Clearly, the decision in that case does not change the rule that a court of equity may mould its decree to suit the circumstances of the case and the needs of the public interest. In approaching a case such as the one at bar, the court should not consider the controversy as existing merely between an agency of the Government and a defendant, Bowles v. Montgomery Ward & Co., supra; nor should the court administer Section 205(a) grudgingly, Hecht Co. v. Bowles, supra. In the latter case, 321 U.S.at page 331, 64 S. Ct.at page 592, 88 L. Ed. 754, the Supreme Court made evident the duty of the courts in this type of case: 'The Administrator does not carry the sole burden of the war against inflation. The courts also have been entrusted with a share of that responsibility. And their discretion under Sec. 205(a) must be exercised in the light of the large objectives of the Act. For the standards of the public interest not the requirements of private litigation measure the propriety and need for injunctive relief in these cases. That discretion should reflect an acute awareness of the Congressional admonition that 'of all the consequences of war, except human slaughter, inflation is the most destructive' (S. Rep. No. 931, supra, p. 2) and that delay or indifference may be fatal.' (Emphasis supplied.)
In view of the foregoing, I am of the opinion that it is a proper exercise of discretion to grant the injunction requested by the Administrator. The defendants have persisted in noncompliance with these record-keeping requirements since their inception. They have violated, and continued to violate for a two-year period, the one requirement of our price control system which makes it possible for them to conduct their business without regard to our wartime economy in the greatest degree of safety from detection. Such violation not only makes it possible to exceed ceiling prices, but makes it difficult and burdensome for the price control officials to determine at this time whether the records which are now submitted, or which will be submitted, are accurate and honest. The additional sanction afforded by the injunction here sought is not merely desirable, but necessary in the public interest.
The merit, if any, in the argument that this is government by injunction is outweighed by the advantages of efficient enforcement of the Act. As pointed out by Judge Clark in his dissent in Bowles v. Sacher, 2 Cir., 1944, 146 F.2d 186, 188, in the Second Circuit: 'The courts who 'also have been entrusted with a share of that responsibility' of the war against inflation, Hecht Co. v. Bowles, 321 U.S. 321 at page 331, 64 S. Ct. 587, at page 592 (88 L. Ed. 754), are already and for better or for worse engaged in that job. * * * As the Seventh Circuit Court well said in the Montgomery Ward case, supra, 143 F.2d 38 at page 43, 'Any easy attitude of the courts which even remotely suggests that the Act may be violated with impunity strikes at the entire enforcement problem."
The defendants have cited Bowles v. Sacher, supra, but there the majority decided only that the lower court did not abuse its discretion in refusing the relief prayed for. If anything, the case reaffirms the broad discretion vested in the trial judge.
Concerning the defendants' vigorous contention that the precedent there established should apply in the instant case it must be pointed out that the fact situation in the Sacher case is strikingly different from the fact situation in the case at issue.
In the Sacher case the suit by the OPA was instituted on September 21, 1943, so that in that case the defendant had only been in default for a period of a year and three months in the maintenance of base period and current price records.
In the case at issue, on the other hand, the suit was instituted on October 2, 1944, so that the defendants were in default for a period of two years and three months. Also one can understand the reluctance of the District Court in the Sacher case to issue the more drastic injunction against violation of ceiling prices at a time when the price control economy was in its swaddling clothes, and was so striking a change from the uncontrolled practices of our peace-time economy. However, here the defendants were in default for two years and three months over a period in which the Emergency Price Control Act and its administration had become ingrained as part of the warp and woof of the fabric of our wartime economy.
Finally, anent the ruling in the Sacher case, I must say that I am not in accord with the statement of the District Court
that it could 'see no * * * intention spelled out or discoverable by implication' in the OPA statute to authorize broad injunctions. On that score I am in accord with the statement in the dissenting opinion of Circuit Judge Clark that Sec. 205(a) of the Emergency Price Control Act ' * * * is, however most broad in terms in its several references to 'any person' and to 'any acts or practices which constitute or will constitute' a violation of the Act or the regulations under Sec. 4, 50 U.S.C.A.Appendix § 904. Most significantly it provides for application for injunction 'whenever in the judgment of the Administrator' any person has engaged in such acts, a judgment of the official having the primary duty in the premises, which is here set at nought. And this construction seems made quite clear by the later Stabilization Extension Act of 1944, Sec. 107.'
With respect to Bowles v. Fisher & Co., Inc., 1 Price Control Cases Sec. 51,027 (S.D.N.Y., 1943), it may be noted that Paragraph A3
of the injunction sought therein is substantially broader than Paragraph D here involved. That section does not set forth the definite or specific acts enjoined and may be characterized as a general injunction against all possible breaches; hence, it must fall. Swift & Co. v. United States, supra. In so far as Section 383 of 28 U.S.C.A.and Federal Rule 65(d), 28 U.S.C.A.following section 723c, are concerned, I cannot agree that they are applicable here.
Accordingly, I state the following conclusions of law:
1. Defendants have violated the Emergency Price Control Act of 1942, as amended, by failing to prepare on or before July 1, 1942, or at any time prior to October 23, 1944, the statement of March 1942 maximum prices, commonly known as a 'base period statement' as required by Section 1499.11 of the General Maximum Price Regulation.
2. Defendants have violated the Emergency Price Control Act of 1942, as amended, by failing to keep records showing the basis upon which they determined maximum prices for such commodities sold by them after May 11, 1942, as required by Section 1499.12 of the General Maximum Price Regulation.
3. Defendants have violated the Emergency Price Control Act of 1942, as amended, by failing to file reports of maximum prices as required by Section 1315.1557 of Maximum Price Regulation No. 220.
4. The fact that defendants have, since the institution of this suit, prepared the base period statement and current pricing records required by Sections 1499.11 and 1499.12 respectively of the General Maximum Price Regulation is not a bar to the issuance of an injunction in this case.
An injunction may issue.
An order may be submitted in accordance with this opinion.