# Amicus Curiae Brief — United States v. Fortier > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0076%3A6 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1951 - **Citation:** 342 U.S. 160 ## Text — — pes eK ated iS ited sieeatlabatee esmaemaartini Paper ae - Office : upto Coun rT » ey ee z ns, *. 1 Tate ag = Qn i “oct. 3 295 . ee . an i | ee | Court of the United States, ke " OcTopER TERM, 1951 | . ie i jo, . UNITED STATES OF AMERICA, PETITIONEER ee oe. ay any ee ROBERT a Aes o, oN WRIT T OF CERTIORARI 0 THE UNITED STA res se: / “COURT OF APPEALS. FOR iiceaaes FIRST CIRCUI t \ 9. ap aas tage ; 4 5; ‘ ad ; / ; - AMICUS CUR[AE BRIEF } ee ee o os JO G. SIMMS. . se gO Medi, Oy . ee Pale ee! mi, Florida ” je eee IOS s e \ =e eas ee 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 i rams wae data 6 ents and cae: ; 5 . 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 ° ° ’ o e- . - ‘ g : ’ . "hs a . of ‘ * +e mi « ee o . > , . e ° . .* 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 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.’ ~ 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 ‘ ; 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 ? ° ‘ 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. \ — ae) --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386407_0076%3A6. Public record. Not legal advice.