Porter v. Merhar

• Decision Date: 03 April 1947
• Docket Number: No. 10313.,10313.
• Citation: 160 F.2d 397
• Parties: PORTER v. MERHAR et al.
• Court: U.S. Court of Appeals — Sixth Circuit

160 F.2d 397 (1947)

PORTER v. MERHAR et al.

No. 10313.

Circuit Court of Appeals, Sixth Circuit.

April 3, 1947.

Geo. H. Silverman and Edward C. Benson, both of Cincinnati, Ohio (Geo. H. Silverman and Edward C. Benson, both of Cincinnati, Ohio, on the brief), for appellees.

Irving M. Gruber, of Washington, D. C. (George Moncharsh, David London and Irving M. Gruber, all of Washington, D. C., and Samuel Weiner, of Cleveland, Ohio, on the brief), for appellant.

Before HICKS, ALLEN and MARTIN, Circuit Judges.

MARTIN, Circuit Judge.

Sometime after October 20, 1942, the appellee, Louis E. Merhar, purchased a house in Willoughby, Ohio, within the Cleveland Defense-Rental Area. The Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq., expired on June 30, 1946. Five days thereafter, Merhar brought in a Justice of Peace Court in Willoughby an eviction action against Charles Jepson, tenant of Merhar's vendor. The Justice of Peace decided that Merhar was entitled to possession of the premises and issued a writ of restitution, returnable July 27, 1946. This writ placed in the hands of Constable Hager, was not executed prior to July 25, 1946. On that date, Congress enacted the Extension Act of 1946, by which section 18 thereof made the provisions of the Act effective retroactively as of June 30, 1946. 50 U.S.C.A.Appendix, § 901a note. This section provided, also, that all regulations, orders, price schedules and requirements under the Emergency Price Control Act of 1942, as amended, except as related to meat, flour and sugar, and the Stabilization Act of 1942, as amended, 50 U.S.C.A.Appendix, § 961 et seq., which were in effect on June 30, 1946, would be effective in the same manner and to the same extent as if the Extension Act had been enacted on June 30, 1946.

On July 29, 1946, while the tenant Jepson was in physical possession of the premises, the Administrator of the Office of Price Administration filed in the District Court of the United States for the Northern District of Ohio a complaint against appellee Merhar and Constable Hager charging violation and threatened violation of lawful regulations promulgated pursuant to authority of the Emergency Price Control Act of 1942, as amended. Specifically, a violation was charged in that Merhar had failed to file with the Area Rent Director a petition for the required certificate to authorize him "to pursue his remedies in accordance with the requirements of local law."¹

An injunction was prayed against the removal of the tenant; against the prosecution of the action, or any other eviction proceeding by Merhar, his agents or attorneys; and against the violation of any regulation or requirement relating to rent or the recovery or possession of real property, then issued or thereafter to be issued by the Price Administrator pursuant to the Emergency Price Control Act of 1942, as amended. It was also prayed that the constable, Hager, his deputies and agents be enjoined from directly or indirectly excluding or removing, or threatening to exclude or remove, the tenant, Jepson, from possession of the premises, and from executing any writ of restitution in the case.

On the date of the filing of the complaint, the United States District Judge issued a temporary restraining order as prayed therein. Immediately following a hearing on the motion for a preliminary injunction, however, the district judge entered an order denying the motion, from which the Price Administrator of OPA has appealed to this court.

It appears from the affidavit of an attorney in the Cleveland office of OPA, and is conceded, that the appellee, Merhar, failed to file a petition requesting the Administrator to issue a certificate authorizing him to pursue his remedies for the removal or eviction of the tenant, Jepson. See abstract of pertinent rent regulation in footnote (1).

Without a formal opinion, the district judge entered a bare order denying injunctive relief but made his reasons therefor apparent in colloquy with the attorneys at the hearing. It was his considered judgment that everything done by the appellee had been lawful under the OPA Extension Act, and that the legal effectiveness of appellee's actions toward the eviction of the tenant should not be destroyed merely because the eviction order, or writ of restitution, had not been served before July 25, 1946, when the Extension Act was enacted by Congress.

The attorney for OPA insisted that the regulation specifically declared against eviction in the circumstances of the case, and urged that the court was necessarily ruling that the regulation is invalid. The Judge rejoined: "It is invalid insofar as this case is concerned"; but explained that his judgment was not based upon the invalidity of the regulation. The Judge made the additional statement that, in considering the equities, the fact that the landlord was a discharged veteran seeking possession of his own property for his own use should have material bearing upon decision. In this viewpoint, we think the court erred, for the reason that the veteran did not acquire the property by purchase until after October 20, 1942. See footnote 1.

It has been established beyond controversy that the validity of a regulation, order, or price schedule, issued by the OPA Administrator may be challenged only in the Emergency Court of Appeals, from whose judgment an appeal lies to the Supreme Court of the United States. Sec. 204(d) of the Emergency Price Control Act, as amended, 56 Stat. 23, 50 U.S.C.A. Appendix, § 924(d); Shrier v. United States, 6 Cir., 149 F.2d 606; The Star Steel Supply Company v. Chester Bowles, Adm'r, 6 Cir., 159 F.2d 812; Gomila v. United States, 6 Cir., 159 F.2d 1006; Lockerty v. Phillips, 319 U.S. 182, 186, 187, 63 S.Ct. 1019, 87 L.Ed. 1339; Yakus v. United States, 321 U.S. 414, 429, 430, 431, 64 S.Ct. 660, 88 L.Ed. 834; Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892; Bowles v. Seminole Rock Co., 325 U.S. 410, 418, 419, 65 S.Ct. 1215, 89 L.Ed. 1700.

We think that the order of the district court denying the motion for preliminary injunction should be reversed. We agree with the reasoning and conclusions of the Tenth Circuit Court of Appeals in Porter v. Shibe, 158 F.2d 68, wherein the constitutionality of the Price Control Extension Act of 1946 was upheld. The retroactive re-establishment of OPA regulations, defeating the landlord's right to possession, does not constitute a deprival of property without due process of law. It was held, in the Shibe case, that termination of a tenancy under state law during the interim period between June 30, 1946, when the Emergency Price Control Act expired, and July 25, 1946, when its effective provisions were re-enacted to take effect retrospectively, does not countenance a landlord's eviction of his tenant in possession on July 25, 1946.

It has been declared by the Emergency Court of Appeals that rent regulations promulgated by the OPA Administrator may be valid, though impairing existing contracts. See Taylor v. Brown, 137 F.2d 654, certiorari denied 320 U.S. 787, 64 S.Ct. 194, 88 L.Ed. 473; Foster & Co. v. Bowles, 144 F.2d 870, 873. That a purchaser at a judicial sale is not deprived of his property without due process of law by the exercise of the power of Congress to extend the period of redemption from foreclosure sales was the unequivocal holding in Wright v. Union Central Life Insurance Co., 304 U.S. 502, 515, 516, 58 S.Ct. 1025, 82 L.Ed. 1490. Cf. Home Building & Loan Ass'n v. Blaisdell, 290 U.S. 398, 54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481.

The argument of the appellee that section 265 of the Judicial Code, 28 U.S. C.A. § 379, prevents federal courts from staying state court proceedings in a case of this character was rejected in Porter v. Dicken, 328 U.S. 252, 254, 255, 66 S.Ct. 1094, 1095, where the Supreme Court said: "The District Court erred in holding that the policy of Section 265 of the Judicial Code should not be considered impaired by the Emergency Price Control Act. While we realize that Section 265 embodies a long-standing governmental policy to prevent unnecessary friction between state and federal courts, Toucey v. New York Life Insurance Co., 314 U.S. 118, 126, 62 S.Ct. 139, 140, 86 L.Ed. 100, 137 A.L.R. 967, we still hold as we held in Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892, that Section 205 of the Price Control Act which authorizes the Price Administrator to seek injunctive relief in appropriate courts, including federal district courts, is an implied legislative amendment to Section 265, creating an exception to its broad prohibition. This is true, because Section 205 authorizes the Price Administrator to bring injunction proceedings to enforce the Act in either state or federal courts, and this authority is broad enough to justify an injunction to restrain state court evictions. But if Section 265 controls, as the District Court held, the Administrator here could not proceed in the federal court, since there is a proceeding pending in a state court. Since the provisions of the Price Control Act, enacted long after Section 265, do not compel the Administrator to go into the state courts but leave him free to seek relief in the federal courts, he was not barred by Section 265 from seeking an injunction to restrain an unlawful eviction. Cf. Hale v. Bimco Trading, Inc., 306 U.S. 375, 59 S.Ct. 526, 83 L.Ed. 771."

Porter v. Dicken, supra, is directly controlling authority. In that case, a writ of possession directing the sheriff of a county to evict a tenant and place purchasers in possession had been obtained from a state court, but before the sheriff executed the writ the Price Administrator had brought an action for injunction in the federal district court upon a showing that no certificate authorizing the eviction had been sought or obtained from the Price Administrator as required by section 6 of the Rent Regulation for Housing, ...