acconimodations may,

within one year from the date of the occurrence of ‘the _

violation, bring an action for the amount by which the

consideration he paid for such housing accommodation -

exceeds the maximum selling price, plus reasonable aaah

_ neys’ fees and. costs.

The only remedy specified in said Act to secure a money

~ judgment is the one given to the purchaser of the housing

accommodations to bring. an ‘action within one. year to re-

cover the amount by which the consideration he paid for

his housing accommodations exceeded the maximum selling

oe

price. S

B. The rule of restitution, veshauank in the cases of

- Porter v. Warner Holding Company, 328 U. Ss. 395, and |

United States v. Moore, 340 U. 8. 616, should not be ex-

‘tended to apply to the Veterans Emergency Housing Act

of 1946 because such extension will be greatly against the

intent of Congress, In seeking restitution for violations of.

a the Veterans,Emergency Housing Act of 1946 the United

States claims authority so to act from Section 7 Se

thereof, which is-as follows:

‘‘Sec. 7- (a). Whenever, in the judgment of the sci

+ diter, any person has engaged or is about to engage

in any acts or practices which. constitute: or wilt

‘constitute a violation of any provision ‘of section -

5 of this Act he may make application to tlié appropri-

ate court for an order enjoining such acts.or prac--

tices, or for an order enforcing compliance with such

' provision, and. upon a showing by the Expediter that

“such person has engaged or is about to engage in any

such acts vr practices’ a permanent or. temporary in-

junction, restraining ‘order or other order may be

granted, and. if grpnted shall ‘be granted without

bond.”’ Hee T a

The wording of the-above section is almost identical

to the wording of Section :205 (a) of the Emergency Price

e

" Control Act of 1942 and Section 206 (b) of the Housing

and Rent Act of 1947, which have beeri considered by

this Court in soy cases of: Porter v. W arner Holding Coim-

pany, 328 U.S. 395, and United States v. Moore, 340 U.S

616. We recognize that in both those cases this-€surt eae

broadly ‘interpreted the nieaning of the phrase ‘‘or other

-order’’ to encompass the power of the Housing Expediter.

or the United States to seek, and the lower_courts to grant,

restitution of overcharges. a,

When Congress enacted the Emergency Price Control’

Act of 1942 and the Housiig dnd Rent, ‘Act of 1947 it de-

sired to. accomplish purposes substantially different,from

‘the: purpose it had in enacting the Veterans Emergency

Housing Act of 1946. | a

1g

SERB purpose ‘of the Emergency Price Control Act of

. 1942 {96 Stat. 23) is contained in. Section 1, (a) thereof, i

and is as follows: . ane

‘*Section 1 (a). It is hereby declared to be Jin the

‘intetest of the national defense and security and neces-

sary to the effective prosecution of the present war,

and the purposes of this Act are, to stabilize prices

‘and to prevent speculative, unwarranted and abnormal -

-jnereases in«prices and rents; to eliminate and pre-

vent. profiteering, hoarding, manipulation, - specula- .

tion and other disruptive practices resulting from ab-

normal mark&® conditions or searcities caused by or

contributing to the national emergency; to assure that:

defense appropriations are not dissipated by excessive

-. prices; to protect persons with relatively fixed and

limitéd incomes, -consumers, wage garners, “investors

und persons dependent on life insurance, annuities

and pensions from undue impairment of their standard

of living; to prevent hardships to persons engaged in

business, to schools, universities and other institutions:

- and to the Federal, State and local govgrnments,

slips fe

which would result from abnornial increases in prices;

to assist in securing adequate production of commodi- -

ties. and facilities; to prevent a post emergency col-

lapse of values; to °stabilize agricultural prices in

the manner provided in section 3, and to permit volun- .

tary co-operation between the Governtnent ‘aftd pro-

__ducers, ptocessors-and others to accomplish the afore-—

"said. purposes. It shall be the poliey of those de-

partments.and agencies of the Government dealing.

9 With wages (including. the Department of -Labor

and its various bureaus, the War Department, the

Navy. Department, the War Production™ Board, the

. National Labor Relations Board, the National -Medi-

ation Board, the Natienal War Labor Board and

others heretofore -ur hereafter created), within the

limits of their authority and jurisdiction to work: :

toward. a stabilization of prices, fair. and equitable

wpees and cost of production. -

The purpose of the Housing and Rent Act, of 1947

(61 Stat. 197) is set forth in Section 201 (b) as follows:

. **See. 201- (db)... The Congress, theréfore, declares

< that it is its purpose to terminate at the earliest prac-

ticable date all Federal restrictions on rents on hous-

ing accommodations. At the same time the Congress

recognizes that an emergency exists and that, for the

prevention of inflation. and for the achievement of |

‘a reasonable stability in the general level. of. rents

dyring the transition period, as well as the -attain- .

‘ ment of other salutary objectives of the above-named

Act, it is necessary for a limited time to impose cer-

tain restrictions upon rents charged for rental hous-

ing accommodations in defense-rental areas. Such

restrictions should be administered with a view to

prompt adjustments where owners of rental housing

accommodations are sufferiig hardships bé@ause of

the inadequacies of the maximum rents applicable

eaten. . &

to their -housing accommodations, and under pro-: ae

cedures designed to mininrize delay in the granting -

‘of: necessary adjustments, which, so far as practicable,

‘Shall be made by Igcal boards with' a minimum of’

- — ¢ontrol by «any central agency. oncom tae bn eee

———

ee :

“The purpose o of the. V eterans Pisctesnes Housing Act of

- 1946 (60 Stat. sad is set forth in Secticn a (a) of a

- Act, ‘as follows

“See. 1 (a). The Nias teeee housing shortage and —

the war have combined to create an unprecedented

emergeney shortage of housing, . particularly for.

“veterans of World War II and their families. This.

requires. during the next two yéars a house- construe- oe

tion program larger ‘than ever before. The first step

toward such a program is to overcome the serious

shortages and bottlenecks with respect to building

materials, to expedite the production of such mate-

rials, to allocate them: for house construction and

other essential purpases; and to accelerate the produc-

‘tion of houses. with preferences for veterans of World |

War If and at sales prices or _Tentals within: their

means. To carry out this progr am, it is necessary to

invest a housing expediter with adequate powers,

including the power to issue policy directives. -Acconi-

plishment of these objectives will assist returning

veterans to acquire housing at fair prices, stimulate

industry andsemployment, prevent a post- -emergency

* collapse of values in the housing field, and promote

i swift. and orderly transition to a peacetime. —

economy.”” ; | ae

Thus it will be seen that the main, if not the sole, purpose

of the Emer gency Price Control Act of 1942 and the’

Housing and Rent Act of 1947 is to prevent inflation and

. achieve reasonable stability in prices and rents. By con-: -

‘trast the purpose of the Veterans Emergency Housing Act:

e ¢ © per

:

—

ie 1946" was - ‘to promote. the largest house’ construction

program ever experienced, im a period of two -years. .

Materials were’ expedited and allocated for “house con-

struetion. The program was designed ‘to assist returning |

‘ veterans to _aequiré houses at fair prices, stimulate in-

dustry and ‘employment, and for ‘other notew orthy “pur-

poses, The point is that both: the Emergency Price Con- .

trol Act of 1946 and the Housing and: Rent Act of 1947

were merely regutatory Acts designed. to keep the econ- -

omy: of the Country in “an. uninflated~ stitus quo. The

Veterans Emergency Housing Act was enacted to -stim-

¢ ulate industry, employment, accelerate production, en-

_ courage building, and to that degree intended to promote

certain affirmative action, primarily, | of course, by en-

conraging contractors in providing ‘houses for veteran

A builder; who cooperates with the Government’ Ss ¢con-

| struction rogram should be ‘accorded different treatment

at the hands of the law than's a violator of the 2 ice or

rent control program.

a

; Since the purposes of on Acts are totally dissimilar’

¢ riew of the Coneteasuae’ history: and legislative

backg ound of the Veterays Emergency Housing Act of

1946 forces the clear conclusion that. Congress never ‘

intended restitution as one of. the enforcement remedies

of said Act.

The Veterans Emergency Housing Act of 1946 (H. R.

4761): passed the House of Representatives’ containing jiro-

vision authorizing the purchaser to sue for treble damages

and authorizing the Housing Expediter- to bring an action

sige on behalf ofthe United States. The Subcommittee on

Housing of the: Senate, Committee on Banking and Cur-

rency, held Eb sa during the git March 26-30, 1946,

’

/ eh . *e

following which Senatdr Alber W. Barkley, Chairman of

the Subconimittee, submitied on ‘April ~5, 1946, Report

No.

1130 (79th Congress Second Session), containing - a

summary of the bill. Onj page 12 of. the Report, Section 7 d

is as Fogldwss :

.

.

to the appropriate Court for orders enjoining acts or

_ practices which would violate the provisions of See-

tion 5, and grants to the Housing. ‘Expediter access to

the Courts ‘to enforce, -coniplianee with the provisions |

of that Section.”

4b) Provides for a fine of not more than $5,000.00

or imprisonment for not more than a year, “or both,

for any person convicted of unlawfully violating any

provision of Section 5 or of knowingly making state-

-ments or entries in the records or. reports required to:

be .kept: in connection with the maximum sales-price

provisions of Section 3. |

“«(e) Vests in the District Souris iets of

5 er Sani the ‘Howling Expéditer power to apply -

criminal ‘proceedings for violation of the provisions of |

Section 5 and also vests in the -District Courts, con-

currently with State and Territorial Courts of all

other proceedings under Seetion 7

**(d) Provides that if any person selling’ housing

uccommodations.. violates: the _kegulations prescribing

the maximum sales-price, the purchaser may bring an

action for treble the amount by which the considera-

tion @xceeded the maximum sales-price. The time

_ limitation on such actions is one year from the date

of the occurrence ofthe violation. “If within sixiy

days from the date of such violation the buyer fails

‘fe bring action, the Housing Expediter is authorized

to bring such action on behalf ‘of the United States.

The. time limitation on ‘any. such action’ is likewise

one. year from the date of the violation. If any such |

.—10—, :

action is’ brought by the Expediter, the pur¢haser

cannot bring an action for the same violation.”’

2

_ Ot is to be noted that nowhere is made any mention of

restitution as being part of the enforcement scheme. - It

should‘ further be noted that the time limitation of one ©

- year on any actions is specifically mentioned twice‘in said

Section 7. | aie

_ On.Aprif 9, 1946, when the Veterans Emergency Hous-

ing Act of 1946 was being censidered on the floor of the

Senate, Section 7 (d). was amended’ by eliminating. the

word treble. The Senate further was in doubt as to the

exact meaning: of the remainder of Section 7 (d), some

confusion existing as to what type of an action the Expe-

diter shonld%be authorized to -bring.* 3 woe

2“Mr, Saltonstall. Mr. Présidént, I should like to ask the distinguished

Senator from Kentucky (Mr. Barkley) another question along the lines.

of the one which I asked ‘yesterday. Ifthe bill is being amended for

* technicalities in order to improve ft, I respectfully call his attention again

‘to Paragraph (d) at the bottom of*Page 31 which allows a person to sue

for treble damages if he brings suit within a year. .On Page 32 there is

a provision that if the buyer fails to bring the action under this subsec-

tion within sixty days from the date of the Violation, the Expediter may

- bring the action on tehalf of the United States within cne year from the

‘date of the violation. Tie provision does not say whether the Expediter

shall bring a criminal or civil action, how much the damages shall be,

or to whom that shali be paid. In another section of the bill the Ex-

pediter is authorized to bring criminal actions under certain circum.

stances. It seems to me that this section, which is a technical section,

should be clarified. erty hs

Mr. Barkley. Mr. President, we have discussed this question, and I

think we can arrive at an understanding about it. As the Senator knows, °

‘of course, the treble damage theory, which we discussed yesterday, was

originally included in the’ O. P. A. statute which was intended as a, civil

penalty against violators of price reguintions. It was‘carried in this bill

as a civil penalty on behalf of the aggrieved person. I do not think it

is vital to the administratfon ofthis bill, and I am perfectly .willing to

move, on Page. 32, Line 1, to strike out the word treble so as to give the

' aggrieved party the right to bring suit for the amount by which the price

has been exceeded. - RP ae

Mr. Saltonstall.” Personally I think it would improve the bfll if the

word ‘treble’ were left out; -but I think that would not cure the entire

technical difficulty, which | would like to see cured. —

Mr. Barkley. Is the Senator now referring to the omission of any

language stating who shall have the benefit of the recovery if it should

be had? . : etre

Mr. Saltonstall. That is correct. i agen,

Mr. Barkley. At this moment I should not like io offer an amendment

on that point,.because it! may. be, under the theory of suits ‘instituted by.

the Government of the United States, that whatever is recovered should

go-into the Treasury of, the United States; and 1. wat case, the ag:

‘grieved person, who had paid the excéss, would recelve no benefit. I

“;

_—

Bor

bad

: | a

—- On ‘April 10; 1946,.the Senate was’ again considering ;

_camendments to the bill. “On that day, Mr.-Barkley offered

aun amendment limiting the right. of the Housing Expe-

diter to, bring an action for violations. Mr. Barkley, speak-

> ing on behalf of the Senate, stated that he did not. consider

“such: ae e ridoed important. It was Mr. Barkley’s oy

opinion that if the purchaser of a house who has been eom-

pelled to pay more than the ceiling price is not willing to

bring a suit to recover the difference, the Housing Expe-

diter should not be charged with that obligation." 3

It should be noted that such provision was not eliminated

because the remedy of restitution was available to take

care of such a situation.’ Nowhere is restitution men-

tioned in the discussion oh the Senate floor. There was’

ho sentiment in the Senate that the Housing Expediter.

or the Government of the United States: should bring ae-

tions to recover sums for the benefit of purchasers. On

think we can devise ‘language on that point, which will be satisfactory.

At this time I should like to have the amendment adopted by eliminating

the word ‘treble’ on Page 32, Line i. ‘e .

The President pro tempore. Without objection, the amendment is

agreed to.” (Emphasis supplied.) :

(92 Congressional Record, 1946, Pages $326, 3327.)

“3 “Mr. Barkley. Mr. President, I wish to offer. an amendment which

I am sure will be agreed to. The amendment-is on Page 32, to strike out

lines four to nine, inclusive. ~ -

' The President pro tempore. The amendment offered by the Senator .

from Kentucky will be stated. Sal RE

- The Legislative Clerk.- Qn Page 32, after Line 3, it is proposed: to

strike out: ‘If the buyer fails to bring an action under this- subsection

. within sixty days from the date of the violation, thé Expediter may bring —

such action on behalf of the United States within one year from the

date of the violation. If such action is brought by the Expediter, the

buyer shall thereafter be barred from bringing an action for the same

‘violation.’ < . ae :

Mr. Barkley. Mr. President, the language proposed to be stricken out

provides if a buyer fails to bring an action under the subsection within

sixty days from the date of the violation the Expediter may bring such

action on behalf of the United States within one year. Persémally, a do

not think it is important. If the purchaser of a house who has been

compelled to pay more than the ceiling price is not wHling to bring suit

to recover the difference, | do see why the Expediter should be.

charged with that obligation. Therefore, I offer the amendment +e strike

lines four to nine, inclusive, on Page 32: }

The President pro tempore. The qu n is on agreeing to the amend.’

- ment offered by the Senator from Kenficky (Mr. Barkley).

The amendment was agreed to.” (Xmphasis supplied.)

(92 Congressianal Record, 1946, Page 24209)

Pi Ga ~e*%

2)

—12— wee

the contrary, it was strongly selt that if the purchaser

would not care to bring an action to recover any sum he

may have paid in excess of the ceiling price that’ the

Housing Expediter should not be charged with that ‘obli-

gation. . The Solicitor General in his Brief for the United

States in this case, has.stated numerous times that the ©

United States is ‘vis-a-vis the Housing Expediter. We

-'state that certainly the: Housing Expediter and the United .

States are interchangeable parties plaintiff and that it is

improper, unjust, unmorai-and against the clear ‘intent of

the Senate ‘to allow either the Housing. Expediter or the

United States to bring an action for restitution.

The. United States acting for the: ‘Toad Expediter

: should not be permitted to accomplish, under’ the cloak :

of seeking equity, a result. which either’ was specifically

prohibited from undertaking.

: The ieieatediete which were adopted in ‘the Senate

_eliminated treble damages. and eliminated the: right’ of

the Expediter to bring an action on behalf of the United

States, and they were adopted by conference agreement

into the final conference substitute bill, which was then

enacted by Congress into the’ Veterans Emergeney Hous-

ing Act of 1946 (House Report No. 2000, spt 10, 1946,

79th Congress,°Second Session). | ;

In United States v. Moore this Court followed the anaes |

interpretation of the phrase ‘‘or other order’’* given. in

Porter ve Warner Holding Company. In the lytter case, 328

U. $.9395, at p. 403, the Court stated that ‘the proposed

exercise of the equity jurisdiction (by granting restitu-

tion) is consistent with the statutory language and policy,

the legislative ‘background, and the publie interest. It

‘is more: than clear, that- when considering the Veterans

Emergency Housing Act of 1946 the exéreise of any equity

jurisdiction by: granting restitution would be absotutely

inconsistent’ with ‘and contradictory to the express dec-

2 4 ;

*% : : ;

13 |

larations of Congress. This, one fact: in itself is suit

_ reason-why the dectrine of restitution as applied in the -

case of Porter v. Warner Holding. Company,. should“not

‘be extended to the Veterans Emergency Housing Act ot |

; 1946, ‘ . | £ : ;

of at OO

aes CONC LU SION.”

. Cone. | in enacting ‘the terais Emergency SES

‘Act of 1946 set up as’ “eoruplete a scheme of enforcement -_

as it felt necessary. Ww here Congress has. provided Fem...

.. ediés, these remedies are exclusive. It would: be flaunting h

the will of. Congress for the United States, or ‘vis-a-vis | ~

the: Housinig Expediter, the real party -in interest; -to be.

‘permitted to do by indirection what he has been specif,

ically . forbidden to, accomplish directly. ' The Senate

granted necessary remedies ‘in its enfotcement. scheme.

It considered. others not’ important. ‘It felt that if an in-

jured person was not sufficiently concerned with his dam-

age to file an action in his own behalf to recover:for dam--

ey ages, with attorneys’ fees ‘and costs, that it.should not be

the obligation of ‘the. Housing Expediter ‘vis-a-vis the ©

United: States, to) be cha-ged with the- obligation of re>~

covering such damages for him.

Respectfully submitted,

; | ELMER G.. DOERNHOEFER, “

- Amicus Curiae,

ne his Attorneys,. |

igs HENRY T. FERRISS,

-s2 ALVAN J. GOODBAR,

_FRANCTS A. CASSERLY,

“509 Olive Street,

St. Louis ¥. Missouri. .

s , . 2 ae % $ )

oo . . : EY

sass . 78 4 ; . pa

Sean tee eld INDEX ;

: | : e 5 > Page

RFOMUCHION 2... kcccec.0ie PTT Nat Eee car CRON. Sake Be L

uestions presented ...... RSE na Nate RLU RNs Aes Waimeiene eT NEO 2

eee ee en Se Sager SS RED PER Piper te cae 2

The United States cannot maintain an action for restitution

to veteyans of the purchase price in excess of the maximum

set under the. laws governing the Veterans’ Emergency

Housing Progrem prior to June 30, 1947 on sales of houses

effected subsequent | to said date «........... cduebligtertat ph aebtar dial hin vinticesdtedsn 2

The maximum safes prices, established “under the Veterans’

Emergency Housing Act of 1946, ceased" on June 30, 1947, —

as to houses not then sold. ........:.. asseeetsesserenccesses esencsenensasegeescsoes _ =

CITATIONS ~

ses: ch SR es

Helms, et al v, Mullin, et al, 41 Southern (2nd) 443.0000... . 3

Hamilton v. The Lessee of Ambrose*Dudley, 7 L. ed. 496........ Dy

Charles v. Lamberson, 1 Iowa 435, 63 Am. Dec. ae fai 4

K Manhattan vy. Commissioner of Internal Revenue, 80.L: ed 1010 7

xt: ; ge Wea ei Mi ee OO |

_ 50 Am, Jur., par 526, page 533...........scccssssseecssssnseereen AGE 4

atutes: a F ee

: Veterans’ Emergency ‘Sian Act of 1946, 60 Stat. 207, 50

_ U.S. ©. App, sec, 1821 et SOQ... ernie liegeeseneenseenseeerecnens 1-7

Housing and Rent Act of 1947,-61 Stat. 193, 50. v. a. App. - é

Supp. 4, SeC. WSL «...d,..0.:.... ec cecesseseeseegesesnssseeeeneteeresennengeeeneereens 1, 3,5

Second War Powers Act, 56 Stat. 177, 50 U..S, C. App. sec. ;

GER, TOs TUE on senicetncccgesosegcecneasesisneyencecnteveszortnaneeeg facwrepoesnnese poeta 1,4

Emergeney Price Control act of 1942, ‘50 U. 8. . A:, sec 901 1,6

Act of March 22, 1944, ‘58 Stat. aye U. S: c Supp. IV, sec. ,

AIRS, ES Rc A RE ee ee ee PEN RET GEIS SOR BNO tee Oe 1, 6,7

8 ‘ ; <

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¢—______»—__—-:

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4

In the |

Supresit Court of the United States

OCTOBER TERM, 1951 . —~s

No. 1

.

_ UNITED See OF AMERICA, PETITIONEER a eee

| ; |

RogerT Fortier, ET AL.

WRIT OF CER TIORARI TO THE UNITED STATES

COURT OF APPEALS FOR THE FIRST CIRCUIT

AMICUS CURIAE BRIEF = %_

INTRODUCTION

The opinions below, jurisdiction, statutes, regulations

d facts involved, being fully covered in the briefs of: the

rties-to the cause, will be mentioned here, when neceés-

ry, by reference; the Veterans’ Emergency Housing Act

1946, as the “Veterans’. Act’, the Housing and Rent

: of 1947, as the “Rent Act”, the Second War Powers

t, as the “War Act”, the Emergency: Price Control Act

1942, as the “Price Act”, and the Act of March 22, 1944

the “Savings Clause Act’. ‘

cea oo ig |

Soetake oe a a = =

QUESTIONS PRESENTED

Can the United States maintain an action for restitu-.

tion to veterans of the purchase price in excéss of the

-. maximum set under the laws governing the Veterans’

‘Emergency Program prior to Juhe 30, 1947 on sales of

houses effected subsequent to said date? »

a0

Sd waa

- Did the maximum sales prices, established under the

“Veterans’ Emergency Housing Act of 1946”, cease on ~

Jpne 30, 1947, as to houses not then sold?.

ARGUMENT

: a Ay

THE UNITED STATES CANNOT MAINTAIN AN

-. ACTION FOR RESTITUTION TO V ETERANS OF...

THE PURCHASE PRICE IN EXCESS OF THE MAX- ,

IMUM SET UNDER THE LAWS GOVERNING THE

VETERANS’ EMERGENCY ‘HOUSING PROGRAM

- PRIOR TO JUNE 30, 1947 ON SALES OF HOUSES

EFFECTED SUBSEQUENT. TO SAID DATE. |

A cause of action: for restitution did not exist on June

«BO, 1947: when the “Vetera’.s’ Act” was repealed because

no excess purchase price had been paid and received at -

that time... This is obvious. ‘

A mere dgreement.-to receive excess purchase price .

could not give.rise to an action for restitution for the same

9

simple reason. Even an agreement for more than the

ceiling price made .during the life of the statute and

4 consummated by deed to the purchaser and: a mortgage.

~ back to the seller, would not result in an action for

- restitution, although the mortgage could be reformed ‘in

equity and the purchaser and mortgagor credited with

the excess. purchase price, (Helms, et al v. Mullin, et al

. Fla.) 41 Southern (2nd) 443). 7

>On June 30, 1947, when the “Vetarans’ Act”. was

repealed by the “Rent Act”, no one had a cause of action

against the defendants for restitution of overcharge be;

j

cause ng overcharge had occurred at that time. Hence,

no cause of action fer restitution could have been preserved

a any saving ciause or statute.

This Court dealt ‘with a similar situation in. The

Bank of Hamilton v. The Lessee of Ambrose Dudley, 7

LL. ed 496. An Order authori izing ‘and directing admin-

. istrators to sell property of an estate in Ohio had been

entered by the Probate Court.’ Before the administrators

~ could sell the property, the statute, underewhich the Court .

made the Order, was repealed. The Court held that a

sale subsequent to the repeal.of the law was ineffective.

~ “Head note No. 4 of Sica opinion is: |

“Whrere administrators, set under the provision

of an Act of ‘Assembly of, the State of Ohio, were —

ordered by the court, vested by the law with the power

‘to graft such order, to sell real estate, and before the —

sale was made the law was repealed, the powers of

_ the administrators ‘to sell terminated with the repeal _

of the law.” , .— ister i esse

"on

Judge’ Marshall said:

“if the law which saitiotlanl the Court to make the

order be repealed, the power to sell can-never come

into existence. .The repeal of such law devests no

vested estate, but is thé exercise of . legislative pow er

-“which chips Legislature possesses.” oR:

In Charles v. bawbeein: 1 lows 435, 63 Am. Dee. 457,

it was held: “To‘ constitute. Homestead, unger Iowa Act

of 1849, exempting Homestead from forced sale, fhere

must have been both ownership ‘and occupation of the

premises during the existence of the law”’, the Court

‘saying as to the claimant: “Until he-was in a situation to

_ be protected by the law, no right had accrued or become

vested’; and when the law was: repealed, he stood just as

he would seine the law had never been enacted.”

.

“In any event the unqualified ‘repeah of a statute

- conferring civil rights or powers operates to deprive

the citizen. of all such rights or pawers which are at

the time of the repeal inchoate, incomplete, and un-

perfected, or ‘which have not accrued or beeome.

vested.” (50 om Jur, = 526, page 533)

ied Wie iene

We must remain PO of the truth that at the

time of the sales involved the ‘Veterans’ Act” and the

“War Act”, were not in existence. It would seem axio-

_ matic that no violation of a statute could take place after

_its’ repeal; that no- cause of action could — accrue under a.

“statute or be preserved by a savings-clause or statute on

the basis of an act: committed afer the repeal of the statute.

The MAXIMUM SALES PRICES, ESTABLISHED _

_ UNDER THE. VETERANS’ EMERGENCY HOUSING

ACT OF 1946, CEASED ON JUNE 30, 1947, AS TO

HOUSES NOT THEN <ennie ee eet Meee

But it is cartel) claimed by the United States that :

because the defendants agreed in their applications under |

the “Veterans’ Act”, for the privilege of constructing the

- houses, to sell them to“veterans for. not more than set —

figures, they were obligated, after the repeal of said Act,

to set] according to said applications. | ;

This overlooks the fact that the maximum sales prices

on houses were under a seks cles for and oe a critical .

period only. eae | de ie ,

When the program was no longer necessary on June

30,1947, it was then ended by the repeal. The Congress _

was not Disturbed by the fact that some builders would —

profit: by the lifting of the ceiling prices because it wa@ . -

- not individual interest but the over ‘all national interests ;

that caused the program. When the program ended, there.

was no need or occasion to carry it on as to. individual

incomplete transactions. To the extent that Congress ©

deemed advisable and in the modified form, minus the

ceiling price provisions, Congress provided for a future

Veterans’. Housing Program in the “Rent Act.” This, as”

_ shown by the-lower Court, strongly. indicated the intent

of Congress to-do away-with.the.m maximum s sales prices.

By this time, thé housing for sale and rent was ‘adequate,

cr so nearly so as require this modification in the program.

s*

oe

6

8 : Sabin the difficult period of May, 1 946, -when

Congress passed the ‘Veterans’ Act’’, the provision it' made

in Section 5 for preservation of rights and liabilities was

strong and clear. The “Aet and all regulations, and orders _

‘issued thereunder shall be treated as remaining: in force,”

_as to Fights and liabilities incurred or “offenses committed .

prior to such termination. date. “f

Then in Juhe of 1947, when housing accommodations

were not so scayte and conditions not so severe as ‘in May,

ye force?

1946, Congresé expressly repealed said Section 5. and all -

‘other sectfons of the “Veterans’ Act’’ dealing with price |

ceilings, s

_ as to the past merely prévided “That. any allocztions made

-or committed, or priorities granted for delivery, of any

~ housing materials or facilities under any regulation or

"order issued ‘under the authority contained in said Act,

stituted.a new program for the future and

and-before the date of the enactment of..this Act, with

respect to Veterans of World War.II, their immediate

families, and others, shall remain in full force and effect.”

‘Seca that the language just quoted is abstruce

and does not merely mean that allo¢ations, priorities and

commitments of housing materials are to remain intact,

by what .method can it. be made to mean that maximum

sales prices set under the “Veterans’ Act” are to continue

~ 4

aa >

?

° ‘ ne

Congress had found no difficulty in the saving clause

worded in Section 5 of the “Veterans’’ Act”, none in the

“Price Act” and none in the “Savings Clause Act.” Did

‘Congress. speak in parable, | and if so, who is the Daniel

-to read the enigma! Vga

»

>

7

It is rs submitted that the language of the

“proviso must be given its’ ordinary meaning and if this

is-found unsatisfactory, then it should be discarded. The

citizens of this country should never be misled and. bound

by hidden meaning i inlaw! °° pear «ee

Certainly this language. rane not mean that the “Vet- |

erans” Act” is to continue’ on as to “all business on hand” -

‘at the close of business on June’30, 1947. Nor can the

words of the “Savings Clause Statute” carry such an en- —

. darged. meaning. :

Any regulation or order inconsistent with the statute

‘under which it was issued is a nullity. (Manhattan vs.

Commissioner-of Internal Revenue, 80 L. a, 1010) ©

Wik

Respectfully Submitted

JOHN. G. SIMMS

. * .

Amicus Curiae

September 1951.

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