Harper v. Jones

• Citation: 195 F.2d 705
• Decision Date: 27 March 1952
• Docket Number: No. 4332.,4332.
• Parties: HARPER v. JONES et al.
• Court: U.S. Court of Appeals — Tenth Circuit

195 F.2d 705 (1952)

HARPER v. JONES et al.

No. 4332.

United States Court of Appeals Tenth Circuit.

March 27, 1952.

William J. Holloway, Jr., Washington, D. C. (Holmes Baldridge, Asst. Atty. Gen., Robert E. Shelton, U. S. Atty., Oklahoma City, Okl., Edward H. Hickey, and Hubert H. Margolies, Attorneys, Department of Justice, Washington, D. C., John W. Tyree, Asst. U. S. Atty., Lawton, Okl., and Leonard L. Ralston, Asst. U. S. Atty., Oklahoma City, Okl., on the brief), for appellant.

Lawton Burton, Lawton, Okl. (Russell G. Jones and Allan D. Sasser, Lawton, Okl., on the brief), for appellees.

Before BRATTON, MURRAH and PICKETT, Circuit Judges.

PICKETT, Circuit Judge.

This is an appeal by Major General A. M. Harper, Commanding Officer at Fort Sill, Oklahoma, from a judgment of the District Court for the Western District of Oklahoma, which enjoined him from enforcing an "off limits" order forbidding military personnel stationed at Fort Sill to go upon the business and premises of of the plaintiffs, Jones and Haithcock. Plaintiffs were engaged in the used car business at Lawton, Oklahoma, and did a substantial automobile business with the military personnel stationed at Fort Sill. On November 18, 1950, plaintiffs sold to Lt. Richard D. Bacon of Fort Sill a 1950 Pontiac automobile. The purchase price of the car was $3055. It was sold on a conditional sales contract, and a down payment of $900 was made by a trade-in allowance on an old automobile for $500, and $400 in cash. About two weeks after the transaction, the Lieutenant discovered evidence which led him to believe that the automobile was not new. He attempted to rescind the transaction by returning the Pontiac and obtaining his old car and the cash which he had paid. Upon plaintiffs' refusal to do this, the Lieutenant referred the matter to the Legal Assistance Officer at the Fort. An investigation was made by staff officers who concluded that the automobile had been sold to the Lieutenant as new, that in fact it was a used car, and that the Lieutenant had been defrauded. After conferences with the plaintiffs, it was suggested that the plaintiffs accept a return of the Pontiac, keep the automobile which had been traded in, and pay the Lieutenant $1006. The plaintiffs were told that if this settlement was not made that the entire matter would be referred to the Commanding General with a recommendation that the plaintiffs' establishment be placed on the "off limits" list. Plaintiffs refused to comply and the matter was referred to the defendant for action by him. After due consideration, defendant, as Commanding Officer at Fort Sill, issued the "off limits" bulletin previously referred to.¹

The trial court held that the issuance of the "off limits" order was beyond the scope of the power and authority granted the defendant by the regulation. The correctness of that conclusion is the question here.

The law is settled that if a federal officer does or attempts to do acts which are in excess of his authority or under authority not validly conferred, equity has jurisdiction to restrain him. Colorado v. Toll, 268 U.S. 228, 45 S.Ct. 505, 69 L.Ed. 927; Philadelphia Co. v. Stimson, 223 U. S. 605, 620, 32 S.Ct. 340, 56 L.Ed. 570; Noble v. Union River Logging R.R. Co., 147 U.S. 165, 171, 13 S.Ct. 271, 37 L.Ed. 123; American School of Magnetic Healing v. McAnnulty, 187 U.S. 94, 23 S.Ct. 33, 47 L.Ed. 90; Ferris v. Wilbur, 4 Cir., 27 F.2d 262. It is equally well settled that where a federal officer acts within the limits of his legal power and authority and exercises a function legally delegated to him, an action to restrain him cannot be maintained without impleading the sovereign even though there is a claim of error in the exercise of that power or an abuse of discretion. Larson v. Domestic & Foreign Corp., 337 U.S. 682, 69 S.Ct. 1457, 93 L. Ed. 1628. In Dakota Central Telephone Co. v. State of South Dakota ex rel. Payne, 250 U.S. 163, 184, 39 S.Ct. 507, 509, 63 L.Ed. 910, the court speaking on the exercise of power by the President under a Congressional resolution, said:

"The proposition that the President in exercising the power exceeded the authority given him is based upon two considerations: First, because there was nothing in the conditions at the time the power was exercised which justified the calling into play of the authority; indeed, the contention goes further and assails the motives which it is asserted induced the

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