Petition for Writ of Certiorari — Porter v. Dicken

' Judicial Code (28 U.S. C. 379):

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EE ore SEP! URAL See ROME e ee:

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601034 —46— 1 (1)

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Jurisdiction... ......_.--- ree en. ey See 2

Questions presented... ...,.....-.-- habessditiebtnenna a 2

~ Bt and regulations involved L hateaueekbire waar aceeeue oe oe

I pvnet nachdind als es senegal Sannin 3

Ebasifention of errors tobe urged... unas heaaon seen 6

iasaane tos granting the adh ox Ans sik ca Sratet decode and ae 6

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NAR 06 candice ed ncacnsceakunquaresccacoashadgessses 19

- CITATIONS

Cases:

Bleck v. Hiroh, 256 U. 8. 136. ........-.-.-.-2-5-. — 7

. Bowles v. Fontanelio, 3 OPA Op. & Dec. 5119__....-_-_._.- 17

eee We Geet GP a A I oo occ nccccccnnnccccccene 17

. Bowles vy. Rocks, 60 F. Supp. 653_ - _-- - - - an, Rae fatmemcack tie 17

Bowles v. Willingham, 321 U. 8. 503. _ __- RE Nye Eee Wey Ee 3,13

Brown v. Wick, 48 F. Supp. 887___ . - iwkaeantemmeie 17 &

Brown v. Wilson, 1 OPA Op. & Dee. 1791 SEC eee ee 17

Brown v. Wood, 59 F. Supp. 872____.- - _- aaa sigan 17

Brown v. Wright, 137 F. 2d 484_.....-- .---.--- a 8, 16

620 Church Street Corp., In re, 299 U.S. 24. .-.. ...-...---- 12

Fetters v. United States; 283 U. 8.638... ......-- RAST OM 13

* © Henderson. . Fleckinger, 136 F. 2d 381. ._.............-..- _ 16>

Henderson v. Kimmel, 47 F. Supp. 635. ...............-.- : 17

Se Sl eS Sree 12

i Ce GE Oe Ob ie cc csmadneracaceceecaa< 12

Rickert Rice Mills v. Fontenot, 296 U. 8. 569, 297 U.S. 110_- 17

\ Roche . Evaporated Milk AscoSakion, 319 U. 8. 23....... 12

\\. Toledo Scale Co. v. Computing Scale Co., 261 U. 8. 399.- 11

\ United States “Alkali Association v. United States, 325 VU. s }

Re ee ree ee oa are ree ae ee 12

Yakus v. United ‘States, 321 U. lies acacntninbensensa 3

Statutes: .

Emergency Price Control Act of 1942 (56 Stat. 23, 50 U. S.

_ C. App. Sec. 901, et seq., as amended):

Saag Rik a a ree Fe eee cae kc 4

Sa de ea xc ene Kes he khabonahnxe 2, 4, 6, 15

itis and pacdkhnda waded «aed is dm dgeia ae 15

vf ae

_ Miscellaneous: ‘ Page

* Rent Regulation for Housing, as auiended (10 F, R. 3436) :

ine a kanhninh di atch irekd da 6 a's dad dan maced mei « 3,9

Robertson and Kirkham, Jurisdiction of the Supreme Court

of the United States:

ain eet that cicetiakewswdanwaea dodcaeumsan ie il

SN haGeibil. hoya ninwanwavaedk nadbetaesh 13

- Statistical Report of OPA Area Office Operations 1943-1944_ 9

Summary Rent Operating Report 1945-1946_____._- whee 9

3 the Supreme Cour of the itd States.

OCTOBER TERM, 1945 -

: No. 1118

Pau ; a Pores, ADMINISTRATOR, Orrice OF PRICE

ADMINISTRATION, PETITIONER |

; v. .

Mary Jo DicKEN #Np ExizaBeTH M. DIcKEN, B.

M. Murray, ExkcuTor oF THE EstaTE OF EMMA, _

Gana, DeceaseD, Jacop E. Sandusky, SHERIFF —

‘ PBTITION FOR A WRIT OF CERTIORARI TO THE UNITED

STATES CIRCUIT COURT OF APPEALS FOR THE SIXTH

CIRCUIT

| Paul A. Porter, Aibdisiatintoe ofthe Office of

-Price Administration, petitioner herein, prays

that a writ of certiorari issue (1) under Section

240 (a) of the Judicial Code ‘to review the judg-

ment of the District Court for the Southern Dis-

trict of Ohio in the above-entitled case entered

March 26, 1946, ‘dismissing: a suit for injunction, -

. now pending on appeal in the United‘States Cir-

cuit Court of Appeals for the Sixth Circuit, and '

(2) under Section 240 (a), and, in the alterna- .

tive, Seetion 262 of the Judicial Code to review

an order of the United States Circuit Court of

— * for the Sixth Circuit, entered on April.

Q) ,

2

5, 1946, dengtig an. application by the salbidadie

for a temporary injunction pending the deter-

mination of an appeal from the order of the

setae Court.

| OPINIONS BELOW

~The opinion of the District Court (R. 16-25)

has not yet been reported. The Circuit Court of

Appeals ‘did not render an opinion.

JURISDICTION .

The judgment of the District Court was entered

- on March 26, 1946 (R. 33), and the order of the

Circuit Court of Appeals denying an injunction

pending appeal on April 5, 1946 (R. 46): The

jurisdiction of this Court is invoked under Section

"240 (a) Of the Judicial Code, as amended by the

_. Aet of February 13, 1925, and, in the alternative, |

. under Section 262 of the Judicial Code.

QUESTIONS PRESENTED

1. Whether Section 265 of the Judicial Code

prohibits a District Court’ from issuing an injunc-

‘tion under Section 205° (a) of the Emergency

‘Price Control Aet to restrain eviction of a tenant

pursuant to an order of a state court, although

such eviction would violate that Act and the Rent

Regulation for Housing’ issued thereunder.

2. Whether the Cirenit Court of Appeals abused

its discretion in refusing to issue an injunctign to

maintain the status quo pending appeal in view

.

s - 3

of its dismissal as moot of another and ‘similar

case after the tenant had. been evicted subsequent

to the denial of an injunction pending appeal.

STATUTES AND REGULATIONS INVOLVED

_ ‘The statutes and regulations involved are Sec-

tion 265 of the Judicial Code (28 U. S. C. 379),

the Emergency Price Control Act of 1942 (56 Stat.

23, 50 U. 8. C. App. Sec. 901, et seq., as amended)

and Rent Regulation for Housing, as amended |

(10 F. R. 3436) *isstied under that Act. Section

265 is set forth in the Appendix, infra, p. 19.

. The provisions of the Price Control Act and of

the Regulation are set forth in Appendix’ to ‘the

petition for certiorari in Porter v. Lee, Nos. 1116-

‘1117. ’

. STATEMENT ’

This ¢ ease is brought here along With Porter v.

~ Lee, Nos: 1116-1117, which involves the same

~ problem and which ties into the present case in a

manner to be described. | | ; =

Section 6 of the Rent Regulation for Housing

provides that no tenant shall be removed or. evicted

(except on grounds none of which is or was pre-

sent in this case) unless, on petition, the Admin-

'. istrator of the Office of Price Administration is-

sues a certificate authorizing the eviction.’ Viola-

tion of these Regulations is forbidden by Section

*The validity of this provision is not challenged, nor

could it be attacked in this proceeding. Yakus v. United.

eaten, 321 U.S. 414; Bowles v. Willingham, 321 U.S. 503.

@

if

4 .

4 (a), and Section 205 empowers the Administra- ©

tor to seek injunctive relief against - such

violations,

This i ig a suit for an cfasietion by we ‘Adminis.

trator of the Office of Price Administration ‘to re-

_ strain an eviction of a tenant in violation of this

7 provisions .(R. 1-3). As appears from a stipula-

_ tion as to the facts (R. 14-15), the tenant is in

possession of a house located within the Columbus -

; Defense Rental Area which was owned by the Es-.

| tate of Emma Gang, deceased. The house was sold -

by her Executor, respondent B. M. Murray, pursu-

ant to authority granted by an order of the Probate

Court of Franklin County, Ohio. After the sale,

the purchasers, the respondents, Mary: ‘Jo Dicken

3 and Elizabeth: M. Dicken, obtainéd ez parte ‘from —

the Prohate Court a writ of possession directing re-

.spondent Jacob E. Sandusky as Sheriff of Frank-

_lin County to evict the tenant and to place eo

purchasers in possession. No certificate was ap

- plied for, or obtained from the Administrator of

the. Office of Price Administration authorizing’ the

eviction as required by the Rent. Regulation.

~ While the writ was in the hands of the Sheriff for ©

evigtion ‘the Administrator brought. this action

' against the owners, the executor dnd the Sheriff to.

- ‘restrain the eviction (R. 26). ‘On March 26, 1946,

the District ‘Court, after issuing a temporary in-

. - junction, AR. 9-10, 30-31), dismissed the suit for

. injunction on the ground that Section 265 of the

Judicial Code. (28 U, S.C. § 379) barred the relief

> & *

The District Court, however, entered an order

restraining the defendants from evicting the ten-

ant pending determination by the Circuit Court

of Appeals of an application for an injunction

‘prohibiting the eviction pending an appeal to that).

Court (R. 37-38). Notice of appeal was filed

. March 26, 1946 (R. 34), and on the same day an

"application for an injunction. to restrain eviction ‘

of the tenant pending the appeal was filed in the

Cireuit Court of Appeals for the Sixth Circuit

(R. 42-43). This application was denied on April %

5,.1946 (R. 46), thus removing all obstacles to the '

eviction of the tenant by the Sheriff. The Circuit

Court of Appeals has not yet heard the case on the

merits.

Three days later, on oy 8, 1946, the game

Cirtuit Court of Appeals dismissed, on the ground

of mootness,- appeals by the Administrator in

sa Porter v. Lee, Nos. 10,007 and 10,079, from similar —

denials by a District Court of injunctions to re-

,. strain @viction, where, subsequent to the decision

_ of the District Court, the tenant had moved out of

the. premises under thregt of forcible eviction.

. There too the District Court had denied the Ad-

ministrator relief because of an asserted lack of ©

jurisdiction, and the Circuit Court of Appeals had

-denied the Administrator a stay pending appeal

from the first of the two orders there involved be-

' fore the tenant was evicted. -A petition for writs

of certiorari in the Lee cases is’ ‘being filed together

with this petition. :

6

oe order to prevent the eviction of the tenant

. in this case, an application for an injunction re-

| straining the eviction pending the determination of

_ this petition for a writ of certiorari, and. if certi-

orari be granted, pending the final djsposition .of

the case by this Court, was madé to and granted .

by Mr. Justice Reed sk: April 10, 1946. ©

SPECIFICATION OF ERRORS TO BE URGED

e

1. The Circuit Court of Appeals for the Sixth

- Circuit erred in denying an injunction to restrain

- eviction of the tenants pending its decision on

the.appeal from the District Court’s decision.

2. The District Court erred in dismissing this

action on the ground that Section 265 of the Ju-~

_ dicial Code prohibited it from issuing an injune-

‘ tion under Section 205 (a) of the - Emergence y

‘Price Control Act, restraining the eviction of a

tenant pursuant to an order: of a state court, al-

* though such. eviction would violate the Federal

Act and ,the Rent Regulation for Housing issued

théreunder. | | :

REASONS FOR —— THE ,WRIT

1. The decisions (1). of ‘the. District Court’ dis-

missing the.suit for injunction, (2) of the Circuit

Court of Appéals denying the stay pending appeal,

and (3) of the Circuit Court of Appeals three

days later in the Lee cases “dismissing appeals as

moot where a tenant has moved out pending the

‘appeal, make it —- for the Government to

7.

use the federal courts in the Sixth Circuit to pro-

tect tenants from illegal eviction proceedings in -—

state courts. The two decisions—of the Circuit’ ‘

Court of Appeals make it impossible for the Ad-

ministrator to secure a review by that court of any

District ‘Court’s decision denying an injunction

‘against proceedings in a state court. In each case

‘where an injunction is: denied by the District

Court, and a restraining order pending appeal de-

_ nied by the Circuit Court of Appeals,.the land-

lord is free tosevict the tenant and the case will

then, under the Lee ruling, be deemed moot by the

-- Circuit Court of Appea ~ In these ¢ircum- -

stances, the Circuit Court ‘of Appeals has so far

‘* departed from the accepted and usual course of -

judicial proceedings as to call: for. an exercise of

this Court’s power of supervision.

2. The resulting impairment of the dbeibeatee

tor’s power to prevent tinlaw tuf ¢ evictions presents

' a question of importance’in the administration of

the Emergency Price Control Act. That effective

control o¥er rents necessitates control over evic-

tions Was recognized by Congress in the Price Con- -

trol Act when it granted the Administrator power

to prevent evictions as well as authority over rents,

-and also ‘by this Court during an earlier but.sim- ©

ilar emergency in Block v. Hirsch, 256 U. S: 135,

157-158, wher it said: “If the tenant remained

subject to the landlord’s power to evict, the attempt

; to limit the landlord’s demands would fail.”

001084—4¢—2 .

8

The machinery ia eviction of tenants is pro-.

vided bv the State- anc ss summary 1n character

» and operation. In order to prevent unlawful evic- ’

tions and other violations of the rent regulations

the. Administrator has often found it necessary

to apply for injunctions in ‘Federal District

‘Courts.

As Judge Parker stated in Brown v. Wright,

137 F. 2d 484, 488 (C. C. A, 4):

If the Administrator were denied injunc-

tive relief from threatened violation ‘be-

cause of pendency of state court pro- -

ceedings and were required to intervene in

such p for. relief, resulting de-

lays might well render the Act nugatory

- in states not in sympathy with the legis-

‘lation. The federal government is not

so impotent that it must depend upon in-

strumentalities of the states for the enforce-.

ment of legislation so vital; * * *

. If the Administrator is unable to apply to the

federal courts for relief a great measure of pro-

tection will. have been removed in one of the most

. ¢ritieal fields at present under price control. It

_ is common kriowledge that the shortage in housing

has increased, not decreased, sinee the war. In

his report to the President, Wilson W. Wyatt, .

the Housing Expediter, stated (p. 3):

‘ In October 1945, 1,200,000 families were

_- living doubled up’ with other families. At

« that time the situation was critical. It is

rapidly becoming worse. The following

9

table showe with sbockix re welore}} -uutte t rou

without reducing the number of families

which were doubled up in October 1945, we

would have to build approximately 3,000,000

new homes by the end of 1945 just to keep

. the situation from becoming worse. .

The pressure for evictions indicated by the

applications for and notices of eviction, now being

received by the Administrator at the rate of

1,250,000 per year, shows the grave dangers to

the rent contro] system which any impairment

of the Administrator’s control over evictions

w8uld involve.’

*The following table shows the number of eviction cer-

tificates (required under section 6 (b) of the regulation

before a tenant may be evicted), requested since 1943. The

number of eviction notices (required under Section 6 (a) of

the regulation before a tenant may be evicted), received since

1943 is also given, It will be noticed that in the first two

months of 1946 more eviction certificates werg requested than

in the entire second half of 1943.

EVICTI ON CERTIFICATES

Requested Requested

1st half 1943_____ 41,314 ist half 1945... - 143, 391

2nd half 1943____ 73, 831 -ad hglf 1945... 150, 357

_ Ist half 1944___. 108,318 2 mos. 1946...-...- 76, 428

2nd half 1944:___ 116, 004,

EVICTION NOTICES

. Receipts Receipts

Ist half 1943_... 234, 980 ist half 1945_... 381, 252

2nd half 1943_-.. 318, 600 2nd half 1945__«_. 382, 458

ist half 1944_.__- 386, 867 2 mos. 1946_..._- 139, 6&4

: 2nd half 1944__.. 386,620

‘. Derived from: Statistical Report of. OPA Area Office

| Operations, 1948-1944 ; ‘Summary Rent*Operating Report

1945-1946.

10.

If a remedy against unlawful state action is

denied the Administrator in the federal courts

it is evident from the pressure for housing and

the huge volume of evictions at.present that the.

number ot illegal evietions will, be . —_—

increased, ‘

3. The denial by the Ciretit. Court of Appeals

- of he injunction pending the appeal to that court

was an abuse of discretion because if the tenant

were evicted before the appeal could be heard

this would mean. that the landlord had accom-

plished his unlawful objective and the tenant

. suffered the injury the regulation was intended to

avert, and because, if that court adheres to its rule

in the Lee cases, no review ‘of the district court’s

decision would be possible i in the Circuit Court of |

Appeals at all..

, The Court is respectfully r eferred to pp. 11-12 of

our petition in the Lee cases, in which the same

point is raised, for an amplified statement as to

why the denial of a restraining order pending

. appeal in these cireumstances is an abuse. of

* discretion. |

Correction by this Comet. on certiorari of the

error of the Sixth Circuit Court of Appeals ip

holding the Lee cases moot will not alone afford

effective relief. Stich a disposition would merely

require the Circuit Court of Appeals to hear both

* the Lee cases and the instant case on the merits.

But in all likelihood the tenant here would’ have

been forced out of the premises in the theantiine.

u

The major harm in an eviction proceeding is done ”

when the tenant is dispossessed, from the premises.

In the acute housing shortage that now. exists it

is almost -impossible for a tenant to find new

-quatters and hardship ‘inevitably ensues. Fur

thermore, the power of this Court ultimately. to

order reinstatement in vatated premises months

later obviously does not safeguard tenants, inas-

miich as the original removal causes the most se-

rious injury whether or not a subsequent offer

of reinstatement is requirtd. . The: result will

normally be that the landlord has accomplished

his unlawful purpose, and the purpose of the Act

and the Regulations have been frustrated.

This Court has power under Seetion 240 (a)

of the Judicial Code to review the denial by the

Circuit Court of Appeals of a temporary injunc-

tion pending appeal.’ The ‘“‘power to grant writs

of certiorari extends to interlocutory as well as -

final decrees’. Toledo ‘Scale Go. v. Computing

Scale Co., 261 U.S. 399, 418; Robertson and Kirk- °

ham, Jurisdiction of the Supreme Court of the

United States, p. 202. We think that the circum-

stances of this case, coupled with the decision in

the Lee cases, are sufficiently extraordinary to

warrant review of the interlocutory order. If

there should be any question as to this Court’s

power to review. the order on certiorari under .

Section 240 (a), the case is an appropriate one

for the issuance of a writ of certiorari .under

Judicial ‘Code, Section 262, in order to protect

23

12. :

the appellate jurisdiction of ‘this Court. » For. if

the eviction is not stayed pending appeal, this

court in the exercise of its ordinary appellate

jurisdiction would be precluded from giving effec-

tive relief, a result which in substance denies the

Administrator his right to appeal. Cf. House v.

_ Mayo, 324 U. 8. 42, 44; In're'620 Church Street

Cogp., 299 U. S. 24, 26; Roche v. Evaporated Milk

- Association, 319 U. S. 21, 25-26; United States

Alkali Association v. United States, 325 U. S. 196,,

201-204; Ez parte Peru, 318 U.S. 578, 582-585.

And, in House v. Mayo, supre,‘the Court stated

_ &pp. 44-45):

* * * And not only does our réview ex-

tend to a determination of whether the cir-

cuit court of appeals abused its discretion

_ in refusing to allow the appeal, but if so, it

extends also to questions on the merits

. sought to be raised by the appeal. * * *

| a In view of the peculiar circumstances

(a) whereby the Circuit Court of Appeals would,

had the tenant been evicted, have precluded itself

from hearing the appeal in this case on the mer-

_ its, (b) the need for a prompt determination that

the district courts have jurisdic‘ion to enjoin un-

~ lawful state court eviction proceedings, (¢) the

conflict discussed below between the district court

ing and decisions of this Court, of two circuit

urts of appeals, and of many district courts, and

(d) the fact that a related question is before this

Court in the Lee cases, in which certiorari is sought —

13

after the sien’ of the Circuit. Court of Ap-

- peals, we believe this an appropriate case for the

Court to review the decision of the District Court

before judgment in the Circuit Court of Appeals,

_ as permitted by Section 240 (a).’ °

The holding of the District Court that Section

_ 265 of the Judicial Code barred it from enjoining

the execution of an eviction order of a state court

’ eonflicts with the decision of this Court in Bowles

v. Willingham, 321 U. 8S. 503 (1944). In dealing

with that question this Court said (p. 510-514) :

I. We are niet at the outset with the

question whether the District Court could

in any event give the relief which the

Administrator seeks in view of § 265 of the

Judicial Code (36 Stat. 1162, 28 U. 8. C.

_ § 379). which provides that “The writ of °

injunction shall not be granted by any

court of the United States to stay proceed-

_ings in any court of a State, except in cases

__. * This Court has granted certiorari before judgment in the

Circuit Court of Appeals where that court has previously

‘indicated its disposition. uf a case (Fetters vy. United States,

283 U. S. 638, 641), where a similar question is alicady

. pending before this Court in another case (Robertson and

Kirkham, Jurisdiction of the Supxeme Court of the United

States, pp. 205, 621, and cases cited), and where the point

is of great importance requiring prompt settlement in the

interest of the public {id., at 205-6, 621-2). This case falls .

within all three categories, the first two because of the dis-

position by the court. below of the Lee éases and the fact

that they are now before this Court,-and the third because .

of the box-in which the Zee cases and the denial ofa stay

have placed tenants in the Sixth Circuit during thris critical.

housing —

£

é

14

where such injunction may be authorized

by any law relating to proceedings in bank- © —

ruptcy.’”’ We recently had occasion to con-

sider the history of § 265 and the excep-

‘tions which have been. engrafted on tt. —

Toucey v. New York Life Ins. Co., 314

U.S. 118. In'that case we listed the few

Acts of Congress. passed since tts first: en- -

actment in 1793 which operate as implied

logislative amendments to it. 314 U.S. pp.

132-134. : There should now be added to

that list the exception created by the Emer-

gency Price Control Act of 1942. By

§ 205 (a). the Administrator is given au-

thority to seek injunctive relief in the ap-

propriate court (including the federal dis-

trict courts) against acts or practices in

violation of 4 4, e. g., the receipt of rent in

violation of any regulation or order under

§.2.. Moreover, by: § 204 (d) of the Act one

who seeks to restrain or set aside any order -

of the Administrator or any provision of

the Act is confined to the judicial review

granted to the Emergency Court of Ap-

peals, which was created by § 204 (c) and

to this Court.. As we recently ‘held in

_ Lockerty v. Phillips, 319 U. S, 182, 186,

- 187, Congress confined jurisdiction to grant.

“equitable relief to that narrow channel and °

Id such jurisdiction from_ every.

other federal and state court. Congress

thus preempted jurisdiction in favor of the ,

Emergency Court to the exclusion of state

courts. The rule expressed jn_§265 which

_is designed to avoid collisions between state

165

’ ; 9

and. federal authorities (Toucey v. New

York Life Ins:.Co., supra) thus does not

come into play. The powers of the District .

Court under § 205 (a) of the Act and

§24 (1) of the Judicial Code are ample.

authority for that court to protect the ex-

elusive federal jurisdiction which Congress

created.”’ [Italics supplied. ]

The District Court sought to distinguish the .

Willingham case on‘the ground. that it applied

only where a state court was attempting to enjoin...

the Administrator from acting, and ruled that *

since 205 (c) of, the Act gave ‘“‘concurrent”’ juris- ©

diction to state coufts, Section 265 required it to

. hold that ,the federal cour® was not an ‘‘appro-

priate’’ court in which to institute this proceeding

and barred it from granting relief. The Willing-

ham case itself places no such limit on the power

of the federal court, and there is nothing in the |

Act to indicate that the exception to Section ‘265

is so limited. The District Court’s endeavor to

distinguish the Willingham decision on the ground

that it involved a case where the state court was

deprived of jurisdiction of the proceedings sought

' to be enjoined and where therefore there was no

room ‘within which Section 265 of the Judicial

Code could operate, overlooks the fact’ that this ©

was only oné basis for the decision in the - ;

Willingham case. The’ other ground was that

Section 205 (a) of the Emergency Price €on-

trol Act constitutes an implied statutory exception

to Section 265. The fact that the Administrator —

a

aS oe

16

could also, if lie chose, have proceeded in a state

court, does not deprive him of his statutory right

_ to resort to the federal court, nor does that fact

distinguish the* Willingham case, since there too

the ‘Administrator might have proceeded in a state

Oe Saige

‘As the District Court itself admitted, its de-

cision is in direct conflict with decisions of the

Fourth and Fifth Circuits. .In Brown v. Wright, .

137 F. 2d 484 (C.C. A. 4), the court said (p, 488):

With respect to section 265 of the Judi-

_g . @ial Code, we do not think that section may

properly be construed as forbidding the |

gra of an injunction. to restrain inter-

_ ference by state courts with the enforce-

ment of ‘a federal statute by an agency to

which Congress has delegated. exclusive

power to enforce it. * *

*.* * it is not to be presumed. that a’

general statute limiting the power of fed-

_ceral courts to issue injunctions was _in-

tended to apply to such cases. In any

- event, the provision of the Emergency

_ Rentél Control Act should be construed as

modifying or creating an exception to the

general provisions of the statute. * *.*

In Henderson v.. Fleckinger, 136 F. 2d 381 |

(C. ©. A. 5) the court said (p. 382):

, Section 265 of the Judicial Code for-

bidding the grant of an injunction by a

court.of the United States to stay proceed-

ings in a state court must be considered as

modified by ‘the. later provision of Section

.

/

; -

17 ,

205 (a) »f the. Emergency Price Control

Act. This latter Act formulated important

federal policies, and charged the Adminis-

trator with executing them, and armed him

-with injunction as his main weapon. We

do not think it was intended that his use of °

it is to be denied because a proceeding in

a state court is contravening the federal.

policies. The federal Act, assuming its con-

stitutionality, is a part of the supreme law

of the land, and the courts ought to earry-it

out fully, using the —_— process it *

prescribes. “* * * ,

In many instances ‘the district courts have

_ granted injunctions to restrain eviction proceed- —

ings in state courts. This was done in Henderson

v. Kimmel, 47. F, Supp. 635 (D. Kans. 1942) ; °

'. Brown v. Wick, 48 F. Supp. 887 (E. D. Mich.,

1943) ; Brown v. Wood, 59 F. Supp. 872. ( N. D.

Cal., 1943); Bowles v. ‘Rocks, 60 F. Supp. 633

(W.'D. Pa. 1945); Bowles y. Hall, 63 F. Supp.

826 (W. D. Pa 1945) ; Bowles v..Fontanello, 3

- OPA Op. & Dee. 5119 (W. D. Pa. 1945) ; Brown v.

' Wilson, 1 OPA: Op. & Dee. 1791 (W. D. Wash.

1943). |

. 5. The procedure which the Court is requested

to follow.in this. case is similar to that in Rickert

Rice Mills v. Fontenot, 296 U. 8. 569, 297 U. 8.

110. The district. court had there refused to

grant an injunction restraining the collection of

taxes under the Agriculture. Adjustment Act.

. The Circuit Court of Appeals denied an applica- .

18 ,

tion’ for an injugetion wasiliie neil, A ‘gett.

. tion for certiorari was filed in this Court to review

both the judgment of the district. court and the .

' “denial of ‘the temporary injunction by the circuit.

“court of appeals. : Certiorari was granted without

<% limitation, the Court issued its own injunction

pending appeal, and this — heard the case on

the merits, aN -

CONCLUSION

/ .

The Circuit ‘Court of heepenis’ and Distriet

Court have decided questions of importance to the

_ enforcement and administration 6f the Emergency

Price Control Act. The denial of the injunction

pending appeal by the Circuit Court of Appeals

means that, in all probability, no decision on the

merits.could be obtained there and: is.an abuse of

discretion calling for the exercise of the super-

visory powers of this Court. The decision of the

‘District Court, thus in effect sustained by the Cir-

cuit Court of Appeals, conflicts with a decision of

this Court and with decisions of other Circuit .

~ Courts of Appeal. .The decisions below are

clearly wrong. . For these reasons a writ of certi-

orari should, be granted.

ge istad submitted.

J. Howakp McGrath, |

: | Solicitor General.

Grorce MoncHarsH, | a

Deputy Administrator for Enforcement,

- Office of Price Administration. . .

| "APPENDIX

| Section 265 Judicial Code (28 U. Ss. 319)

reads as follows:

The writ of. ilies shall not be ”

granted by any court of the United States.

to stay proceedings in any court ofa State, -

. except in cases where. such injunction may

be authorized by any ‘law relating to pro- .

; ceedings in bankruptcy. (Mar. 3, 1911, ch.

231, § 365, 36 Stat. 1162). -

(19)

U 8. GUVERNMENT PRINTING OFFICE 946