752

Opinion of the Court.

the other hand stands the affidavit of appellee Hirsch that direction for withholding and payment into the Treasury will not be needed or given in more than two or three instances, and in case any balance should remain it will be collected through suit instituted by the Government.

Whether the District Court accepted one version of the facts or the other, it found there was no sufficient basis in the claim of multiplicity to sustain equity's assumption of jurisdiction. We would not be disposed to override that judgment of the trial court, turning as much as it may upon questions of fact."

Moreover, it is not apparent, at any rate from the allegations, why it would be necessary for appellant to sue all of the sixteen customers or indeed perhaps more than one of them in order to secure a determination of its constitutional rights or preserve its rights. A single test suit would serve the former purpose fully, and there are no allegations of fact sufficient to show that appellant's rights of recourse against others probably would be lost by awaiting the outcome of such a suit, either legally through the operation of statutes of limitations or practically, as we have said, through any probable incidence of insolvency.

In the absence of either kind of showing, the injury appellant seeks to avoid by the argument of multiplicity actually comes down, as we have said, to deprivation of the use of the amount withheld for the period required for

"It is perhaps of some significance in this respect that the complaint contains allegations, though not made in this connection, relating to both the fiscal years 1942 and 1943 to the effect that over 80 per cent of the dollar value of appellant's total shipments were made to three private concerns, Fairchild Engine and Airplane Corporation, General Motors Corporation, Woodward Governor Company, and the United States Navy. Concerning the shipments to the Navy, see note 8.

completion of the Tax Court proceedings or a test suit against a customer. Whether or not there will be any injury in this limited respect depends of course, first, on the outcome of the Tax Court proceedings, particularly in relation to the matters of coverage; second, on whether, upon the assumption that those proceedings sustain the Government's claim as to all or part of the $270,000, the amount thus found due is finally held, in authorized litigation, to be due and owing to the appellant or to the Government. And, as we have also said, if that result should favor the appellant, the Government's obligation to indemnify the contractor would be, in effect, indirectly available to appellant to indemnify it for any loss of the use of the moneys withheld.45

Whatever might be true in other circumstances, this showing as to the necessity for suing many customers is hardly sufficient to justify the substitution of equity's extraordinary relief for what in all the conditions of this case appears to be a full, adequate and completely available remedy at law. Coffman v. Breeze Corporations, supra; Macauley v. Waterman S. S. Corp., supra.

Indeed the argument of multiplicity, with others, was expressly advanced and rejected in the Waterman case, as ground for not applying the Myers rule and for sustaining declaratory and equitable intervention to circumvent it. After noting the company's claim, with others, that "it would be subjected to a multiplicity of suits in order to recover the money due on the contracts," we there said: "Even if one or all of these things might possibly occur in the future, that possibility does not affect the application of the rule requiring exhaustion of administrative remedies. The District Court had no power to determine in this proceeding and at this time issues that might arise

45 See note 43 supra.

because of these future contingencies." 327 U. S. at 545.

This case is perhaps even stronger than the Waterman case for application of the Myers rule. For here the appellant is a subcontractor retaining what the contractor complainant did not have in the Waterman case, namely, a completely adequate remedy at law against its customers, buttressed by the Government's guaranty of indemnity to the contractor for all liability incurred by him on account of withholding funds allegedly due the appellant.

In view of that fact the further one that constitutional issues are included among those tendered in this case but were not presented in the Waterman case, becomes wholly immaterial. To countenance short-circuiting of the Tax Court proceedings here would be, under all the circumstances but more especially in view of Congress' policy and command with respect to those proceedings, a long overreaching of equity's strong arm.

The judgment is

MR. JUSTICE JACKSON Concurs in the result.

MR. JUSTICE DOUGLAS dissents.

Affirmed.

DECISIONS PER CURIAM, ETC., FROM APRIL 8,

1947, THROUGH JUNE 23, 1947.*

No. 1229. PEETE V. CALIFORNIA. April 10, 1947. Petition for writ of certiorari to the Supreme Court of California denied. The motion for a stay is also denied. Morris Levine for petitioner.

No. 129, Misc. EX PARTE ROCKOWER. April 14, 1947. The request of the petitioner for leave to withdraw the application filed herein is granted.

No. 133, Misc. EX PARTE FAHEY ET AL. April 14, 1947. A rule is ordered to issue, returnable Monday, April 28, next, requiring the respondents to show cause why leave to file the petition for writ of mandamus and/or prohibition and/or injunction should not be granted. The cause is assigned for argument on the return to the rule immediately following the hearing in Fahey v. Mallonee, No. 687. All proceedings tending to effectuate the order of the District Judge granting a motion with respect to costs and expenses of certain appellees in case No. 687 and counsel fees are hereby stayed pending the further order of this Court. Acting Solicitor General Washington for petitioners.

*MR. JUSTICE DOUGLAS took no part in the consideration or decision of cases in which judgments or orders hereinafter reported were announced on May 12 and 19, 1947, with the exception of cases No. 11, original, and No. 715, post, p. 788.

For orders on applications for certiorari, see post, pp. 797, 805; rehearing, post, p. 863.