Miller v. Mun. Court of L. A.

CARTER, J.

I concur in the conclusion reached in the opinion prepared by Mr. Justice Edmonds that a peremptory writ of mandate should issue in this ease directing the municipal court sitting as a small claims court in the city of Los Angeles to proceed with the trial of the case of Miller v. O’Farrell, but, as I am not in accord with all of the views expressed in said opinion, I am disposed to present my views in a separate opinion.

As I see the problem presented for consideration, it is first, whether the Emergency Price Control Act of 1942. (56 Stats., 23, 50 U.S.C.A.App. secs. 901-946) is constitutional, and if so, is the small claims court required to assume jurisdiction of causes arising under section 205(e) of said act.

*853 The Emergency Price Control Act was passed on January 30, 1942, with the express statement by Congress that it was “necessary to the effective prosecution of the war” (sec. 1), and the United States Supreme Court in commenting on the act has characterized it as “a statute borne of the exigencies of war.” (Scripps-Howard Radio Inc. v. Federal Communications Commission, 316 U.S. 4, 17 [ 62 S.Ct. 875 , 86 L.Ed. 1229 ].) Referring to the provisions of the Constitution of the United States which specify the various powers of Congress, we find that the constitutional basis of the act is in the power of Congress to make all laws necessary and proper for carrying into effect its war powers.

Article I, section 8, of the Constitution specifically grants to Congress broad and plenary powers to enact legislation in the interest and furtherance of the national defense and in the carrying on of a war. It provides in part: “The Congress shall have the power to lay and collect taxes . . . to pay the debts and provide for the common defense and general welfare of the United States. ... To declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than 2 years; to provide and maintain a Navy; to make rules for the government and regulations of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections and repel invasions; ... to make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the Government of the United States, or in any department or office thereof. ...”

In speaking of ‘ ‘ The Fighting Powers of the United States Under the Constitution,” Hon. Charles Evans Hughes said: “The power to wage war is the power to wage war successfully. The framers of the Constitution were under no illusions as to war. They had emerged from a long struggle which had taught them the weakness of a mere confederation, and they had no hope that they could hold what they had won save as they established a Union which could fight with the strength of one people under one government entrusted with the common defense. In equipping the National Government with the needed authority in war they tolerated no limitations inconsistent with that object, as they realized that the very existence, of the Nation' might be at stake and that *854 every resource of the people must be at command.” (Cong. Rec. Volume 55, Pt. 8, 65th Cong. 1st Sess. Appendix.)

It would appear from the language of the Supreme Court of the United States in the ease of United States v. MacIntosh, 283 U.S. 605 [ 51 S.Ct. 570 , 75 L.Ed. 1302 ], that no boundary has been fixed beyond which the government may not go in its exercise of the war powers if the interests of the nation demand. The court there stated:

“From its very nature, the war power, when necessity calls for its exercise, tolerates no qualifications or limitations, unless found in the Constitution or in applicable principles of international law. In the words of John Quincy Adams,— “This power is tremendous; it is strictly constitutional; but it breaks down every barrier so anxiously erected for the protection of liberty, property, and of life. ’' To the end that war may not result in defeat, freedom of speech may, by act of Congress, be curtailed or denied so that the morale of the people and the spirit of the army may not be broken by seditious utterances; freedom of the press curtailed to preserve our military plans and movements from the knowledge of the enemy; deserters and spies put to death without indictment or trial by jury; ships and supplies requisitioned; property of alien enemies, theretofore under the protection of the Constitution, seized without process and- converted to the public use without compensation and without due process of law in the ordinary sense of that term; prices of food and other necessities of life fixed or regulated; railways taken over and operated by the government; and other drastic powers, wholly inadmissible in time of peace, exercised to meet the emergencies of war.”

And, as was likewise said by the Supreme Court of the United States in the case of Home Building & Loan Association v. Blaisdell, 290 U. S. 398 [ 54 S.Ct. 231 , 78 L.Ed 413, 88 A.L.R. 1481 ], “keeping in mind at all times: . . . the war power of the federal government is not created by the emergency of war, but is a power given to meet that emergency. It is a power to wage war successfully, and thus it permits the harnessing of the entire energies of the people in a supreme cooperative-.effort to preserve the nation.”

The United States Supreme Court has upheld the power of the Federal Government in the interest of national defense, to take over and operate railroads, (Northern Pacific Bail-road Co. v. North Dakota, 250 U.S. 135 .[ 39 S.Ct. 502 , 63 L.Ed. 897 ]); to, take over and operate telegraph and tele *855 phone systems, (Dakota Central Telephone Co. v. South Dakota, 250 U.S. 163 [ 39 S.Ct. 507 , 63 L.Ed. 910 ]); to place compulsory orders for materials required for national defense, (Mo ore & Tierney, Inc. v. Roxford Knitting Co., 265 F. 177 [ 11 A.L.R. 1415 ], cert. den. 253 U.S. 498 [ 40 S.Ct. 588 , 64 L.Ed. 1032 ]); to draft man power for service in the armed forces, (Selective Draft Law Cases, 245 U.S. 366 [ 38 S.Ct. 159 , 62 L.Ed. 349 ]); to prohibit the manufacture or sale of alcoholic beverages, (Hamilton v. Kentucky Distilleries & W. Co., 251 U.S. 146 [ 40 S.Ct. 106 , 64 L.Ed. 194 ], Jacob Ruppert v. Caffey, 251 U.S. 264 [ 40 S.Ct. 141 , 64 L.Ed. 260 ]); to regulate the prices of certain commodities, (Highland v. Russell Car & Snow Plow Co., 279 U.S. 253 [ 49 S.Ct. 314 , 73 L.Ed. 688 ]); to control rents (Block v. Hirsh, 256 U.S. 135 [ 41 S.Ct. 458 , 65 L.Ed. 865 ]); and to maintain the civilian morale by the lessening of “apprehension on the part of consumers in respect of their supply and the prices liable to be exacted,” (Highland v. Russell Car & Snow Plow Co., 279 U.S. 253, 261 [ 49 S.Ct. 314 , 73 L.Ed. 688 ]).

The policy of Congress in the enactment of the Emergency Price Control Act and the purposes and objects to be accomplished thereby, that is, the need for price control in the interest of national defense and in the effective prosecution of the war, is disclosed by the following declaration contained in section 1(a) of the act itself: “It is hereby declared to be in the interest of the national defense and security and necessary to the effective prosecution of the present war, and the purposes of this act are, to stabilize prices and to prevent speculative, unwarranted and abnormal increases in prices and rents; to eliminate and prevent profiteering, hoarding, manipulation, speculation and other disruptive practices resulting from abnormal market conditions or scarcities caused by or contributing to the national emergency; to assure that defense appropriations are not dissipated by excessive prices; to protect persons with relatively fixed and limited incomes, consumers, wage earners, investors, and persons dependent on life insurance, annuities, and pensions, from undue impairment of their standard of living; to prevent hardships to persons engaged in business, to schools, universities, and other institutions, and to the federal, state, and local governments, which would result from abnormal increases in prices; to assist in securing adequate production of commodities and facilities; to prevent a post emergency collapse of values; to stabilize agricultural prices *856 in the manner provided in Section 3; and to permit voluntary-cooperation between the government and producers, processors, and others to accomplish the aforesaid purposes.”

To effectuate these purposes, maximum prices and rent regulations are to be promulgated. The procedure for issuance of Price Regulations is described in section 2(a) providing in part: “Whenever in the judgment of the Price Administrator . . . the price or prices of a commodity or commodities have risen or threaten to rise to an extent or in a manner inconsistent with the purposes of this act, he may by regulation or order establish such maximum price or maximum prices as in his judgment will be generally fair and equitable and will effectuate the purposes of this act. So far as practicable, in establishing any maximum price, the Administrator shall ascertain and give due consideration to the prices prevailing between October 1 and October 15, 1941 (or if, in the case of any commodity, there are no prevailing prices between such dates, or the prevailing prices between such dates are not generally representative because of abnormal or seasonal market conditions or other cause, then to the prices prevailing during the nearest two-week period in which, in the judgment of the Administrator, the prices for such commodity are generally representative), for the commodity or commodities included under such regulation or order, and shall make adjustments for such relevant factors as he may determine and deem to be of general applicability, including the following: Speculative fluctuations, general increases or decreases in costs of production, distribution, and transportation, and general increases or decreases in profits earned by sellers of the commodity or commodities, during and subsequent to the year ended October 1, 1941. Every regulation or order issued under the foregoing provisions of this subsection shall be accompanied by a statement of the considerations involved in the issuance of such regulation or order. . . . Before issuing any regulation or order under the foregoing provisions of this subsection, the Administrator shall, so far as practicable, advise and consult with representative members of the industry which will be affected by such regulation or order. ...”

It is obvious from the foregoing that the objective sought to be accomplished by the Emergency Price Control Act was that commodity prices be fixed on a fair and equitable basis during the period of economic chaos due to the abnormal conditions created by the existence of the war. It is likewise *857 obvious that to effectuate the purposes of this act the price administrator must give due consideration to prices prevailing during certain specific periods of normalcy and make adjustments for such relevant factors as the administrator determines to be of general applicability, including certain specific factors enumerated in the act.

In commenting upon the powers conferred upon the administrator by the provisions of this act the United States District Court for Kansas in the case of Henderson v. Kimmel, 47 F.Supp. 635 , said:

“Here, the Act contains both a clear statement of a definite policy of Congress and adequate, intelligible standards to guide the Administrator in fixing maximum rental. The objectives of the Act are set forth in Section 1(a) in meticulous detail. . . . Congress must state, insofar as is reasonably practicable, the purpose which it seeks to accomplish and the standards by which that purpose is to be worked out. It may then constitutionally delegate to an administrative agency the powers to determine the details essential to carry out the legislative purpose.”

It is obvious that the intricacies and diversity of the economic problems raised in price administration are such that Congress would be attempting the impossible if it sought to enact specific price ceilings for various commodities, and an undue rigidity imparted to the act would foster injustice and might well lead to a breakdown in administration. The market behavior of a multitude of commodities presents such a variety of patterns that it would be rash to establish standards narrowly confining the discretion of the administrator and yet to expect the results that are imperative. The act provides that the administrator, after having considered so far as practicable the prices prevailing during a past period must make adjustments for such relevant factors as he holds to be of general applicability, including certain specific factors specified in the act.

While our attention has not been called to any decisions of courts of last resort passing upon the validity of the federal Emergency Price Control Act of 1942, its constitutionality has been upheld in the following cases by United States District Courts where its validity was challenged. Henderson v. Kimmel, 47 F.Supp. 635 (D.C.D.Kan. 1942)United States v. C. Thomas Stores, Inc., 49 F.Supp, 111 (U.S.Dist.Ct., D. Minn. Feb. 26, 1943); United States v. Slobodkin, 48 F. *858 Supp. 913 (U.S.Dist.Ct., D.Mass., March 2, 1943); United States v. Hark and Yaffee, 49 F.Supp. 95 (U.S.Dist.Ct., D. Mass., March 5, 1943); United States v. Charney, 50 F.Supp. 581 .

Respondents rely strongly upon the cases of Panama Refining Co. v. Ryan, 293 U.S. 388 [ 55 S.Ct. 241 , 79 L.Ed. 446 ], and Schechter Poultry Corp. v. United States, 295 U.S. 495 [ 55 S.Ct. 837 , 79 L.Ed. 1570 , 97 A.L.R. 947 ], both involving the National Industrial Recovery Act in support of their contention that the federal Emergency. Price Control Act is an unconstitutional delegation of legislative power, but in my opinion these cases are clearly distinguishable, as they involved the construction of an act basicly different both as to subject matter and objectives from the Emergency Price Control Act. Furthermore, it is clear that during a period of war emergency, the scope of discretion which Congress may constitutionally accord to the executive branch of the government is necessarily broader than that which may be accorded in normal times.

The standards of the Emergency Price Control Act are as definite and as detailed as they can be without defeating the objectives of this legislation, when due regard is given to the needs of legislative and administrative practicability.

As was said in Opp Cotton Mills v. Administrator, 312 U.S. 126, 145 [ 61 S.Ct. 524 , 85 L.Ed. 624 ], (1941), in upholding the delegation of power to set minimum wages under the Fair Labor Standards Act: “The Constitution, viewed as a continuously operative charter of government, is not to be interpreted as demanding the impossible or the impracticable. The essentials of the legislative function are the determination of the legislative policy and its formulation as a rule of conduct. Those essentials are preserved when Congress specifies the basic conclusions of fact upon ascertainment of which, from relevant data by a designated administrative agency, it ordains that its statutory command is to be effective.”

That Congress need only establish standards within the realm of reasonable practicability was also stressed in United States v. Rock Royal Co-op, 307 U.S. 533, 574 [ 59 S.Ct. 993 , 83 L.Ed. 1446 ] (1939): “From the earliest days the Congress has been compelled to leave to the administrative officers of the government authority to determine facts which were to put legislation into effect, and the details of regulations which would implement the more .general enactments. It is well *859 settled, therefore, that it is no argument against the constitutionality of an act to say that it delegates broad powers to executives to determine the details of any legislative scheme. This necessary authority has never been denied. In dealing with legislation involving questions of economic adjustment, each enactment must be considered to determine whether it states the purpose which the Congress seeks to accomplish and the standards by which that purpose is to be worked out with sufficient exactness to enable those affected to understand these limits. Within these tests the Congress needs specify only so far as is reasonably practicable.”

Likewise, in Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 398 [ 60 S.Ct. 907 , 84 L.Ed. 1263 ] (1940), the court declared: ‘ ‘ The standards which Congress has provided here far exceed in specificity others which have been sustained. Certainly in the hands of experts the criteria which Congress has supplied are wholly adequate for carrying out the general policy and purpose of the Act. To require more would be to insist on a degree of exactitude which not only lacks legal necessity but which does not comport with the requirements of the administrative process. Delegation by Congress has long been recognized as necessary in order that the exertion of legislative power does not become a futility. Currin v. Wallace, 306 U.S. 1, 15 [ 59 S.Ct. 379 , 83 L.Ed. 441 ] and cases cited. But the effectiveness of both the legislative and administrative processes would become endangered if Congress were under the constitutional compulsion of filling in the details beyond the liberal prescription here. Then the burdens of minutiae would be apt to clog the administration of the law and deprive the agency of that flexibility and dispatch which are its salient virtues.”

From my study and analysis of the Emergency Price Control Act of 1942, and the authorities defining the extent of the war powers of Congress, I am convinced that said act is not in violation of any of the provisions of the Constitution of the United States and is a valid exercise of the war powers conferred upon Congress by said Constitution.

Turning to the question of whether or not the small claims court is required to assume jurisdiction of actions brought pursuant to section 205(e) of the Emergency Price Control Act’ I think it is clear that such court has jurisdiction of the action which is the subject of this proceeding and should be required to exercise such jurisdiction.

*860 It is conceded by all parties to this proceeding “that lawful rights of the citizen, whether arising from a legitimate exercise of state or national power, unless excepted by express constitutional limitation or by valid legislation to that effect, are concurrently subject to be enforced in the courts of the state or nation when such rights come within the general scope of the jurisdiction conferred upon such courts by the authority, state or nation creating them.” Carse v. Marsh, (1922), 189 Cal. 743 [ 210 P. 257 ]; United States v. Stevens, (1925), 103 Conn. 7 [ 130 A. 249 ]; United States v. Sumner, (1925), 125 Misc. 658 [ 211 N.Y.S. 705 ]; United States v. Richards, (1930), 201 Wis. 130 [ 229 N.W. 657 ]; Ex parte Gounis, (1924), 304 Mo. 428, 443 [ 263 S.W. 988 ]; Mondou v. New York, N. H. & H. R. Co., (1912), 223 U.S. 1 [ 32 S.Ct. 169 , 56 L.Ed. 327 ]; Minneapolis & St. Louis R. R. Co. v. Bombolis, (1916), 241 U.S. 211 [ 36 S.Ct. 595 , 60 L.Ed. 961 ]; Holmberg v. Lake Shore & M. S. Ry. Co., (1915), 188 Mich. 605 [155 N.W. 504]; State ex rel. Schendel v. District Court of Lyon County, (1923), 156 Minn. 380, 381 [ 194 N.W. 780 ].

It has also been held that an employee’s suit for double the amount of unpaid wages authorized by the Federal Fair Labor Standards Act may be instituted in state courts pursuant to the provision that such actions may be commenced “in any court of competent jurisdiction.” Forsyth v. Central Foundry Co., 240 Ala. 277 [ 198 So. 706 ] (1940); Duke v. Helena-Glendale Ferry Co., 203 Ark. 865 [ 159 S.W.2d 74 , 139 A.L.R. 1404 ] (1942); Adair v. Traco Division, 192 Ga. 59 [ 14 S.E.2d 466 ] (1941); Harrison v. Herzig Building & Supply Co., 290 Ky. 445 [ 161 S.W.2d 908 ] (1942); Mengel v. Ishee, 192 Miss. 366 [ 4 So.2d 878 ] (1941); Abre v. Lindsay Bros. Co., 211 Minn. 136 [ 300 N.W. 457 ] (1941); Emerson v. Mary Lincoln Candies, Inc., 173 Misc. 531 [ 17 N.Y.S.2d 851 ] (1941), aff’d per curiam, 287 N.Y. 577 [ 38 N.E.2d 234 ], 26 N.Y.S.2d 489 (1941); Atkocus v. Terker, 30 N.Y.S. 2d 628 (1941); Hart v. Gregory, 218 N.C. 184 [ 10 S.E.2d 644 , 130 A.L.R. 265 ] (1940); Floyd v. DuBois Soap Co., (Ohio App.) 38 N.E.2d 919 (1941); Tapp v. Price-Brass Co., 177 Tenn. 189 [ 147 S.W.2d 107 ] (1941); Stringer v. Griffin Grocery Co., (Tex.Civ.App.) 149 S.W.2d 158 (1941); Hargrave v. Mid-Continent Petroleum Corp., 36 F.Supp. 233 (E.D.Okla. 1941); aff’d 129 F.2d 655 (C.C.A. 10, 1942).

Section 205(e) of the Emergency Price Control Act provides that: “Any suit or action under this subsection may be brought in any court of competent jurisdiction.” Section *861 205(e), which contains the general jurisdictional provisions of the act, provides in part: “The district courts shall have jurisdiction of criminal proceedings for violations of Section 4 of this Act and concurrently with State and Territorial courts, of all other proceedings under Section 205 of this Act.”

It is the contention of respondents that the recovery authorized by the Federal Emergency Price Control Act of 1942, by a consumer who has been overcharged for a commodity in violation of the provisions of said act is a penalty created by federal law which cannot be enforced in the California courts. They rely mainly upon the cases of Wisconsin v. Pelican Insurance Co., 127 U. S. 265 [ 8 S.Ct. 1370 , 32 L.Ed. 239 ], and Huntington v. Attrill, 146 U.S. 657 [ 13 S.Ct. 224 , 36 L.Ed. 1123 ]. In my opinion the authorities do not support the position taken by respondents and that the recovery authorized by the Emergency Price Control Act to a consumer is not a penalty in the sense that that term has been defined by the leading authorities throughout the United States. The basic test to be applied to determine whether a statutory action is an action for a penalty, was that stated- by the Supreme Court of the United States in the leading ease of Huntington v. Attrill, supra, where the court said at page 667: “Penal laws, strictly and properly, are those imposing punishment for an offense committed against the state and which, by the English and American Constitutions the executive of the state has the power to pardon. Statutes giving a private action against the wrongdoer are sometimes spoken of as penal in their nature, but in such cases it has been pointed out that neither the liability imposed nor the remedy given is strictly penal.”

And at pages 673-674: “The question whether a statute of one state, which in some aspects may be called penal, is a penal law in the international sense, so that it cannot be enforced in the courts of another ‘state, depends upon the question whether its purpose is to punish an offense against the public justice of the state or to afford a private remedy to a person injured by the wrongful act.’ ”

The United States Senate Committee which dealt with the Emergency Price Control Act referred to the type of action which is the subject of this proceeding as “actions to recover damages.” In connection with this phase of the act, the committee stated: “Actions to recover damages—Such actions have proved valuable in the enforcement of other regulatory statutes, such as the Fair Labor Standards Act, both to re *862 lieve the Government of a part of the burden of enforcement and to deter initial violations. They afford a remedy at law to persons damaged by having to pay unlawfully high prices. ’ ’ (S. Rep. No. 931, 77th Cong., 2nd Sess. P. 9.)

Corpus Juris Secundum classifies actions as remedial and penal. In volume 1, page 1180, section 69 of this work, it states:

“Actions—Remedial and Penal: A remedial action is to be distinguished from a penal action in that the former is given to, and is brought by, the party aggrieved, and the recovery allowed is in the nature of compensation or indemnity for the injury done or loss sustained, an action of this character being remedial notwithstanding the amount recoverable may exceed the damages proved, while the latter is given to, and may be brought by, anyone who will sue, such as a common informer, or a designated plaintiff who need not show that he has sustained any injury, and the recovery allowed is not to compensate plaintiff, but to punish defendant.”

This subject was recently before the trial courts of New Jersey and Pennsylvania where it was exhaustively reviewed in opinions written by able jurists. The case of Walters v. Melavas was decided by the District Court of Orange, New Jersey in 1943, and is reported at page 622:91 Pike and Fischer OPA Service, and the case of Pratt v. Hollenbeck was decided by the Court of Common Pleas, Brie County, Penna., on March 1, 1943, and is reported at page 622:76 Pike and Fischer OPA Service. Both of these cases after an exhaustive review of the authorities hold that the provision in section 205(e) of the Emergency Price Control Act authorizing the recovery of the sum of $50 in lieu of treble damages for an overcharge is remedial rather than penal. Such holding is in accord with the great weight of authority throughout the United States and is supported by the following well considered eases: Whitman v. Oxford National Bank, (1900), 176 U.S. 559 [ 20 S.Ct. 477 , 44 L.Ed. 587 ]; Kirtley v. Holmes, (1901), 107 F. 1 [ 46 C.C.A. 102 , 52 L.R.A. 738 ]; Chattanooga Foundry & P. Wks. v. City of Atlanta, (1906), 203 U.S. 390 [ 27 S.Ct. 65 , 51 L.Ed. 241 ]; Cox v. Lykes Bros., (1927), 237 N.Y. 376 [ 143 N.E. 226 ]; Younts v. Southwestern Tel. & Tel. Co., (1911), 192 F. 200 ; Gruetter v. Cumberland Tel. & Tel. Co., (1909), 181 F. 248 ; Boston & Maine R. R. v. Hurd, (1901), 108 F. 116 [ 47 C.C.A. 615 , 56 L.R.A. 193 ]; Brady v. Daly, (1899), 175 U.S. 148 [ 20 S.Ct. 62 , 44 L.Ed. *863 109 ]; Atchison T. & S. F. Ry. Co. v. Nichols, (1924), 264 U.S. 348 [ 44 S.Ct. 353 , 68 L.Ed. 720 ]; Overnight Motor Transportation Co. v. Missel, (1942), 316 U.S. 572 [ 62 S.Ct. 1216 , 86 L.Ed. 1682 ].

A review of the foregoing authorities convinces me beyond doubt that the recovery provided for in the Emergency Price Control Act by a consumer who has been overcharged is remedial and not penal and may be enforced in the courts of California having jurisdiction of the amount of the recovery authorized.

It must be conceded by everyone that during the present national emergency, citizens are entitled to freedom from undue economic pressure. Certainly a remedy given by Congress to a consumer injured by virtue of the violation of price ceilings fixed by the price administrator does not constitute a penalty. It is simply a civil liability fixed by statute in lieu of damages for the violation of a civil right established by a federal statute.

That section 205(e) is civil and remedial in nature rather than penal is further emphasized when it is remembered that section 205(b) of said act provides for criminal prosecution of willful violators. Obviously, a person who had suffered a judgment as the result of a consumer’s treble damage action could not plead such judgment as a bar to a criminal prosecution upon the theory that the consumer’s treble damage action was “penal” in nature and that, therefore, any criminal prosecution would involve double jeopardy. United States ex rel. Marcus v. Hess, 317 U.S. 537 [ 63 S.Ct. 379 , 87 L.Ed. 443 ]. (January 18, 1943.)

In my opinion the peremptory writ of mandate prayed for should issue.