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May 24, 1949

WOODS, Housing Expediter,

The opinion of the court was delivered by: FAKE

The complaint herein prays for a preliminary injunction to prevent defendant from violation of the Housing and Rent Act of 1947 as amended, 50 U.S.C.A.Appendix, § 1881 et seq. Upon this complaint an order to show cause was entered, in which order a temporary restraint was allowed and is still in full force and effect.

The question to be answered on the issues joined is whether or not certain premises known as 218-226 Milburn Ave., in Milburn, N.J. are subject to rent control under the provisions of the Housing and Rent Act of 1947, P.L. 129, 80th Congress, Sec. 202(c), 50 U.S.C.A.Appendix, § 1892(c), which, so far as pertinent, reads as follows: 'The term 'controlled housing accommodations' means housing accommodations in any defense-rental area, except that it does not include * * * (3) any housing accommodations (A) the construction of which was completed on or after February 1, 1947 * * * except that contracts for the rental of housing accommodations to veterans of World War II * * * the construction of which was assisted by allocations or priorities under Public Law 388, Seventh-ninth Congress, approved May 22, 1946, shall remain in full force and effect * * * .'

 It is conceded as pertinent or ultimate facts that the housing in question is within a defense-rental area and it was not completed until after February 1, 1947. The exact date of completion ranges somewhere between February 21, and May 20, 1947. For present purposes it is sufficient that the completion was accomplished after February 1, 1947.

 It is contended by the plaintiff, Expediter, that this housing project falls within the exception of the statute above cited because its completion was 'assisted by allocations or priorities' under Public Law 388 approved May 22, 1946, 50 U.S.C.A.Appendix, § 1821 et seq.

 The defendant contends that no such assistance occurred and, therefore, the housing is decontrolled from rent regulations. Defendant points out that the act above cited recites that prolonged controls over rents would be inconsistent with the return to peacetime economy, and Congress declared its purpose to 'terminate at the earliest practicable date all Federal restrictions on rents on housing accommodations.' The plaintiff's argument takes over at this point and gives emphasis to the words following the above quotation, and they are as follows: 'At the same time the Congress recognizes that an emergency exists and that, for the prevention of inflation * * * it is necessary for a limited time to impose certain restrictions * * * in defense-rental areas.' The Act then says: 'To the end that these policies may be effectively carried out with the least possible impact on the economy pending complete decontrol, the provisions of this title are enacted.' 50 U.S.C.A.Appendix, § 1891. So far as recitals of intent may have a bearing on our problem, it would seem that the foregoing has a strong tendency to face both ways. However, the intent expressed in recitals should have no bearing in the absence of ambiguity. Our American courts are more properly concerned with what Congress actually does or leaves undone, in its operative language, than with its recitals of intent. To manipulate in a literary realm with the question of intent in this case must of necessity result in an attempt to enter the field of legislation under the artifice of ultra-justice dialectics. It is in the atmosphere of such pseudo-judicial philosophies that tyranny incubates government by men and not by law.

 Thus it is clear that the basic problem for solution here radiates around the question as to whether assistance was rendered to this project under the provisions of P.L. 388, as the language first above quoted clearly indicates.

 It is conceded that the application for permission to erect this building project was approved on April 10, 1946, under the provisions of P.R. 33, and was granted by the Civilian Production Administration, more than a month before P.L. 388 came into existence. The approval above mentioned carried with it all priorities necessary for completion of the project, and no further consents, priorities or other authorizations pertaining thereto were ever thereafter issued by any administrative or other agency of the Government. It might therefore appear, at once, that defendant's project was in no way assisted by P.L. 388. However, the solution is not quite so simple. Plaintiff argues with vigor that to place such a narrow construction on the meaning of the Act, P.L. 129 of 1947, 50 U.S.C.A.Appendix, § 1881 et seq., is to ignore the over-all intent of the Congress in its desire for the continuance of rent controls for veterans as expressed in P.L. 388. In other words that there never has been a break in the operation of P.R. 33, and that the powers thereunder passed to the Expediter under the provisions of P.L. 388 and thence to him under P.L. 129.

 The point thus raised necessitates the tracing back of the factors involved to their respective sources. In this connection, P.R. 33 finds its inception in Executive Order No. 9638 of October 4, 1945, 50 U.S.C.A.Appendix, § 601 note, creating the Civilian Production Administration, and vesting it with powers under which P.R. 33 came into effect on December 20, 1945.

 Looking now again to P.L. 388, it is noted that Sec. 4(a) vests the Expediter with powers of allocation and priorities over materials in the public interest, (b) provides that in issuing regulations the Expediter shall give special consideration to (1) Veterans housing, (2) farm buildings, and (3) general housing requirements; then follow these words: '(c) The provisions of this section shall not be construed as in any way affecting the power of the President to assign priorities or to allocate any materials or facilities under the provisions of subsection (a) of section 2 of the Act of June 28, 1940, entitled 'An Act to expedite national defense, and for other purposes' (50 U.S.C. 633), as amended.' 60 Stat. 210.

 Therefore the President still retained control of P.R. 33, and it follows that the Veterans' Emergency Housing Act, P.L. 388, had no pertinent effect upon it, and priorities or allocations having their source in 50 U.S.C.A.Appendix, § 633 of 1940 remained in full force. This Act of June 28, 1940, 54 Stat. 676, 50 U.S.C.A.Appendix, § 1151 et seq., is entitled 'An Act to expedite national defense, and for other purposes.' Under it, as amended, the President issued Executive Order No. 8572, on October 21, 1940, which recites the creation of a 'Priorities Board' by the 'Council of National Defense,' and approves the same vesting it with priority powers. This order was amended by Executive Order No. 8612, of December 15, 1940, to make all Army and Navy priorities mandatory. On January 7, 1941 Executive Order No. 8629 was issued revoking Order No. 8572 as amended, and creates the 'Office of Production Management' within the 'Office for Emergency Management of the Executive Office of the President,' providing that it shall 'determine when, to what extent, and in what manner priorities shall be accorded to deliveries of material as provided in Section 2(a) of the Act entitled 'An Act to Expedite National Defense and for other Purposes', approved June 28, 1940.' No action affecting the instant project was taken under this order.

 Next is found Executive Order No. 8875, of August 28, 1941. This provides that the 'Office of Production Management' is, among other things 'authorized and directed to discharge and perform the following responsibilities and duties, subject to such policies or regulations as the Supply Priorities and Allocations Board, hereinafter described, may from time to time determine,' and to: '(d) Continue to perform the functions and exercise all the power, authority, and discretion conferred on the President by section 2(a) of the Act entitled 'An Act to expedite national defense and for other purposes,' approved June 28, 1940.'

 Next is Executive Order No. 9024, of January 16, 1942, which creates a 'War Production Board' within the Office for Emergency Management of the Executive Office of the President. It provides:

 '1. * * * the Board shall consist of a Chairman, to be appointed by the President, the Secretary of War, the Secretary of the Navy, the Federal Loan Administrator, the Director General and the Associate Director General of the Office of Production Management, the Administrator of the Office of Price Administration, the Chairman of the Board of Economic Warfare, and the Special Assistant to the President supervising the defense aid program.

 '2. The Chairman of the War Production Board, with the advice and assistance of the members of ...

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