represented in the proceedings; price and rent ceilings, on the other hand, are general rules applicable to all who fall within the ambit of their provisions.

It is clear, therefore, that there is no constitutional requirement for the holding of a quasi-judicial hearing, or, indeed, any other kind of hearing, in connection with the establishment of a price or rent ceiling under the proposed statute. Nevertheless, the provisions for the filing and consideration of protests assure that an opportunity for at least a shortened form of hearing will be afforded; these provisions are also sufficiently flexible to authorize the holding of more elaborate quasi-judicial hearings when time and circumstances permit. Whatever the details of the procedure adopted, the bill makes certain that those subject to a ceiling regulation will have the opportunity of knowing the basis on which it was issued and of presenting evidence in support of their objections to it, and that all relevant data will be included in a formal transcript which will be subject to judicial review in the manner provided for by the statute.

B. JUDICIAL REVIEW

For the purpose of judicial review of ceiling regulations or orders, the statute creates a special emergency court of appeals of not less than three members whose membership is to consist of judges selected from the courts of the United States by the Chief Justice of the Supreme Court. The chief judge of the emergency court, who is also to be selected by the Chief Justice of the Supreme Court, is authorized to divide the court into divisions of three or more members and these divisions may hold their sessions in such places throughout the country as public convenience requires. The emergency court is granted exclusive jurisdiction to consider both constitutional and other objections to any regulation or order prescribing price or rent ceilings and to affirm or set aside such regulations or orders in whole or in part. The judgment of the emergency court is subject to review by petition for certiorari to the Supreme Court of the United States.

If

The record in the Emergency Court is to consist primarily of a complete transcript of the proceedings on the protest, including a statement by the President of all materials of which he took official notice in disposing of the protest. application is made to the court for permission to introduce evidence which was rejected by the President or which could not reasonably have been offered to him, and the court determines that such evidence is necessary to the disposition of the complaint, the court is directed to order the evidence to be presented to the President. The President is directed to receive this evidence, and such other evidence as he deems necessary or proper, and to file with the court a transcript of the additional evidence and any modification made by him in the original regulation or order. The President is also authorized to direct such additional evidence to be presented directly to the court without previous consideration by him. The statute also provides that no regulation or order shall be set aside unless the court is satisfied that it is arbitrary or capricious or not in accordance with law.

The statutory provisions for judicial review assure every protestant of his full day in court if his protest is denied. The provision for an Emergency Court which will have exclusive jurisdiction of all complaints under the statute is essential in order to permit expeditious determination of controversies with respect to ceiling regulations without unduly interfering with the work of the regular courts. The complete impartiality of the tribunal is assured by the provisions that the Emergency Court shall consist of district and circuit judges selected by the Chief Justice of the Supreme Court of the United States. The provisions that the court may sit in divisions and in such places as public convenience requires, also assures that a real opportunity for judicial reviews will not be confined to wealthy litigants or to particular sections of the country.

Even in rate regulation, the necessity for occasional summary action in advance of hearings has been recognized. The Interstate Commerce Act permits new tariffs to be summarily suspended for a period of 7 months (sec. 15 (7) of the Interstate Commerce Act). Compare similar provisions of the Civil Aeronautics Act, sec. 1002 (g), and the Federal Communications Act (sec. 204), authorizing the agencies concerned to suspend the operation of a proposed rate schedule without prior notice or hearing.

In certain aspects of rate regulation the Supreme Court has recognized the necessity abandoning some of the characteristics of private litigation. In the New England Divisions case (261 U. S. 184) an Interstate Commerce Commission order directing a change in the division of joint rates was attacked on the ground that each carrier was not considered individually. Mr. Justice Brandeis said: "Obviously, Congress intended that a method should be pursued by which the task which it imposed upon the Commission could be performed. The number of carriers which might be affected by an order of the Commission, if the power granted were to be exercised fully, might far exceed 600; the number of rates involved, many millions. The weak roads were many. The need to be met was urgent. To require specific evidence, and separate adjudication, in respect to each division of each rate of each carrier would be tantamount to denying the possibility of granting relief" (p. 197). See, too, United States v. Louisiana (290 U. S. 70).

The provision that the record of the Emergency Court shall consist primarily of a transcript of the proceedings on the protest is designed to eliminate unnecessary duplication of effort and save the time of the court, the litigant, and the administrative staff. Long-drawn-out judicial proceedings would be as inconsistent with the fair and effective operation of the statute as lengthy administrative hearings. A decision rendered long after a price order had been issued would only be of academic interest to the parties concerned. Certainly the emergency will not permit us the luxury of litigation in which final judicial decision is delayed until many years after the termination of the administrative proceeding, although this is common in public utility rate litigation where courts deal with relatively static situations and where their decisions may usually be made, retroactive. Furthermore, if the experts on the administrator's staff were required to spend a large part of their time in court testifying in support of the administrator's action, they would have little time and energy left to devote to the constructive performance of their duties and the promotion of the defense effort. In order to avoid such wasteful dissipation of the Nation's energies in extended litigation, and to afford prompt and effective judicial review, the statute provides, in effect, that all the materials considered by the President in disposing of the protest as well as the reasons for his action, shall be immediately available to the Emergency Court without the necessity for examination or cross-examination of witnesses.

The statutory provisions that only evidence which has been submitted to the President in support of the protest shall be considered by the court, and that any additional evidence which could not reasonably have been submitted to the President, or which was rejected by him, shall be presented to the President before consideration by the court, are essential to the effective operation of the statute. The court itself cannot set new price or rent ceilings to take the place of those established by the President. It can only affirm or set aside the President's orders. Therefore, it is especially important that all evidence relevant to the establishment of an appropriate ceiling should be submitted first to the President in order that it may be considered by him in determining what the ceiling should be. To permit some recalcitrants to withhold evidence from the President, and then submit that evidence to the court in an attack upon the President's order, would produce chaos in the administration of the statute. It is also important that newly discovered evidence or evidence of changed conditions should be submitted immediately to the President so that his orders may be modified accordingly, and wasteful and unnecessary litigation be avoided. This procedure does not in any way prejudice the complainant, for the ultimate power to determine what shall be included in the record resides in the court.

The propriety of the procedure established by the statute in this regard is attested by decisions of the United States Supreme Court holding that adminis trative remedies must be exhausted before resort to courts. See Myers v. Bethlehem Shipbuilding Corp. (303 U. S. 41); Prentis v. Atlantic Coast Line Co. (211 U. S. 210). Even where the issue involved was whether the rates established by the Interstate Commerce Commission were confiscatory, the Supreme Court expressly disapproved of the introduction of evidence which had been withheld from the Commission. See Manufacturers Railway Co. v. United States (246 U. S. 457, 490). The desirability of this procedure has also been recognized by Congress in the inclusion of substantially similar provisions in other statutes such as the Federal Trade Commission Act and the National Labor Relations Act. See National Labor Relations Board v. Newport News Shipbuilding Co. (308 U. S. 241, 249, 250). The procedural problems arising under the Federal Trade Commission and the National Labor Relations Act are somewhat different from those under the proposed statute, because the Trade Commission and the Labor Board exercise quasi-judicial rather than quasi-legislative powers. However, the basic principle that the administrative authority should have full opportunity for complete and final exercise of its powers before judicial review is invoked applies

8 The rate proceeding culminating in Ohio Bell Telephone Co. v. Public Utilities Commission of Ohio (301 U. S. 292), consumed 14 years in its various phases. The Chicago Telephone case, which was finally con cluded in 1934 by the decision of the Supreme Court in Lindheimer v. Illinois Bell Telephone Co. (292 U. S. 151), has been instituted in 1921. Mr. Justice Black, in his dissenting opinion in McCart v. Indianapolis Water Co. (302 U. S. 419, 435), refers to seven other utility-rate cases, decided by the United States Supreme Court, which consumed an average of 3 years and several months in litigation.

If the statute authorized the Emergency Court to revise the price orders of the President, it would grant legislative power to the court. Under applicable decisions of the Supreme Court this might be unconstitutional and would certainly prevent review of the decisions of the Emergency Court by the United States Supreme Court. See Keller v. Potomac Electric Co. (261 U. S. 428); Federal Radio Commission v. General Electric Co. (281 U. S. 464).

equally to quasi-legislative and quasi-judicial functions. See Prentis v. Atlantic Coast Line Co., supra; Hegeman Farms v. Baldwin (293 U. S. 163, 172); and cases cited in Myers v. Bethlehem Building Corp. (303 U. S. 41, 51, n. 9).

The standard of judicial review adopted by the statute follows the controlling decisions of the United States Supreme Court, namely, that the President's order shall be set aside only if it is not in accordance with law or if it is arbitrary or capricious. That statutory provision presents for judicial review all questions of law, including the question whether the procedure and the final order of the President are consistent with the constitutional and statutory requirements. If the statute were to authorize the emergency court to substitute its own judgment for that of the President in the establishment of price or rent ceilings, it would require the court to enter those realms of legislative policy from which courts are traditionally excluded,10

The rule applicable to judicial review of legislation has recently been restated by the United States Supreme Court in a decision sustaining a State statute fixing maximum prices for services rendered by employment agencies. The Court said:

"We are not concerned, however, with the wisdom, need, or appropriateness of the legislation. Differences of opinion on that score suggest a choice which 'should be left where * * * it was left by the Constitution to the States and to Congress' (Olsen v. Nebraska ex rel. Western Reference & Bond Assn., 313 U. S. 236).

""

The standards applicable to judicial review of congressional legislation are equally applicable to judicial review of delegated legislation. This is illustrated by the opinion of Mr. Justice Cardozo in American Telephone & Telegraph Co. v. United States (299 U. S. 232, 236), where the Supreme Court sustained the validity of accounting rules prescribed by the Federal Communications Commission. Justice Cardozo said:

Mr.

"This Court is not at liberty to substitute its own discretion for that of administrative officers who have kept within the bounds of their administrative powers. To show that these have been exceeded in the field of action here involved, it is not enough that the prescribed system of accounts shall appear to be unwise or burdensome or inferior to another. Error or unwisdom is not equivalent to abuse. What has been ordered must appear to be 'so entirely at odds with fundamental principles of correct accounting' * * * as to be the expression of a whim rather than an exercise of judgment" (299 U. S. 236-237).

In placing on the complainant the burden of establishing that the ceiling is not in accordance with law or arbitrary or capricious, the statute follows the rule explicitly laid down by the United States Supreme Court in Pacific States Box & Basket Co. v. White (296 U. S. 176). There the plaintiff, in attacking a regulation of the State department of agriculture, contended that the "rebuttable presumption of the existence of a state of facts sufficient to justify the exertion of the police power attaches only to acts of legislature; and that where the regulation is the act of an administrative body, no such presumption exists, so that the burden of proving the justifying facts is upon him who seeks to sustain the validity of the regulation." Mr. Justice Brandeis rejected this contention, saying:

"Every exertion of the police power, either by the legislature or by an administrative body, is an exercise of delegated power. Where it is by a statute, the legislature has acted under power delegated to it through the Constitution. Where · the regulation is by an order of an administrative body, that body acts under a delegation from the legislature. The question of law may, of course, always be raised whether the legislature had power to delegate the authority exercised * * * But where the regulation is within the scope of authority legally delegated, the presumption of the existence of facts justifying its specific exercise attaches alike to statutes, to municipal ordinances, and to orders or administrative bodies" (296 U. S. 185-186).

Because the proposed statute provides for quasi-legislative rather than quasijudicial action in establishment of price or rent ceilings by the President, it does

10 In Railroad Commission v. Rowan & Nichols Oil Co. (310 U. S. 573) the Supreme Court sustained an oil prorationing order issued by the Texas Railroad Commission. In rejecting a contention that the order was arbitrary and unreasonable and amounted to taking of property without due process of law, the Court said: "A controversy like this always calls for fresh reminder that the courts must not substitute their notions of expediency and fairness for those which have guided the agencies to whom the formulation and execution of policy have been entrusted" (p. 580-581).

The classic statement of the self-imposed limitations upon judicial review of administrative action is to be found in Interstate Commerce Commission v. Union Pacific Railroad Co. (222 U. S. 541), where Mr. Justice Lamar said: "The Court confines itself to the ultimate question as to whether the Commission acted within its power. It will not consider the expediency or wisdom of the order, or whether, on like testimony, it would have made a similar ruling (p. 547).

017

not require that the findings and order of the President must be supported by evidence or by substantial evidence. Such a requirement is properly applicable only to review of quasi-judicial administrative proceedings, where the adversary hearings have been held by the administrative agency and where the court acts in an appellate capacity. Under the price-control act, the hearings to be conducted by the President are legislative in character, and the emergency court is a court of first instance, with the powers of a district court. It would, therefore, be incongruous to provide any rule at all with respect to the evidence supporting the findings of the President. Instead, the court is left free to exercise its independent judgment upon the entire record before it, in the light of the applicable presumption of validity.

C. TEMPORARY RESTRAINING ORDERS AND OTHER PROCEDURAL PROVISIONS

The statute contains provisions deemed necessary to insure that its administration will not be paralyzed and its effectiveness vitiated by preliminary injunctions, interlocutory restraining orders, or stays. The emergency court, and the Supreme Court, as already indicated, are granted exclusive jurisdiction to determine the validity of ceiling regulations and orders and of the statutory provisions upon which they are based. The statute provides that no other court shall have jurisdiction or power to stay, restrain, enjoin, or set aside any such regulation or order. It also provides that a ceiling regulation may be set aside in whole or in part by the emergency court only as of the date on which a judgment of invalidity becomes final.

There can be no question of the constitutional power of Congress to vest in the emergency court exclusive jurisdiction to determine the validity of ceiling regulations and orders. In Myers v. Bethlehem Shipbuilding Co. (303 U. S. 41), the Court held that the district court was without jurisdiction to enjoin a hearing of the Labor Board on the ground that

"the power 'to prevent any person from engaging in any unfair practice affecting commerce' has been vested by Congress in the Board and the circuit court of appeals, and Congress has declared: This power shall be exclusive, and shall not be affected by any other means of adjustment or prevention that has been or may be established by agreement, code, law, or otherwise.' The grant of that exclusive power is constitutional, because the act provided for appropriate procedure before the Board and in the review by the circuit court of appeals an adequate opportunity to secure judicial protection against possible illegal action on the part of the Board" (p. 48).

cases.

It is equally well established that Congress may define, limit, or entirely withdraw the power of the Federal courts to issue injunctions in particular classes of The Norris-LaGuardia Act, for example, entirely removed the power of the Federal courts to issue injunctions against certain types of labor activity and also drastically limited their power to issue injunctions with respect to other types. See Lauf v. E. G. Shinner & Co. (303 U. S. 323). In upholding this legislation against the contention that it was beyond the power of Congress, the Court of Appeals for the Second Circuit, in Levering & Garrigues Co. v. Morrin (71 Fed. (2d) 284, cert. den., 293 U. S. 595), said:

"Congress has the power, as now exercised, of withdrawing this jurisdiction from the district court. * * * It has been said the attributes which inhere in a grant of power over a subject and which are inseparable from it, cannot be rendered practically inoperative. But the power to issue an injunction is not necessarily within the class of inherent attributes. * * * Congress has not exceeded its powers in this legislation" (p. 287).

Just as the power to issue injunctions may be withdrawn from the Federal courts in the case of labor disputes so, too, it may be withdrawn in the case of price regulation.

If injunctions, preliminary or final, could be secured in the ordinary courts throughout the country against the enforcement of ceiling regulations, such injunctions would relieve particular persons or localities from the obligation to comply with a ceiling regulation while others were still subject to it. Such inequality in the operation of the statute would naturally create a sense of injustice in the community, would militate against popular acceptance of the statute, and would make its proper enforcement more difficult. Moreover, such uneven and haphazard operation of the statute might seriously damage our domestic economy.

It is true that the Food, Drug, and Cosmetic Act, the Bituminous Coal Act, and the Fair Labor Standards Act, in effect, adopt the substantial-evidence rule as the basis for review of administrative regulations. However, these statutes also provide for adversary administrative hearings.

The sudden development of price disparities entirely unrelated to natural geographical differentials would upset normal market relationships. The difficulties created would be particularly acute because of the growing shortages in civilian supply. Commodities would tend to be drained off toward the areas in which higher prices prevailed; producers in lower-price areas might find it impossible to procure goods at the price established by the ceiling order. Thus, it is clear that it would be highly impractical to permit various courts throughout the country to enjoin the enforcement of ceiling regulations pending final determination of their validity.

Equally disastrous consequences would follow if the emergency court were to issue interlocutory orders suspending the effectiveness of ceiling regulations throughout the country pending its final decision on their validity. Such preliminary orders would be inconsistent with the entire procedural pattern of the statute, and would defeat all efforts to provide expeditious and fair methods of regulation. The provisions for administrative action and judicial review based largely on documentary evidence are designed both to facilitate prompt administrative action and to provide persons affected with an opportunity for prompt judicial review on the merits. All these careful provisions for expeditious action would be rendered futile if a price regulation did not have to be obeyed during the period between its original promulgation and final judicial determination of its validity. Many would find it more profitable to make the fullest use of the law's delays rather than to take advantage of the opportunities provided by the statute for speedy determination of the merits of their objections.

The consequences of a prolonged suspension of ceiling regulations would, of course, be disastrous. During the period of litigation prices in the particular commodity would be entirely unregulated. To some this would offer irrestible temptation to reap the full benefits of the delay by raising prices as much as possible while the temporary suspension of the price order was in effect. Higher prices in one commodity would soon be reflected in others. Thus the operation of the statute, if interlocutory injunctions or stays were permitted, would tend to aggravate some of the very evils which it is designed to eliminate. Specualtion would be encouraged, price instability would be fostered, business uncertainty would be increased. Spirals of inflation once started might never be brought under control. Instead of preventing inflation, the price administrator would be vainly chasing after it.

In the light of these considerations of overwhelming public interest, there is little substance in the contention that the statutory provisions against the granting of stays constitute a denial of due process. In providing for the denial of stays by specific provision of the proposed statute, the Congress is merely giving legislative expression to well-settled equitable doctrines. It is an established equitable doctrine that a stay or injunction will not issue unless the benefit to the moving party outweighs the detriment to the other party. The Supreme Court has recently emphasized the weight which must be accorded the public interest in determining whether or not a court should grant relief:

"It is familiar doctrine that the extent to which a court of equity may grant or withhold its aid, and the manner of molding its remedies, may be affected by the public interest involved," United States v. Morgan (307 U. S. 183, 194).

"The extraordinary powers of injunction should be employed to interfere with the action of the State or the depositaries of its delegated powers, only where it clearly appears that the weight of convenience is upon the side of the protestant. Only a case of manifest oppression will justify a Federal court in laying such a check upon administrative officers acting colore officii in a conscientious endeavor to fulfill their duty to the State.' Petroleum Exploration, Inc., v. Public Service Commission (304 Ù. S. 200, 222–223).

An excellent example of the application of this doctrine is provided in Tennessee Valley Authority v. Tennessee Electric Power Co. (90 Fed. (2d) 885; certiorari denied, 301 U. S. 710), where the circuit court of appeals for the sixth circuit said: "Without denying that some injury may be suffered if the injunction is lifted, it does not so clearly appear that it will of necessity overbalance the injury which must inevitably be suffered by the defendants and the public * * * The possibility of maintaining the status quo by means of the injunction is not established." (P. 894.)

Judge Allen, concurring, added:

"The considerations which govern the issuance of temporary injunctions in a suit between private parties have often been applied in injunction suits against public officials, where the damage to the public is readily ascertainable and where the public interest may be properly protected. However, the decisions recognize