Bowles v. Willingham, 321 U.S. 503 (1944)

Author: John Rutledge

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Bowles v. Willingham, 321 U.S. 503 (1944)


I concur in the result and substantially in the Court’s opinion, except for qualifications expressed below. In view of these and my difference from the Court’s position in Yakus v. United States, ante, p. 414, a statement of reasons for concurrence here is appropriate.


With reference to the substantive aspects of the legislation, I would add here only the following. Since the phases in issue in this case relate to real estate rentals, it is not amiss to note that these ordinarily are within the state’s power to regulate, rather than that of the federal government. But their relation, both to the general system of controlling wartime price inflation and to the special problems of housing created in particular areas by war activities, gives adequate ground for exercise of federal power over them.

Likewise, with respect to the delegation of authority to the administrator to designate "defense rental areas" and to fix maximum rentals within them, the same considerations, and others, sustain the delegation as do that to fix prices of commodities generally. The power to specify defense rental areas, rather than amounting to an excess of permissible delegation, is actually a limitation upon the administrator’s authority, restricting it to regions where the facts, not merely his judgment, make control of rents necessary both to keep down inflation and to carry on the war activities concentrated in them. Accordingly, I concur fully with the Court’s expressed views concerning the substantive features of the legislation.


This appeal presents two kinds of jurisdictional and procedural questions, though they are not unrelated. The first sort relate to the power of the District Court to restrain the further prosecution of the state court proceedings and the execution of, or attempts to execute, orders issued in them. The other issues relate to the District Court’s power to restrain Mrs. Willingham from violating the Emergency Price Control Act and the orders issued pursuant to it affecting her interests.

As to the former, I have no doubt that the District Court had power, for the reasons stated by the Court, to restrain the prosecution of the suit in the state court and the execution of orders made by it. By Section 204(d) of the Act, Congress withheld from all courts, including the state courts, with an exception in the case of the Emergency Court of Appeals and this Court on review of its judgments,

jurisdiction . . . to stay, restrain, enjoin, or set aside, in whole or in part, any provision of this Act authorizing the issuance of such regulations or orders, or making effective any such price schedule, or any provision of any such regulation, order, or price schedule, or to restrain or enjoin the enforcement of any such provision.

The single exception was the power of the Emergency Court, by its final judgment, or of this Court on final disposition in review thereof, Section 204(a), (b), to set aside an order or regulation. Congress clearly had the power thus to confine the equity jurisdiction of the federal courts and to make its mandate for uninterrupted operation of the rent control system effective by prohibiting the state courts so to interfere with the statutory plan at least until it should be shown invalid by the channel created for this purpose.{1} Any effort of the state court therefore to enjoin the issuance of rent orders or suspend their operation, whether on constitutional or other grounds, was directly in the teeth of the statute’s explicit provisions and a violation of its terms. By this mandate, the state courts were not required to give their sanction to enforcement of an unconstitutional act or regulation or even of one which might turn out to be such. They were merely commanded to keep hands off and leave decision upon the validity of the statute or the regulations, for purposes of suspending or setting them aside, to another forum established for that purpose. Congress clearly had the power and the intent to authorize federal courts to enforce this command, by injunction if necessary.


In vesting jurisdiction in the federal district courts to enjoin violations of the Price Control Act and regulations issued pursuant to it, Congress included not only violations of the statute’s prohibition directed to the state courts against staying enforcement, but other violations as well. The District Court, acting in the exercise of that jurisdiction, rested its judgment on the decision of a question it was authorized to consider -- namely, whether the Act, rather than merely a regulation issued under it, is invalid. Since the court decided that question erroneously in disposing of this case, reversal of its judgment would be required. And perhaps, in strictness, this is all that it would be necessary to decide at this time.

But the contention has been made earnestly all through these proceedings that the regulations, on the basis of which any injunction obtained by the administrator must rest, are invalid and beyond his authority under the Act. And the Court, relying upon the decision in the Yakus and Rottenberg cases, has indicated that these contentions may not be considered in a proceeding of this character.

From what already had been said, it is clear the contention misconceives the administrator’s rights with respect to an injunction restraining the further prosecution of the state suit and execution of the state court’s orders. His right to such an injunction may rest on considerations entirely different from those governing his right to secure an injunction restraining Mrs. Willingham from violating the regulation. The former could be founded wholly upon the power of Congress to require the state courts to keep hands entirely off, in the discharge of federal functions by federal officials at any rate during such time as might be required for decision, with finality, upon the validity of the statute and regulations issued under it by an appropriate alternative federal method. The latter, however, presents the different question whether Congress can require the federal district courts, organized under Article III and vested by it with the judicial power, not merely to keep hands off, but, by affirmative exercise of their powers, to give permanent sanction to the legislative or administrative command, notwithstanding it is or may be in conflict with some constitutional mandate.

That Congress can require the court exercising the civil jurisdiction in equity to refrain from staying statutory provisions and regulations is clear. Whether the enforcing court acts civilly or criminally, in circumstances like these, Congress can cut off its power to stay or suspend the operation of the statute or the regulation pending final decision that it is invalid. But this leaves the question whether Congress also can confer the equity jurisdiction to decree enforcement and, at the same time, deprive the court of power to consider the validity of the law or regulation and to govern its decree accordingly.

Different considerations, in part, determine this question from those controlling when enforcement is by criminal sanction. The constitutional limitations specially applicable to criminal trials fall to one side. Those relating to due process of law in civil proceedings, including whatever matters affecting discrimination are applicable under the Fifth Amendment, and to the independence of the judicial power under Article III, in relation to civil proceedings, remain applicable. Since, in these cases, the rights involved are rights of property, not of personal liberty or life, as in criminal proceedings, the consequences, though serious, are not of the same moment under our system, as appears from the fact they are not secured by the same procedural protections in trial. It is in this respect, perhaps, that our basic law, following the common law, most clearly places the rights to life and to liberty above those of property.

All this is pertinent to whether Congress, in providing for civil enforcement of the Act and the regulations, can do what in my opinion it cannot require by way of criminal enforcement of this statute -- namely, by providing the single opportunity to challenge the validity of the regulation and making this available for the limited time, constitute the method afforded the exclusive mode for securing decision of that question and, either by virtue of the taking advantage of it or by virtue of the failure to do so within the time allowed, foreclose further opportunity for considering it.

In my opinion, Congress can do this, subject however to the following limitations or reservations, which I think should be stated explicitly: (1) the order or regulation must not be invalid on its face; (2) the previous opportunity must be adequate for the purpose prescribed, in the constitutional sense, and (3), what is a corollary of the second limitation or implicit in it, the circumstances and nature of the substantive problem dealt with by the legislation must be such that they justify both the creation of the special remedy and the requirement that it be followed to the exclusion of others normally available.

In this case, in my judgment, these conditions concur to justify the procedure Congress has specified. Except for the charge that the regulations, or some of them, are so vague and indefinite as to be incapable of enforcement, there is nothing to suggest they are invalid on their face. And they clearly are not so, either in the respect specified or otherwise.{2} The proceeding by protest and appeal through the Emergency Court, even for civil consequences only, approaches the limit of adequacy in the constitutional sense, both by reason of its summary character{3} and because of the shortness of the period allowed for following it.{4} A reservation perhaps is in order in the latter respect, when facts are discovered after the period which, if proven, would invalidate the regulation and which, by reasonable diligence, could not have been discovered before the period ends. Finally, it hardly can be disputed that the substantive problem and the circumstances which created and surrounded it were such as, if ever they could be, to justify a procedure of this sort.{5}

Accordingly, I agree that, as against the challenges made here, the special remedy provided by the Act was adequate and appropriate, in the constitutional sense, for the determination of appellee’s rights with civil effects, had she followed it. And her failure to follow it produced no such irrevocable and harmful consequences, for such purposes, as would ensue if she were charged with violation as a crime. Accordingly, by declining to take the plain way opened to her, more inconvenient though that may have been, and taking her misconceived remedy by another route, she has arrived where she might well have expected at the wrong end.

No doubt this was due to a misconception of her rights, both as a matter of substance and as one of procedure, due perhaps to failure to take full account of the reach of the nation’s power in war. Nevertheless, the Court not improperly has set at rest some of her misconceptions concerning the effects of the regulations. Thus, it is held that the statute is not invalid in providing for maximum rents which are "generally fair and equitable." Section 2(b). It does not lessen the effect of this ruling for purposes of deciding the regulation’s validity that Maximum Rent Regulation Number 26, Section 5(c)(1), of which appellee complained on various constitutional grounds, including confiscation, provided that the administrator might order a decrease of the maximum rent for specified housing accommodations only on the ground that that rent "is higher than the rent generally prevailing in the defense rental area for comparable housing accommodations on April 1, 1941." (Italics added.)

Other issues raised by the appellee with respect to the regulations likewise are disposed of by the rulings upon the statute’s provisions.{6} Insofar as the regulations are identical with the statute, therefore, and the objections to them are identical, the disposition of these objections to the Act disposes also of those made to the regulations. Insofar as the latter raised questions not raised concerning the statute, and since none of these, except as mentioned above, called attention to any feature making a regulation void on its face, the appellee has foreclosed her opportunity to assert them, as to facts existing when the suit was begun, by her failure to follow the prescribed special remedy. It is not unreasonable, in a matter of this importance and urgency, to require one whose only valid objection to the law, including the regulations, rests in proof of facts not apparent to the administrator or the court to make his proof in the manner provided, and to do so promptly, as a condition to securing equitable or other civil relief.

1. The Moses Taylor, 4 Wall. 411; cf. Claflin v. Houseman, 93 U.S. 130; Plaquemines Tropical Fruit Co. v. Henderson, 170 U.S. 511.

2. The maximum rentals established in the regulation are definite, and easily enough ascertainable. Appellee’s complaint against the regulation on the score of vagueness is addressed to the indefiniteness of the standards which the administrator has prescribed as a guide for his office in making decreases in maximum rentals, more particularly to Section 5(c)(1), which authorizes a decrease in the maximum if it is "higher than the rent generally prevailing in the Defense-Rental Area for comparable housing accommodations on April 1, 1941." But, assuming this complaint is otherwise meritorious, the standards thus provided are no less definite than those contained in the Act itself, and the contention is therefore disposed of by the determination of the constitutionality of the Act.

3. Cf. the writer’s dissenting opinion in Yakus v. United States, ante, p. 460.

4. Under the Act, a protest against a regulation must be made within sixty days of its issuance, but if based on grounds arising after the sixty days, it may be filed "at any time" thereafter.

But, under the Administrator’s Revised Procedural Regulation No. 3, § 1300.216,

a protest against a provision of a maximum rent regulation based solely on grounds arising after the date of issuance of such maximum rent regulation shall be filed within a period of sixty days after the protestant has had, or could reasonably have had, notice of the existence of such grounds.

5. Cf. The writer’s dissenting opinion in Yakus v. United States, ante, p. 460.

6. E.g., the contention that the regulation, like the Act, improperly delegates to the administrator and his agents "legislative" power.


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Chicago: John Rutledge, "Rutledge, J., Concurring," Bowles v. Willingham, 321 U.S. 503 (1944) in 321 U.S. 503 321 U.S. 522–321 U.S. 529. Original Sources, accessed September 28, 2023,

MLA: Rutledge, John. "Rutledge, J., Concurring." Bowles v. Willingham, 321 U.S. 503 (1944), in 321 U.S. 503, pp. 321 U.S. 522–321 U.S. 529. Original Sources. 28 Sep. 2023.

Harvard: Rutledge, J, 'Rutledge, J., Concurring' in Bowles v. Willingham, 321 U.S. 503 (1944). cited in 1944, 321 U.S. 503, pp.321 U.S. 522–321 U.S. 529. Original Sources, retrieved 28 September 2023, from