Grosz v. Conser, 9162

• Decision Date: 23 January 1951
• Docket Number: No. 9162,9162
• Citation: 45 N.W.2d 734,73 S.D. 553
• Parties: GROSZ et al. v. CONSER.
• Court: South Dakota Supreme Court

Page 734

45 N.W.2d 734

73 S.D. 553

GROSZ et al. v. CONSER.

No. 9162.

Supreme Court of South Dakota.

Jan. 23, 1951.

John C. Farrar, Rapid City, for defendant and appellant.

Geo. A. Bangs, W. A. McCullen and Robert W. Gunderson, all of Rapid City, for plaintiffs and respondents.

SMITH, Judge.

The questions presented in this appeal from a judgment of eviction in an action in forcible entry and detainer arise under the Housing and Rent Act of 1947, 50 U.S.C.A. Appendix, Sec. 1881 et seq., which Act functions to control rents and regulate evictions of housing accommodations in defense-rental areas.

The Act includes the following provisions:

'(b) The term 'housing accommodations' means any building, structure, or part thereof, * * * rented or offered for rent for living or dwelling purposes (including houses, apartments, rooming- or boarding-house accommodations, and other properties used for living or dwelling purposes) * * *.

'(c) The term 'controlled housing accommodations' means housing accommodations in any defense-rental area, except that it does not include----

'(1)(A) those housing accommodations, in any establishment which is located in a city of less than two million five hundred thousand population according to the 1940 decennial census and which is commonly known as a hotel in the community in which it is located, which are occupied by persons who are provided customary hotel services such as maid service, furnishing and laundering of linen, telephone and secretarial or desk service, use and upkeep of furniture and fixtures, and bellboy service; * * *.' Sec. 202(b & c).

'(d) The Housing Expediter is authorized to issue such regulations and orders, consistent with the provisions of this title, as he may deem necessary to carry out the provisions of this section and section 202(c).' Sec. 204(d).

Upon the theory that Sec. 202 c(1)(A), supra, is self-executing, and that the accommodations in question, although located in a defense-rental area, are of the character described by that section, and therefore not subject to control by the housing expediter, the plaintiff landlords ignored that administrative officer and brought this action in forcible entry and detainer in the municipal court of Rapid City and prayed for judgment awarding them possession of the premises in question. At the trial the defendant sought a dismissal of the action for the reason that the landlords had failed to effectuate the asserted decontrol of the accommodations by securing a ruling as to their character from the housing expediter. The trial court overruled the motion, held the demised premises to be rented and operated in the business of providing decontrolled housing accommodations as defined by Sec. 202(c), supra, and therefore not within powers of the named administrative officer, and entered judgment of eviction.

Predicated upon this record the first proposition argued by appellant is 'Does the trial court have jurisdiction where plaintiffs fail to resort to administrative proceedings for the decontrol of housing accommodations in a defense rental area?'

If administrative proceedings have been instituted, which involve housing accommodations deemed by the owner thereof to be excepted from control of the housing expediter, we understand the rule to be that such owner may not appeal to the courts for relief; he must present the contention that his accommodations are so decontrolled in the administrative proceedings and exhaust the remedies afforded him by applicable statutes and regulations, before appealing to the courts. Gates v. Woods, 4 Cir., 169 F.2d 440; Babcock v. Koepke, 9 Cir., 175 F.2d 923; Woods v. Ginocchio, 9 Cir., 189 F.2d 484; and Annotation 10 A.L.R.2d 249. This is a rule through which the courts seek to promote efficiency in judicial administration.

However, we do not understand that Congress intended by the Act to confide a jurisdiction in the housing expediter to effectuate decontrol of the housing accommodations described as excepted from his control by Sec. 202 thereof. It seems reasonable to believe that had Congress intended decontrol to be accomplished by administrative proceedings, it would have set up such a procedure or it would have commanded the expediter to do so by regulations, and it would not have employed such explicit words in phrasing the provisions dealing with exception from control. By clear and unambiguous words the Act by Sec. 202 declares certain housing accommodations to be excepted from the control of the expediter. In our opinion that section is self-executing, and administrative procedure is not necessary to effectuate decontrol. Koepke v. Fontecchio, 9 Cir., 177 F.2d 125, 128. In that case, Judge Gardner wrote, 'As the statute specifically excluded the accommodations here considered, it was self-executing. * * * The regulations have no bearing upon the issue here presented and the Act provides no administrative remedy where the question is, as here, a question of decontrol. * * *'

The housing expediter has not sought to exercise control over the premises involved in this litigation. Whether those premises are of the character excepted from his control is a judicial question. Woods v. Benson Hotel Corporation, 8 Cir., 177 F.2d 543. That question arises here in litigation between the landlord and tenant. We do not doubt the power of Congress to withhold that question from the competency of our state courts. Cf. Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892. However, neither the words of the Act nor the decisions which have come to our...