# Petition for Writ of Certiorari — Porter v. Lee > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0103%3A2 ## Record - **Collection:** Supreme Court brief - **Document type:** Petition for Writ of Certiorari - **Published:** January 1, 1946 - **Citation:** 328 U.S. 246 ## Text , ae a my APR 15 “Nos.1116-1117 * (uci noceaceariemenmy 7 Betonen TERM, 1945 “Pauw A. Poirres, biiawcajiiccc, Girvnch | OF PRICE SSOMINISTRATION, PETITIONER x v. De Lucas J. Lee. AND einer Les - .' Pal - “Pave A. Pores, ihaconigaceas OFFICE OF PRICE ; NADIEEIIERYSION, PETITIONER (Ue et 1946 | Chest. 0S TLYCRL OROPLEY BLEAK cette Vig et A RR, ° ~ Sigs: tun AND Lucas J. LEE, hina ‘AND SUE_ Ld - $ ’ ath id ¥ ’ Y. ' bd , : bia ? _WEYITION YOR WRITS OF CERTIORARI 70 THE UNITED ; rade Justice OF THE Pzace, Covincton, ‘STATES. vcs oedaraln oF APPEALS FOR THE SIXTH © «/ CERCUIT * PE TS ¥ ; %, y 4 waar 9 i. ¢ . 4 ” : ae ss * e 4 y = oS. . ~ ; * >> « a , e « ace | Le ares — + a ——— _— a » ‘ annie — 5 = } cas Fit ac? Sd § Ewe Vie - Suorome (eur, dA g \ ° INDEX gee : emcee: iat Opinions below — __- - eves 2 Jurisdiction “ 2 Questions [prese nte d - oe 2 Statutes and regulati ions involved re : : 3 Statement ie aig 3 Specification of errors to be urged ‘ mae : S Reasons for granting the writ Ss a ore. Conelusion Py Genprt ape : 16 Appendix ; , ane CITATIONS Cases: : Bowles v. Willingham, 321 U. 8. 503 ---. 4, 12, 14, 15, 16 Federal Trade Commission v. Goodyear Tire & Rubber Co., U.S. 257¢ oe epee eke Sag 10° Hamilton-Brown Shoe Cé. v. Wolf Brothers & Co., 240 U.S. ot ieee: : pe wanda a -13- Hecht Co..v. Bocwiee, mth ie. “eS Henderson v. Fleckinger, 136 F. 2d 381__..-..' __.__.. 9, 10, 16 Jones ‘v. Securities and Exchange Commission, 208 U.S. 1_- 10 Panama R. R. Co. v. Napier Shtpping Ce., 166 U.S. 280° - 13 Tezas & NO. R. Co. v. Northside Belt Ry. Co., 276 U.S. RRR yeep eerie ah Ca A gee emo, WIE ea 10 Toledo Scale Co. v. Coninetinn ‘Scale Co., 261 U.S. 399. alae 12 Walling v. Helmerich & Payne, 323.U.S.37...-.-. -.. _ 10 Yakus v. United States, 321 U.S. 414. .-___.- - ee 4 Statutes: : Emérgency Price Control Act of 1942 (56 Stat. 23, 50 Su U.S.C. App. See. 901, ef seq., as alle nded) : Ay Dk eS ha waka edaekcad eye hccansoncabanees 3, 17 BD ieiunsdanssccccvaducesaes paseccestascen SOR Sees Si eee LO oe ee ee ee See. 205 (8). eee + 1 IB reer ee He ert tad Ue 18 (ec). rene Sire yes a Pee oe aie se. aig ak ae ee anaes es Seer 20° SEAR Aa oY ae ee 20.4%, Af)”. aaa eee , _. 19, 22 ayy WS sacs ont SEAN DAES Set ee: Miscellaneous: =~ Rent Regulations for Housing, as amended (10 F. R. 3 136, 13528) : 2s ; 8 eee ie pes : Casita nena 691033- 06-—~tny Pt £ Satie Sure Court of the Bnited Sites OcTOBER TE RM, 1945, No. 1116 ars | aa PavL A. PorTER, ADMINISTRATOR, OFFIC E OF PRICE ADMINISTRATION, PETITIONER | Vv. Dr. Lucas J. LEE AND Mazet LEE 8 No.1117__. > Patt A. ee ADMINIST RATOR, OFFICE OF PRIC FE ADMINISTRATION, PETITIONER v. , ; : . 6 “HazEL LER AND Lucas J. LEE, AGENT, AND SUE LAKENAN, JUSTICE .OF THE PEACE, COVINGTON, Ky. ; - ne > PETITION FOR WRITS OF CERTIORARI TO THE UNITED > _ STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT. Paul A. Porter, Administrator of the Office of Price. Administration, petitioner. herein, ‘prays . that writs of certiorari be issued to review the _ judgments’ of the United States Circuit Court of Appeals for the Sixth Circuit in the above ell-« titled cases, entered on April 8, 1946, dismissing (i) - YM, . ) ~- _ as moot appeals from two decisions of the district court dismissing suits for injunctions. OPINIONS BELOW “ The opinion of the District Court in the first — case (R. 20-23) -has not yet been Feported. It. filed no opinion in the second case.. The Cireuit. Court of Appeals wrote no opinion. | JURISDICTION The judgmént of the Circuit Court of Appeals was entered on April'8,°1946, The jurisdiction of this court is invoked under Section 240 (a) of the — J udicial Code, as amended by the Act of February ‘ 13, 1925, QUESTIONS PRESENTED In order to forestall an eviction in violation of the Price. Administrator’s rent regulations and to prevent further violation of the regulations by re- spondents Lee, the Administrator sued in the United ‘States District Court for injunctive’ re- lief. The District Court/held that it lacked juris- diction to interfere, with the state court eviction proceeding. « An appeal having been.taken, the Cir- - cuit Court of Appeals denied the Administrator’s application for a restraining order pending the ap- peal. The tenant was then forced to vacate the premises. At the time the appeals were argued re- - spondents mov ed to have the appeals dismissed as- moot, and the Cireuit Court of Appeals granted the motion. >The questions presented are: 3 1. Whether the court below erred in holding the case moot. Res ores: 2. Whether the court below abused its discre- tion in denying the application for a temporary restraining order. | . 3. Whether the District Court erred in holding that it had no jurisdiction to enjoin the unlawful eviction by the state court. - ; : STATUTES AND REGULATIONS INVOLVED The statutes and regulations involved are the capes ‘y Price Control Act of 1942) (56 Stat. 23,50 U.S. CL App. See. 901, ef seg.) as amended, and Rent Regulation for Housing, as amended (10 F. R. 3436), issued under that ‘Aet. | The - pertinent provisions are set forth in the Ap- pendix, infra, pp. 17-31. Maer seer STATEMENT These cases-were joined on appeal pursuant to an order of the Sixth Cigtuit Court of Appeals, dated October 6, 1945, anting the petitioners’ motion to consolidate the two appeals for briefing and argument. Throughout this petitidn, refer- ences to the Record, in the first case, No. 10007 in the court below and No. 1116 here, will be shown as" R™ and _ references to the record in the second case, No. ~. 10079 below and No. 1117 here, wilk be shown as v “2R”’. , Section 2 (d) of the Emergency Price Control Act authorizes the Administrator, whenever such + action is necessary or proper in order to effectuate the purposes of the Act, to “‘regniate or pro- hibit * * * speculative or manipulative prae- tices or renting or leasing practices (including oh tices relating to recovery of the possession) 1 - connection with any defense-area housing shorn: modations, which in his judgment are equivi ‘alent to or are likely to result in * * *~ rent in- creasés * * * inconsistent with the purposes of this Act.””. Under the authority of this Seetion, . . the Administrator has, by Section 6 .of the Rent ° - Regulation for Housing, provided that so long as the tenant continues to pay the rent to which the landlord is entitied no tenant shall: be re- moved or evicted (except on grourids none of which is or was present in ‘this: case) unless, on petition, the Administragor of the Office of Price Administration issues a certificate authori izing the eviction.’ - Violation of this regulation is forbidden by Sections 4 (a), and Seetion 205 empowers the - Administ rator to seek injunctive telief against sueh violation, © | 3 | On or about June 15, 1942, Robert C. Beever rented an apartment from the respondent, Dr. Lucas Lee, for the sun ef. Forty-three dollars a month, payable in advance on the 18th day of each month (R. 67). On Oetober 18, 1944, be- cause the tenant's child was ill, his. wife was un.” . The validity of this frevision is not challenged, nor cond it, be’ attac ked in this phoceeding. Yakus v. United States. 321 U.S. 414; Bowles v. w illingham, 821 U, 3. 503, —_ ~ = - o> able to pay the rent due on that day CR. 73). “Mr. Beever was employed on a day shift and wie was unable to pay the rent in. persou CR. 68), However, on the following day, October 19, 1944; Mrs. i went to Dr. Lee's office to pay the rent CR. 51, 52)6 ‘Dr. Lee owas not mh the office, but the ae who had ‘oh previous occasions accepted the rent (R. 45, 74) and who collected | the rent when the respondent Lee wis net in (R: 101), was present. The rent was tendered -* to the janitor, but he declined to accept it because he had no receipt book (R. 51, 73).5 On O¢tober 20, 1944; a notice to vacate was served on the tenant (R.54). On the same day the tenant mailed a money order to respondent Lee for the amount of the rent. (R. 62). However, this tender was re- fused, and the money ‘order was returned by Lee's attorney (R.56). In the past, Lee had accepted - payments’ of rent one to: six days after the due date without objection (R. 44. 62, 68, T4- 75). This was also true with respect to other tenants of the respondents (R, 87, 92). No demand Was made for the rent om October 18th (RL ST) and no receipt was tendered on the I8th or the 19th “(R. 64)... Shortly afterward «Dr. Lee ‘told the tenant that the real reason ‘for the eviction Was , not the non- payment of rent but “the fact that he didn’t want ‘children jn. the apartme nt any longer’, and that “that is the way it is going to be done”. (R. 71; ef. R. 58-59). 6 On October 20, 1944, respondent Lee com- menced ‘an action in the Justice Court ‘of Sue Lakenan to recover possession of the premises _ by reason "of the alleged. non-payment of rent due on October 18, 1944 (R.18).°.The trial of this - action was continued by the Justice of the Peace to December 4, 1944. ‘ 7 On the latter date ‘the ibminiabvater brought the first action herein (No. 10,007 in the court ° -below) -to enjoin the Lees from prosecuting evic- tion. proceedings against ‘Beever or any other. tenant” and to enjoin them -frow violating the Rent ‘Regulations issued pursuant to the Emer- gency Price.Control Act (R. 5). A. temporary restraiging or der was isstied? by the United States. District Court. (R. 11); enjoining the Lees, from prosecuting: the eviction against Beever, The de- fendants thereafter moved to discharge the tem- porary restraining order and to dismiss the com- plaint (R. 15, 16). The motion was heard on oral testimony and documentary evidence (R. 29- 108). After a trial, the rest ‘aining order was dissolved, an injunction was denied, and the com- plaint dismissed .(R. 26). The District Court held “that the state court had concurrent jurisdiction under the Price Control Act t,/ fond that the Federal court accordingly | lacked Jurisdiction to enjoin the state goyrt proceeding (R. 20-26). On the landlo l’s motion, the Fercible Detainer action in the first case was subsequently dismissed been “made or accepted.’ CONCLUSION . — The court below decided a question’ of impor- . ‘tance to the enforcement and administration of “the Emergency Price Control Act. This decision . contlicts with a decision of another Circuit Court of Appeals. It is clearly wrong. For these reasons a‘writ of certiorari should be gr. anted. Respectfully submitted. | ; J ‘How arp “MoGrata, Sclicitor Ge neral,. v . > Georae MONCHARSH, Deputy Administrator for Enforcement, Sox Office of Price ne i ‘Apri. 1946. _ * Objections, -haye been raised under Section 265 of the Judicial Code. a point which we discuss in our petition for certiorari in Porter v. Dicken, to be filed herewith. % oO APPENDIX | 4 A. The St al ute s The ‘pertinent provisions of the Emergeney Price Control Act of 1942, as amended (56 Stat. 93, 50 U.S. Apy.. Sees. 901, ef seg., are Sec- tions 2 (1), 4 (a). #(b) and 205. | Ser: & * %:* :* | ae 3 —-(d) Whenever it the judgment of the Administrator such action. is necessary or proper in order to effectuate the pyrposes of this-Act, he may, by regulation o1 order, regulate or prohibit speculative or manipu- lative practices ( including practices Pebat in to changes in form or quality) or. hoarding, in connection with any commodity, aid speculative _ or manipulative practices or renting or leasing practices (ineluding practices relating to recovery of the posses- sion) mM connection with any defense-ared housing accommodations, * whieh in. ais judgment. are equivalent to or are likely to result in price or rent Increases, as the case _ may. be, inconsistent, with the purposes ety this: Act.. * Be Sts tress 2 Sec. 4. (a): It shall be unlawful, regard-. jess of any contract, agreement, lease, “oT” other obligation. heretofore or hereafter ene tered into, for any petson fo sell or deliver. any conunodity, or in the course of trade or business: te buy or receive any cout modity, or to demand or receive any rent for -any defense-area housing aceommoda- tions, or otherwise to do or omit.toe do. any act, in violation of any regulation or order. . 7) ys J G under section 2¢ or of aty price schedule effective in accordance. with the provisions. of section 206, or of any regulation, order, or requirement under section 202 (b) or section 205 (f), or to offer, solicit, attempt. or agree to do any of the foregoing. (b) It shall be unlawful for any person to remove er attempt to. remove from any » defense-area housing accommodations the tenant or oecupant thereof or to refuse to renew the lease or agreement for the use of » sucli accommodations, because such tenant or occupant has taken, or proposes to take, action authorized or required by this Act or any “regulation, order, or requirement thereunder. - oe Sec. 205. (a) Whenever in the judgment. of the Administrater any person has en- — gaged or is about to-engage in any acts oF practices which constitute or will constitute _a violation of anyProvision of seétion 4 of this Act; he may make application to the appropriate court for ‘an order enjoining such acts or practices, or for an order en- forcing 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 per- manent or temporary injunction, restrain- © ing order, or other order shail be granted | without bond. (b) Any person who’ willfully. violates - any provision of. section 4 of this Act, and any person who makes any ‘statement or - entry false in any material respect in any _ document. or report required to be kept or: filed under section 2 ‘or section 202, shall. upon conviction thereof, be subject to a fine of not more than $5,000; or to imprisonment for not more than two years in the case of a ‘ _ ebleaee violation of section 4 (@ and for not more than one vear invall other cases, or to ‘both such tine and imprisonment. Whenever the: Administrator has-reason to believe that any, person is liable to punishment under this subsection, he may certify the facts.to - the Attorney General, vaio may, in his dis- -eretion, cause appropriate proceedings to be brought. (¢) The district courts shall Shave juris- “ diction of*criminal proc eodings for’ viola- ' tions of section 4+ of this Act, and, coneur- rently with State and Territorial courts, of. all other proceedings wider ‘section 205 of this Act. Sueh criminal proceedings may be brought in any district in which any part —of-any act’ or ‘transaction constituting the Violation occurred, Except as provided: in- section 205 (f) (2), such other proceedings may be-bronght in any district in whieh any © part of any act or transaction constituting the violation occurred, aiid may alse be a ebrontiet in the district in. which the defend- ant resides or tratsacts business, and proc; ess in such cases may be served in any dis- triet wherein the defendant resides or tvans- -acts business or wherever the defendant may be feund: Provided, however, That all suits under subsection (Ce) of this sechion shall be brought in the district or county in which the defendant resides or has a. place” Of business, an office, or an agent. Any “such court shall advance on the docket and expedite the. disposition of any eriminal or other proceedings brought before it under ‘this section. No costs shalk be assessed agaist the Administrator or the United T Added by sec. LO8(a) of Stabilization Extension Aer of 144. : ne Supply, notwithstanding that subsequently: suth provision, regulation, order, - price schedule, requirement, or agreement may be _ modified, rescinded, or determined to. be invalid.: In any suit or action wherein, a party relies for ground of relief or defense ‘upon this Act or any regulation, order, price schedule, requirement, or agreement there- under the.cgurt having jurisdiction of*such stitgor action shall certify such fact to the Administrator. The Administrator may In- ‘tervene in any such suit or action. | {e) If any person selling a com@niodity violates a regulation, order, or price sched- ule freseribing a maximum price or maxi- mum prices, the person. who buys such com- Modity for use or consumption other than in the course of trade or business may, within. one-year from the date of the oceur- rence of the violation, except as hereinafter Provided, bring an action against the seller’, ‘on account of the overcharge. In such ac- -. tion, the seller shall be liable for reasonable attorney's fees and costs as dete ruined by the court, plus whichever of the following ~~ ‘sums ts the greater: (1) Such amount not more than three times the wiouut of the maxing price, whichever is the greater’ his reasonible - attorney's feews and costs asdetermined by the court.” ' "Added byser. 108 (b) of Stabilization Exten-ton Net of : 144. ‘ , | m ' a ae - a against the occurrence of the violation! - For the purposes of this section the pay-- ministrator may: institute such action on: \ . . 22 the same violation or violations. Any action under this subsection by either the buyer or the.Administrator, as the case may be, may be Brought in any court of com petent juris- diction. A judgment in an action for dam- ages under this subsection shall be a bar to the recovery under this subsection of, any damages in any other action against the same: seller on account of sales made to the same purchaser prior to the institution of the action in whieh such judgment was ren- dered [The amendment made by ‘subsce- tion (b), insofar as it relates‘to actions by buyers or actions which my be brought. by the Administrator only after the buyer has failed to, institute .an action within thirty. days from the occurrence of the violation, . shall be applicable only with respect to vio- “ —. dations occurring after the date of cnact- . ment of this Act. In other cases, such — amendment shail be upplicable with respect + to proceedings pending on the date of cnact- ment of this Act and with respect to pro- ceedings instituted thereafter. iy the period of the war emergency in the armed forces of the United States and in good faith seeks possession: for Jhis own occupancy. If a tenant has been removed or eyicted under this paragraph (a) (6) from housing accommodations, the Jand- lord shall file a written repert on a form , provided therefor before renting the ac- commodations or anx part thereof during a period of six months after such removal or eviction. — dinsretess (b) Administrator’s certificate — (1) Renrovals not inconsistent with act-or regu 29 No tenant shall be «removed = or evicted}on grounds other than those stated above unless, on. petition of the landlord, the Administrator certifies that the land- Jord may pursue his remedies in accordance with the requirements of the local law. The -Adininistrator stall so certify if the land- - lord establishes that removals or evictions of the character sproposed are not) incon- sistent with the purposes of the act or this. regulation and would not be likely to result in the circumvention or evasion thereof, The certificate shall authorize the pursuit of local remedies at ‘the expiration ‘of six months after the date of filing of the peti- tion unless the Area Rent Director has de- termined that a three months period is adequate for the purposes-ef the act in the particular area in issuing certifientes under section 6 (b) (2), in whiely event the ap- Hicable period shall’ be three months. Vithin the diseretion of the Area’Rent Di- rector the certificate may authorize the pur- suit. of local remedies for the removal or - eviction of the tenant at a time jess than six or three months, as the casé may ‘be, after the date of the filing of the petition if the petitioner establishes that ered hardship would. otherwise result, or that a lésser period in the’ particular case is consistent with the purposes of the regulation and the act. fo (2) Occupancy by purchaser, A cortifi- cate shall be issued authorizing the jrursuit of local remedies to remove or evict a tonant of the vendor, for occupancy by a purchaser who has acquired his rights in the housing accommodations on or after the effective date of regulation (or on or after October » \w ) ; 30 20, 4942 where the effective date of regula- \ tion is prior to that date, or on or after No- vember 6, 1942 for housing accommodations within the Hastings Defense-Rental Area), only as provided in this paragraph (b) (2). (1) Where the Administrator ‘finds that the payment or payments‘of principal made by the purchaser aggregate twenty percent or more of the purchase price, he shall, on petition of either the vendor or purchaser issue a certificate authorizing the vendor or purchaser to pursue his remedies for re- moval or eviction of* the tenant in accord- ance with the requirements of the local law. Except as herein provided and unless the Area Rent Director shall determine that av three months’ period is adequate for the purposes of the act in the particular de- fense-rental area, the certifieate shall au- thorize the pursuit of local remedies ‘at the expiration of six months after the date of filing of the petition. * * * . # ; («l) Notices required—(1). Notices prior to action to remove tenant. Every notice to _ a tenent to vacate or surrender possession ‘of housing accommodations shall state the ground under this section upon which the landlord relies for removal or eviction of ‘the tenant. A written copy of such notice shall be giversto fhe area rent office within. 24 hours after the notice is given.to'the tenant. | pada ’ No tenant shall be removed or evicted from housing accommodations by court pro- cess or otherwise, unless at least ten days (or, where the ground for removal or evic- tion is non-payment of rent, the period re- quired by the local law for notice prior to the commencement of an action for removal “2 a 31 ‘ ‘ . | or eviction in such cases; but in no event less than three days) prior to the titne specified for surrender of possession and to the eom- ‘mencement of any action for removal or, eviction, the landlord has_,given written notices of the proposed vemoval or eviction to the tenant and to the area rent office, stating the ground under this section upon which such removal or eviction is sought and specifying the time when the tenant is required to surrender possession: * .* * U. &. GOVERNMENT PRINTING OFFICE: 1948 --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40386450_0103%3A2. Public record. Not legal advice.