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LOCKERTY v. PHILLIPS

DISTRICT COURT, D. NEW JERSEY


March 29, 1943

LOCKERTY et al.
v.
PHILLIPS, United States Attorney

The opinion of the court was delivered by: MARIS

Before MARIS, Circuit Judge, and FAKE and MEANEY, District Judges.

MARIS, Circuit Judge.

The plaintiffs' amended and supplemental complaint seeks to have the defendant as United States Attorney for the District of New Jersey enjoined from enforcing the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 901 et seq., against the plaintiffs and in particular from prosecuting indictments returned and threatened to be returned against them thereunder. Since an injunction is sought to restrain the enforcement of an act of Congress a court of three judges has been constituted to hear the case under section 3 of the Act of August 24, 1937, 28 U.S.C.A. § 380a. The defendant moves to dismiss the complaint upon the ground, inter alia, that section 204(d) of the Emergency Price Control Act expressly deprives this court of jurisdiction to grant the injunctive relief sought. The portion of that section relied upon by the defendant is as follows:

 "The Emergency Court of Appeals, and the Supreme Court upon review of judgments and orders of the Emergency Court of Appeals, shall have exclusive jurisdiction to determine the validity of any regulation or order issued under section 2 (section 902 of this Appendix), of any price schedule effective in accordance with the provisions of Section 206 (section 926 of this Appendix), and of any provision of any such regulation, order, or price schedule. Except as provided in this section, no court, Federal, State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation, order, or price schedule, or to stay, restrain, enjoin, or set aside, in whole or in part, any provision of this Act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order, or price schedule, or to restrain or enjoin the enforcement of any such provision."

 It will be seen that the act expressly provides that no court, Federal, State or Territorial, except the Emergency Court of Appeals and the Supreme Court to the extent of their jurisdiction under the act, "shall have jurisdiction or power * * * to * * * enjoin * * * any provision of this Act authorizing the issuance of such regulations or orders * * * or any provision of any such regulation, order * * * or to * * * enjoin the enforcement of any such provision." We think it is clear that this statutory provision, if valid, effectively withdraws from the district courts all jurisdiction and power to issue and injunction under the circumstances disclosed in the complaint before us. The plaintiffs urge, however, that the provisions of section 204(d) are unconstitutional. Their contention is that the section deprives all courts of the power to consider the constitutionality of the act and the section, therefore, deprives litigants of the right to raise that issue in any court. We think that this contention is without merit.

 The portion of section 204(d) which we are considering deprives the courts of the country, other than the Emergency Court of Appeals, merely of jurisdiction and power to "stay, restrain, enjoin, or set aside * * *." These words refer to the type of affirmative relief sought to be obtained from a court, the type being injunctive in its nature; they do not indicate or imply that a court may not consider the constitutionality of the act if that question arises incidentally in a criminal prosecution or civil suit. For example, we think it is clear that in a criminal prosecution or in a civil suit brought by the Price Administrator for an injunction to restrain a violation of the act or of a regulation issued thereunder section 204(d) does not deprive the court of power to consider a defense based upon the alleged constitutionality of the act. When Congress desired to prohibit courts from considering the question of validity under any circumstances it knew how to do so by the use of appropriate language for in the very sentence which we are considering it deprives all courts except the Emergency Court of Appeals of power "to consider the validity to any such regulation, order, or price schedule" but it does not here or elsewhere in terms prohibit the courts from considering the validity of the act itself.

 The plaintiffs do not deny that the words "stay, restrain, enjoin" refer to injunctive relief but they argue that the phrase "set aside" has a broader meaning and that when Congress said that no court might "set aside" any provision of the act it meant that no court might declare it unconstitutional. We do not agree that the phrase was intended to have any such broad meaning as this. It is a rule of statutory construction that language, if ambiguous, is to be construed, if possible, so as to make the enactment valid and effective. United States v. Powers, 1939, 307 U.S. 214, 59 S. Ct. 805, 83 L. Ed. 1245. We think that the phrase "set aside" was intended to refer to cases in which affirmative relief against the statute is sought.An analogous procedure is that of appeal in which an appellate court may by its judgment set aside the judgment or order of the court or administrative agency under review. Whether any court has jurisdiction to set aside an act of Congress in this sense we need not consider. For it is clear that Congress intended to make certain that no court would assume to exercise any such jurisdiction with respect to the Emergency Price Control Act.

 We conclude that by section 204 (d) Congress has withdrawn from this court the jurisdiction and power to grant the injunction prayed for. That Congress had power thus to limit the jurisdiction of an inferior court of the United States is settled. Kline v. Burke Const. Co., 1922, 260 U.S. 226, 43 S. Ct. 79, 67 L. Ed. 226, 24 A.L.R. 1077; Lauf v. E.G. Shinner & Co., 1938, 303 U.S. 323, 58 S. Ct. 578, 82 L. Ed. 872. See also Smallwood v. Gallardo, 1927, 275 U.S. 56, 48 S. Ct. 23, 72 L. Ed. 152.

 The complaint will be dismissed for want of jurisdiction.

19430329

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