Bowles v. Sacher

SWAN, Circuit Judge.

These two appeals were heard together and may be dealt with in a single opinion. In each case the action was brought under section 205(a) of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, § 925(a), to enjoin alleged violations of regulations promulgated under section 2 of the Act. In the Sacher suit the defendant partnership was a wholesale dealer in furs, skins and peltries, and was subject after May 11, 1942, to the General Maximum Price Regulation (7 F.R. 3153); in the Son-nenschein suit the defendant partnership was a manufacturer of women’s fur garments and was subject after July 10, 1942, to Maximum Price Regulation No. 178 (7 F.R. 5277). The suits were commenced on March 21, 1943. In each the complaint alleged that the defendant partners had failed to prepare and keep the records required by the applicable regulation, and prayed for interlocutory and permanent injunctions to restrain them (a) from selling their commodities unless and until they should prepare and keep the records required by the applicable regulation, and (b) from “doing or omitting to do any other act in violation of said regulation as heretofore or hereafter amended.” Upon 'motion for an interlocutory injunction, the court granted the relief sought by the above described clause (a) but denied the relief sought by clause (b). From the denial of a temporary injunction under (b) the Administrator has appealed.

It is axiomatic that between private litigants the grant or refusal of a temporary injunction lies within the discretion of the trial court and its decision will not ordinarily be reversed unless a clear abuse of discretion appears. Under section 205 of the Emergency Price Control Act of 1942, it is also true that the grant of an injunction upon application of the Administrator is not mandatory but is in the court’s discretion, although “the standards of the public interest, not the requirements of private litigation, measure the propriety and need for injunctive relief in these cases.” Hecht Co. v. Bowles, 321 U.S. 321, 331, 64 S.Ct. 587, 592.

The appellant contends that because the appellees had violated the record-keeping requirements of the regulations and because the court found that failure to keep the required records creates “danger of non-compliance with the provisions prescribing legal maximum prices”, violation of the price limitations is “a practical certainty.” But the District Judge drew no such inference; nor do we. The finding that lack of records produces danger of violation of the ceiling prices furnishes support for the injunction restraining the appellees from making sales “unless and until” they prepare and keep the required records, arid for the mandatory order directing them forthwith to do so; but it does not compel an inference that they will sell above the legal maximum prices after they have established the required records. Indeed, the natural inference is just the reverse, since price violations, if committed, can be more easily detected once the records are established. Moreover, the plaintiff’s affidavits contain no charge that the appellees have ever committed any violation of the regulations other than the failure to keep records. It is to be remembered also that the application was for a preliminary injunction. No trial had yet been had, and, as noted in the District Judge’s opinion, “We know nothing of defendants’ motives, wilfulness or negligence.” [53 F.Supp. 77, 78.] In the exercise of his discretion he concluded that the violation of the record-keeping provisions did not warrant an injunction against violating maximum price violations. In this we see no abuse of discretion and on this ground affirm the judgment. See Bowles v. Town Hall Grill, 1 Cir., 145 F.2d 680. This is not to say that an injunction should never be issued broader in scope than the violations actually proved; decision of that question may properly await a case which presents it. We may also say that we have been unable to discover that section 107(b) of the Stabilization Extension Act of 1944, Public Law 383, 78th Cong. 2d Session, 50 U.S.C.A.Appendix, § 924(c), to which both parties have referred in support of their respective positions, has any material bearing on the matter in dispute.

Judgments affirmed.