Petition for Writ of Certiorari — Brown v. O'Brien

AIC 949

CHARLES ELMORE CROPLEY

CLERK

*

IN THE

Supreme Court of the Anited States

Oocroser Tzem, 1949.

No. 228

WILLIAM BR. BROWN,

ve. '

VINCENT O’BRIEN,

Petitioner,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF ILLINOIS.

PETITION FOR WRIT OF CERTIORARI AND BRIEF

IN SUPPORT THEREOF. |

WILLIAM R. BROWN,

10 South La Salle Street,

Chicago, Illinois,

Attorney for Petitioner.

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INDEX.

ArauMENT SUMMARY: PAGE

1. The right of Trial by jury preserved by the

Seventh Amendment of the Constitution secured

to litigant the right to have the jury determine

the question of liability and amount of the dam-

GOED oi vich = wpmnd senncdd cnccecmsantp o¥f 05409045 14

2. Congress cannot regulate the practice in State

Courts in suits at common law based on a Federal

Statute so as to require the damages to be as-

sessed by the court and not by ajury. ......... 17

3. Congress cannot authorize State Courts to enter

judgment for an amount in excess of the verdict

OF GRO POET 6 o cc Pe aes e eee CPi A Fe 19

4. The Emergency Price Control Act of 1942, as

amended, gave respondent no right to withhold

possession of the premises after expiration of

the lease, the end of petitioner’s offer of the

WONG WOE BODE. is canna fs cecissin checsacacas 20

5. The Act does not authorize a suit by respondent

to recover money paid in course of business for

the purpose of making a profit by bringing this

WUE hake Soc GNECE CARES RUCENR SECS SRT ERA eS 20

6. The payment by respondent six months after he

surrendered possession of the premises was not

made ‘‘in connection with the use or oceupancy’”’

of the premises and was not rent as defined in the

PRESS 958 es OTS Spy Aan ae ea eee AE ee 22

EIEN Sic broaden G44 aki mk Oe son Aksenmcdinns a 23

I rte en Orr 13, 14

Juriediction to grant Writ ........cccccccccccsccces 6

2 Pt nr. reer ar eens ete wl caceas 1

en IN os Fala civs clei Na s tees Sse EE 7, 13

Reasons for graviting the writ ....................0. 8

Statement of matter involved ....... LER ERET CR CTLS 1

ii

CrraTIons.

Bowles v. Willingham, 321 U.S. 503.................

Caldarola v. Eckert, 332 U.S. 155...................

Claflin v. Hauseman, 93 U. S. 130...................

Day v. Woodworth, 13 How. 363....................

Denver R. G. R. v. Harris, 122 U. S. 597

Dimick v. S. W. Consumers Co-op. Assn., 49 N. M. 69

60 SNE. Ti. belies evh. dade ed. ivewan. c8s4 8, 9, 15, 19

Dunokin v. 8S. W. Co-op. Assn., 49 N. M. Ge. TER 10, 22

Federal Power Com. v. Pacifie P. & L. Co., 307 U.S.

ea ctaackcavsants shabaasenkaat ves en ieaees 9, 18, 19

Flint v. Stone Tracy Co., 220 U. S. 107............... 21

Lightbody v. Russell, 45 N. Y. S. 15................. 10

O’Brien v. Brown, 403 TUL. UGS. .....55 . .0.60000:00 0% 095% ll

Teste & Fleming v. Katt, 330 U. S. 386.............. 9, 18

Trapp v. Great A. & P. Tea Co., 21 N. J. Mise. 205. . .10, 22

ConstTITUTION oF Unrrep States.

Amendment VII of the Constitution................ 11,18

SE Wine cr kina wknd GA chon ks a bes ee 11,18

STATUTES.

The Emergency Price Control Act of 1942 as amended.

See. 4 (d), 50 U.S. C. A. App. 904 (d).......... 6, 12, 20

See. 205 (e), 50 U. S. C. A. App. 925 (e)...... 6, 12,17, 21

See. 302 (g), 50 U. S. C. A. App. 942 (g)........... 6, 12

IN THE

Supreme Court of the Anited States

OcTOBER Term, 1949.

No.

WILLIAM R. BROWN,

Petitioner,

vs.

VINCENT O’BRIEN,

Respondent.

ON WRIT OF CERTIORARI TO THE SUPREME COURT

OF ILLINOIS.

PETITION FOR WRIT OF CERTIORARI.

To the Honorable the Chief Justice and Associate Justices

of the Supreme Court:

The petitioner, William R. Brown, respectfully prays

that a writ of certiorari may issue to review the decision of

the Supreme Court of Illinois entered in the above entitled

cause on March 14, 1949 which affirmed the judgment of the

Superior Court of Cook County, Illinois.

I,

Statement of the Matter Involved.

Respondent, Vincent O’Brien, a lawyer since 1922, (R.18),

sued petitioner, William R. Brown, in the Superior Court

of Cook County to recover three times the amount of an

2

alleged overcharge for rent exacted by petitioner, as author-

ized by the Emergency Price Control] Act and amendments

thereto, and attorney fees. (50 U. S. C. A. App. sec. 925

(e)). (R. 1,2) After the evidence was concluded the judge

directed the jury to find the petitioner had demanded and

received $1,320 rent in violation of such statute. (R. 35),

The Court, heard evidence and assessed the damages,

entered judgment against petitioner for the amount of

$3,960, and an additional amount of $500 fixed by the court

as reasonable attorney fees. (R. 3, 13) The petitioner

throughout the pleading and trial claimed that the Emer-

gency Price Control Act was unconstitutional, and raised

other constitutional questions.

Petitioner leased to respondent a residence property in

Chicago for the term October 1, 1941, to September 30, 1943.

In like manner the premises were let to respondent by a

second lease for the two-year term October 1, 1943, to Sep-

tember 30, 1945. The provision for rent was, in both leases,

identical :

‘First. Lessee shall pay to lessor, at the office of

lessor, or designated agent, the rent per month of One

Hundred twenty-five dollars ($125.00) in advance, for

the term created by this lease.’’

Respondent withheld possession (R. 29) of the premises

after notice from his landlord in August, 1945, that the lease

would not be renewed that he was going to remove the

property from the rental market. (R. 20, 21.)

He stayed in possession until May 20, 1946, tendering to

defendant the sum of $125 for each month beyond the end

of the term of the second lease through April, 1946. These

tenders were refused. (R. 19, 20.)

On January 24, 1946 the petitioner commenced an action

in the Municipal Court of Chicago against the respondent.

=>"

3

This action was on a covenant in the lease for the payment

of liquidated damages of $10 per day for each day the re-

spondent withheld possession of the premises from peti-

tioner after the expiration of the lease. The Municipal

Court dismissed the action and petitioner appealed. (R.

22, 28.)

On November 22, 1946 while the appeal was pending

respondent wrote a letter to the petitioner in which he said:

‘‘You will recall that the written lease between us

covering that property was for a term which expired

on September 30, 1945, at a rental of $125.00 per month.

That lease provides that at the termination thereof I

shall yield possession of that property to you and

failing so to do shall pay as liquidated damages the

sum of $10.00 per day. I surrendered possession of

that property to you on May 20, 1946 i.e. 232 days after

the expiration of that lease. You have contended that

at the time of the expiration of that lease you wished

to remove that property from the rental market and

at that time I was required to surrender possession

of the property to you. You further contend that under

the provisions of that lease I became and am liable to

pay you $2320.00 being the product of $10.00 per day

for the 232 days ip question. I hereby tender to you

$2320 in United States Currency, being as hereinbefore

set forth the amount of your claim.”’

The payment thus tendered was accepted by petitioner

(R. 20, 21).

The respondent decided to pay petitioner’s claim and

sue him under the statute for triple damages and attorneys

fees (R. 10, 26).

The Appellate Court held that the petitioner having re-

ceived the liquidated damages of $10.00 per day claimed

in the appeal dismissed the appeal (R. 24). Brown v.

O’Brien, 331 Ill. App. 23.

On January 10, 1947 the present action was instituted

4

for three times the alleged overpayment of rent of $1320.00

and for reasonable attorneys fees as provided in the Emer.

gency Price Control Act as amended, (50 U.S.C.A. App.

See. 925 (e).) The overcharge was calculated as being the

difference between the $2320.00 paid as liquidated damages

and the alleged maximum rent of $1000 for eight months

October 1945 to May 1946 (R. 1, 2).

The answer of petitioner raised the defense that the act

was unconstitutional as it deprived petitioner of trial by

jury contrary to the Constitution of the United States and

the State of Illinois; and that respondent was estopped

from claiming the payment of liquidated damages for with-

holding possession of the premises was rent; that the

maximum rent was $3000 for a two year term; that respond-

ent was not an occupant of the premises on November 22,

1946 when the $2320 was paid (R. 2, 3). The petitioner

amended his answer to allege that respondent made the pay-

ment of $2320 for the purpose of enriching himself by bring-

ing this suit (R. 8).

The trial court directed the jury to return the following

verdict :

‘*We, the jury, find that the defendant William R.

Brown demanded and received from Vincent O’Brien,

the plaintiff, an overcharge of rent in the amount of

$1320.00 in violation of the Emergency Price Control

Act of 1942, as amended’’ (R. 35).

The trial court heard evidence and argument concerning

attorneys’ fees and damages and allowed $500 as attorneys’

fees and assessed the damages at $3960.00 (R. 11, 12).

The State Supreme Court of Illinois in affirming the judg-

ment held that the constitutional right of trial by jury is

not impaired when the amount of damages is found by

a court after a jury or a pleading has established a factual

basis out of which damages arise (R. 66).

_

5

The State Supreme Court also held that Congress has

the power to regulate procedure in State Courts in the en-

forcement of Federal Laws (R. 65).

The State Supreme Court also held that the sum of

$2320 paid to the owner of the premises as liquidated dam-

ages for withholding possession of the premises was a pay-

ment of rent (R. 63, 64).

The State Supreme Court also held that The Emergency

Price Control Act, and regulations thereunder were in-

tended to ‘‘freeze’’ the occupancy of premises and tenants

could lawfully oceupy premises so long as they paid rent

(R. 64).

The Supreme Court dismissed all other points urged

without specific decision (R. 67). These points are dis-

cussed at length in the dissenting opinion holding that a

payment made six months after surrender of the premises

cannot be brought within the ambiguous phrase of the act

‘in connection with’’ the use and occupation of the prem-

ises (R. 71).

Another point dismissed without discussion in the ma-

jority opinion was petitioner’s claim that payment made

by respondent, a lawyer, for purpose of enriching himself

by bringing suit for triple damages were not within the

act. In the dissenting opinion it is said:

‘‘To deny recovery in this type of case does not

mean that violations will go unpunished. Adequate

means of enforcement are afforded to the Adminis-

trator without the necessity of converting the provision

into an instrument of private aggrandizement”’ (R. 71).

Il.

Jurisdictional Statement.

On March 24, 1949 the Supreme Court of Illinois, the

highest court in the State of Illinois in which a decision

could be had, filed its opinion affirming a judgment of the

Superior Court of Cook County and on May 11, 1949 denied

a petition for a rehearing (R. 58, 89).

This petition for writ of certiorari is presented within

three months of May 11, 1949 having been filed August 10,

1949,

The jurisdiction of this court is invoked under Title 28

United States Code, and Judicial Procedure Section 1257,

Paragraph 3, Public Law 773, 80th Congress, 67, effective

September 1, 1948.

The validity of the Emergency Price Control Act of 1942,

as amended, is drawn in question as denying the right of

trial by jury in an action at common law in the state courts.

The judgment is a decision in which rights, privileges

and immunities is specially set up or claimed under the

Constitution of the United States, Seventh Amendment, and

under Emergency Price Control Act of 1942, as amended,

a Statute of the United States. The Emergency Price Con-

trol Act of 1942, as amended, 50 U.S.C.A. App. 904 (d),

925 (e) and 942 (g) Chap. 26 Sec. 4 (d) and 205 (e) 56

Stat. 23 as amended by Sec. 108 (b) Chap. 325, 58 Stat. 640,

approved June 30, 1944, and Sec. 302 (g) 56 Stat. 36.

Iil.

Questions Presented.

1. Whether in suits at common law the right of trial by

jury preserved by the Seventh Amendment to the Consti-

tution of the United States includes the assessments of dam-

ages by the jury?

2. Whether Congress can regulate the practice in the

State Courts in suits at common law based on a Federal

Statute so as to require the damages to be assessed by the

Court and not by a jury?

3. Whether Congress can regulate the practice in the

State Courts in suits at common law based on a Federal

Statute so as to authorize the State Courts to enter judg-

ment for an amount in excess of the verdict returned by

the jury?

4. Whether the Emergency Price Control Act of 1942,

as amended, gave respondent after notice by petitioner that

he would not offer the premises for rent after the expira-

tion of his lease, a right to withhold possession of the prem-

ises from petitioner?

5. Whether respondent, a lawyer, can six months after

surrender of possession of the premises make a payment

of liquidated damages for withholding possession of the

premises after the expiration of his lease for the purpose

of enriching himself by a suit at common law for treble

damages and attorney fees maintain an action under the

Emergency Price Control Act of 1942, as amended?

6. Whether respondent who has been notified by peti-

tioner prior to the expiration of his lease that the premises

would not be offered for rent after the end of the lease can

maintain an action under the Emergency Price Control

8

Act of 1942, as amended, where he withheld possession of

the premises from petitioner for 232 days after the expira-

tion of the lease and six months after surrendering pos-

session of the premises to petitioner paid petitioner $2320

as liquidated damages of $10 per day for withholding pos-

session of the premises after the expiration of his lease?

IV.

Reasons Relied Upon for Allowance of the Writ.

1. The state court held that the constitutional right

of trial by jury is not impaired when the amount of dam-

ages is found by a court after a jury or a pleading has

established a factual basis out of which damages arise.

This raises a very important question of a right or privi-

lege set up under the Seventh Amendment of the Constitu-

tion.

In Dimick v. Scheidt, 293 U. S. 474, 486, 79 L. Ed. 603,

611 this court held that the determination of liability and

the assessment of damages are both questions of fact that

must be submitted to the jury and not decided by the court.

The state court’s construction of the right of trial by”

jury is in conflict with the decision of this court in Dimick v.

Scheidt, supra.

2. The state court held that Congress could regulate

the practice in state courts in actions at common law based

on a Federal Statute so as to require the damages to be

assessed by the court and not by a jury.

This is question of great importance in the preservation

of the right of trial by jury secured by the Constitution

not theretofore decided by this court.

The decision is not in accord with applicable decisions

of this court, holding that power, jurisdiction of state

courts is governed by State Constitution and Statutes.

Test & Fleming v. Kati, 330 U. S. 386, 91 L. Ed.

776.

Caldarola v. Eckert, 332 U. S. 155, 91 L. Ed. 1968.

It is also inconsistent with Art. ITI Sec. 1 Federal Con-

stitution as construed by this court in Federal Power Com.

v. Pacific P. & L. Co., 307 U. S. 156, 83 L. Ed. 1180.

3. The state court held that Congress could regulate

the practice in the state courts in actions at common law

so as to authorize the state court to enter judgment in an

amount in excess of the verdict of the jury.

This is in direct conflict with the decision of this court

in Dimick v. Scheidt, 293 U. S. 474, 482, 79 L. Ed. 603, that

the Constitution forbids the court increase the damages

awarded by the jury.

4. The state court held that respondent could lawfully

withhold possession of the premises after the expiration of

his lease and after notice by petitioner that he would not

offer the premises for rent.

This decision denied petitioner the right to discontinue

rental of the premises after the expiration of the lease. This

is in clear conflict with the decision of this court in Bowles

v. Willingham, 321 U. S. 503, 517, 88 L, Ed. 892, 905.

5. Respondent, a lawyer, made the payment six months

after surrender of possession of the premises for the pur-

pose of bringing this suit for treble damages and attorneys’

fees.

This was a payment in the course of business, for gain

or profit, and respondent could not bring an action under

the statute.

10

The state court’s decision is in con*ict with decisions of

the courts in sister states in the following cases:

Trapp v. Great A. é P. Tea Co., 21 N. J. Mise. 205,

32 Atl. 2d 717.

Dunokin v. S. W. Co-op Assn., 49 N. M. 69, 157

Pac, 2d 243.

Lightbody v. Russell, 45 N. Y. 8S. 2d, 15, 293 N. Y,

492.

and the dissenting opinion in this case (R. 71).

6. Respondent made the payment in question six months

after he surrendered possession of the premises to peti-

tioner. This payment cannot be said to have been ‘‘ received

in connection with the use or occupancy . . . of any hous-

ing accommodation’’.

The decision of the state court is in direct conflict with

the provision of the statute. 50 U.S.C.A. App. 942 (g).

Wherefore, it is respectfully submitted that this petition

for the writ of certiorari to review the judgment of the

Supreme Court of Illinois should be granted.

Wu R. Brown,

Attorney for Petitioner.

11

BRIEF IN SUPPORT OF PETITION FOR

WRIT OF CERTIORARI.

I .

Opinion in State Courts.

Opinion in Illinois Supreme Court. O’Brien v. Brown, 403

Ill. 183 (Adv. Sheets) (R. 58, 70).

Il.

A Statement of the matter involved is incorporated in

the petition and will not be repeated here.

IIl.

A Jurisdictional Statement is incorporated in the peti-

tion and will not be repeated here.

Iv.

Constitution and Statutes involved.

Amendment VII of the Constitution:

‘“*In suits at common law, where the value in con-

troversy shall exceed twenty dollars the right of trial

by jury shall be preserved, and no fact tried by a jury

shall be otherwise reexamined in any Court of the

United States, than according to the rules of the com-

mon law.”’

Constitutional Article III, See. 1:

“‘The judicial Power of the United States shall be

vested in one Supreme Court and in such inferior

Courts as the Congress may from time to time ordain

and establish.’’

12

Statutes involved:

Emergency Price Control Act of 1942, Jan. 30, 1942, Ch.

26, Title I, S. 4(d), 56 Stat. 28 (50 U.S.C.A. App. 904(d))

Ch. 26 Title II, S. 205 (e) 56 Stat. 33, as amended June 30,

1944 C, 325, Title I, S. 108 (e) 58 Stat. 640 (50 U.S.C.A. 925

(e)) Ch. 26 Title III, See. 302 (g) 56 Stat. 36 (50 U.S.C.A.

942 (g)).

See. 4(d) (50 U.S.C.A. App. 904 (d)) provides:

‘Nothing in this Act shall be construed to require

any person . .. to offer any accommodations for rent.’’

See. 302(g¢) (50 U.S.C.A. 942 (g)) provides:

‘“The term ‘rent’ means the consideration demanded

or received in connection with the use or occupancy or

the transfer of a lease of any housing accommoda-

tions.’’

See. 205 (e) (50 U.S.C.A. App. 925 (e)) provides:

“*If any person selling a commodity violates a regu-

lation, order, or price schedule prescribing a maximum

price or maximum prices, the person who buys such

commodity for use or consumption other than in the

course of trade or business may, within one year from

the date of the occurrence of the violation, except as

hereinafter provided, bring an action against the seller

on account of the overcharge. In such action, the seller

shall be liable for reasonable attorney’s fees and costs

as determined by the court, plus whichever of the fol-

lowing sums is greater: (1) Such amount not more

than three times the amount of the overcharge, or the

overcharges, upon which the action is based as the

court in its discretion may determine, or (2) an amount

not less than $25 nor more than $50, as the court in its

discretion may determine: Provided however, That

such amount shall be the amount of the overcharge or

overcharges or $25, whichever is greater, if the de-

fendant proves that the violation of the regulation

order or price schedule in question was neither willful

nor the result of failure to take practicable precau-

—

13

tions against the occurrence of the violation. For the

purposes of this section the payment or receipt of rent

for defense-area housing accommodations shall be

deemed the buying or selling of a commodity, as the

case may be; and the word ‘overcharge’ shall mean

the amount by which the consideration exceeds the ap-

plicable maximum price. If any person selling a com-

modity violates a regulation, order, or price schedule

prescribing a maximum price or maximum prices, and

the buyer either fails to institute an action under this

subsection within thirty days from the date of the oc-

currence of the violation or is not entitled for any

reason to bring the action, the Administrator may

institute such action on behalf of the United States

within such one year period. If such action is insti-

tuted by the Administrator, the buyer shall thereafter

be barred from bringing an action for the same viola-

tion or violations. Any action under this subsection

by either the buyer or the Administrator, as the case

may be, may be brought in any court of competent

jurisdiction. * * *”’

V.

QUESTIONS PRESENTED.

The questions presented and reasons relied upon for the

allowance of the writ, are incorporated in the petition and

will not be repeated here. Each six questions and reasons

will be discussed in the following argument.

Specification of Errors.

The Supreme Court of Illinois erred:

1. In holding that the right of trial by jury was not

impaired by the court hearing evidence and assessing the

damages. :

2. In holding Congress had the power to regulate the

practice in state courts in suits at common law so as to

14

require damages to be assessed by the court and not by a

jury.

3. In holding that Congress can regulate the practice in

state courts so as to authorize the state courts to enter

judgment for an amount in excess of the verdict of the jury.

4. In holding that the Emergency Price Control Act, as

amended, gave respondent a right to withhold possession

of the premises after expiration of his lease and notice by

petitioner that he would not offer the premises for rent.

5. In holding that respondent, a lawyer, can make a pay-

ment of liquidated damages for witholding possession of

the premises six months after surrender of possession for

the purpose of enriching himself by a suit at common law

for treble damages and attorney’s fees under the Emer-

gency Price Control Act of 1942, as amended.

6. In holding that respondent could maintain suit under

the Emergency Price Control Act as amended, for a pay-

ment made six months after he had surrendered possession

of the premises.

ARGUMENT.

VI.

The right of trial by jury preserved by the Seventh Amend-

ment of the Constitution secures to litigants the right to

have the jury determine the question of liability and

amount of the damages.

The trial court instructed the jury to return a verdict find-

ing an overpayment of $1320 rent (R. 35), the trial judge

heard evidence and argument and assessed the damages

at $3960 and entered judgment for $3960 plus $500 attor-

ney’s fees (R. 11).

—_—_

15

The State Supreme Court held that the right of trial by

jury is not impaired when the amount of the damages are

assessed by the trial judge after a jury has established the

factual basis out of which damages arise (R. 66).

This is a very important question of construction of the

Federal Constitution and if it stands trial judges may

assess damages and enter judgment for more or less than

the amount assessed by the jury or without submitting the

question of damages to the jury.

The state court has decided this federal question of sub-

stance in a way probably not in accord with applicable

decisions of this court. (Rule 38 (5) (a)).

In Dimick v. Schiedt (1935), 293 U. S. 474, 79 L. 603 action

was brought in U. 8. District Court for damages due to

personal injuries due to negligent operation of an automo-

bile on the public highway. The jury returned a verdict in

favor of plaintiff for the sum of $500. Motion for new trial

on ground verdict against the weight of the evidence and

the damages were inadequate. District Court ordered a

new trial unless defendant would consent to an in¢érease of

the damages to $1,500. Defendant consented. Circuit

Court of Appeals reversed the trial court, holding that the

conditional order violated the Seventh Amendment of the

Federal Constitution in respect of the right of trial by

jury. 70 F. 2d 558.

The Supreme Court said (p. 476):

‘In order to ascertain the scope and meaning of the

Seventh Amendment, resort must be had to the appro-

priate rules of the common law established at the time

“ae adoption of that constitutional provision in

The court then reviews the English cases and then said

(p. 482) :

16

‘‘From the foregoing and from many other English

authorities which we have examined but deem it un-

necessary to cite, we conclude that, while there was

some practice to the contrary in respect of decreasing

damages, the established practice and the rule of the

common law, as it existed in England at the time of the

adoption of the Constitution, forbade the court to in-

crease the amount of damages awarded by a jury in

actions such as that here under consideration.’’

The court then reviewed earlier cases of remittatur

where damages were excessive. The court then said

(p. 486) :

485—H Note 2

“*The controlling distinction between the power of

the court and that of the jury is that the former is the

power to determine the law and the latter to determine

the facts. In dealing with questions like the one now

under consideration, that distinction must be borne

steadily in mind. Where the verdict returned by a

jury is palpably and grossly inadequate or excessive,

it should not be permitted to stand; but, in that event,

both parties remain entitled, as they were entitled in

the first instance, to have a jury properly determine

the question of liability and. the extent of the injury by

an assessment of damages. Both are questions of fact.

(Emphasis supplied.) Where the verdict is excessive,

the practice of substituting a remission of the excess

for a new trial is not without plausible support in the

view that what remains is included in the verdict along

with the unlawful excess,—in that sense that it has

been found by the jury,— and that the remittitur has

the effect of merely lopping off an excrescence. But

where the verdict is too small, an increase by the court

is a bold addition of something which in no sense can

be said to be included in the verdict. When, therefore,

the trial court here found that the damages awarded

by the jury were so inadequate as to entitle plaintiff to

a new trial, how can it be held, with any semblance of

reason, that that court, with the consent of the defend-

ant only, may, by assessing an additional amount of

damages, bring the constitutional right of the plaintiff

_—

17

to a jury trial to an end in respect of a matter of fact

which no jury has ever passed upon either explicitly or

by implication? To so old is obviously to compel the

plaintiff to forego his constitutional right to the verdict

of a jury and accept ‘an assessment partly made by a

jury which has acted improperly, and partly by a tri-

unal which has no power to assess.’’’ (Emphasis

supplied. )

VII.

Congress can not regulate the practice in state courts in

suits at common law based on & federal statute so as to

require the damages to be assessed by the court and not

by a jury.

The Statute Sec. 205 (e) (50 U.S.C.A. 925 (e)) provides:

‘In such action, the seller shall be liable for reason-

able attorney’s fees and costs as determined by the

court, plus whichever of the following sums is greater:

(1) Such amount not more than three times the amount

of the overcharge . .. upon which the action is based

as the court in its discretion may determine or (2) an

amount not less than $25 nor more than $50 as the

court in its discretion may determine.”’

The state court held that Congress could regulate the

practice in state courts and that this provision did not deny

the right of trial by jury secured by the Seventh Amend-

ment (R. 65).

This is a decision of a federal question of substance not

theretofore determined by this court. (Rule 38 (5) (a)).

This is an important question of constitutional law that

should be determined and settled by this court.

We have shown under Point VI, supra, that this court

held in Dimick v. Scheidt, 293 U. S. 474 that the determina-

tion of liability and assessment of damages is a question of

fact for a jury under the Seventh Amendment.

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18

The Seventh Amendment prohibits the reexamination of

questions of fact by the trial judge in the following words;

‘*No fact tried by a jury, shall be otherwise reexam-

ined in any Court of the United States, than according

to the rules of the common law.’’

Under this provision Congress could not authorize fed-

eral courts much less state courts to hear evidence and re-

examine facts in jury cases for purpose of assessing

damages.

It should be remembered that Congress has never regu-

lated the practice in federal courts prior to authorizing

Rules of Civil Procedure for District Courts of the United

States, the federal courts following state practice, much

less has Congress prior to the approval of the Price Control

Act of 1942 attempted to regulate proceedings of state

courts.

This presents an important question not heretofore

passed upon by this court. The decision of the state court

is probably in conflict with the principles laid down by this

court in holding that Congress can determine the scope and

jurisdiction of the federal courts. Federal Power Com. v.

Pacific P. é L. Co., 307 U. 8. 156, 83 L. Ed. 1180 and the

holding in Claflin v. Houseman, 93 U.S. 130, 23 L. Ed. 833;

Teste & Fleming v. Katt, 330 U. S. 386, 91 L. Ed. 967;

Caldarola v. Eckert, 332 U.S. 155, 158, 91 L. Ed. 1968, 1971

that powers and jurisdiction of the state courts is governed

by the state constitution and statutes.

The decision of the state court is probably not in accord

with Art. ITI, Sec. 1 of the Federal Constitution:

‘‘The Judicial Power of the United States shall be

vested in one Supreme Court, and in such inferior

courts as the Congress may from time to time ordain

and establish.’’

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19

This court held in Federal Power Com. v. Pacific P. & L.

Co., 307 U. S. 156, 83 L. Ed. 1180 that Congress determines

the scope and jurisdiction of the lower federal courts.

This court has never been heretofore called upon to

determine this question as Congress has never before de-

prived citizens of the right of trial of common law actions

by jury.

) VIII.

Congress can not authorize the state courts to enter judg-

Ment for an amount in excess of the verdict of the jury.

The state court held that there was no error in the trial

court entering judgment for damages and attorney’s fees

in excess of the verdict of the jury (R. 62, 70).

This decision is not in accord with applicable decision of

this court. (Rule 38 (5) (a)).

In Dimick v. Scheidt, 293 U. S. 474, 482 91 L. Ed. 603 this

court held :

_.. both parties remain entitled... to havea jury

properly determine the question of liability and the

extent of the injury by an assessment of damages.

Both are questions of fact.”’

This court reversed the above case because the court

entered judgment for an amount in excess of the verdict

of the jury.

This court has held that the award of exemplary damages

has always been left to the jury.

Day v. Woodworth, 13 How. 363, 371, 14 L. Ed. 181.

Denver & Rio G. R. v. Harris, 122 U. 8. 597, 609.

a

Ix.

The Emergency Price Control Act of 1942, as amended,

gave respondent no right to withhold possession of the

premises after expiration of the lease, the end of peti-

tioner’s offer of the premises for rent.

Petitioner notified respondent that he would not offer the

premises for rent after the expiration of the lease and was

withdrawing the premises from the rental market (R.

20, 21).

Respondent withheld possession after the expiration of

his lease for 232 days (R. 20). The state court held:

‘*The Emergency Price Control Act and the regula-

tions thereunder were designed and expressly intended

to ‘freeze’ the occupancy of premises covered. The

landlord here was in the company of thousands of

others who had tenants who could lawfully occupy as

long as they paid the rent’’ (R. 64).

This decision is in conflict with Sec. 4(d) of the <Aet,

50 U.S.C.A. App. 904 (d), as decided by this court in Bowles

v. Willingham, 321 U.S. 508, 517, 88 L. Ed. 892, 905 where

this court said:

**By S.4(d) of the act it provides ‘nothing in this

act shall be construed to require any a nee 3 to sell any

commodity or to offer any accommodations for ves

There is no requirement that the apartments in ques-

tion be used for purpose which bring them under the

act.’’

x.

The act does not authorize a suit by respondent to recover

money paid in the course of business for the purpose of

making a profit by bringing this suit.

Respondent, a lawyer, made the payment six months

after he surrendered possession of the premises for the

_

21

of bringing this suit to collect treble the amour:

of the alleged overpayment and attorney’s fees (R. 10, 26).

Judgment was entered for $3960.00 treble the alleged

overpayment and $500 attorney’s fees (R. 12). The State

Supreme Court affirmed (R. 58, 70).

The act Sec. 205 (e) provides: (50 U.S.C.A. App. 925 (e))

“Tf any person selling a commodity violates ... 8

rice schedule . . . the person who buys such commodity

or use or consumption other than in the course of

trade or business may. . . ver an action against the

seller .. . For the purposes of this section the payment

of rent... shall be deemed the buying or selling of a

commodity . . . if the buyer either fails to institute an

action under this subsection . . . or is not entitled for

any reason to bring the action, the Administrator may

institute such action on behalf of the United States.”’

The payment made by respondent, a lawyer, to make a

profit was in the course of business.

Business has been defined in Flint v. Stone Tracy Co., 220

U.S. 107, 171,55 L, Ed. 389, as

‘‘Business is a very comprehensive term and em-

braces everything about which a person can be em-

ployed. Black’s Law Dist. 158, citing oe ex rel.

Hoyt v. Tax Comms., 23 N. Y. 242, 244: ‘That which

occupies the time, attention and labor of men for the

8 ae of a livelihood or profit.’ 1 Bouvier’s Law

ict., p. 273.”’

This being a payment made for profit was in the course

of business and only the ‘‘ Administrator’’ could bring suit

“‘for the use of the United States’? under the Act.

It is correctly said in the dissenting opinion:

‘‘Adequate means of enforcement are afforded to

the administrator without the necessity of converting

the provisions into an instrument of private aggrand-

izement”’ (R. 71).

aa

In the following cases the courts of sister states have

held that where a purchaser of a commodity in a retail store

at over ceiling prices for the purpose of bringing suit under

the Emergency Price Control Act could not recover.

Trapp v. Great A. é P. Tea Co., 21 N. J. Mise. 205,

32 Atl. 2d 717. :

Dunokin v. S. W. Consumers Co.-op Ass’n, 49 N. M.

69, 157 Pac. 2d 243.

This question of substance decided by the state court not

theretofore determined by this court should be decided by

this court.

xi.

The payment made by respondent six months after he sur-

rendered possession of the premises was not made “‘in

connection with the use or occupancy’’ of the premises

and was not rent as defined in the act.

Respondent surrendered possession of the »remises May

20, 1946 (R. 20) six months later on November 22, 1946 the

payments of liquidated damages for withholding possession

of the premises after the expiration of his lease was made

(R. 20, 21).

Rent is defined in Sec. 302 (g) of the Act, (50 U.S.C.A.

App. 942 (g)) as follows:

“*The term ‘rent’ means the consideration demanded

or received in connection with the use or occupancy

or the transfer of a lease of any housing accommoda-

tions.’

In the dissenting opinion in the State Supreme Court it

is said:

“‘At the time this payment was made the plaintiff

(respondent) was neither in possession nor attempting

to obtain possession. He voluntarily abandoned the

_—— ast

23

premises six months before. Under the circumstances

the payment cannot, consistently with the purposes of

the act, be brought within the ambiguous phrase ‘in

connection with’ the use or occupancy of housing

accommodations. It has no relation with the applicable

statutory objective to ‘protect persons with relatively

fixed and limited incomes . . . from undue impairment

of their standard of living’’’ (R. 71).

This presents a question of substance not theretofore

determined by this court and should be decided by this

court. :

Conclusion.

For these reasons Petitioner urges that the Writ of

Certiorari prayed in the Petition be granted.

Wu R. Brown,

Attorney-Petitioner.