Thiel v. S. Pac. Co., 328 U.S. 217 (1946)
Case details
Citation
328 U.S. 217
Full caption
THIEL v. SOUTHERN PACIFIC CO.
Country
United States
Jurisdiction
Federal
Court
Supreme Court of the United States
Decided
May 20, 1946
Majority
Murphy (Justice)
Dissent
Douglas (Justice) in part
Majority
Black (Justice)
THIEL v. SOUTHERN PACIFIC CO.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE NINTH CIRCUIT.
No. 349. Argued March 25,1946.—Decided May 20,1946.
1. A federal court jury panel from which persons who work for a daily wage were intentionally and systematically excluded held unlawfully constituted. Pp. 221, 225.
2. Such discrimination against daily wage earners as a class was not justified by either federal or California law. P. 222.
3. The choice of the means by which unlawful distinctions and discriminations in the selection of jury panels are to be avoided rests largely in the sound discretion of the trial courts and their officers. P.220.
4. The pay period of an individual is irrelevant to his eligibility and capacity to serve as a juror. P. 223.
5. Although a federal judge may be justified in excusing a daily wage earner for whom jury service would entail an undue financial hardship, that fact can not support the complete exclusion of all daily wage earners regardless of whether there is actual hardship involved. P.224.
A judgment in a coram nobis proceeding is final and appealable m Illinois. See People v. Green, 355 Ill. 468,189 N. E. 500.
6. Jury service is a duty as well as a privilege of citizenship. A claim of financial embarrassment will excuse only when a real burden or hardship would be imposed. P. 224. 7. A judgment of the District Court in a case in which that court denied a motion to strike a jury panel from which persons who work for a daily wage were intentionally and systematically excluded is here reversed by this Court in the exercise of its power of supervision over the administration of justice in the federal courts. P.225. 8. It is unnecessary in this case to determine whether the unsuccessful litigant was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class. P. 225. 9. Nor is it material that the jury which actually decided the factual issue in this case was found to include at least five persons who were of the laboring class though not per diem workers. P. 225. 149 F. 2d 783, reversed.
Petitioner brought suit in a state court against the railroad company to recover damages for alleged negligence in its treatment of him while a passenger on one of its trains. On application of the railroad company, the suit was removed to the federal district court on the ground of diversity of citizenship. The judgment of the District Court, upon a trial by jury, was in favor of the railroad company. The Circuit Court of Appeals affirmed. 149 F. 2d 783. This Court granted certiorari limited to the question whether petitioner’s motion to strike the jury panel was properly denied by the District Court. 326 U. S. 716. Reversed, p. 225.
Allen Spivock argued the cause and filed a brief for petitioner.
Arthur B. Dunne argued the cause and filed a brief for respondent.
Mr. Justice Murphy delivered the opinion of the Court.
Petitioner, a passenger, jumped out of the window of a moving train operated by the respondent, the Southern
Pacific Company. He filed a complaint in a California state court to recover damages, alleging that the respondent’s agents knew that he was “out of his normal mind” and should not be accepted as a passenger or else should be guarded and that, having accepted him as a passenger, they left him unguarded and failed to stop the train before he finally fell to the ground. At respondent’s request the case was removed to the Federal District Court at San Francisco on the ground of diversity of citizenship, respondent being a Kentucky corporation. Several vain attempts were then made by the petitioner to obtain a remand of the case to the state court; petitioner was also restrained from attempting to proceed further in the state court.1
After demanding a jury trial, petitioner moved to strike out the entire jury panel, alleging inter alia that “mostly business executives or those having the employer’s viewpoint are purposely selected on said panel, thus giving a majority representation to one class or occupation and discriminating against other occupations and classes, particularly the employees and those in the poorer classes who constitute, by far, the great majority of citizens eligible for jury service ...” Following a hearing at which testimony was taken, the motion was denied. Petitioner then attempted to withdraw his demand for a jury trial but the respondent refused to consent. A jury of twelve was chosen. Petitioner thereupon challenged these jurors upon the same grounds previously urged in relation to the entire jury panel and upon the further ground that six of the twelve jurors were closely affiliated and connected with the respondent. The court denied this challenge. The trial proceeded and the jury returned a verdict for the respondent.
1
The injunction against petitioner proceeding in the state court was affirmed upon appeal. Thiel v. Southern Pacific Co., 126 F. 2d 710; certiorari denied, 316 U. S. 698.
Petitioner renewed his objections in his motion to set aside the verdict or, in the alternative, to grant a new trial. In denying this motion the court orally found that five of the twelve jurors “belong more closely and intimately with the working man and employee class than they do with any other class” and that they might be expected to be “sympathetic with the experiences in life, the affairs- of life, and with the economic views, of people who belong to the working or employee class.” The Ninth Circuit Court of Appeals affirmed the judgment in its entirety, 149 F. 2d 783, and we brought the case here on certiorari “limited to the question whether petitioner’s motion to strike the jury panel was properly denied.”
The American tradition of trial by jury, considered in connection with either criminal or civil proceedings, necessarily contemplates an impartial jury drawn from a cross-section of the community. Smith v. Texas, 311 U. S. 128, 130; Glasser v. United States, 315 U. S. 60, 85. This does not mean, of course, that every jury must contain representatives of all the economic, social, religious, racial, political and geographical groups of the community; frequently such complete representation would be impossible. But it does mean that prospective jurors shall be selected by court officials without systematic and intentional exclusion of any of these groups. Recognition must be given to the fact that those eligible for jury service are to be found in every stratum of society. Jury competence is an individual rather than a group or class matter. That fact lies at the very heart of the jury system. To disregard it is to open the door to class distinctions and discriminations which are abhorrent to the democratic ideals of trial by jury.
The choice of the means by which unlawful distinctions and discriminations are to be avoided rests largely in the sound discretion of the trial courts and their officers. This p. 221discretion, of course, must be guided by pertinent statutory provisions. So far as federal jurors are concerned, they must be chosen “without reference to party affiliations,” 28 U. S. C. § 412; and citizens cannot be disqualified “on account of race, color, or previous condition of servitude,” 28 U. S. C. § 415. In addition, jurors must be returned from such parts of the district as the court may direct “so as to be most favorable to an impartial trial, and so as not to incur an unnecessary expense, or unduly burden the citizens of any part of the district with such service,” 28 U. S. C. § 413. For the most part, of course, the qualifications and exemptions in regard to federal jurors are to be determined by the laws of the state where the federal court is located, 28 U. S. C. § 411.2 Pointer v. United States, 151 U. S. 396. A state law creating an unlawful qualification, however, is not binding and should not be utilized in selecting federal jurors. See Kie v. United States, 27 F. 351,357.
The undisputed evidence in this case demonstrates a failure to abide by the proper rules and principles of jury selection. Both the clerk of the court and the jury commissioner testified that they deliberately and intentionally excluded from the jury lists all persons who work for a daily wage. They generally used the city directory as the p. 222source of names of prospective jurors. In the words of the clerk, “If I see in the directory the name of John Jones and it says he is a longshoreman, I do not put his name in, because I have found by experience that that man will not serve as a juror, and I will not get people who will qualify. The minute that a juror is called into court on a venire and says he is working for $10 a day and cannot afford to work for four, the Judge has never made one of those men serve, and so in order to avoid putting names of people in who I know won’t become jurors in the court, won’t qualify as jurors in this court, I do leave them out. . . . Where I thought the designation indicated that they were day laborers, I mean they were people who were compensated solely when they were working by the day, I leave them out.” The jury commissioner corroborated this testimony, adding that he purposely excluded “all the iron craft, bricklayers, carpenters, and machinists” because in the past “those men came into court and offered that [financial hardship] as an excuse, and the judge usually let them go.” The evidence indicated, however, that laborers who were paid weekly or monthly wages were placed on the jury lists, as well as the wives of daily wage earners.
2
Federal statutes prohibit the service by any person as a petit juror 'more than one term in a year,” 28 U. S. C. § 423, exempt from jury service artificers and workmen employed in the armories and arsenals of the United States, 50 U. S. C. § 57, and set up disqualifications for service as a juryman or talesman “in any prosecution for bigamy, polygamy, or unlawful cohabitation, under any statute of the United States,” 28 U. S. C. § 426. See, in general, Blume, “Jury Selection Analyzed: Proposed Revision of Federal System,” 42 Mich. L. Rev. 831; Report to the Judicial Conference of Senior Circuit Judges of the United States of the Committee on Selection of Jurors (1942); Report of the Commission on the Administration of Justice in New York (1934).
It was further admitted that business men and their wives constituted at least 50% of the jury lists, although both the clerk and the commissioner denied that they consciously chose according to wealth or occupation. Thus the admitted discrimination was limited to those who worked for a daily wage, many of whom might suffer financial loss by serving on juries at the rate of $4 a day and would be excused for that reason.
This exclusion of all those who earn a daily wage cannot be justified by federal or state law. Certainly nothing in the federal statutes warrants such an exclusion. And the California statutes are equally devoid of justification for p. 223the practice. Under California law a daily wage earner may be fully competent as a juror. A juror, to be competent, need only be a citizen of the United States over the age of 21, a resident of the state and county for one year preceding selection, possessed of his natural faculties and of ordinary intelligence and not decrepit, and possessed of sufficient knowledge of the English language. California Code of Civil Procedure, § 198. Cf. § 199. Nor is a daily wage earner listed among those exempt from jury service. § 200. And under the state law, “A juror shall not be excused by a court for slight or trivial causes, or for hardship, or for inconvenience to said juror’s business, but only when material injury or destruction to said juror’s property or of property entrusted to said juror is threatened ...” § 201.
Moreover, the general principles underlying proper jury selection clearly outlaw the exclusion practiced in this instance. Jury competence is not limited to those who earn their livelihood on other than a daily basis. One who is paid $3 a day may be as fully competent as one who is paid 830 a week or 8300 a month. In other words, the pay period of a particular individual is completely irrelevant to his eligibility and capacity to serve as a juror. Wage earners, including those who are paid by the day, constitute a very substantial portion of the community,3 a portion that cannot be intentionally and systematically excluded in whole or in part without doing violence to the democratic nature of the jury system. Were we to sanction an exclusion of this nature we would encourage whatever desires those responsible for the selection of jury panels may have to discriminate against persons of low
In the San Francisco-Oakland industrial area in 1939 there were 76,374 wage earners employed by manufacturers out of a total population (as of 1940) of 1,412,686. Sixteenth Census of the United States: 1940, Manufactures 1939, Vol. Ill, p. 80.
economic and social status. We would breathe life into any latent tendencies to establish the jury as the instrument of the economically and socially privileged. That we refuse to do.
It is clear that a federal judge would be justified in excusing a daily wage earner for whom jury service would entail an undue financial hardship.4 But that fact cannot support the complete exclusion of all daily wage earners regardless of whether there is actual hardship involved. Here there was no effort, no intention, to determine in advance which individual members of the daily wage earning class would suffer an undue hardship by serving on a jury at the rate of $4 a day. All were systematically and automatically excluded. In this connection it should be noted that the mere fact that a person earns more than $4 a day would not serve as an excuse. Jury service is a duty as well as a privilege of citizenship; it is a duty that cannot be shirked on a plea of inconvenience or decreased earning power. Only when the financial embarrassment is such as to impose a real burden and hardship does a valid excuse of this nature appear. Thus a blanket exclusion of all daily wage earners, however well-intentioned and however justified by prior actions of trial judges, must be counted among those tendencies which undermine and weaken the institution of jury trial. “That the motives influencing such tendencies may be of the best must not blind us to the dangers of allowing any encroachment whatsoever on this essential right. Steps innocently taken may, one by
4 See statement of Judge John C. Knox in Hearings before the House Committee on the Judiciary, 79th Cong., 1st Sess., on H. R. 3379, H. R. 3380 and H. R. 3381, Serial No. 3, June 12 and 13, 1945, p. 4. “. . . when jurors’ compensation is limited to $4 per day, and when their periods of service are often protracted, thousands upon thousands of persons simply cannot afford to serve. To require them to do so is nothing less than the imposition upon them of extreme hardship.” Id., p. 8.
217 Fran kfu rt er, J., dissenting.
one, lead to the irretrievable impairment of substantial liberties.” Glasser v. United States, supra, 86.
It follows that we cannot sanction the method by which the jury panel was formed in this case. The trial court should have granted petitioner’s motion to strike the. panel. That conclusion requires us to reverse the judgment below in the exercise of our power of supervision over the administration of justice in the federal courts. See McNabb v. United States, 318 U. S. 332,340. On that basis it becomes unnecessary to determine whether the petitioner was in any way prejudiced by the wrongful exclusion or whether he was one of the excluded class. See Glasser v. United States, supra; Walter v. State, 208 Ind. 231,195 N. E. 268; State ex rel. Passer n. County Board, 171 Minn. 177, 213 N. W. 545. It is likewise immaterial that the jury which actually decided the factual issue in the case was found to contain at least five members of the laboring class. The evil lies in the admitted wholesale exclusion of a large class of wage earners in disregard of the high standards of jury selection. To reassert those standards, to guard against the subtle undermining of the jury system, requires a new trial by a jury drawn from a panel properly and fairly chosen.
Reversed.
Mr. Justice Jackson took no part in the consideration or decision of this case.
Mr. Justice Frank furte r, with whom Mr. Justice Reed concurs, dissenting.
This was a suit brought by the petitioner, a salesman, against the Southern Pacific Company for injuries suffered by him while a passenger on one of the Railroad’s trains, and attributed to the Company’s negligence. The trial was in the United States District Court sitting in San Francisco. The jury rendered a verdict against the peti-
Frank fur te r, J., dissenting. 328U.S.
tioner. The District Court found no ground for setting it aside and entered judgment on the verdict. Upon full review of the trial, the Circuit Court of Appeals for the Ninth Circuit affirmed the judgment. 149 F. 2d 783. Thus, a verdict arrived at by a jury whose judgment on the merits the District Court has found unassailable, which the Circuit Court of Appeals has affirmed on the merits, and which this Court has refused to review on the merits, 326 U. S. 716, is here nullified because of an abstract objection to the manner in which the district judges for the Northern District of California have heretofore generally discharged their duty, with the approval of the reviewing judges of the Ninth Circuit, to secure appropriate jury panels.
The process of justice must of course not be tainted by property prejudice any more than by racial or religious prejudice. The task of guarding against such prejudice devolves upon the district judges, who have the primary responsibility for the selection of jurors, and the circuit judges, whose review of verdicts is normally final. It is embraced in the duty, formulated by the judicial oath, to “administer justice without respect to persons, and do equal right to the poor and to the rich ...” 1 Stat. 73, 76, 36 Stat. 1087, 1161; 28 U. S. C. § 372. But it is not suggested that the jury was selected so as to bring property prejudice into play in relation to this specific case or type of case, nor is there the basis for contending that the trial judge allowed the selective process to be manipulated in favor of the particular defendant. No such claim is now sustained. Neither is it claimed that the district judges for the Northern District of California, with the approval of the circuit judges, designed racial, religious, social, or economic discrimination to influence the makeup of jury panels, or that such unfair influence infused the selection of the panel, or was reflected in those who were p. 227217 Frank fur te r, J., dissenting.
chosen as jurors in this case. Nor is there any suggestion that the method of selecting the jury in this case was an innovation. What is challenged is a long-standing practice adopted in order to deal with the special hardship which jury service entails for workers paid by the day. What is challenged, in short, is not a covert attempt to benefit the propertied but a practice designed, wisely or unwisely, to relieve the economically least secure from the financial burden which jury service involves under existing circumstances.
No constitutional issue is at stake. The problem is one of judicial administration. The sole question over which the Court divides is whether the established practice in the Northern District of California not to call for jury duty those otherwise qualified but dependent on a daily wage for their livelihood requires reversal of a judgment which is inherently without flaw.
Trial by jury presupposes a jury drawn from a pool broadly representative of the community as well as impartial in a specific case. Since the color of a man’s skin is unrelated to his fitness as a juror, negroes cannot be excluded from jury service because they are negroes. F. g., Carter v. Texas, 177 U. S. 442. A group may be excluded for reasons that are relevant not to their fitness but to competing considerations of public interest, as is true of the exclusion of doctors, ministers, lawyers, and the like. Rawlins v. Georgia, 201 U. S. 638. But the broad representative character of the jury should be maintained, partly as assurance of a diffused impartiality and partly because sharing in the administration of justice is a phase of civic responsibility. See Smith v. Texas, 311 U.S. 128,130.
Obviously these accepted general considerations must have much leeway in application. In the abstract the Court acknowledges this. “The choice of the means by
Frank fur te r, J., dissenting. 328U.S.
which unlawful distinctions and discriminations are to be avoided rests largely in the sound discretion of the trial courts and their officers.” Congress has made few inroads upon this discretion. Its chief enactment underlines the importance of avoiding rigidities in the jury system and recognizes that ample play must be allowed the joints of the machinery. The First Judiciary Act adopted for the federal courts the qualifications and exemptions, with all their diversities, prevailing in the States where the federal courts sit. 1 Stat. 73, 88. That has remained the law. 36 Stat. 1087, 1164; 28 U. S. C. § 411. (For a collection of federal statutes regulating the composition and selection of jurors, see 37 Harv. L. Rev. 1010,1098-1100.) We would hardly have taken this case to consider whether the federal court in San Francisco deviated from the requirements of California law, and nothing turns on that here. But it is not without illumination that under California law all those belonging to this long string of occupations are exempted from jury service: judicial, civil, naval, and military officers of the United States or California; local government officials; attorneys, their clerks, secretaries, and stenographers; ministers; teachers; physicians, dentists, chiropodists, optometrists, and druggists; officers, keepers, and attendants at hospitals or other charitable institutions; officers in attendance at prisons and jails; employees on boats and ships in navigable waters; express agents, mail carriers, employees of telephone and telegraph companies; keepers of ferries or tollgates; national guardsmen and firemen; superintendents, engineers, firemen, brakemen, motormen, or conductors of railroads; practitioners treating the sick by prayer. California Code of Civil Procedure, § 200.
Placed in its proper framework the question now before us comes to this: Have the district judges for the Northern District of California, supported by the circuit judges of p. 229217 Frank fu rte r, J., dissenting.
the Ninth Circuit, abused their discretion in sanctioning a practice of not calling for jury duty those who are dependent upon a daily wage for their livelihood?
The precise issue must be freed from all atmospheric innuendoes. Not to do so is unfair to the administration of justice, which should be the touchstone for the disposition of the judgment under challenge, and no less unfair to a group of judges of long experience and tested fidelity. If workmen were systematically not drawn for the jury, the practice would be indefensible. But concern over discrimination against wage earners must be put out of the reckoning. Concededly those who are paid weekly or monthly wages were placed on the jury lists. And that no line was drawn against the wage earners because they were wage earners, and that there was merely anticipatory excuse of daily wage earners, is conclusively established by the fact that the wives of such daily wage earners were included in the jury lists. As to any claim of the operation of a designed economic bias in the method of selecting the juries, the Circuit Court of Appeals rightly found “no evidence that the persons whose names were in the box, or the persons whose names were drawn therefrom and who thus became members of the panel, were ‘mostly business executives or those having the employer’s viewpoint.’ ” 149 F. 2d 783,786.
When the question is narrowed to its proper form the answer does not need much discussion. The nature of the classes excluded was not such as was likely to affect the conduct of the members as jurymen, or to make them act otherwise than those who were drawn would act. The exclusion was not the result of race or class prejudice. It does not even appear that any of the defendants belonged to any of the excluded classes. The ground of omission no doubt was that pointed out by the state court, that the business of the persons omitted was such that either they
Frank fur te r, J., dissenting. 328U.S.
would have been entitled to claim exemption or that probably they would have been excused.” So this Court speaking through Mr. Justice Holmes answered a related question in Rawlins v. Georgia, 201 U. S. 638, 640. And the justification for the answer applies to the present situation.
It is difficult to believe that this judgment would have been reversed if the trial judge had excused, one by one, all those wage earners whom the jury commissioner, acting on the practice of trial judges of San Francisco, excluded. For it will hardly be contended that the absence of such daily wage earners from the jury panel removed a group who would act otherwise than workers paid by the week or the wives of the daily wage earners themselves. The exclusion of the daily wage earners does not remove a group who would, in the language of Mr. Justice Holmes, “act otherwise than those who are drawn would act.” Judged by the trend of census statistics, laborers paid by the day are not a predominant portion of the workers of the country. See Sixteenth Census of the United States, 1940, Population, Vol. Ill, The Labor Force, Part 2, pp. 290 et seq. It certainly is too large an assumption on which to base judicial action that those workers who are paid by the day have a different outlook psychologically and economically than those who earn weekly wages. In the language of Mr. Chief Justice Hughes, “Impartiality is not a technical conception. It is a state of mind.” United States v. Wood, 299 U. S. 123,145. And American society is happily not so fragmentized that those who get paid by the day adopt a different social outlook, have a different sense of justice, and a different conception of a juror’s responsibility than their fellow workers paid by the week. No doubt the insecurities of a system of daily earnings, or generally of wages on less than an annual basis, raise serious problems as does, of course, also the p. 231217 Frank fur te r, J., dissenting.
question of guaranteed wage plans. See the letter of President Roosevelt to the Director of War Mobilization, James F. Byrnes, on the date of March 20, 1945, carrying out the suggestion of a report to the President by the War Labor Board for the creation of a Commission to study the question of guaranteed wage plans. And see Basic Steel Case, 19 W. L. B. 568, 653 et seq.; N. W. L. B. Research and Statistics Report No. 25, Guaranteed Employment and Annual Wage Plans (1944). But these are matters quite irrelevant to the problem confronting district judges in dealing with the present plight of daily wage earners when called to serve as jurors and the power of the judges, as a matter of discretion, to excuse such daily wage earners from duty.
For it cannot be denied that jury service by persons dependent upon a daily wage imposes a very real burden. Judge John C. Knox, Senior District Judge of the Southern District of New York, thus described the problem:
. . when jurors’ compensation is limited to $4 per day, and when their periods of service are often protracted, thousands upon thousands of persons simply cannot afford to serve. To require them to do so is nothing less than the imposition upon them of extreme hardship.
“With respect to the item last-mentioned, it is easy to say that jury duty should be regarded as a patriotic service, and that all public-spirited persons should willingly sacrifice pecuniary rewards in the performance of an obligation of citizenship. With that statement I am in full accord, but it does not solve the difficulty. Adequate provision for one’s family is the first consideration of most men. And if, with this thought predominant in a man’s mind, he is required to perform a public service that means a default of an insurance premium, the sacrifice of a suit of clothes,
717466 O—47 19
Frankf ur te r, J., dissenting. 328U.S.
or the loss of this [his] job, he will entertain feelings of resentment that will be anything but conducive to the rendition of justice. In other words, persons with a grievance against the Government or who serve under conditions that expose them to self-denial are not likely to have the spiritual contentment and mental detachment that good jurors require.” Hearings before H. R. Committee on the Judiciary on H. R. 3379, H. R. 3380, H. R. 3381, 79th Cong., 1st Sess. (1945) 8.
No doubt, in view of the changes in the composition and distribution of our population and the growth of metropolitan areas, a reexamination is due of the operation of the jury system in the federal courts. Just as the federal judicial system has been reorganized and administratively modified through a series of recent enactments (see Act of September 14, 1922, 42 Stat. 837, 838, 28 U. S. C. §§ 218 et seq.; Act of February 13, 1925, 43 Stat. 936, 28 U. S. C. §§41 et seq.; Act of August 7, 1939, 53 Stat. 1223, 28 U. S. C. §§ 444 et seq.), the jury system, that indispensable adjunct of the federal courts, calls for review to meet modern conditions. The object is to devise a system that is fairly representative of our variegated population, exacts the obligation of citizenship to share in the administration of justice without operating too harshly upon any section of the community, and is duly regardful of the public interest in matters outside the jury system. This means that the many factors entering into the manner of selection, with appropriate qualifications and exemptions, the length of service and the basis of compensation must be properly balanced. These are essentially problems in administration calling for appropriate standards flexibly adjusted.
Wise answers preclude treatment by rigid legislation or rigid administration. Congress has devised the appro- p. 233217 Frank fur te r, J., dissenting.
priate procedure and instrument for making these difficult and delicate adjustments by its creation, in 1922, of the Conference of Senior Circuit Judges. The Conference, under the presidency of the Chief Justice of the United States, is charged with the duty of continuous oversight of the actual workings of the federal judicial system and of meeting disclosed needs, either through practices formulated by the Conference, or, when legislation is necessary or more appropriate, through proposals submitted to Congress. See 40 Harv. L. Rev. 431. That is precisely the course that has been followed in regard to the inadequacies in the operation of the federal jury system. In September, 1941, the late Chief Justice brought the matter before the Conference. As a result, Mr. Chief Justice Stone appointed a committee of experienced district judges, see Report of the Judicial Conference (1941) 16, under the chairmanship of Judge Knox who, because of the length and richness of his experience in the busiest district of the country, brought unusual equipment for devising appropriate reforms. In September, 1942, the Committee reported, Report to the Judicial Conference of the Committee on Selection of Jurors (1942) 1, and submitted proposals for legislation. Id. at 44, 62, 107. Bills to carry out these recommendations were introduced in the Senate on January 11, 1944, S. 1623, 1624, 1625, 78th Cong., 2d Sess., and in the House on June 5, 1945, H. R. 3379,3380,3381, 79th Cong., 1st Sess. Hearings were had upon the House Bills on June 12 and 13, 1945, and action on them is now pending.
The Court now deals by adjudication with one phase of an organic problem and does so by nullifying a judgment which, on the record, was wholly unaffected by difficulties inherent in a situation that calls for comprehensive treatment, both legislative and administrative. If it be suggested that until there is legislation this decision will be
Syllabus. 328 U. S.
the means of encouraging the district judges to uncover a better answer than they have thus far given to a lively problem, an appropriate admonition from the Court would accomplish the same result, or common action regarding the practice now under review may be secured from the Conference of Senior Circuit Judges. To reverse a judgment free from intrinsic infirmity and perhaps to put in question other judgments based on verdicts that resulted from the same method of selecting juries, reminds too much of burning the barn in order to roast the pig.
I would affirm the judgment.
UNITED STATES v. JOSEPH A. HOLPUCH CO.
CERTIORARI TO THE COURT OF CLAIMS.
Nos. 696 and 697. Argued May 3,1946.—Decided May 20,1946.
Respondent had two construction contracts with the United States, each of which provided that “disputes concerning questions arising under this contract shall be decided by the contracting officer . . ■ subject to written appeal ... to the head of the department.’ Held:
1. Disputes as to extra pay for footing excavations and for increased wages paid to bricklayers were “questions arising under this contract” within the meaning of the quoted provision. Pp-238-239.
2. Respondent’s failure to exhaust the administrative appeal provisions of the contracts barred recovery in the Court of Claims in respect of such disputes. P. 239.
3. In the absence of clear evidence that the appeal procedure prescribed is inadequate or unavailable, that procedure must be pursued and exhausted before respondent may be heard to complain in a court. P. 240.
4. The designation on the covers of the contracts of the disbursing officer who would make payment on the contracts was not a part of the contracts and can not be used in any way to alter or,amend any actual provisions thereof. P. 240.
5. Even if it be assumed that the dispute as to extra pay for footing excavations concerned only the amount of payment under the contract, such an issue is a question “arising under” the contract and therefore expressly subject to the administrative appeal provision. P. 241.
6. There being no evidence that the wage increase to bricklayers was established by the Federal Emergency Administration of Public Works, which under the contracts was the only agency that had authority to do so, a provision for an automatic adjustment of the amount due the contractor in that event did not become operative. P. 242. 104 Ct. Cis. 254, reversed.
The respondent brought two suits in the Court of Claims on two contracts with the United States, and was adjudged entitled to recover on both. This Court granted certiorari. 327 U. S. 772. Reversed, p. 243.
Abraham J. Harris argued the cause for the United States. With him on the brief were Solicitor General McGrath, Assistant Attorney General Sonnett and Paul A. Sweeney.
No appearance for respondent.
Mr. Justice Murphy delivered the opinion of the Court.
The narrow question here is whether a contractor’s failure to exhaust the administrative appeal provisions of a government construction contract bars him from bringing suit in the Court of Claims to recover damages.
Respondent, a building contractor, entered into two contracts1 with the United States through the War Department in 1933 to construct officers’ quarters at Fort Sam Houston, Texas, which were being built as a Federal*
The contracts here involved were both executed on U. S. Government Form No. P. W. A. 51.
Emergency Administration of Public Works project. Disputes arose as to excavations for footings and as to increased wages ordered to be paid to respondent’s bricklayers. Respondent brought suit against the Government on these matters in the Court of Claims, which entered judgments in favor of respondent on both items.2
Article 15, which appeared in both contracts, provided: “All labor issues arising under this contract which cannot be satisfactorily adjusted by the contracting officer shall be submitted to the Board of Labor Review. Except as otherwise specifically provided in this contract, all other disputes concerning questions arising under this contract shall be decided by the contracting officer or his duly authorized representative, subject to written appeal by the contractor, within 30 days to the head of the department concerned or his duly authorized representative, whose decision shall be final and conclusive upon the parties thereto as to such questions. In the meantime the contractor shall diligently proceed with the work as directed.”
The dispute concerning the footing excavations arose out of an apparent inconsistency between certain figures used in the specifications and in the drawings. The specifications estimated that respondent was to excavate to a depth of 37^2 feet below the first-floor level of the buildings. The drawings, on the other hand, were found by the Court of Claims to call for excavations to the depth of 33 feet. Additional payments were to be made to respondent for excavations deeper than indicated “on the drawings,” while the Government was to receive a credit for excavations of a lesser depth. Respondent made vari-
2 The Court of Claims entered separate judgments and opinions in relation to each of the two contracts, although both of them were identical and involved the same issues. The only difference between
the contracts concerned the particular buildings to be constructed. p. 237ous excavations ranging in depth from 27.58 feet to 42.42 feet. The problem thus presented itself as to whether the 3714-foot figure in the specifications or the 33-foot figure in the drawings should serve as the basis for extra compensation to the respondent and for credit to the Government.
Article 2 of the contracts provided: “In case of difference between drawings and specifications, the specifications shall govern. In any case of discrepancy in the figures or drawings, the matter shall be immediately submitted to the contracting officer . . .” The specifications contained a similar provision and added that the constructing quartermaster was to be the interpreter of the “intent and meaning of the drawings and specifications.” The constructing quartermaster duly resolved the discrepancy in this instance by interpreting the specifications and drawings to mean that the footing excavations were to be paid for on the basis of the 37^ feet estimated in the specifications. Respondent made no attempt to appeal from this decision to the contracting officer or to the departmental head in accordance with the terms of Article 15.
The other dispute concerned a required increase in wages for respondent’s bricklayers. The contracts established $1.00 per hour as the minimum wage rate for skilled labor unless, as of April 30, 1933, there should be a higher prevailing hourly rate prescribed by collective agreements between employers and employees. Article 18 (e) provided that this minimum wage rate “shall be subject to change by the Federal Emergency Administration of Public Works on recommendation of the Board of Labor Review, ’ in which case “the contract price shall be adjusted accordingly.” On March 3, 1934, the Board of Labor Review ruled that bricklayers on another Army construch°n project at San Antonio, Texas, with which respond-
Opinion of the Court. 328 U. 8.
ent was unconnected, should be paid at the rate of $1.25 per hour retroactive to February 2, 1934. Respondent was informed of this decision and on March 23, 1934, the constructing quartermaster advised respondent that all bricklayers employed on the instant project “will be paid at the rate of $1.25 per hour.” Respondent stated that it “would be governed accordingly but under protest, and [that it] expected reimbursement of the difference of 25 cents per hour.” On May 12,1934, the constructing quartermaster advised respondent “that it was the decision of the contracting officer that bricklayers employed on War Department construction projects at San Antonio, Texas, and vicinity [Fort Sam Houston is in this vicinity] should be paid $1.25 per hour, retroactive to February 2, 1934,” and that respondent would be within its rights “to file appeal with the Board of Labor Review from the decision of the contracting officer.”3 No such appeal was taken; respondent merely paid its bricklayers $1.25 per hour and then filed a claim in the court below for the 25-cent differential. Here again the provisions of Article 15 were ignored.
We cannot sanction respondent’s failure to abide by the appeal provisions of Article 15 of the contracts which it made with the United States. Both the dispute over the p. 239footing excavations and the dispute over the bricklayers’ wages were “questions arising under this contract” within the meaning of Article 15. The first was a question arising under Article 2 of the contracts as well as under the specifications, which expressly contemplated that government officers would resolve all discrepancies between specifications and drawings. Their decisions in such matters were clearly appealable under Article 15. The second dispute was a question arising under the wage provisions of Article 18 of the contracts; that question involved a consideration of the factual situation surrounding the required wage increase and a determination of the validity and effect of the increase under the circumstances. Any decision or order of a subordinate government officer in this respect was also appealable under Article 15. Yet respondent did not even seek the contracting officer’s opinion as to the footing excavation decision of the constructing quartermaster. And as to the contracting officer’s order requiring an increase in the bricklayers’ wages, respondent neglected to file a written appeal to the departmental head or his representative.
3
The constructing quartermaster was in error in stating that respondent could have appealed the wage increase decision to the Board of Labor Review. Under Article 15, the Board is charged with handling appeals only on matters involving “labor issues.” This plainly means labor issues between employers and employees. See Blair v. United States, 99 Ct. Cis. 71, 149-150, reversed in other respects, 321 U. 8. 730. Here, however, the only controversy lay between the respondent and the Government rather than between respondent and its bricklayers. Hence the ordinary review provisions of Article 15 were applicable, enabling respondent to appeal the contracting officer’s decision to the departmental head or his representative. The Court of Claims made a like error in this respect.
But Article 15 is something more than a dead letter to be revived only at the convenience or discretion of the contractor. It is a clear, unambiguous provision applicable at all times and binding on all parties to the contract. No court is justified in disregarding its letter or spirit. Article 15 is controlling as to all disputes “concerning questions arising under this contract” unless otherwise specified in the contract. It creates a mechanism whereby adjustments may be made and errors corrected on an administrative level, thereby permitting the Government to mitigate or avoid large damage claims that might otherwise be created. United States v. Blair, 321 U. S. 730,735. This mechanism, moreover, is exclusive in nature. Solely through its operation may claims be made and adjudicated p. 240as to matters arising under the contract. United States v. Blair, supra, 735; United States v. Callahan Walker Co., 317 U. S. 56, 61. And in the absence of some clear evidence that the appeal procedure is inadequate or unavailable, that procedure must be pursued and exhausted before a contractor can be heard to complain in a court.
It follows that when a contractor chooses without due cause to ignore the provisions of Article 15 he destroys his right to sue for damages in the Court of Claims. That court is then obliged to outlaw his claims, whatever may be their equity. To do otherwise is to rewrite the contract.
In this instance no justifiable excuse is apparent for respondent’s failure to exhaust the appeal provisions of Article 15. Certainly the reasons relied upon by the Court of Claims are lacking in merit. The court felt that the dispute over the footing excavation figures involved only a matter of contract price computation and that the responsibility for such a computation rested solely with the Army Finance Officer at Fort Sam Houston, any decision by the contracting officer on the matter being no more than advisory. Since the contracts made no provision for an appeal of the Finance Officer’s computation, the Court of Claims held that there was no appealable decision confronting respondent and that respondent’s claim could be heard and determined by that court. Support for this novel interpretation was sought in the statement on the covers of the contracts that payment on the contracts was to be made “by the Finance Officer, U. S. Army, Fort Sam Houston, Texas.” The short answer is that this designation of a disbursing officer is not a part of the contracts and cannot be used in any way to alter or amend any actual provisions thereof. The designation only identifies the person whose duty it is to perform the ministerial p. 241function of disbursement and is subject to change at any time by the War Department without notice to the contractor.4 Moreover, even if it be assumed that the issue did concern only the amount of payment under the contracts,5 such an issue is a question arising under the contracts and hence expressly subject to the provisions of Article 15.
4
The Government points out that in 1933 and 1934 there were 18 Army Finance Officers located at various places in the United States and that all the notation on the cover could mean was that payment was to be made by the Finance Officer at Fort Sam Houston, Texas, and not by a Finance Officer located elsewhere. Moreover, an affidavit by the Chief, Receipts and Disbursements Division, Office of the Fiscal Director, Army Service Forces, appearing as an appendix to the Government’s brief, states in regard to the notation: “This is merely an indication to the constructing quartermaster to which disbursing officer the constructing quartermaster should certify vouchers. The designation of the Finance Officer is not a term of the contract. It is part of an outline showing the parties, the amount, the site of the work, the services to be performed, and the authorized accounts to which payments will be charged. ... On a construction contract containing the above terms the disbursing officer would not in practice alter or modify and would not be authorized to alter or modify the decision of a certifying construction quartermaster as to the basis on which payments can be made under the contract when such basis, as here, is dependent upon an interpretation of the specifications or has been covered by a decision on a dispute by the contracting officer. . . . Another reason why the Finance Officer would not undertake to determine the question presented in this case is that finance officers as a rule have no experience with construction and would not be qualified to make such decisions.” Such an assumption is faulty in that nearly every dispute between a contractor and the Government ultimately involves the amount of Payment under the contract. Hence, under the view of the Court of Claims, all such disputes would be subject to the Finance Officer’s review, thereby nullifying Article 15 as well as other portions of the contract contemplating final decision by the contracting officer or the departmental head on these matters.
The Court of Claims sought to justify respondent’s refusal to appeal the contracting officer’s decision to increase the bricklayers’ wages by holding that this decision automatically increased the contract price under the terms of Article 18 (e). It stated that the constructing quartermaster reasonably construed the ruling of the Board of Labor Review in regard to the San Antonio project as applicable to the vicinity of San Antonio as well, the wages prevailing in the vicinity being the wages to apply to a contract within that vicinity. Thus it was said that it was plainly of no special interest to respondent to appeal the contracting officer’s decision. But the assumption that this decision automatically resulted in a contract price increase is not in accord with the facts or with the contract provisions. Under Article 18 (e) no automatic price increase results unless the wage change is established by the Federal Emergency Administration of Public Works on recommendation of the Board of Labor Review.8 The Board alone cannot effect a change; it can only make a recommendation. Here, however, there was no evidence that the wage increase either as to respondent or as to the San Antonio project was established by the Federal Emergency Administration of Public Works, the only agency that had authority to do so. Accordingly the provision of Article 18 (e) for an automatic price increase did not come into operation, as was recognized by respondent in its protest. Serious questions were thus raised as to the authority of the contracting officer to direct a wage increase under these circumstances and as to the validity
6 The Board of Labor Review, although a part of the Federal Emergency Administration of Public Works, is a distinct entity. And Article 18 (e) of the contracts made a clear functional distinction between the two in regard to wage rate increases. We are not free to disregard that distinction and rewrite the procedure established by Article 18 (e).
234 Doug la s, J., dissenting in part.
and effect of the ruling of the Board of Labor Review. Respondent should have secured a determination of those questions by challenging the contracting officer’s decision pursuant to the provisions of Article 15.
Respondent having failed to avail itself of the procedure created by Article 15 for the settlement of disputes arising under the contracts, it was precluded from bringing suit on such matters in the Court of Claims. And the Court of Claims erred in entertaining and deciding the claims involving those disputes.
Reversed.
Mr. Justi ce Jackson took no part in the consideration or decision of these cases.
Mr. Justice Douglas, dissenting in part.
The Court requires this contractor to pay out of his own pocket the wage increase which he was directed to make. Whatever support that conclusion may have in a literal reading of the contract, it is so harsh and unfair as to be avoided if the contract does not compel the result. I do not think it does.
The contract set a minimum wage rate of $1 an hour for bricklayers. But it also provided that if the “prevailing” hourly rates under agreements between organized labor and employers on April 30, 1933, were above that minimum rate, the higher rate would become the minimum and be paid.1 The Federal Emergency Administration of Public Works on recommendation of the Board
1
“In the event that the prevailing hourly rates prescribed under collective agreements or understandings between organized labor and employers on April 30, 1933, shall be above the minimum rates specified above, such agreed wage rates shall apply: Provided, That such agreed wage rates shall be effective for the period of this contract, but n°t to exceed 12 months from the date of the contract.”
Dou gl as, J., dissenting in part. 328U.S.
of Labor Review could change the contract rate of $1 an hour; it could also change the “prevailing” hourly rate. If it did either, it would establish a “different” minimum wage rate within the meaning of the contract.2 And the contract price would be adjusted accordingly.
The Board of Labor Review, acting for the Federal Emergency Administration of Public Works,3 ruled that bricklayers on another government project at San Antonio should be paid at the rate of $1.25 an hour. San Antonio, as held by the Court of Claims, is in the same vicinity as Fort Sam Houston where the present projects were under way. And plainly the “prevailing” hourly rate refers to the rate which obtains in the vicinity.
So the respondent paid the extra wages under a ruling which, as I read the contract, was binding on him. It seems, therefore, manifestly unfair to hold that he must pay the wage increase out of his own pocket.
A contractor confronted with an order of the quartermaster to raise the wages of his employees is in an ex- p. 245234 Dou gl as, J., dissenting in part.
2
“The minimum wage rates herein established shall be subject to change by the Federal Emergency Administration of Public Works on recommendation of the Board of Labor Review. In event that the Federal Emergency Administration of Public Works acting on such recommendation establishes different minimum wage rates, the contract price shall be adjusted accordingly on the basis of all actual labor costs on the project to the contractor, whether under this contract or any subcontract.”
3
The suggestion that the wage increase at San Antonio was not authorized by the Federal Emergency Administration of Public Works is not warranted by the record. The Board of Labor Review is a part of the Federal Emergency Administration of Public Works. It did not “recommend” an increase at San Antonio. It “formally ruled” that the bricklayers on that project “should be paid at the rate of $1.25 per hour.” The Court of Claims treated that as action by the Federal Emergency Administration of Public Works. That seems to me to be the fair construction; and it was so treated both by the quartermaster and the contractor.
tremely difficult position. If he disobeys the order, he risks a strike and industrial turmoil. Yet the Court holds that he must take that risk or else pay the wage increase from his own pocket. Such a literal reading of the contract is not a fair one. And it is not a necessary one, as I have shown. Hence I would choose a construction which avoided that harsh and unfair result and did not victimize the contractor. If he had not protested the order of the quartermaster but had acquiesced, I suppose no one would say that there had been a dispute “concerning questions arising under” the contract,4 which should have been or could have been appealed. It is not doubted that then the contractor would be entitled to reimbursement. I see no difference in substance if the contractor, after an initial protest, acquiesces in the ruling and accepts the new “prevailing” rate and thus avoids dissension with his employees.
There is justice in what the Court of Claims ruled and I would sustain it.
Mr. Justice Frankfurter and Mr. Justi ce Rutledge join in this dissent.
4
The Government concedes that the quartermaster’s advice to respondent that he could file an appeal with the Board of Labor Review was erroneous. It points out that the Board of Labor Review was charged with the decision only of “labor issues,” which embrace controversies between employers and employees. The confusion existing in the mind of the Government’s own representative emphasizes the trap set for this contractor whether he followed the quartermaster’s suggestion or acquiesced in his ruling.
PORTER, PRICE ADMINISTRATOR, v. LEE et al.
CERTIORARI TO THE CIRCUIT COURT OF APPEALS FOR THE SIXTH CIRCUIT.
Nos. 1116 and 1117. Argued May 13, 1946.—Decided May 27,1946.
While an eviction suit by a landlord against a tenant was pending in a state court, the Price Administrator sued in a Federal District Court under § 205 of the Emergency Price Control Act to enjoin the landlord from evicting that tenant “or any other tenant” and from violating the Rent Regulation for Housing (promulgated under the Emergency Price Control Act), which forbids the eviction of tenants so long as they pay the rent to which the landlord is entitled. The District Court dismissed the Administrator’s complaint for want of jurisdiction. While an appeal was pending, the tenant was evicted. The Circuit Court of Appeals dismissed the appeal as moot. Held:
1. The District Court had jurisdiction under § 205 (c) of the Emergency Price Control Act, w’hich provides that “The district courts shall have jurisdiction of criminal proceedings for violations of section 4 of this Act, and, concurrently with State and Territorial Courts, of all other proceedings under section 205 of this Act.” P. 249.
(a) The landlord’s eviction proceeding in the state court was not an enforcement proceeding authorized by the Act and, therefore, not within the “concurrent” jurisdiction contemplated by §205. P. 250.
(b) Over the enforcement proceedings contemplated by §205, not only did the District Court acquire jurisdiction first, but the state court never acquired any jurisdiction at all. P. 250.
2. The Circuit Court of Appeals erred in holding that the case was moot. P. 251.
(a) The mere fact that the tenant vacated the premises in compliance with a writ of possession did not end the controversy, since the court could have restored the status quo by a mandatory injunction. P. 251.
(b) Moreover, the Administrator sought to restrain the eviction of any other tenant of the landlord as well as other acts in violation of the Regulation; and § 205 (a) authorizes such a broad injunction upon a finding that the landlord has engaged in violations. P. 251.
Reversed and remanded.
The Price Administrator sued to enjoin the eviction of a tenant and other violations of the Rent Regulation for Housing promulgated under the Emergency Price Control Act. The District Court dismissed the suit for want of jurisdiction. 59 F. Supp. 639. The Circuit Court of Appeals dismissed an appeal as moot. This Court granted certiorari. 328 U. S. 826. Reversed and remanded to the District Court for trial on the merits, p. 252.
Robert L. Stern argued the cause for petitioner. With him on the brief were Solicitor General McGrath, Milton Klein, David London and Irving M. Gruber.
Howell W. Vincent argued the cause and filed a brief for respondents.
Mr. Justice Black delivered the opinion of the Court.
October 24,1944, Dr. Lee brought a forcible detainer suit in the Justice of the Peace Court of Kenton County, Kentucky, to recover possession of an apartment he had rented to R. C. and Sarah Beever by reason of an alleged nonpayment of rent due on October 18, 1944. On December 4, 1944, before any judgment had been rendered, the Price Administrator, under § 205 of the Emergency Price Control Act, 56 Stat. 23, sought an injunction in the Federal District Court to order respondents, Dr. and Mrs. Lee, not to prosecute eviction proceedings against “Beever or any other tenant” and to restrain them from violating the Rent Regulation for Housing, 10 F. R. 3436,13528, promulgated pursuant to the Emergency Price Control Act.1 That p. 248Regulation provides among other things that so long as the tenant continues to pay the rent to which the landlord is entitled no tenant shall be removed or evicted by any landlord. The Administrator’s complaint in the injunction proceeding alleged that Beever owed no rent; that tender of the rent due had been refused by Dr. Lee; that this had been done not because there had been a default in payment but rather because Dr. Lee did not want families with children, such as the Bee vers, living on the premises; and that the eviction proceeding, thus, violated the Rent Regulation for Housing. The District Court issued a temporary restraining order, but later, without passing on the disputed factual issue of whether Beever had actually been delinquent in paying his rent at the time of the commencement of the Justice of the Peace Court proceedings, dismissed the Price Administrator’s complaint on the ground that it lacked jurisdiction to enjoin the Lees from prosecuting an eviction proceeding in the state court. Bowles v. Lee, 59 F. Supp. 639.*2 The Justice of the Peace Court on the landlord’s motion then dismissed the forcible detainer action and on June 25, 1945, a new action was brought in the same Justice of the Peace Court asking for a writ of restitution to remove the Beevers on the ground of nonpayment of rent. The Justice of the Peace Court then entered a judgment directing the eviction of the Beevers. The Price Administrator this time asked the Federal District Court to restrain enforcement and execution of the judgment of eviction. This action by the Price p. 249Administrator was again dismissed on the ground of lack of jurisdiction.
1
The part of the Regulation here in question (§6) was promulgated pursuant to § 2 (d) of the Emergency Price Control Act, 56 Stat. 23, which authorizes the Administrator, whenever such action is necessary or proper in order to effectuate the purposes of the Act, to “ regulate or Pronibit . . . renting or leasing practices (including practices re717466 ()—47----- 20 lating to recovery of the possession) in connection with any defense-area housing accommodations, which in his judgment are equivalent to or are likely to result in . . . rent increases . . . inconsistent with the purposes of this Act.”
2
The original petition for injunction was filed by Chester Bowles as Price Administrator. Petitioner Porter is his successor in office, and upon motion he has been substituted as petitioner in this Court.
The Price Administrator appealed from both District Court orders dismissing his complaints and made prompt application to the Circuit Court of Appeals for an injunction pending appeal in the first case. This motion was denied. The landlord moved to have the case dismissed as moot and in support of that motion filed an affidavit setting forth that the premises had been vacated by the Beevers. In response the Price Administrator submitted an affidavit by R. C. Beever stating that he had not vacated the apartment as a matter of choice, but had moved to several basements and into the home of his wife’s parents because he was compelled to do so by a writ of possession which had been served on him. The Circuit Court of Appeals dismissed both cases as moot. We granted certiorari because of the obvious importance of the questions raised by the Federal District Court’s dismissals for want of jurisdiction and the holding of the Circuit Court of Appeals that the proceedings had become moot.
First. As to jurisdiction, the provisions of the Price Control Act and the Rent Regulation for Housing, promulgated pursuant thereto and not challenged here, make it clear that the Price Administrator’s allegations in his complaint before the District Court stated an enjoinable violation over which the District Court as an enforcement court ordinarily would have jurisdiction under § 205 (a) and (c) of the Act. But the landlord claims that here the District Court was without power to act because the provisions of § 205 (c) permit actions in state courts alone under the particular circumstances here. He relies on that part of subsection (c) which provides that “The district courts shall have jurisdiction of criminal proceedings for violations of section 4 of this Act, and, concurrently with State and Territorial courts, of all other proceedings under p. 250section 205 of this Act.” The landlord’s argument is as follows: The Administrator’s proceeding in the Federal District Court was a proceeding under § 205 over which the state courts have concurrent jurisdiction. The only issue in the federal proceeding would have been whether the landlord had legally sought to evict the Beevers because of nonpayment of rent or whether eviction was sought for other reasons in violation of the applicable regulation. That question could have been raised in the Justice of the Peace Court in view of its “concurrent” jurisdiction under § 205 (c). Since the Justice of the Peace Court action by the landlord was commenced prior to the Administrator’s injunction proceeding in the federal court, the Justice of the Peace Court had acquired sole power to decide the crucial issue and the Federal District Court therefore lacked jurisdiction.
We think this contention is without merit. Section 205 (c) gives the state courts concurrent jurisdiction only over non-criminal enforcement “proceedings under section 205.” Bowles v. Willingham, 321 U. S. 503,511-512. Here the landlord’s eviction proceeding in the Justice of the Peace Court clearly was not an enforcement proceeding authorized by the Act. It was, rather, if the allegations of the Administrator proved to be true, a violation of the Act. The state court’s jurisdiction was based on state law and not on § 205 of the Price Control Act. It was therefore not part of the “concurrent” jurisdiction contemplated by § 205. Over the enforcement proceedings contemplated by that section not only did the District Court acquire jurisdiction first, but the state court never acquired any jurisdiction at all. It was consequently within the power of the Federal District Court to grant the injunction, provided the Government succeeded in proving the merits of its case.
To rule otherwise would require the Administrator to bring enforcement proceedings, in situations such as the p. 251one before us, always in the state courts. Such a requirement would certainly not be in accord with the “concurrent” jurisdiction provision of § 205 (c). Or the Administrator in order to protect the public interest would always be forced to intervene in state court proceedings brought by the landlord. This procedure would be inadequate, because the speedy manner in which eviction suits are handled will frequently make it too late to intervene when the Administrator becomes aware of a violation. Furthermore, justice of the peace courts do not, at least ordinarily, have jurisdiction to grant injunctions to prevent future violations of the Act. Since there is nothing in the Act that limits the Administrator’s action to intervention in the state courts, we see no reason, nor are we authorized, to so restrict him.3
Second. We also think the Circuit Court of Appeals erred in holding that the case was moot. The mere fact that the Beevers, in order to comply with the writ of possession, vacated the apartment was not enough to end the controversy. It has long been established that where a defendant with notice in an injunction proceeding completes the acts sought to be enjoined the court may by mandatory injunction restore the status quo. Texas & New Orleans R. Co. v. Northside Belt R. Co., 276 U. S. 475, 479. The Administrator, therefore, was entitled to seek a restoration of the status quo in this case. See Henderson v. Flecking er, 136 F. 2d 381-382. Moreover, here the Administrator sought to restrain not merely the eviction of Beever but also that of any other tenant of the landlord as well as other acts in violation of the Regulation. Section 205 (a) authorizes the District Court in its discretion to grant such a broad injunction upon a finding that the landlord has engaged in violations. See
Statement of the Case. 328U.S.
Hecht Co. v. Bowles, 321 U. S. 321. If the eviction proceeding actually was a violation of the Regulation, then Beever’s vacating the premises was merely the completion of one violation. The issue as to whether future violations should be enjoined was still before the Court and was by no means moot.
The judgments of the Circuit Court of Appeals are reversed and the cases are remanded to the District Court for trial of the issues on the merits.
It is so ordered.
Mr. Justi ce Jackson took no part in the consideration or decision of these cases.