Ex parte Taylor, 24038—S.

• Decision Date: 08 January 1945
• Docket Number: No. 24038—S.,24038—S.
• Citation: 58 F. Supp. 488
• Parties: Ex parte TAYLOR.
• Court: U.S. District Court — Northern District of California

58 F. Supp. 488

Ex parte TAYLOR.

No. 24038—S.

District Court, N. D. California, S. D.

January 8, 1945.

Frank J. Hennessy, U. S. Atty., and R. B. McMillan, and Reynold H. Colvin, Asst. U. S. Attys., all of San Francisco, Cal., for George Vice, United States Marshal for the Northern District of California.

Walter & Brown, of Oakland, Cal., and John C. Stirrat, of San Francisco, Cal., for petitioner.

ST. SURE, District Judge.

Petitioner seeks discharge from the San Francisco County Jail on a writ of habeas corpus. The Government moves to dismiss the petition.

On January 9, 1943, petitioner, an apartment house owner, was found guilty in this court by a jury on sixteen of the twenty-one counts of an information charging violations of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., and Maximum Price Regulation No. 28. He was sentenced to six months' imprisonment and fined $950. On January 11, 1943, he was released on bail pending appeal to the Circuit Court of Appeals from the judgment of conviction. On April 26, 1944, 142 F.2d 808, the conviction was affirmed. On June 2 his petition for rehearing by the Circuit Court of Appeals was denied. On June 12 petitioner moved the Circuit Court of Appeals to dismiss the proceedings and for his discharge, on the ground that both the Circuit Court and this court were without jurisdiction to hear the cause. The motion was denied. On August 1, 1944, petitioner filed with the Secretary of the Office of Price Administration a protest, docketed as MR 28-31-P, pursuant to section 203 of the Act, for the purpose of obtaining a determination of the validity of the regulation claimed to have been violated by him. This proceeding is now pending. On October 9, 1944, 65 S.Ct. 56, certiorari was denied by the Supreme Court of the United States in the original criminal proceeding, and that court later denied a petition for reconsideration. On November 20 petitioner's application for recall and stay of its mandate was denied by the Circuit Court of Appeals. Since the filing of his petition for writ of habeas corpus petitioner is incarcerated at the Federal prison at McNeil Island, State of Washington, under the judgment and commitment.

Petitioner contends that unless he is permitted to test the validity of regulation No. 28 as applied to him, in a court having jurisdiction thereof, he will be denied due process of law; and he asks to be released pending the determination of the protest which he filed on August 1, 1944. He claims that his protest was timely made under section 203 of the Act, which provides that a protest may be made by a person subject to a regulation, order or price schedule at any time after the issuance thereof, and that should the Emergency Court of Appeals decide in his favor the judgment of conviction would be vacated, section 204(e) (2) of the Act, as amended June 30, 1944.

All questions of fact and law which arose in the criminal trial prior to the filing of petitioner's protest of August 1, 1944, have been determined in favor of the Government by the Circuit Court of Appeals in its opinion affirming the judgment of conviction, Taylor v. United States, 9 Cir., 142 F.2d 808, and in the subsequent proceeding before that court wherein petitioner's motion to dismiss on the ground of lack of jurisdiction was denied.

There is no merit in petitioner's contention that since he in good faith relied upon his interpretation of the regulation in question, this court deprived him of due process of law by failing to certify that fact to the Administrator. He cites section 205(d) of the Act, which provides that "no person shall be held liable for damages or penalties * * * on any grounds for or in respect of anything done or omitted to be done in good faith pursuant to any provision of this Act or any regulation * * * thereunder * * *. In any suit or action wherein a party relies for ground of relief or defense upon this Act or any regulation * * * thereunder, the court having jurisdiction of such suit or action shall certify such fact to the Administrator. The Administrator may intervene in any such suit or action." It is apparent from its wording that this subdivision provides immunity to one whose defense in an action against him is compliance with the Act, such as an action for unlawful detainer for failure to pay rent in excess of ceiling rentals. "It has no reference to liabilities created by the Act itself for its own violation." Bowles v. Rock, D.C., 55 F.Supp. 865, 868. If it did, there would be no need to "certify such fact to the Administrator" so that he might intervene, for the Administrator is presumably aware of the cases which his office prepares for prosecution.

The Government urges that petitioner is endeavoring to test in this habeas corpus proceeding the very question decided against him by the Emergency Court of Appeals in a direct proceeding wherein he challenged the validity of Regulation No. 28, Taylor v. Brown, Em.App., 137 F.2d 654, 656, and further that the filing of the protest of August 1, 1944, was not timely.

The questions for determination can relate only to the effect of the protest filed by petitioner after the judgment of conviction was affirmed, and are (1) whether the decision in Taylor v. Brown, supra, is res judicata of the matters raised in the protest of August 1, 1944, and (2) whether the protest was timely made, so as to entitle petitioner to a writ of habeas corpus and a...