Brown v. American Stores, Inc.

HOOD, Associate Judge

(dissenting).

The effect of the majority opinion is that while Section 205(e) of the Emergency Price Control Act of 1942 permits an overcharged consumer to bring an action for $50, where the overcharge trebled does not exceed that sum, he is entitled to recover only such sum, not exceeding $50, as the trial court or jury thinks proper under all the circumstances of the case. I am unable to find anything in the Act which justifies this interpretation.

In Hall v. Chaltis the majority opinion discussed this question, but I did not think such discussion necessary to the decision of that case. There, the question was whether the defendant, because of lack of notice or opportunity to acquire notice of the changed price schedule, had violated the Act. The trial court had found, at least in effect, no violation, for it awarded no damages and gave judgment merely for the admitted overcharge. This court affirmed.

*390In the present case the excessive charge trebled was twelve cents and the purchaser sued for the statutory sum of $50. The trial court found there was a violation and gave judgment for $5. The sole question here is should the trial court have given judgment for $50?

Section 205(e) of the Act provides that if any person sells a commodity in violation of the price schedule, "the person who buys such commodity * * * 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.” Leaving aside the treble amount of overcharge, the section mentions only one sum, namely, $50, and nothing is said regarding judgment for a lesser sum.

The majority opinion in the Hall case, relied upon by the majority here, lays stress upon the words “bring an action”, and says the bringing of an action is but the commencement of the suit and is conclusive of nothing. If we are to give the words of the statute this strained and restricted meaning, then logically we should hold that plaintiff had no right to prosecute her suit since the statute only gave her the right to commence it, and there is a well recognized difference between commencing a suit and prosecuting it after its commencement.6

In construing a legislative act, our primary purpose should be to ascertain the intention of the enacting body.7 We should assume that words in the statute are used in their usual and ordinary sense,8 and we should not attempt to ascertain their meaning by strict or strained interpretation of the words or by applying artificial canons of construction. If a doubt exists that doubt should be resolved in the light of the situation with reference to which it was enacted,9 and the policy intended to be served by the enactment. 10

We have no power to make additions to the statute which we think Congress logically might have or should have made11 Questions of policy, of the wisdom of the legislation, of the appropriateness of the remedy provided, are for the legislature and not for the courts.12 Congress selects the sanction for the law’s enforcement,13 and we must give full force and operation to the statute regardless of any hardship it may appear to work.14

The section here involved is found in the enforcement provisions of the Act. A similar provision was contained in H. R. 5479, entitled “Emergency Price Control Act of 1941,” as originally introduced in the House of Representatives. After hearings on that bill the Committee directed the introduction of a new bill. The new bill, H. R. 5990, passed by the House, did not contain such a provision. At the hearings before the Senate Committee,15 the Administrator of the Office of Price Administration urged that the provision be restored to the bill as an aid in the enforcement of the Act, saying in part: “As originally written, the bill provided that ultimate buyers (or in certain cases, the Administrator) might sue sellers for treble the amount of their overcharge, or for $50 (whichever the greater) or for rescission of their contracts. The House bill struck out these provisions. The result is to deprive consumers of remedies which they require and to add greatly to the enforcement burden of the Office of Price Administration. They should be restored to the bill.”

Among the Senate amendments was Section 205(e). The Senate report16 stated: “To discourage initial violations, the committee substitute provides for actions at law to recover $50 or three times the amount of the illegal overcharges. This will permit private purchasers who buy for *391personal use or consumption, rather than in the course of trade or business, to protect themselves against violations of the act.”

The bill as passed by the Senate was sent to conference and the conference report,17 referring to Section 205(e), stated: “The Senate amendment also contains a further provision, retained in the Conference Agreement, which permits a civil action by non-commercial consumers for treble the amount of any unlawful overcharge (or a minimum of $50) made by any seller of any commodity subject to a price ceiling. The operation of this provision, however, is postponed until 6 months after the effective date of the bill.”

I find nothing in the Act or its legislative history indicating that the action “for $50” given the consumer is subject to the court’s discretion of awarding a lesser sum.

It seems to me that this section imposes a penalty on violators as a means of enforcing the Act. While not a penal statute in the strict sense,18 it is penal in the sense that it imposes an extraordinary liability upon the wrong-doer in favor of the person wronged, not limited to the damages suffered.19 As I see it, the primary purpose of this section is to punish the seller charging more than the maximum price. The imposition of a penalty for the purpose of enforcing a statute is no new device.20 While the sum of $50 contrasted with the overcharge may seem large, we may assume that Congress had in mind thei interest of the public to be protected, the numberless opportunities for violation, and the need for securing strict compliance with tbp price schedules.21 To secure the cooperation of the public in enforcing the Act, Congress, it seems to me, fixed a minimum recovery, recognizing that the overcharge even when trebled in many cases would be so small that no effort would be made by the purchaser to obtain redress unless furnished some assurance of a minimum recovery.22 And it does not seem to me that Congress intended to encourage purchasers to bring actions by holding out to them the sum of $50 and at the same time intended that sum could be reduced by the court according to its individual judgment of the proper amount to be awarded.23 If it intended that good faith, inadvertence or mitigating circumstance of any kind should be taken into consideration in fixing the amount, such intention would surely have been expressed by appropriate language. The section expressly provides that attorney’s fees and costs allowed in such actions shall be “reasonable” and “determined by the court.”

The penal characteristics of the law do not require such a strict construction of it as will defeat the very object of the statute.24 Even the rule of strict construction as applied to criminal statutes will be relaxed in interpretation of an act designed to declare and enforce a principle of public policy.25

The majority opinion states that the violation' in this case was the result of a mistake and was not done with an intention of violating the regulation. Section 205(e), however, refers to a violation, and not an intentional violation. Criminal prosecutions under Section 205(b) are limited to those who “wilfully” violate the Act, but I see nothing in 205(e) which makes a distinction between intentional and unintentional violations. The appellee had ample notice of the price schedules and ample opportunity to take the necessary precautions to avoid violations. Congress *392has the power to declare an offense and to exclude the elements of knowledge and due diligence from any inquiry as to its commission.26 It is for the legislature, and not for the court, to determine whether the public injury threatened is such as to justify an absolute and indiscriminate prohibition.27

I can find nothing in the Act which gives the court, when a violation has been proved in an action under 205(e), discretion in awarding any lessor sum than $50. Perhaps there should be, but that is a matter for Congress and this court has no power, by way of judicial construction, to insert such a provision.

In my opinion, the judgment below should be reversed with instructions to enter judgment for the plaintiff in the sum of $50.

Cohens v. Virginia, 6 Wheat 264, 408, 5 L.Ed. 257; Wall v. C. & O. Railway Co., 290 Ill. 227, 125 N.E. 20; Buecker v. Carr, 60 N.XEq. 300, 47 A. 34.

United States v. Rosenblum Truck Lines, 315 U.S. 50, 53, 62 S.Ct. 445, 86 L.Ed. 671.

Federal Housing Administration v. Burr, 309 U.S. 242, 246, 60 S.Ct. 488, 84 L.Ed. 724.

District of Columbia v. Murphy, 314 U.S. 441, 449, 62 S.Ct. 303, 86 L.Ed. 329.

United States v. Cooper Corp., 312 U.S. 600, 605, 61 S.Ct. 742, 85 L.Ed. 1071.

United States v. Cooper Corp., supra.

Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 394, 60 S.Ct. 907, 84 L.Ed. 1263.

Sunshine Anthracite Coal Co. v. Adkins, supra, 310 U.S. page 401, 60 S.Ct. 907, 84 L.Ed. 1263.

Robinson v. Morrison, 2 App.D.C. 105, 125.

Senate Hearings, p. 189.

Senate Rep. No. 931, 77th Cong., 2d Sess., p. 8.

H. R. Rep. No. 1058, 77th Cong., 2d Sess., p. 26.

Huntington v. Attrill, 146 U.S. 657, 13 S.Ct. 224, 36 L.Ed. 1123.

O’Sullivan v. Felix, 233 U.S. 318, 34 S.Ct. 596, 58 L.Ed. 980.

Western Union Telegraph Co. v. Crovo, 220 U.S. 364, 31 S.Ct. 399, 55 L.Ed. 498.

St. Louis, I. M. & S. R. Co. v. Williams, 251 U.S. 63, 40 S.Ct. 71, 64 L.Ed. 139.

Missouri Pacific Railway Co. v. Humes, 115 U.S. 512, 6 S.Ct. 110, 29 L. Ed. 463.

Referenee has been made throughout this opinion to the question of the discretion of the court because the instant case was heard by the trial court without a jury. Either party, however, in this and like cases, has the right to demand trial by jury. If the opinion of the majority is correct, in such cases the amount of the judgment would be left to the jury. Upon what basis would a jury determine the amount? As the Administrator pertinently asked in his brief, what instructions will the court give the jury on the question of damages?

Clark v. Barnard, 108 U.S. 436, 2 S. Ct. 878, 27 L.Ed. 780.

District of Columbia v. Horning, 47 App.D.C. 413, 423.

Chicago, B. & Q. Railway Co. v. United States, 220 Ü.S. 559, 578, 31 S. Ct. 612, 55 L.Ed. 582.

Commonwealth v. Weiss, 139 Pa. 247, 21 A. 10, 11 L.R.A. 530, 23 Am.St. Rep. 182.