Porter v. McRae

• Decision Date: 29 April 1946
• Docket Number: No. 3269.,3269.
• Citation: 155 F.2d 213
• Parties: PORTER, Price Administrator, v. McRAE.
• Court: U.S. Court of Appeals — Tenth Circuit

155 F.2d 213 (1946)

PORTER, Price Administrator, v. McRAE.

No. 3269.

Circuit Court of Appeals, Tenth Circuit.

April 29, 1946.

Max Melville, Regional Litigation Atty., Office of Price Administration, of Denver, Colo. (George Moncharsh, Deputy Administrator for Enforcement, Milton Klein, Director, Litigation Division, David London, Chief Appellate Division, and Jack Werner, Atty., Office of Price Administration, all of Washington, D. C., on the brief), for appellant.

Clarence L. Bartholic, of Denver, Colo., for appellee.

Before PHILLIPS, HUXMAN, and MURRAH, Circuit Judges.

MURRAH, Circuit Judge.

Chester Bowles, Administrator of the Office of Price Administration, appeals from an order dismissing his cause of action against Gretchen McRae to recover statutory damages for past violations, and to enjoin future violations of Rent Regulation for Housing (8 F.R. 7322), issued under Section 2(b) of the Emergency Price Control Act of 1942, as extended and amended. 58 Stat. 640, 50 U.S.C.A.Appendix § 901 et seq.

Appellee, Gretchen McRae, is the owner of two apartments in Colorado Springs, which she rented for the first time in September 1944. Under the Rent Regulation for Housing, Section 4(e), the owner had the right to fix the maximum rent for each apartment, subject to an adjustment by the Rent Director for that area. Section 5(c). In registering the property with the Rent Director, as required by Section 7 of the Rent Regulation, appellee listed the maximum rent for Apartment No. 1 at $15 per week and for Apartment No. 2 at $18.75 per week. Each registration statement contained a notation to the effect that an extra charge of $1 per day would be made for each additional occupant over two.

In November the Rent Director, acting in pursuance of Section 5(c) of the Rent Regulation, decreased the maximum rent for the "described accommodations" from $18.75 per week and $15 per week to $6 per week, with the landlord furnishing linens, towels, bedding and dishes; and, from $18.75 per week and $15 per week to $5 per week if the landlord did not furnish linens, towels, bedding and dishes. The orders were silent concerning the $1 extra charge for additional occupants, as noted in the statement of registration. But, each order recited that "no rent in excess of the maximum rent established by this order may be received or demanded." The orders were affirmed on review to the Regional Rent Director and appellee filed an appeal to the Office of Price Administration, which was pending when the Administrator filed this action.

The complaint alleged specific violations in demanding and receiving rents in excess of the maximum established by the Director's orders. Appellee's defense was, and is, that since the apartments were, at all times complained of, occupied by more than two people the rent received was legal under the registration statement, which was not nullified or changed by the Director's orders. At the pre-trial conference the Administrator admitted that each of the apartments was occupied by more than two persons, and that the alleged excessive charges represented $1.00 per day for each additional occupant over two. It was contended, however, that the orders reducing the rent for the "accommodations" to $6 per week with the landlord furnishing linens, towels, bedding and dishes, and $5 per week if the landlord did not furnish linens, towels, bedding and dishes, forbade any additional charge for the occupancy of the apartments regardless of number. On the issues thus presented, the trial court dismissed the complaint, entered judgment for the landlord, and this appeal followed.

Section 4(e) (3) of the Rent Regulation for Housing,¹ when translated into the common speech of man means that when a housing accommodation is not rented during the period in which the maximum rent is established or the effective date of the Act, the landlord may fix the first, rent subject to limitations not material here, provided that within thirty days after the renting he registers the accommodations with the Administrator as provided in Section 7 of the Regulation. The rent thus fixed becomes the maximum rent under the Regulation, unless and until decreased by the Administrator, as provided in Section 5(c).

The registration statement, required under Section 7,² identifies the rented accommodation and the amount of the first rent, and contains such other...