A. & M. Brand Realty Corp. v. Woods, Civ. A. No. 3209-50.

• Decision Date: 02 November 1950
• Docket Number: Civ. A. No. 3209-50.
• Citation: 93 F. Supp. 715
• Parties: A. & M. BRAND REALTY CORP. v. WOODS, Housing Expediter.
• Court: U.S. District Court — District of Columbia

93 F. Supp. 715

A. & M. BRAND REALTY CORP. v. WOODS, Housing Expediter.

Civ. A. No. 3209-50.

United States District Court District of Columbia.

November 2, 1950.

Nathan Siegel, of Washington, D. C., for the defendant, for the motion.

Sol D. Greenstien, of New York City, opposed.

HOLTZOFF, District Judge.

This case involves the fundamental question whether an order of the Housing Expediter under the Housing and Rent Act of 1947, U.S.C.A., Title 50 Appendix, § 1881 et seq. is subject to judicial review. The Act contains no provision for judicial review. Moreover, the Act excludes the Housing Expediter from the provisions of the Administrative Procedure Act, 5 U.S. C.A. § 1001 et seq. These considerations are not necessarily dispositive of the question at issue.

The Administrative Procedure Act contains provisions relating to many other matters than judicial review. For example, it regulates rule-making and intra-agency procedure and other similar matters. It was apparently the intention of Congress not to subject the Housing Expediter to any of these restrictions on his activities. True the Administrative Procedure Act also provides for judicial review of certain actions of administrative agencies, and necessarily the Housing Expediter is not subject to those provisions. If judicial review of administrative action were solely dependent on the Administrative Procedure Act, then clearly there would be no judicial review of an order of the Housing Expediter.

Judicial review of administrative action, however, existed long before the Administrative Procedure Act was enacted. The purpose of that Act was to extend judicial review that had previously existed and to prescribe procedure and scope of judicial review. Such judicial review as existed outside of the Act remained unaffected by it.

The order involved in this action is an order fixing rents. It is very similar to orders fixing rates of public utilities. It is well established as a matter of constitutional law that the fixing of rates or prices is a legislative function, and is a function that may be delegated to an administrative agency. The action of the administrative agency, however, may not be made final. The question whether the action of the rate-fixing body results in confiscation and, therefore, deprivation of property without due process of law, is always open to judicial review. If the Act had provided to the contrary, or were construed to exclude judicial review, a serious question of the constitutionality of the law would arise.

The principle to which the Court has adverted has been established in a series of decisions by the Supreme Court of the United States. Chicago, M. & St. P. Railway Co. v. State of Minnesota, 134 U.S. 418, 456-457, 10 S.Ct. 462, 466, 33 L.Ed. 970, contains the following significant remarks: "This being the construction of the statute by which we are bound in considering the present case, we are of opinion that, so construed, it conflicts with the constitution of United States in the particulars complained of by the railroad...