1 Reported in 171 P.2d 797. M.G. Walker, the plaintiff below, rented an apartment from the defendant, Bartley B. Gilman. After surrendering it on defendant's demand, he brought this action, alleging that, during his tenancy, he had been *Page 559 charged more than the lawful maximum rent authorized by the provisions of the Federal emergency price control act of 1942 (56 Stat. 23; 50 U.S.C.A. (App.), § 901 et seq.), and the regulations promulgated in pursuance thereof.
Under § 205 (e) of the act [50 U.S.C.A. (App.), § 925e], one who is charged more than the applicable maximum legal price may bring an action against his vendor, or landlord, to recover fifty dollars with respect to each separate overcharge, or for treble the total amount of the overcharges, "whichever is thegreater." As the plaintiff in this case alleged that he had been overcharged fifty dollars per month for seven consecutive months, treble the amount of the overcharge was obviously the greater, and was, therefore, if he proved his allegations, the legal measure of his recovery.
The defendant denied various allegations of the complaint and counterclaimed, alleging that the plaintiff and wife had seriously damaged the premises. The facts may be summarized as follows:
The defendant owned a two-story dwelling in the city of Seattle, within the Puget Sound rent control area established by regulation No. 20, issued May 27, 1942 (7 Fed. Reg. 4104). On April 1, 1941, the date upon which rents in the area were frozen by the regulation, the upper floor, which was fitted up as a furnished, or at least partly furnished, apartment, was rented for forty-five dollars per month. Under the Federal act, this was the maximum legal rent and would remain so unless and until altered by an order of the OPA authorities.
Prior to January, 1942, appellant installed French doors between the kitchen and dining room, a Murphy bed in the dining room, a new electric range, and some other new furniture. He also installed in the basement, but for the service of the entire house, a new automatic hot-water heater and a washing machine. He had no difficulty in renting the thus greatly improved apartment for seventy-five dollars per month. In July, 1942, he registered the apartment with the local OPA office, or attempted to do so, by filling out and *Page 560 mailing the registration form provided for that purpose. This form he filled out, in part, as follows:
"Rent on April 1, 1941: $45 per month Date first rented after such change: Jan. 1st, 1942 Rent on that date: $75.00 per month The Maximum Legal Rent for this Dwelling Unit is: $90.00 per month."
He did not give the date first rented after April 1, 1941, and a number of other details required by the registration blank, but did write thereon:
"This was converted from a single unit to a double unit consisting of two bedrooms, all linen, dishes, cooking utensils, bedding telephone service. Rented at present to two families of two each."
However, no data whatever was furnished as to the cost of these alterations and additions. This registration form is dated July 16, 1942, and is stamped on the back as having been received at the OPA office on that date. Three days thereafter, the plaintiff in this case moved into the apartment, at an agreed rental of seventy-five dollars per month. In December, 1942, he complained about his rental to the OPA. One of its investigators, a man named Lindville, called and examined the premises in January, 1943. According to his evidence, he then and there told Gilman that the legal rental was forty-five dollars per month. Gilman testified that he asked Lindville what the apartment was worth, that Lindville said, sixty-five dollars per month, and that defendant would hear from him later, but that he never did. He, however, subsequently testified, at another point in the trial, that the investigator called him by phone in January and told him the legal rent was forty-five dollars. We quote from his testimony:
"A. I received lots of telephone messages. Q. From the O.P.A.? A. Yes. Q. When did they begin? A. That began after the Walkers began to complain about their rent in January. Then this Lindville called me up and told me my rent would be $45.00. Well, that kind of rattled me. Well, I says, to him, `In that case, then, send me some document or something so I will have it. I can't take your word over the *Page 561 telephone to cut my rent. Anybody could tell me that.' So I disregarded it."
Either just before or just after Lindville's visit to the premises, Walker tendered a check a check for forty-five dollars to Gilman, which defendant refused. Walker then gave him a check for seventy-five dollars, which paid his agreed rental until February 19th. On January 23, 1943, Gilman served a notice on the plaintiff to quit and surrender the premises, in which notice it was alleged that plaintiff and wife had damaged the premises, had created nuisances by making loud noises at all times of day and night, and that Mrs. Walker had defecated on the basement floor. The Walkers moved out.
On the ensuing February 22nd, despite the fact that the OPA authorities had, as Gilman admitted, told him that the legal rental was forty-five dollars, Gilman rented the apartment to Lieutenant Pollick at seventy-five dollars per month. This action was begun by Walker on March 8th. On May 15th, another OPA representative examined the premises. Shortly after, the OPA notified Lieutenant Pollick that the maximum rental for the apartment was forty-five dollars per month. Pollick was pleased with the premises, liked the Gilmans, and was quite willing to pay seventy-five dollars per month. He went to the OPA authorities to intercede with them on behalf of the Gilmans, but was unable to persuade them to recede from the position they had taken. On his return, he talked the matter over with Gilman.
"He told me that I would either pay the $75.00 a month or get out, and that I would get out if I did not pay it. He told me further that he was not willing to accept the O.P.A. in this decision. I pointed out to him at that time that the O.P.A. was representing the government of the United States and that as an officer in the Army of the United States I could not violate a decision following a statute of that. When I took my oath, I took my oath to the constitution and the laws of the United States, and I could not and would not violate it. I offered at that time to Mr. Gilman to pay the $75.00 and to give them $45.00, the balance to be placed in escrow pending a court decision in the case." *Page 562
On June 17th, Lieutenant Pollick wrote Mr. Gilman the following letter:
"On or about February 22, 1943, you rented to me under a month to month tenancy the upper duplex in the premises commonly known as 3928 and 3930 Hudson Street, Seattle, at an agreed rental of $75.00 per month. In accordance with the terms of the oral tenancy I have paid the rent to and including July 1, 1943.
"In view of a controversy which has arisen between you and the O.P.A., I desire to move from said premises on or before midnight July 1, 1943. I hereby expressly request you to waive the usual notice of termination of tenancy.
"Will you please acknowledge on the bottom of this letter your consent to my moving from said premises above designated."
Mr. Gilman consented to his surrendering the premises.
The original of the registration form sent by Gilman to the OPA on July 16, 1942, was introduced in evidence. On its face, it was stamped: "Void. Must be registered again. Return this form with your new registration."
Defendant and wife testified that they had not seen that document after mailing it on July 16, 1942, until it was introduced at the trial, and, moreover, that they had had no written or other notice from the OPA that the rental therein proposed was not approved. It was argued at the trial, and is contended here, that, under the circumstances, they had the right to assume that it was approved. However, the defendant's chief contention was, and is, that he had expended $1,585 in altering the premises and providing additional furniture and facilities after April 1, 1942, and was, therefore, clearly entitled to charge additional rent.
The cause was tried in the superior court on January 7, 1944. The trial judge was called upon to construe an extremely novel and complex Federal statute, so recently enacted that there were but few reported cases dealing with it, and practically none dealing with the intricacies of its administrative provisions. In a very real sense, he was pioneering in this field. In a long and carefully prepared memorandum decision, handed down on January 20, 1944, he discussed at length the claim of defendant, Gilman, that he *Page 563 was, by the very terms of the OPA regulations, entitled to an automatic increase of rent because of the improvements he had made in and on the premises after the freeze date. After carefully quoting the pertinent regulations and analyzing the evidence as to this point, the trial judge, deciding that question on the merits, held that defendant was not entitled to an increase.
[1, 2] We do not find it necessary, or even proper, to inquire whether or not that finding is sustained by a preponderance of the evidence. There are two reasons why this is so: First, the defendant's application for a raise in rent was denied by an order which, under the law, was not reviewable by any court whatsoever, other than the emergency court of appeals, sitting at Washington, D.C.; and, second, no proceedings were taken to review the order within the time specified in the act, and it had, therefore, become res judicata long before this case came to trial.
[3] The appellant secondarily contends that, having applied for an increase of rental to seventy-five dollars per month and having received no notice from the OPA authorities that the increase was not approved, he rightly assumed that it was, in fact, approved. The assumption was rather sudden; for the application was mailed on July 16, 1942, and appellant rented the premises to plaintiff at the rate of seventy-five dollars per month within three days.
There is no merit in this contention, for other reasons. By force of the original basic "Regulation No. 20," the maximum, legal rental on July 16th, was without question the sum charged on the freeze date, which was forty-five dollars per month. The mere act of registering a higher rental could not change or increase it. We quote from the decision in Hayes v. Osborn,195 Okla. 612, 160 P.2d 956:
"To hold that the act of registering a room at a price greater than that which by force of said regulation is the actual ceiling price is effective to change such ceiling, would supersede the requirements that modifications of basic rentals be had only on petition of landlord, and it was so held in Henderson v. Morgan (1943 D.C. Utah), 54 F. Supp. 441 (O.P.A. Service p. 622:72, and quoted in note 147 A.L.R. p. 1454). It was said: *Page 564
"`Registration certificates are required to put the rent director in possession of the facts in regard to the rental arrangements of each property, and be the better advised to take any action which he might desire to take. But it in no waysupersedes the requirement for the landlord to petition formodification of basic rentals, or to assume that such statementsrepresent a satisfactory adjustment, if for any reason there is adesire for a change in the basic rent of any premises fixed as ofMarch 1, 1942'." (Italics ours.)
It is said, in a per curiam opinion by the circuit court of appeals, first circuit, in Thierry v. Gilbert, 147 F.2d 603:
"The regulation clearly provides that where a landlord supplies furnishings and equipment in substantial addition to what he was supplying on the freeze date, he nevertheless may not increase the rent until he has applied for and obtained from the Office of Price Administration an upward adjustment of the maximum rent." (Italics ours.)
The rental of the apartment as of April 1, 1941, necessarily remained the maximum legal rental until changed by some order of the OPA authorities. The only order which was ever issued purported to be effective as of June 1, 1942, but in this order the maximum rent was fixed at the same amount as it was by the original regulation, that is, by "Regulation No. 20," issued on May 27, 1942. The order, issued June 15, 1943, read as follows:
"The Rent Director has duly considered the above matter and finds that:
"The Rent Director has considered your petition, and after due investigation of the matter, he finds that: Under Section 5(d) of Maximum Rent Regulation No. 20, the rent on the maximum rent date was $45.00 per month.
"No major capital improvement has been completed as claimed on improper registration and no petition presented for additional services, therefore, present maximum legal rent is $45.00 per month.
"It is therefore determined that effective June 1, 1942, the Maximum Rent for the above accommodations was $45.00 per month."
(As hereinbefore noted, plaintiff's tenancy began on July 19, 1942.) *Page 565 [4] In prosecuting this appeal, the appellant is obviously faced with insuperable difficulties. First of all, no court, other than the emergency court of appeals created by the act and sitting in Washington, D.C., has jurisdiction to review, alter, amend, or set aside OPA orders.
In the case of Desper v. Warner Holding Co., 219 Minn. 607,19 N.W.2d 62, it appeared that, in the rental area involved, the rentals had been frozen at the amount charged on March 1, 1942. The landlord in that case, as the landlord did in this, moved additional furniture into the premises after that date, and thereupon, as the defendant landlord did in this case, demanded, and received, additional rent for the premises. Furthermore, he filed a petition with the OPA authorities, as the landlord did in this case, seeking the authorization of the additional rent. His petition was denied, as Gilman's was in this case. As to the point we are now discussing, the court said, in part:
"Defendant contended that because of better furnishings he was entitled to more than the maximum rent, . . .
"The validity of the maximum rent regulations of the Emergency Price Control Act of 1942 is not in question. Nor can the Minnesota courts pass upon the merits of a petition filed by defendant on July 20, 1943, to obtain an increase, nor upon the order denying such petition made on August 19, 1943, by said administrator. Sections 203 and 204 of the act indicate that Minnesota courts do not have jurisdiction for the determination of these questions. Section 204(d) provides:
"`. . . The Emergency Court of Appeals, and the Supreme Court upon review of judgments and orders of the Emergency Court of Appeals, shall have exclusive jurisdiction to determine thevalidity of any regulation or order issued under section 2, of any price schedule effective in accordance with the provisions of section 206, and of any provision of any such regulation, order, or price schedule. Except as provided in this section, nocourt, Federal, State, or Territorial, shall have jurisdiction orpower to consider the validity of any such regulation, order, orprice schedule, or to stay, restrain, enjoin, or set aside, inwhole or in part, any provision of this Act authorizing theissuance of such regulations or orders, or making effective anysuch price schedule, or any provision of any such regulation,order, or price *Page 566 schedule, or to restrain or enjoin the enforcement of any suchprovision.' (Italics supplied.)
"Under the provisions of § 203, one desiring to contest the validity of a regulation applicable to him may file a protest with the price administrator, stating objections to the regulation or order, and may likewise file a petition for adjustment seeking an increase in his particular case. Upon adenial thereof, the complainant may file a protest with theEmergency Court of Appeals (§ 204[a]) `to set aside such regulation, order, or price schedule, in whole or in part, to dismiss the complaint, or to remand the proceeding.' Such language effectively eliminates the jurisdiction of the state or other federal courts on such issues.
"The entire procedure contained in said sections, as well as the constitutionality of the act, has been upheld in the following cases: Yakus v. United States, 321 U.S. 414,64 S.Ct. 660, 88 L.ed. 834; Bowles v. Willingham, 321 U.S. 503,64 S.Ct. 641, 88 L.ed. 892; United States v. Pepper Bros. (3 Cir.) (1944) 142 F.2d 340; Bowles v. Nu Way Laundry Co. (10 Cir.) (1944) 144 F.2d 741; Brown v. Warner Holding Co. (D.C. Minn.) (1943) 50 F. Supp. 593. Accordingly, the validity of the act, as well as the merits of defendant's petition for an adjustment, is reserved exclusively to the administrative process, with judicial review lying in the Emergency Court ofAppeals only, as provided by the act."
(The cases of Yakus v. United States and Bowles v.Willingham, cited in the paragraph last above quoted, are, of course, the leading cases construing the price control act. They were argued in the supreme court of the United States on the very day (January 7, 1944) that the instant case was tried in the superior court of King county. The trial judge, in the instant case, handed down his memorandum decision on January 20th. The supreme court opinions were not filed until March 27th. The trial judge, therefore, did not have the advantage of those opinions, nor, for that matter, of practically all of the other opinions quoted or cited herein.)
The procedure above set out in the quotation from Desper v.Warner Holding Co., supra, has been characterized in Schafferv. Leimberg, 62 N.E.2d (Mass.) 193, as an
". . . ingenious legislative device . . . intended to make difficult any effective attack upon the constitutional *Page 567 validity of any regulation made by the administrator under the authority of that act."
However, as we have already pointed out, this procedure has been held to be "due process" by the supreme court of the United States in the Yakus and Willingham cases.
Secondly, let us suppose that we had the power to set aside the order of June 15, 1943, or that we could plausibly, and probably soundly, conclude that the order could not be considered to affect this case in any manner, since it was not made or issued until after the plaintiff's tenancy had terminated. In what position would that leave appellant? Certainly, it cannot be contended that the court, after holding the order of no effect, could then go on and fix and establish the legal rental. That is unquestionably within the exclusive administrative power of the OPA authorities. In the absence of any other order — and there is no other order — it would necessarily be compelled to hold that the legal rental during Walker's tenancy was that fixed by the original OPA regulation; that is, the amount that was being charged on April 1, 1941, which, as we have seen, was forty-five dollars.
[5] It, therefore, makes no difference whether the lawful maximum legal rental in this case was fixed by the order of June 15, 1943, or by the original regulation, since the amount is forty-five dollars in either case. The plaintiff was charged thirty dollars per month in excess of that amount for seven consecutive months, and is, therefore, legally entitled to recover his damages in this action, unless (1) we follow the supreme court of Rhode Island in holding, as it did in Robinsonv. Norato, 43 A.2d (R.I.) 467, that it would not enforce § 205(e) of the Federal emergency price control act, or (2) refuse, for some adequate reason, to follow the decisions of the supreme court of the United States. In the interest of brevity, we set out the theory of the Rhode Island court decision in Robinson v.Norato, supra, by quoting from the [Atlantic Reporter] headnotes to the case:
"5. A state court would not enforce Federal Emergency Price Control Act by entertaining tenant's action against landlord for overcharges of rent, since act was penal, state *Page 568 and United States were foreign to each other in sense of private international law, and supremacy clause of federal Constitution was inapplicable. Emergency Price Control Act of 1942, § 205 (e), 56 Stat. 33, 50 U.S.C.A. Appendix § 925 (e); U.S.C.A. Const. art. 6.
"6. In the sense of public international law the several states of the Union are neither foreign to the United States nor foreign to each other, but this is not true in the field of private international law.
"7. The supremacy clause of the federal Constitution was intended to apply only in case of conflict between federal Constitution, acts and treaties and state Constitution and laws, and does not compel a state to provide, at its own expense, courts for enforcement of federal law which state deems penal. U.S.C.A. Const. art. 6."
The Rhode Island court holds the statute to be penal on account of the provisions of § 205 (e), which reads, in part, as follows:
"If any person selling a commodity violates a regulation, 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 bring an action either for $50 or for treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney's fees and costs as determined by the court. 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. If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer is not entitled to bring suit or action under this subsection, the Administrator may bring such action under this subsection on behalf of the United States. Any suit or action under this subsection may be brought in any court of competent jurisdiction, and shall be instituted within one year after delivery is completed or rent is paid.. . ."
The opinion, in speaking of § 205(e), says:
"It is possible under that section for a landlord, who may have overcharged a weekly tenant as trifling a sum as ten cents a week, to be mulcted in damages at the end of the year in the sum of $2,600, plus attorney's fees and costs, although *Page 569 plaintiff's actual damages would be only $5.20 and costs. The $2,600 would be, in reality, punishment for the violation of the statute, that is, not in any sense compensatory damages but purely an arbitrary penalty totally unrelated to the real injury suffered by the plaintiff."
Although we have found no actual case as extreme as that above supposed, it must be conceded that such a case could easily arise, and that § 205 (e) would require the assessment of damages, as indicated. In Lambros v. Brown, 41 A.2d (Md.) 78, it appears that Brown was overcharged sixty-four cents for a one-fifth gallon of whisky, on one occasion, and forty cents, on another; while Waldman was overcharged forty-one cents on a similar purchase. Although Brown was actually overcharged but one dollar and four cents, in an action against the vendor he recovered judgment for one hundred dollars, and Waldman, who was actually overcharged but forty cents, recovered judgment for fifty dollars, or more than one hundred times the amount of the overcharge, and the judgments were affirmed on appeal.
In so far as we have been able to ascertain, by a thorough research of the decided cases to date, Rhode Island stands alone, among the states of the Union, in refusing to entertain actions for recovery of damages under § 205 (e) of the Federal emergency price control act.
In Schaffer v. Leimberg, supra, the municipal court of Boston had refused to entertain such a suit, and the appeal was from its judgment dismissing the action. Although, as we have already pointed out, the opinion in the case by the supreme judicial court of Massachusetts is sharply critical of the act, it nevertheless holds that it is the duty of the state courts to enforce it. The Leimberg case was decided on June 21, 1945, prior to the decision of the Rhode Island case. In rejecting the contention which the Rhode Island court approved a month later, the Massachusetts court said:
"Even if the rule that the courts of one sovereignty will not enforce penalties imposed by the laws of another applies to penalties imposed by the law of the United States, *Page 570 the short answer to any objection founded on that rule is that a cause of action given to a person aggrieved to recover damages for the wrong done him is remedial and not penal within that rule even though the damages consist of a multiple of the actual loss or even are assessed without regard to the actual loss."
It seems evident that, if the Massachusetts court had held the act to be penal, it would nevertheless have directed its enforcement; for, it further said:
"However abhorrent to the Constitution of Massachusetts such a legislative device as that contained in the emergency price control act may be, nothing in our Constitution can be said to withdraw a case arising under that act from the jurisdiction granted to the Municipal Court of the City of Boston in general terms covering an action like the present. Where Congress has given to State courts jurisdiction of such sort as Congress has seen fit to give, to enforce an act of Congress, and those courts under State law have jurisdiction that enables them to enforce it, they are not at liberty, at least in civil proceedings, to decline to exercise that jurisdiction on the ground that the act of Congress is contrary to the public policy of the State or contravenes its Constitution or laws. Within its field, Congressspeaks for the whole nation and establishes a policy for everyState that supersedes any local policy to the contrary. We thinkthat the court be low was not at liberty to decline jurisdictionof the present case." (Italics ours.)
The theory upon which the supreme court of Rhode Island refused to entertain actions by tenants or purchasers of goods for recovery of damages, under § 205(e) of the Federal emergency price control act, has been advanced and rejected in many other courts. In Beasley v. Gottlieb, 131 N.J.L. 117, 35 A.2d 49, the court not only held that the act was not penal, but further said:
"Of course, the federal government is not a sovereignty foreign to this state. The laws of the United States are laws in the several states."
The supreme court of errors, in Lapinski v. Copacino,131 Conn. 119, 38 A.2d 592, decided on the same day as the Massachusetts case (June 21, 1945), held that, since the recoveries provided for in § 205(e) were invoked by individuals *Page 571 for their private gain, the statute was at least not strictly penal. It also quotes at length, and with approval, from Claflinv. Houseman, 93 U.S. 130, 23 L.Ed. 833. A portion of this quotation is as follows:
"The laws of the United States are laws in the several States, and just as much binding on the citizens and courts thereof as the State laws are. The United States is not a foreign sovereignty as regards the several States, but is a concurrent, and, within its jurisdiction, paramount sovereignty. Every citizen of a State is a subject of two distinct sovereignties, having concurrent jurisdiction in the State, — concurrent as to place and persons, though distinct as to subject-matter. Legal or equitable rights, acquired under either system of laws, may be enforced in any court of either sovereignty competent to hear and determine such kind of rights and not restrained by its constitution in the exercise of such jurisdiction. . . . If an act of Congress gives a penalty to a party aggrieved, without specifying a remedy for its enforcement, there is no reason why it should not be enforced, if not provided otherwise by some act of Congress, by a proper action in a State court. The fact thata State court derives its existence and functions from the Statelaws is no reason why it should not afford relief; because it issubject also to the laws of the United States, and is just asmuch bound to recognize these as operative within the State as itis to recognize the State laws. The two together form one systemof jurisprudence, which constitutes the law of the land for theState; and the courts of the two jurisdictions are not foreign toeach other, nor to be treated by each other as such, but ascourts of the same country, having jurisdiction partly differentand partly concurrent." (Italics ours.)
In Desper v. Warner Holding Co. (May, 1945), 219 Minn. 607,19 N.W.2d 62, in a syllabus prepared by the court, it is said:
"The recovery provided for under § 205(e) in favor of the person injured is remedial rather than penal. In actions of this kind, whether the act be penal or remedial in nature, the United States is held not to be a foreign sovereignty attempting to enforce a penal statute, and in consequence state court had jurisdiction on this issue."
For other decisions to the same general effect, see: Regan v.Kroger Grocery Baking Co., 386 Ill. 284, *Page 572 54 N.E.2d 210; Miller v. Municipal Court, 22 Cal.2d 818,142 P.2d 297; Lambros v. Brown, 41 A.2d (Md.) 78.
We come now to the second reason which has been advanced as a bar to the plaintiff's recovery in this case. In spite of the decisions of the supreme court in the Yakus and Willingham cases, it is argued (though not by appellant's counsel) that no recovery whatever should be permitted, on the ground that the OPA act is not pursuant to the constitution of the United States, or, as the point is ordinarily expressed, that it is unconstitutional. We deem it not improper to say that some of the judges who sign this opinion, including the author thereof, believe that the act is unconstitutional, at least in so far as it arbitrarily restricts jurisdiction to question any administrative act done thereunder, or to review any order made pursuant thereto, to one single special court, to wit, the emergency court of appeals sitting in Washington, D.C.
As we have hereinbefore pointed out with great particularity, the law is so worded that neither the superior court in which this action was brought nor this court would have had the slightest power or jurisdiction to afford the appellant any relief in this cause, had he shown that he was indisputedly entitled to it. The amount involved is not large, but may have meant a great deal to him. But even if he had been able to safely navigate the summary and devious course of procedure provided in the act and had, in consequence, won a complete victory in the emergency court of appeals, it would have cost him far more than it was worth.
In a dissenting opinion in the case of Di Santo v.Pennsylvania, 273 U.S. 34, 43, 71 L.Ed. 524, 47 S.Ct. 267, Mr. Justice Brandeis said, Mr. Justice Holmes concurring: "In the case at bar, . . . the logic of words should yield to the logic of realities." The vast majority of cases, such as this, involve amounts less than a thousand dollars. In any case arising in the state of Washington involving a lesser sum, or for that matter arising in any state west of the Mississippi, the purported and pretended remedy provided by the act is so clearly valueless that it is, in the "logic of realities," no remedy at all. *Page 573
It seems to some of us, when the private property of a citizen is summarily taken by an administrative officer of the government, and all courts, both state and Federal and of every kind and character within some thousands of miles from his place of abode, are absolutely forbidden to inquire into the matter, that, except in those comparatively few cases where large sums are involved, that property has been taken without due process, or, in short, has literally been confiscated. In alluding to that feature of the act, the supreme judicial court of Massachusetts, in its opinion in the Leimberg case, supra, after characterizing that procedure as
". . . an unusual and ingenious legislative device . . . intended to make difficult any effective attack upon the constitutional validity of any regulation made by the administrator under the authority of that act,"
went on to further say:
"The legislative plan plainly was intended to put in default the great mass of persons who might eventually come into conflict with any regulation made by the administrator, and to foreclose their right to object to it on constitutional grounds. That plan was highly successful. Only the most vigilant could preserve their right to be heard. Others had to obey, or pay the penalty, no matter how outrageously the regulation might violate their constitutional rights."
[6] Nevertheless, that court felt compelled to follow the decisions of the supreme court of the United States and enforce the OPA act as a law made pursuant to the constitution of the United States, and, in the opinion of the majority of this court, so must we. There is nothing new in this situation. The deciding vote in the case of O'Neil v. Building Service etc. Union,9 Wn.2d 507, 115 P.2d 662, 137 A.L.R. 1102, was cast under similar compulsion. The decision in Weyerhaeuser Timber Co. v.Everett Dist. Council etc., 11 Wn.2d 503, 119 P.2d 643, would have been otherwise but for the fact that two of the judges of this court concurred in the result, solely because they felt bound to follow the decisions of the supreme court of the United States. See, also, S W Fine Foods v. Retail Delivery etc.Union, 11 Wn.2d 262, 118 P.2d 962. *Page 574
The framers of the Federal constitution took meticulous care to insure that a Federal law should be applied in the same manner and with the same meaning in every part of the Union by including therein the following portion of Art. VI:
"This constitution, and the laws of the United States whichshall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States,shall be the supreme law of the land; and the judges in everystate shall be bound thereby, anything in the constitution orlaws of any state to the contrary notwithstanding." (Italics ours.)
It has been urged, during our consideration of this case, that, if a judge of any inferior court sincerely and conscientiously believes that a Federal law is not made in pursuance of the constitution, it is not only his privilege, but his imperative duty, to refuse to enforce it, even though the supreme court of the United States has expressly held it to have been enacted "in pursuance thereof." This, it is said, he must do, in obedience to his judicial oath to protect and defend the constitution of the United States. Clearly, if that position be sound, there can be no "supreme law of the land." Under such a doctrine, a Federal enactment will be "law" in some states and not in others. Nor is this all. Within the states themselves it would be effective in some counties and not in others.
Furthermore, our some fifty superior court judges have taken an oath to protect and defend the constitution of the United Statesand of the state of Washington. When such a judge has conscientiously held an enactment of our state legislature to be void, as contrary to our state constitution, and is reversed on appeal by this court, is he to be permitted to deny a remedy to plaintiffs who come into court seeking relief under that enactment, and relegate them to shopping around among the different departments of the superior court — in an effort to find a judge with a different brand of conscience? Obviously, such a theory, if recognized and acted upon, can only lead to complete legal chaos. Moreover, it is directly antithetical to the principle that, in so *Page 575 far as humanly possible, laws should be certain and of uniform application, as well as to our cherished belief that the ideal government is one of laws and not of men.
It is to be understood, then, that not all of the judges who sign this opinion are, as lawyers, convinced that the OPA act is constitutional. As judges, however, they are unanimous on the point that, since the United States supreme court had determined it to be constitutional, they must so consider it in arriving at their decision in this cause. Accordingly, upon the facts shown, we hold that the plaintiff herein is entitled to a recovery in some amount. We say "some amount" because he contends, by cross-appeal, that he is entitled to a greater amount than was adjudged by the trial court.
The assignments of error on cross-appeal are as follows:
"1. The trial court erred in refusing to grant judgment for treble the amount of the difference between the maximum legal rent and the rent actually paid by the plaintiff.
"2. The trial court erred in not allowing to the plaintiff an attorney's fee of more than $125.00."
[7] The trial judge refused to award treble damages, assigning two reasons: First, he held, following Brown v.American Stores, Inc., 32 A.2d (D.C.) 388, which was decided in the municipal court of appeals of the District of Columbia about six months before he prepared his memorandum decision, that the provision of § 205(e), with relation to treble damages, was "permissive rather than mandatory," and, second, he doubted whether he could award treble damages in any event, in view of the fact that it is contrary to the general policy of the courts of this state to award punitive or exemplary damages. But it is said, in Essig v. Keating, 158 Wn. 443, 444, 291 P. 323:
"In this state, exemplary or punitive damages are not recoverable, except in particular instances where the statuteexpressly so provides." (Italics ours.)
And at page 631, in the same volume of our state reports:
"It is not a case where punitory or exemplary damages are recoverable. Damages of the latter sort are recoverable in thisstate only where the statute permits such a recovery." *Page 576 (Italics ours.) Ulvestad v. Dolphin, 158 Wn. 629,292 P. 106.
In 5 Washington Digest Annotated 47, under Key No. 87, nine other of our decisions are cited to the same effect. As indicated by the above quotations, we have state statutes providing for treble damages and enforce them according to their tenor.
[8] Conceding, arguendo, that the treble damages prayed for in this action are punitive and exemplary, they are expresslyprovided for by statute. A grant of treble damages in this cause would, therefore, not have been contrary to our state policy, but directly in accord with it.
Finally, on this point, if a conflict existed, we would be in no position to engage in quibbles concerning state policy; for, we have hereinbefore judicially conceded that the price control law is constitutional, and by virtue of Art. VI of the Federal constitution, the judges of every state are bound thereby, ". . . anything in the constitution or laws of any state to the contrary notwithstanding."
Upon the facts, the plaintiff has the statutory right to recover $350 or $630, whichever is the greater. We cannot amend the Federal statute, or, while pretending to enforce it, limit plaintiff's recovery to but one third of the statutory amount.
[9] In holding that the damage provisions of § 205(e) were permissive, and not mandatory, on the authority of Brown v.American Stores, Inc., supra, the trial judge was, of course, unaware of the fact that that identical case, under the caption "Bowles v. American Stores, Inc.," had been reversed by the municipal court of appeals of the District of Columbia a few days before he filed his memorandum opinion. The reversing opinion is reported in 139 F.2d 377. In that opinion, it was squarely and decisively held that the damage provisions of § 205(e) are mandatory. On April 24, 1944, the supreme court of the United States refused to grant a writ of certiorari to review the decision. 322 U.S. 730, 88 L.Ed. 1565, 64 S.Ct. 947. So many other courts have held that the damage provisions of the act are *Page 577 mandatory that we confine our citations to a few illustrative examples. See Thierry v. Gilbert, 147 F.2d 603, a decision of the circuit court of appeals of the first circuit; Carmellyv. Hanson, 133 N.J.L. 180, 43 A.2d 685; Desper v. WarnerHolding Co., supra, and Lapinski v. Copacino, supra. We have examined the authorities up to the date of the preparation of this opinion (July 1, 1946), and find no unreversed decision to the contrary.
In Kalwar v. McKinnon, 152 F.2d 263, 265, decided on November 14, 1945, the most recent decision on the point which we have been able to find, the circuit court of appeals of the first circuit said, in part:
"The district court correctly applied the regulation and the mandatory provisions of the Act governing the amount of the tenant's recovery. Each of the nine monthly overcharges constituted a separate violation for which the statutory penalty of $50 was recoverable, making a total of $450. Thierry v.Gilbert, 1 Cir., 1945, 147 F.2d 603. The result seems unduly severe — one might almost say, unconscionably so — under the facts of the particular case. The rigors of original § 205(e) of the Act have wisely been mitigated by § 108 (b) of the Stabilization Extension Act of 1944, 58 Stat. 640, 50 U.S.C.A. Appendix § 925(e), in the direction of giving a wider discretion to the court in fixing the amount of damages. Under that amendment, in circumstances like the present case, recovery would be limited to the amount of the overcharges — here $45 — where the landlord's violation was neither willful nor the result of failure to take practicable precautions. Unfortunately for the present appellant, however, the violations in this case occurred prior to the passage of the Stabilization Extension Act of 1944, which, in this respect, has no retrospective application. Desperv. Warner Holding Co., supra [219 Minn. 607, 19 N.W.2d 62]."
The stabilization extension act was passed on June 30, 1944. Unfortunately for the present appellant, the violations in the instant case occurred long prior to that date. In fact, this cause was tried, appeal taken, and the transcript of record lodged in this court prior to June 30, 1944. The first assignment of error on cross-appeal is well taken. *Page 578 [10] The cross-appellant contends that the court also erred in not allowing him an attorney's fee of more than one hundred twenty-five dollars. While, considering the work done, the allowance seems ultraconservative, we are unable to find that the trial court abused its discretion. In fact, the allowance is in line with awards made in decisions of such cases in other jurisdictions. For example, in Kalwar v. McKinnon, from which we have just above quoted, the amount of the recovery was four hundred fifty dollars. The plaintiff was awarded an attorney's fee of seventy-five dollars in the district court, and twenty-five dollars in the circuit court of appeals, or one hundred dollars in all. In the instant case, the plaintiff will, under the decision we are about to render, ultimately receive a recovery of $552.75 (exclusive of attorney's fees). Proportionately, one hundred twenty-five dollars is to $552.75 nearly the same as one hundred dollars is to four hundred fifty dollars.
The judgment appealed from is reversed on plaintiff's cross-appeal. The cause is remanded to the superior court of King county for the entry of judgment in favor of cross-appellant for three times $210, that is, $630 less $77.25 (the amount found for defendant on his counterclaim for damages to his premises), plus an attorney's fee of $125; or, in all, for the sum of $677.75, and whatever costs are taxable in the lower court. The cross-appellant will also be allowed his costs in this court.
BLAKE, JEFFERS, MALLERY, and CONNELLY, JJ., concur.