(dissenting).
This is an appeal from a judgment awarding treble damages against appellants in an action instituted by the Price Administrator in the district court pursuant to Section 205(e) of the Emergency Price Control Act, hereinafter called the Act.
The treble damages were awarded on the finding of the district court that Martini had sold Dunbar’s whiskey in violation of Section 205(e) of the Act. That section provides for such a recovery from “any person selling a commodity” who “violates a regulation, order, or price schedule prescribing a maximum price or maximum prices,” “on account of the overcharge.”
For an “overcharge” there must be determined a prior maximum price which the actual sales price is over. Since the maximum price, if established at all, must be established under Regulation 1499.3(c), the primary question here is, Was there prescribed a maximum price by that regulation for the sale of the liquor?
It is apparent from the terms of the applicable regulation 1499.3(c) that it neither fixes a price nor states a formula for fixing a price as in the preceding regulation 1499.-3(a). What subsection (c) provides is an opportunity to Martini to seek not a price but a method or formula by which he himself can fix a price. The words of subsection (c) are that Martini shall seek “specific authorization from the Office of Price Administration” “in the form of an order prescribing a method of determining the maximum price,” from which “a maximum price” should be determined by the seller.
It will be noted that Martini is not specifically required to seek such a formula. Assuming, arguendo, a violation of the Act by Martini in not seeking the price formula, this in no way aids us in answering the question Does the regulation provide for determining a maximum price for the purpose of computing the “overcharge” of Section 205(e) which the decision below adjudged? It is apparent from the language of subsection (c), supra, that it does not.
The Office of Price Administration recognized the defect in subsection (c) and on August 14, 1943, substituted for it in Price Regulation No. 445, § 5.4, 8 F.R. 11168, as to wholesale sales of whiskey, a formula for such sales. This formula was not made retroactive but applicable only to sales after, August 31, 1943. All Martini’s sales were before that date.
Hence we are not confronted with the question whether Section 205(e) under which the treble damages were awarded permits a recovery for sales in excess of a price determined by a retroactively created and applied formula not in existence when the sales were made.
Nor does Section 205(e) by its terms authorize a recovery for an overcharge in excess of a price fixed by the Office of Price Administration after a sale is made. All the Administrator’s powers of price fixing are with reference to future sales. In my opinion there are no words in that section which the Emergency Court of Appeals would hold should be so construed. The general powers to issue regulations and orders are to make controls of price after their promulgation. Hence I dissent from the holding of the court that in any case Section 205(e) authorizes a recovery for an-overcharge above a price so afterwards created.
However, that question is not before the court. There is here no retroactive price fixing by the Office of Price Administration. What it did, after the complaint had been filed and over 10 months after the sales were made, was to make a finding, cast in the form of an order, of which it is stated, not that the finding was retroactive but, that “(e) This order shall become effective upon its issuance.” (Emphasis supplied.)
We are not called upon to decide what would be the effect of the order if it had read “This order shall become effective nunc pro tunc prior to Martini’s sales.” Calling the order “not phrased skilfully” *43does not alter the plain words making it effective only from a date 10 months after the sales.
The finding on its face is cast as to the future action. It is
“(a) The maximum price which Denny Martini and Mildred Martini doing business, as Lakeside Cut-Rate Liquor Stores, hereafter referred to as applicants, may charge for sales at wholesale of Dunbar’s Canadian Whiskey, 90.4 proof, made prior to August 31, 1943, shall be $37.61 per case of 12 fifths, f.o.b. applicants’ warehouse.” (Emphasis supplied.)
Recoveries under Section 205(e) cannot be had upon such a finding, assuming that the Office of Price Administration has what, in effect, is the power to create ex post facto civil liabilities.
The judgment of the district court should be reversed.
Rehearing denied; DENMAN, Circuit Judge, dissenting.