Juan T. Penagaricano, Acting Economic Stabilization Administrator v. Allen Corporation, 267 F.2d 550, 1st Cir. (1959)
Juan T. Penagaricano, Acting Economic Stabilization Administrator v. Allen Corporation, 267 F.2d 550, 1st Cir. (1959)
2d 550
Edgar S. Belaval, Asst. Atty. Gen., with whom Francisco Espinosa, Jr.,
Acting Atty. Gen. and Arturo Estrella, Asst. Atty. Gen., were on brief, for
appellant.
William G. Grant, Atlanta, Ga., with whom Benicio Sanchez Castano, San
Juan, P.R., was on brief, for appellees.
Before MAGRUDER, Chief Judge, and MARIS and WOODBURY,
Circuit Judges.
WOODBURY, Circuit Judge.
'Article 7. The corporation shall not, without the prior approval of the holders
of a majority of the shares of preferred stock * * * (c) permit the occupancy of
any dwelling accommodations of the corporation except at or below the rents
fixed by the schedule of rentals provided hereinafter--.
bound to make all necessary repairs to the rented property during the period of
the lease, in order to maintain it in a condition suitable for the use to which it
has been devoted, and to maintain all its services in operation.' Accordingly, he
has directed one of the plaintiffs, the Delaware corporation, to make repairs to a
duplex owned by that corporation. Recently The Federal Commissioner caused
a survey to be made for the purpose of determining the condition of the
plaintiffs-appellees buildings and he is now 'calling on the plaintiffs to see that
the necessary repairs are made without delay.'2 The list of repairs required of
each of the plaintiff corporations exceeds $3,500 in cost.
6
Faced with the demand of the Administrator to repair their properties in spite of
the provision in the lease-option agreements that the lessees-optionees make
their own repairs, which could not be changed without the written consent of
the Federal housing Commissioner, the lessor corporations sought a declaratory
judgment in the court below that 190 of the Reasonable Rents Act cannot 'be
constitutionally applied as to and enforced against' their duplex dwellings and
that, if constitutionally applicable, the Act is not violated by the repair
requirement of the lease-option agreements for the reason that those
agreements embodied 'two separate and distinct contracts', one for the leasing
of the property and the other for its purchase at a fixed price, and the tenants'
covenant to keep in repair was given as consideration for the contract of
purchase. The plaintiff corporations did not ask for either coercive or monetary
relief.
The District Court denied a motion by the defendant to dismiss for lack of
jurisdiction and on the facts outlined above, which by stipulation of counsel it
derived from the pleadings and supporting affidavits, the court below entered a
declaratory judgment that the Act 'cannot be applied as to, and enforced against,
the duplex dwellings owned by (the) plaintiffs.' The defendant-Administrator
thereupon took the present appeal.
The District Court correctly denied the motion to dismiss for lack of
jurisdiction.
First. From the facts stated above the trial court's diversity jurisdiction under 41
of the Organic Act of 1917 popularly called the 'jones Act,' 39 Stat. 965, as
amended, 62 Stat. 989, 48 U.S.C.A. 863, is abundantly clear. See Cepero v. Pan
American Airways, 1 Cir., 1952, 195 F.2d 453, certiorari denied 344 U.S. 840,
73 S.Ct. 50, 97 L.Ed. 653.
10
Second. While it is well established that 'Puerto Rico cannot be sued without its
consent,' Bonet (Sancho) v. Yabucoa Sugar Co., 1939, 306 U.S. 505, 506, 59
S.Ct. 626, 627, 83 L.Ed. 946, we believe that this is not a case for application
of the rule of sovereign immunity.
11
12
13
'The complainant did not ask the court to interfere with the official discretion of
the Secretary of War, but challenged his authority to do the things of which
complaint was made. The suit rests upon the charge of abuse of power, and its
merits must be determined accordingly; it is not a suit against the United
States.'
14
See also Ex parte Young, 1908, 209 U.S. 123, 28 S.Ct. 441, 52 L.Ed. 714, and
Georgia R.R. & Banking Co. v. Redwine, 1952, 342 U.S. 299, 72 S.Ct. 321, 96
L.Ed. 335.
15
Third. In Mora v. Mejias, 1 Cir., 1953, 206 F.2d 377, this Court on page 386 et
seq. posed the question of the applicability to Puerto Rico in its present political
status of Title 28 U.S.C. 2281 requiring that a three judge district court be
convened to hear applications for interlocutory or permanent injunctions
restraining enforcement of State statutes upon grounds of unconstitutionality by
restraining the action of any State officer, saying that a 'serious argument could
* * * be made that the Commonwealth of Puerto Rico is a State within the
intendment and policy' of that section. The case at bar, however, is not one
requiring us to come to grips with the question of the applicability of 2281 to
Puetro Rico.
16
17
'In so far as it is alleged that the assessments are void because unauthorized by
the Arizona statute, the injunction sought is obviously not upon the ground of
the unconstitutionality of the state statute as tested by the federal Constitution.
18
'The allegations that the assessment should be enjoined because violative of the
statute exempting preferred stock owned by the Reconstruction Finance
Corporation and R.S. 5219 (12 U.S.C.A. 548) depend upon no constitutional
provision within the meaning of Judicial Code Section 266.3 If such
assessments are invalid, it is because they levy taxes upon property withdrawn
from taxation by federal law or in a manner forbidden by the National Banking
Act. The declaration of the supremacy clause gives superiority to valid federal
acts over conflicting state statutes but this superiority for present purposes
involves merely the construction of an act of Congress, not the constitutionality
of the state enactment. This was decided as to Section 266 in Ex parte Buder
(271 U.S. 461, 465 466, 46 S.Ct. 557, 7o L.Ed. 1036), and before that a similar
result had been reached in Lemke v. Farmers' Grain Company (258 U.S. 50, 52,
42 S.Ct. 244, 66 L.Ed. 458) in regard to a provision of the Judicial Code
granting direct appeal to this Court in cases where the sole issue was the
unconstitutionality of a state statute.' (Footnotes omitted), 310 U.S. at pages
358-359, 60 S.Ct. at page 950.
19
Turning then to the contention that the valuation was excessive in comparison
with that of the stock of other banks, Mr. Justice Reed on page 361 of 310 U.S.,
on page 951 of 60 S.Ct. continued:
20
21
Having determined that the court below had jurisdiction, and our appellate
jurisdiction under Title 28 U.S.C. 1291 being clear, we turn now to the question
whether the court below abused its discretion in exercising its jurisdiction.
22
23
We have already noted, however, that for the purposes of 28 U.S.C. 2281, it is
well established that the mere fact that the 'declaration of the supremacy clause
gives superiority to valid federal acts over conflicting state statutes' is not
deemed to constitute sufficient basis for holding that a case involving a conflict
between such statutes presents a constitutional question within that Act. Ex
parte Bransford, supra, 310 U.S. at pages 358-359, 60 S.Ct. at page 950, and
cases there cited; and see, e.g., Case v. Bowles, 1947, 327 U.S. 92, 97, 66 S.Ct.
438, 90 l.Ed. 552. And certainly the policies behind that Congressional
enactment, particularly in its present form, see Hart and Wechsler, supra, at
848-849, are much the same as those behind the judicially created doctrine of
postponement. Thus by parity of reasoning a decision as to what constitutes a
'constitutional question' for the former should carry force in deciding the same
question in relation to the latter. These arguments, or similar ones, in fact seem
to have prevailed, virtually sub silentio, in Rice v. Santa Fe Elevator Corp.,
1947, 331 U.S. 218, 67 S.Ct. 1146, 91 L.Ed. 1447, a case quite similar on its
facts to the one at bar, over Justice Frankfurter's argument that the 'familiar
principles' of postponement were violated. 331 U.S. at page 240, 67 S.Ct. at
page 1157 (dissenting opinion).
24
25
These considerations seem to make good sense, and led another district court to
hold that 'Here the Court must appraise the reach of a federal statute when in
conflict with state law. In that field it should assert and not forego its
27
29
In resolving this clash of federal and local authority, the District Court stated:
30
31
33
Section 266 of the old Judicial Code was the predecessor section of 2281 of
Title 28 U.S.C. Unlike the present section, it applied only on hearings for
interlocutory injunctions. For a brief history of the section, see Hart and
wechsler, The Federal Courts and the Federal System, 848-49 (1953)