Petition for a Writ of Certiorari — Taylor v. Porter

In the Supreme Court o

United States

Ocroser TERM, 1945

No...8.7.0.

STANLEY TayLor and Eve.yn FLYNN,

Petitioners,

Vs.

CHESTER Bow ss, Administrator, Office

of Price Administration,

Respondent.

Petition for Writ of Certiorari to the United States

Circuit Court of Appeals for the Ninth Circuit

STantey W. Tay or,

1201 Fulton Street,

San Francisco 17, Calif,.,

Petitioner in Propria Persona.

EVELYN FLYNN,

530 Larkin Street,

San Francisco, Calif.,

Petitioner in Propria Persona.

PARKER PRINTING COMPANY, 845 SANSOME STREET, SAN FRANCISCO

Subject Index

Page

Opinion and Proceedings Below 2

Summary and Statement of the Matter Involved. 2

Summary 2

Statement of the Case 4

Statement of Basis of Jurisdiction 6

Questions Presented 7

Reasons Relied on for Granting the Writ 8

Conelusion 13

Table of Authorities Cited

Berman v. U. S., 302 U.S. 211

Clay v. Waters, 178 Fed. 385, 392 (C.C.A. 8, 1910)

Dickinson v. Rinke, 2 Cir., 182 F.(2d) 884.00 sesese

Doyle v. London Guarantee Co., 204 U.S. 599, 605, 607,

51 L.Ed. 641

Draper v. Davis, 102 U.S. 370, 26 L.Ed. 121

Fenton v. Walling, Smith v. Same, 9 Cir., 139 F.(2d) 608

Fox v. Capital Co., 299 U.S. 105

Heike v. U. S., 217 U.S. 423, 429

International Silver Co. v. Oneida Community, 93 F.(2d)

437, 441 (C.C.A. 2, 1937)

Perfection Cooler Co. v. Rotax Co., 296 Fed. 465 (C.C.A. 2,

1924)

Redgers v. Consolidated Rock Products Co., 9 Cir., 114 F.

(2d) 108

St. Louis, I. M. & S. R. Co. v. Southern Express Co., 108

U.S. 24, 28

Taylor et al. v. Bowles, 147 F.(2d) 824...

Taylor v. U. S., 142 F.(2d) 808

U. S. v. Pile, 130 U.S. 280, 283

U. S. v. Radice, 2 Cir., 40 F.(2d) 445, 446

—

In the Supreme Court of the

United States

OcroBER TERM, 1945

i ala rr

StaNnLEy TAyLoR and EveLyn FLYNN,

Petitioners,

vs.

CHESTER Bow tes, Administrator, Office

of Price Administration,

Respondent.

Petition for Writ of Certiorari to the United States

Circuit Court of Appeals for the Ninth Circuit

To the Honorable Harlan Fisk Stone, Chief Justice

of the United States, and to the Honorable Asso-

ciate Justices of the Supreme Court of the United

States:

Stanley W. Taylor and Evelyn Flynn, petitioners,

pray that a writ of certiorari issue to review the de-

cree or judgment of the United States Cireuit Court

of Appeals for the Ninth Cireuit in the cause entitled

Stanley Taylor and Evelyn Flynn v. Chester Bowles,

Administrator, Office of Price Administration, No.

10776, which decree was entered in said cause on

December 17, 1945.

a

2

Petitioners file herewith a duly certified Transcript

of Record in Two Volumes of said cause as the same

appears of record in said court (Certified Tr., Vol.

IT, p. 155).

In support hereof your petitioners respectfully rep-

resent as follows:

OPINION AND PROCEEDINGS BELOW

The opinion of the Circuit Court is set forth in the

Transcript of Record, Volume IT, pages 149 to 152,

and the Decree or Judgment of the court dismissing

the appeal is set forth on page 153 of said Volume IT

of said Transcript. Subsequent to such opinion and

decree a Petition for Rehearing was entertained and

denied by the court (Tr., Vol. II, p. 154).

SUMMARY AND STATEMENT OF THE MATTER INVOLVED

SUMMARY

This petition seeks review of a decree of the Circuit

Court which holds that a contempt order entered

against petitioners by the District Court is not appeal-

able.

The order in question was entered by the District

Court on February 1, 1944, nearly eleven months after

the final order in the permanent injunction or ‘‘main

action’’, which order was entered March 6, 1943. The

proceedings and order on contempt all took place after

appeal was taken in the main action and while that

appeal was pending.

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3

The contempt order placed a new construction upon

the injunction, directly opposed to the construction

previously placed upon such injunction by specific

findings and ruling of said District Court, which said

ruling and findings appeared of record on appeal from

the judgment in the main action.

The questions raised by the contempt order were

not, therefore, and could not have been considered by

the Circuit Court in its review of the judgment in the

main action. The Cireuit Court in its ruling dismiss-

ing the appeal from the contempt order states, how-

ever—

‘‘A remedial or civil contempt order directed

against a party litigant is deemed interlocutory

and not a final order, and is reviewable only on

appeal from the final decree in the main action.

* * * The judgment of contempt was remedial,

therefore civil and interlocutory, and not final for

the purposes of appeal to this court.”’ (Tr., Vol.

II, pp. 151-152.)

The effect of the contempt order was to set aside

contracts involving persons not parties to the action

-eontrary to the previous ruling referred to above

which held such contract to be valid and not a viola-

tion of the injunction.

The contempt order was based upon findings which

sought to effect jurisdiction over such contracts by

finding that the payments made on account of the pur-

chase of property covered by such contracts ‘‘were in

fact rent’’. It is the contention of petitioners on appeal

that such finding is contrary to law and to the evidence

and that petitioners did not violate either the injune-

4

tion or the Regulation in the respect charged (Tr.

Vol. IT, pp. 133-136).

The statement of the Cireuit Court in its opinion

as to, ““The object of the order’’, and what the order

in question directs the appellants to do, presents a

misleading and improper picture of the actual import

and effect of such order.

STATEMENT OF THE CASE

Appeal was taken by petitioners to the Circuit

Court from a final order entered in the District Court

on February 1, 1944, which said order adjudged said

petitioners to be in contempt of court for alleged vio-

lation of a permanent injunction previously issued by

said District Court by final order made and entered on

March 6, 1943 (Tr., Vol. IT, pp. 21, 22, 15-21).

All proceedings on the contempt order and the order

itself took place after appeal had been taken by peti-

tioners from the judgment in the main action and

while said appeal from the main action was pending

(Tr., Vol. I, pp. 237-239, 95-98; Vol. II, pp. 8-13; see

footnote (1)).

(1) Appeal was taken from the final order in the main action

on June 3, 1943 (Tr., Vol. I, p. 107) and the judgment of. the

Cireuit Court on said appeal was entered January 17, 1945

(Taylor et al. v. Bowles, 147 F.(2d) 824). Appeal is now pend-

ing from the judgment of the Cireuit Court in Taylor et al. v.

Bowles, supra, on constitutional grounds pursuant to Protest

MR 28-31-P, originally filed with respondent on August 1, 1944

(Tr., Vol. II, pp. 142-143, parts I and II). The said Protest

MR 28-31-P was denied by the administrator, respondent herein,

on November 2, 1945, and complaint was filed in the United

States Emergency Court of Appeals in said matter on December

3, 1945, where the cause is now pending, entitled Stanley W.

Taylor, complainant, v. Chester Bowles, Price Administrator,

Respondent, No. 279 (E.C.A.).

5

The contempt order appealed from was based upon

findings that:

“* * * transactions whereby the apartments

were purportedly rented unfurnished and the fur-

niture sold to the tenants under conditional sales

contracts were and are evasions of said Rent Reg-

ulation for Housing in violation of section 9

thereof.”’

and upon the ‘‘finding’’ that charges made on the pur-

chase price of said furniture:

‘‘were in fact rent subject to said Rent Regulation

for Housing and subject to the terms of said

injunction * * *.’’ (Tr. Vol. II, pp. 18-19,

part 5.)

The above findings were directly opposed to and

contrary to a previous ruling made by the court con-

cerning an identical transaction, wherein the same

court held that such transaction did not constitute

a violation of the injunction (Tr., Vol. I, pp. 102-107;

Vol. II, pp. 4-7, 69-127, 46-64).

The previous ruling, supra, which is set forth in full

in both volumes of the Transcript (Vol. I, pp. 102-107

and Vol. II, pp. 2-7) constituted the construction

placed upon the injunction by the court at the time the

appeal therefrom was being perfected. That construc-

tion was before the Circuit Court when the injunction

order was affirmed by the Cireuit Court in Taylor

et al. v. Bowles, 147 F.(2d) 824 (Tr., Vol. I, pp. 1,

104-107). There was nothing in the opinion of the

court in Taylor et al. v. Bowles, supra, to indicate that

in its affirmation of the injunction it took cognizance

aE

6

of the new construction placed upon the injunction by

the District Court after appeal was taken.

The effect of the contempt order was to set aside

contracts concerning the purchase of furniture by

persons not parties to the action and to require peti-

tioners to refund purchase money to such purchasers.

The order did not, however, reciprocally require the

purchasers to deliver up possession of the furniture to

petitioner Evelyn Flynn, from whom they obtained

such furniture by purchase under written contract

(Tr., Vol. II, pp. 15-21, 68-127). As heretofore set

forth, this ruling was contrary to the previous ruling

of the court which held a similar transaction to be

valid (Tr., Vol. I, pp. 104-107; Vol. II, pp. 4-7).

Upon appeal to the Circuit Court the said court held

the contempt order not appealable on the grounds set

forth in the Summary. From the foregoing and the

entire record (Vol. II, pp. 1-155) it is clear that the

contempt order involves questions and issues to be de-

termined on their merits which are not adequately

treated by the opinion of the Circuit Court herein,

which said opinion treats the whole matter as a simple

overcharge of rent (Tr., Vol. II, pp. 150, 152).

STATEMENT OF BASIS OF JURISDICTION a.

The decree or judgment of the United States Cireuit

Court of Appeals for the Ninth Circuit was entered

December 17, 1945 (Tr., Vol. II, p. 153). Petition for

rehearing was duly filed within the time allowed by

rule of the court and said petition was entertained by

the court and denied on January 16, 1946 (Tr., Vol.

II, p. 154). The statutory provision believed to sus-

——

7

tain the jurisdiction of this Court is Section 240(a)

of the, Judicial Code of the United States, as amended

(28 U.S.C.A., §347). The time within which a petition

for writ of certiorari may be filed is fixed by statute

as ‘‘within three months’”’ after the decree became

final by the denial of petition for rehearing on Janu-

ary 16, 1946, as aforesaid. Section 8, Act of February

13, 1925 [28 U.S.C.A., $350].

QUESTIONS PRESENTED

(1) Whether a judgment or order against parties

in a suit in equity, for a civil contempt committed

after the decree, is reviewable by appeal.

(2) Whether an order in a civil contempt case in-

volving transactions which took place after the decree

in the main action, and which raises new points of law

which were not passed upon in the original judgment

in the main action or in the appeal therefrom, is re-

viewable by appeal.

(3) Whether an order as described in (1) and (2)

above is final for purposes of appeal when it termi-

nates the litigation on the merits and leaves nothing

further to be done than to pay the sums of money

directed in said order or to commit the contemnors to

jail until they have complied therewith, reserving to

the court only the power to make other orders for

the purpose of enforcing the terms of said order.

(4) Whether the Circuit Court had jurisdiction to

review on appeal the contempt order of the District

Court dated February 1, 1944, adjudging petitioners

in contempt for violation of a permanent injunction

entered March 6, 1948.

ee

8

REASONS RELIED ON FOR GRANTING THE WRIT

(1) Certiorari should be granted because of con-

flict between the decision of the court below and deci-

sions of other Circuit Courts on the same matter.

Cases in which it is held that such orders are ap-

pealable include:

Clay v. Waters, 178 Fed. 385, 392 (C.C.A. 8,

1910) ;

Perfection Cooler Co. v. Rotax Co., 296 Fed.

465 (C.C.A. 2, 1924) ;

International Silver Co. v. Oneida Community,

93 F.(2d) 487, 441 (C.C.A. 2, 1937).

Clay v. Waters, supra, distinguished between those

eases where the civil contempt was committed before

the final decree and those in which the contempt was

committed after the decree. In the first instance a

judgment on contempt was held to be reviewable by

appeal from the main decree only, but where the con-

tempt was committed after the decree the contempt

order is held to be reviewable by appeal without re-

gard to the appeal or disposition of the final decree

in the main action. Clay v. Waters, supra, has been

followed and cited by numerous other cases, and does

not appear to have been overruled until by the deci-

sion of the court below in the instant case.

(2) Certiorari should be granted because the deci-

sion below has decided the question involved in a way

probably in conflict with applicable decisions of this

Honorable Court.

The court below cites the Supreme Court case of

Fox v. Capital Co., 299 U.S. 105, in support of its de-

9

cision. However, an examination of said case discloses

a wide divergence in the type and character of the

matter involved. Also the ruling taken from Foz v.

Capital Co., supra, is one cited in that case from Doyle

v. London Guarantee Co., 204 U.S. 599, 605, 607, 51

L.Ed. 641, in which the rule given applied to an order

punishing for contempt, which order is made tn the

progress of the case, holding such order to be inter-

locutory and to be reviewed only upon eppeal from a

final decree in the case.

In Berman v. U. S., 302 U.S. 211, this Honorable

Court stated :

**In criminal cases, as well as civil, the judg-

ment is final for the purpose of appeal ‘when it

terminates the litigation * * * on the merits’

and ‘leaves nothing to be done but to enforce by

execution what has been determined’.’’ Citing:

St. Louis, I. M. & S. R. Co. v. Southern Express

Co., 108 U.S. 24, 28;

U.S. v. Pile, 130 U.S. 280, 283;

Heike v. U. S., 217 U.S. 423, 429.

(3) Certiorari should be granted because the Cir-

cuit Court of Appeals has so far departed from the

accepted and usual course of judicial proceedings,

and has so far sanctioned such a departure by the

lower court, as to call for an exercise of this Honor-

able Court’s power of supervision.

(a) In the instant case an examination of those

portions of the Transcript hereinbefore referred to

discloses that petitioners have been held in contempt

for pursuing a course of action specifically approved

10

in a prior decision of the court (see Summary and

Statement of the Case). The stipulation of Mr. Dun-

lap, counsel for respondent in the District Court,

which stipulation appears on page 126 of Volume IT

of the Transcript herein, discloses the arbitrary man-

ner in which petitioner Flynn’s rights have been dis-

regarded both by respondent and the District Court.

(b) It appears to petitioners on advice of counsel

and after careful study of the matters involved, that

the decision of the Circuit Court in the instant case

is motivated either by prejudice or by reluctance to

review a case which, if reviewed, must result in a

reversal of the District Court and the Administrator,

respondent herein. It is to be noted in this respect

that even Ninth Circuit cases cited by the court do

not sustain the decision.

In Fenton v. Walling, Smith v. Same, 9 Cir., 139

F.(2d) 608, cited by the court in its opinion, the court

held that orders against Fenton and Smith were ap-

pealable and denied a motion to dismiss on the ground

that:

“‘unless they can obtain a review of the orders

now they will have no right of review at all.’

(p. 610)

The court abrogated and ignored that principle of law

in its decision in the instant case.

In Dickinson v. Rinke, 2 Cir., 132 F.(2d) 884, cited

by the court in its opinion, it was held that:

‘*Because an appeal had been taken in the main

action, the District Court was without jurisdic-

tion to enter the order

* & & 99

1l

referring to a contempt order issued while such appeal

was pending, as was the order in the instant case. In

support of such ruling the court in Dickinson v.

Rinke, supra, cited:

Berman v. U. S., hereinbefore cited, 302 U.S.

211, 214, 82 L.Ed. 204;

Draper v. Davis, 102 U.S. 370, 26 L.Ed. 121;

U.S. v. Radice, 2 Cir., 40 F.(2d) 445, 446;

and

Rodgers v. Consolidated Rock Products Co.,

9 Cir., 114 F.(2d) 108.

While the question of whether the District Court

in the instant case had jurisdiction to issue the con-

tempt order appealed from is one which should prop-

erly be considered when the case is decided on the

merits, the existence of such a possibility emphasizes

the necessity and propriety of a right of appeal.

(ec) The instant case is one of a series of cases and

correlated litigation between petitioners and respond-

ent since rent control was first imposed in the San

Francisco area in 1942. As disclosed in the Transcript,

Vol. II, pp. 142-144, petitioner Taylor is now seek-

ing adjudication of the validity of two previous judg-

ments of the Cireuit Court in the cases entitled Taylor

v. U. S., 142 F.(2d) 808, and Taylor et al. v. Bowles,

147 F.(2d) 824. Such adjudication is being sought on

constitutional grounds pursuant to Protest MR 28-

31-P, and the cause is now pending before the United

States Emergency Court of Appeals where it is desig-

12

nated and entitled Taylor v. Bowles, No. 279 (see

footnote (1) under Statement of the Case).

Petitioners on September 6, 1945, filed a charge of

prejudice before the Circuit Court, on grounds then

and there specified, and based upon the conduct and

opinions of the court in Taylor v. U. S. and Taylor

et al. v. Bowles, supra, such charge being supported

by affidavit of petitioner Stanley W. Taylor (Tr., Vol.

II, pp. 143-146).

Petitioners moved the court to continue the case and

extend the time for filing briefs therein until after

disposition of constitutional issues controlling the case,

which issues were then before respondent pursuant to

Protest MR 28-31-P. Petitioners asked in the alterna-

tive that the case be certified to the Supreme Court

(Tr., Vol. II, pp. 141-146). The motion was denied

(Tr., Vol. Il, pp. 146-147). However, on oral argu-

ment on said motion the court suggested to counsel

for respondent that the order of the District Court

might not be an appealable order. Upon such sugges-

tion from the court, the Motion to Dismiss Appeal

was subsequently filed by respondent and thereafter

eranted by the court (Tr., Vol. IT, pp. 147-153).

Petitioners do not believe that the conduct herein-

before described, or the opinion of the court, is that of

an impartial court.

13

CONCLUSION

The writ should be granted.

Dated, San Francisco, California, February 15, 1946.

Respectfully submitted,

SranLey W. Taytor,

1201 Fulton Street,

San Francisco 17, Calif.,

Petitioner in Propria Persona.

EvELYN FLyNn,

530 Larkin Street,

San Francisco, Calif.,

Petitioner in Propria Persona.

Due service and receipt of a copy of the within is hereby

admitted this. day of February, 1946.

Attorney for Respondent