Thе plaintiffs-appellees are fifteen corporations, all of which were organized under the laws of South Carolina and none of which is domiciled in Puerto Rico. Each corporation was organized for the purpose of providing housing for rent and sale pursuant to § 608 of the National Housing Act, 56 Stat. 303, as amended, 12 U.S.C.A. § 1743, and each is the owner of forty-one or more two family duplex houses in Caparra Terrace, in the Ward of Monacillo, Rio Piedras, in the City of San Juan, Puerto Rico, located on land owned by the corporation subject to a mortgage insured by the Federal Housing Administration. Pursuant to the authority conferred in the above section of the Act to “require such mortgagor to be regulated or restricted as to rents or sales, charges, capital structure, rate of return, and methods of operation,” and to “acquire for not to exceed $100 stock or interest in any such mortgagor, as the Commissioner may deem necessary to render effective such restriction or regulation,” the Fеderal Housing Commissioner acquired all of the preferred stock of each corporation and caused certain restrictions to be included in each plaintiff’s corporate charter, including the following:
“Article 7. The corporation shall not, without the prior approval of the holders of a majority of the shares of preferred stock * * * (c) permit the occupancy of any dwelling accommodations of the corporation except at or below the rents fixed by thе schedule of rentals provided hereinafter — .
* a* *
“Article 9. (a) Dwelling accommodations of the corporation shall be rented at a maximum average rental per room per month fixed by the Board of Directors of the corporation and approved by the holders of the preferred stock. A schedule of rentals for the reasonable rental value of each apartment based upon the average so determined shall be filed with the holders of the preferred stock, prior to the leasing or offering for lease of any of the dwelling accommodations of the project, and when approved by them, shall thereafter be maintained except as provided in Article 7 hereof.”
In August 1952 the Commissioner approved lease-option agreement rent schedules, insofar as here material, of $100 per month for a duplex with the requirement that the lessee-optionee keep and maintain the leased premises “in [the] same condition, order and repair, naturаl wear and tear excepted” as the premises were in at the time of the lease and that the lessee-optionee “strictly follow and immediately comply with any and all written instructions as to required repairs and maintenance.” Under the lease-option agreements the lesseeoptionee is given a credit in increasing amount for each $100 of rent paid, thus establishing as time goes on a potential credit toward payment of the purchase price fixed for the premises. Eaсh of the plaintiff-appellee corporations has entered into a number of these agreements and various lessee-optionees have accumulated potential credits in varying amounts ranging from small sums to amounts in excess of $900. 1 The Commissioner in approving the lease-option *553 agreements provided that the rental specified therein was not to be increased or decreased without his written consent, and although it does not appear that the Commissioner was ever asked to do so, it does affirmatively appear that in fаct he has never given his consent to any increase or decrease in the rental specified and required in any lease-option agreement.
The defendant-appellant is the Administrator of the Reasonable Rents Act of the Commonwealth of Puerto Rico, 17 L.P.R.A. §§ 181-218, and he is, of course, a citizen and resident of that Commonwealth. He has taken the position that the local Act applies to the duplex houses owned by the plaintiffs-appellees, and has assorted that as to those aсcommodations he intends to enforce § 190 of the Act which provides that except for repairs made necessary by reason of “malicious damages” caused to the leased property by the tenant “the lessor is bound to make all necessary repairs to the rented property during the period of the lease, in order to maintain it in a condition suitable for the use to which it has been devoted, and to maintain all its services in operation.” Accordingly, he has directed one of the plaintiffs, the Delaware corporation, to make repairs to a duplex owned by that corporation. Recently The Federal Commissioner caused a survey to be made for the purpose of determining the condition of the plaintiffs-appellees buildings and he is now “calling on the plaintiffs to see that the necessary repairs are made without delay.” 2 The list of repairs required of each of the plaintiff corporations exceeds 83,500 in cost.
Faced with the demand of the Administrator to repair their properties in spite of the provision in the lease-option agreements that the lessees-optionees make their own repairs, which could not be changed without the written consent of the Federal Housing Commissioner, the lessor corporations sought a declaratory judgment in the court below that § 190 of the Reasonable Rents Act cannot “be constitutionally applied as to and enforced against” their duplex dwellings and that, if constitutionally applicable, the Act is not violated by the repair requirement of the lease-option agreements for the reason that those agreements embodied “two separate and distinct contracts”, one for the leasing of the property and the other for its purchase at a fixed price, and the tenants’ covenant to keep in repair was given as consideration for the contract of purchase. The plaintiff corporations did not ask for either coercive or monetary relief.
The District Court denied a motion by the defendant to dismiss for lack of jurisdiction and on the facts outlined above, which by stipulation of counsel it derived from the pleadings and supporting affidavits, the court below entered a declaratory judgment that the Act “cannot be applied as to, and enforced against, the duplex dwellings owned by [the] plaintiffs.” The defendant-Administrator thereupon took the present appeal.
The District Court correctly denied the motion to dismiss for lack of jurisdiction.
First.
From the facts stated above the trial court’s diversity jurisdiction under § 41 of the Organic Act of 1917 popularly called the “Jones Act,” 39 Stat. 965, as amended, 62 Stat. 989, 48 U.S.C.A. § 863, is abundantly clear. See Cepero v. Pan American Airways, 1 Cir., 1952,
Second.
While it is well established that “Puerto Rico cannot be sued without its consent,” Bonet (Sancho) v. Yabucoa
*554
Sugar Co., 1939,
We shall not attempt to support this conclusion by undertaking to distill from the cases a verbal formula or rule designed for general applicаtion. Even a cursory examination of the authorities shows the futility of venturing in that direction. Nor shall we attempt by an analysis of decisions to trace the tortuous line between suits against a sovereign and suits only against the officers of a sovereign. That was thoroughly done ten years ago in the majority and dissenting opinions in Larson v. Domestic & Foreign Commerce Corp., 1949,
“If the conduct of the defendant constitutes an unwarrantable interference with property of the complainant, its resort to equity for protection is not to be defeated upon the ground that the suit is one •against the United States. The exemption of the United States from suit does not protect its officers from personal liability to persons whose rights of property they have wrongfully invaded. * * * And in case of an injury threatened by his illegal action, the officer cannot claim immunity from injunction process. The principle has frequently been applied with rеspect to state officers seeking to enforce unconstitutional enactments * * *. And it is equally applicable to a Federal officer acting in excess of his authority or under an authority not validly conferred. * * *
“The complainant did not ask the court to interfere with the official discretion of the Secretary of War, but challenged his authority to do the things of which complaint was made. The suit rests upon the charge of abuse of power, and its merits must be determined accordingly; it is not a suit against the United States.”
See also Ex parte Young, 1908,
Third.
In Mora v. Mejias, 1 Cir., 1953,
We pass the mooted question whether an application for declaratory judgment wherein no injunctive or coercive relief is requested is an application for an injunction within the meaning and intendment of § 2281. See Public Service Commission of Utah v. Wycoff, 1952,
“In so far as it is alleged that the assessments are void because unauthorized by the Arizona statute, the injunction sought is obviously not upon the ground of the unconstitutionality of the state statute as tested by the federal Constitution.
“The allegаtions that the assessment should be enjoined because violative of the statute exempting preferred stock owned by the Reconstruction Finance Corporation and R.S. § 5219 [12 U.S.C.A. § 548] depend upon no constitutional provision within the meaning of Judicial Code Section 266. 3 If such assessments are invalid, it is because they levy taxes upon property withdrawn from taxation by federal law or in a manner forbidden by the National Banking Act. The declaration of the supremacy clause gives superiority to valid federal аcts over conflicting state statutes but this superiority for present purposes involves merely the construction of an act of Congress, not the constitutionality of the state enactment. This was decided as to Section 266 in Ex parte Buder [271 U.S. 461 , 465-466,46 S.Ct. 557 ,70 L.Ed. 1036 ], and before that a similar result had been reached in Lemke v. Farmers’ Grain Company [258 U.S. 50 , 52,42 S.Ct. 244 ,66 L.Ed. 458 ] in regard to a provision of the Judicial Code granting direct appeal to this Court in cases where the sole issue was the unconstitutionality of a state statute.” [Footnotes omitted], 310 U.S. at рages 358-359,60 S.Ct. at page 950 .
Turning then to the contention that the valuation was excessive in comparison with that of the stock of other banks, Mr. Justice Reed on page 361 of 310 U.S., on page 951 of 60 S.Ct. continued:
“It is necessary to distinguish between a petition for injunction on the ground of the unconstitutionality of a statute as applied, which requires a three-judge court, and a petition which seeks an injunction on the ground of the unconstitutionality of the result obtained by the use of a statute which is not attacked as unconstitutional. The latter petition does not require a three-judge court. In such a case the attack is aimed at an allegedly erroneous administrative action. Until the complainant in the district court attacks the constitutionality of the statute, the case does not require the convening of a three-judge court, any more than if the complaint did not seek an interlocutory injunction.” [Footnotes omitted]
*556
Furthermore a year later in Phillips v. United States, 1941,
Having determined that the court below had jurisdiction, and our appellate jurisdiction under Title 28 U.S. C. § 1291 being clear, we turn now to the question whether the court below abused its discretion in exercising its jurisdiction.
This is not an easy question to answer. Despite the general obligation of a federal court to decide questions properly brought before it, it is clear that “ * * * a federal court, adhering to the sаlutary policy of refraining from the unnecessary decision of constitutional questions, may stay proceedings before it, to enable the parties to litigate first in the state courts questions of state law, decision of which is preliminary to, and may render unnecessary, decision of the constitutional questions presented.” Meredith v. City of Winter Haven, 1943,
We have already noted, however, that for the purposes of 28 U.S.C. § 2281, it is well established that the mere fact that the “declaration of the supremacy clause gives superiority to valid federal acts over conflicting state statutes” is not deemed to constitute sufficient basis for holding that a case involving a conflict between such statutes presents a constitutional question within that Act. Ex parte Bransford, supra, 310 U.S. at pages 358-359,
Furthermore, one district court in an apparently unappealed decision squarely held that “Deference to state regulatory measures does not require this court to forego its jurisdiction where, as here, its primary task will be to weigh the effects of federal legislation and regulation pursuant thereto as against state regulatory measures.” Pennsylvania Greyhound Lines v. Board of Public Utility Com’rs, D.C.N.J.1952,
These considerations seem to make good sense, and led another district court to hold that “Here the Court must appraise the reach of a federal statute when in conflict with state law. In that field it should assert and not forego its jurisdiction.” United Air Lines v. Public Utilities Com. of Cal., D.C.N.D.Cal.
*557
1952,
Avoidance of a serious constitutional question is not, however, the only ground for the requirement that the federal courts postpone the exercise of their jurisdiction. There are additional grounds for doing so but none of them are found in the case at bar. Here not only is there no present action pending in the local courts, as there was in such cases as Albertson v. Millard, 1953,
Finally, it is worthwhile to note that, although the Supreme Court has, undoubtedly correctly, regarded considerations “of delay, inconvenience, and cost to the parties,” City of Chicago v. Fieldcrest Dairies, 1942,
Thus we come at last to the merits.
In resolving this clash of federal and local authority, the District Court stated:
“It is unnecessary to go into the history of the Federal Housing Administration to show that this instrumentality of the National Government, created under a federal statute within the competency of Congress to enact, must be permitted to operate without being hamstrung by local state legislation. Suffice it to say that a finding was made to the effect that a nationwide construction of housing was imperative, and that the Federal Housing Administration was set up to make nation-wide construction feasible. Under this vast plan the Commissioner is vested with power to regulate rentals and other conditions respecting the projects constructed under the statute, in the manner he deems most appropriate to an efficient and speedy achievement of the legislative purpose, and to the extent that these projects are concerned, the Federal Statute is paramount.
******
“Intervention by the defendаnt with the contractual relations between the plaintiff corporations and their lessees-tenants and revision of the rents approved by the Commissioner of the Federal Housing Administration would frustrate the purposes of the National Housing Act, and a judgment will be entered declaring that the Reasonable Rents Act of the Commonwealth of Puerto Rico cannot be applied and enforced against the duplex apartments involved in this action.”
This determination would seem clearly correct. While in some instances a federal legislative program has been made subject to the variable consequences of local law, see, e. g., Reconstruction Finance Corporation v. Beaver County, 1946,
Judgment will be entered affirming the judgment of the District Court.
Notes
. The complaint alleges the following facts admitted by the defendant:
“ $ * * plaintiff corporations have each entered into, and there are now in force and effect, lease-option agreements with lessees, in number as follows: Allen Corporation, 91; Bangor Corporation, 70; Chester Corporation, 45; Delaware Corporation, 89; Early Corporation, 63; Franklin Corporation, 92; Indiana Corporation, 100; June Corporation, 81; King Corporation, 73; Lane *553 Corporation, 42; Miami Corporation, 47; North Corporation, 41; Quaker Corporation, 97; Reading Corporаtion, 40; San-tee Corporation, 90.”
. While under the lease-option agreements approved by the Commissioner the burden of repairs is thrown on the lessee, the plaintiffs remain responsible to the Commissioner under the restrictions of their corporate charters to see that all necessary repairs are carried out.
. Section 266 of the old Judicial Code was the predecessor section of § 2281 of Title 28 U.S.C. Unlike the present section, it applied only on hearings for interloeutory injunctions. For a brief history of the section, see Hart and Weehsler, The Federal Courts and the Federal System, 848-49 (1953).