Bowles v. Farmers Nat. Bank of Lebanon, Ky., No. 9789.
| Court | United States Courts of Appeals. United States Court of Appeals (6th Circuit) |
| Writing for the Court | HICKS, ALLEN and HAMILTON, Circuit |
| Citation | 147 F.2d 425 |
| Parties | BOWLES, Administrator, OPA, v. FARMERS NAT. BANK OF LEBANON, KY. |
| Docket Number | No. 9789. |
| Decision Date | 16 February 1945 |
147 F.2d 425 (1945)
BOWLES, Administrator, OPA,
v.
FARMERS NAT. BANK OF LEBANON, KY.
No. 9789.
Circuit Court of Appeals, Sixth Circuit.
February 16, 1945.
Edward H. Hatton, of Washington, D. C. (Thomas I. Emerson, Fleming James Jr., and David London, all of Washington, D. C., A. D. Ruegsegger, of Cleveland, Ohio and Fritz Krueger, of Louisville, Ky., on the brief), for appellant.
A. C. Van Winkle, of Louisville, Ky., for appellee.
Before HICKS, ALLEN and HAMILTON, Circuit Judges.
ALLEN, Circuit Judge.
The question involved in this appeal is whether an action for treble damages instituted because of violation of a price regulation of the Office of Price Administration survives the death of one charged
The Administrator sued under § 205(e) of the Emergency Price Control Act of 1942, as amended October 2, 1942, 50 U.S. C.A.Appendix § 925(e), to recover sums aggregating $6,799,101.57 calculated to be due as treble damages for six sales of whiskey in excess of the ceiling price. The complaint alleged that on December 31, 1942, Cummins Distilleries Corporation, a Delaware corporation with its principal place of business at Louisville, Kentucky, engaged in selling whiskey and gin, was purportedly dissolved pursuant to a plan which contemplated the distribution of its net assets to its stockholders; that in accordance with this plan the corporation purported to transfer the whiskey involved in the action to its common stockholders, who organized a committee to carry the plan into effect and authorized it to sell the whiskey and distribute the proceeds; that the itemized sales of whiskey in bulk at prices in excess of those permitted by Maximum Price Regulation No. 193 were made between January 5, 1943, and January 11, 1943, by the corporation, its directors, officers, the committee, or the stockholders, including G. W. Dant, the appellee's testator. A recovery for three times the amount by which the prices of the whiskey sold exceeded the prices permitted by the regulation was asked against the defendants jointly and severally. Appellee's testator died April 25, 1943, and the appellee was appointed executor of his will May 18, 1943. The action was instituted May 27, 1943.
Appellee moved to dismiss the action upon the ground that as to it the complaint does not state a claim upon which relief can be granted, and the District Court sustained the motion.
The Administrator contends that the court erred in dismissing the complaint for the reason that the cause of action vested in the Administrator by § 205(e) of the Emergency Price Control Act is remedial and not penal in nature, and therefore does not abate with the death of the party liable. Section 205 (e), prior to amendment, 56 Stat. 33, in its pertinent portions read 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. * * * 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. * * *"
The section, as amended in 1944, 50 U.S. C.A.Appendix § 925(e), and made applicable to all pending cases brought by the Administrator, reads as follows: "(e) 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, 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 following sums is the 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 defendant proves that the violation of the regulation, order, or price schedule in question was neither wilfull nor the result of failure to take practicable precautions against the occurrence of the violation. * * * If any person selling a commodity 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 occurrence 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 instituted by the Administrator, the buyer shall thereafter be barred from bringing an action for the same violation or violations. * * *"
We think that the original enactment of this section clearly provided for a penalty. The basic test whether a law is penal in the strict and primary sense is whether the wrong sought to be redressed is a wrong to the public or a wrong to the individual. Huntington v. Attrill, 146 U.S. 657, 668, 13 S.Ct. 224, 36 L.Ed. 1123. The purpose of the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix § 901, is stated as follows: "It is hereby declared to be in the interest of the national defense and security and necessary to the effective prosecution of the present war, and the purposes of this Act are, to stabilize...
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Smith v. No. 2 Galesburg Crown Finance Corp., Nos. 78-2145
...cause of action is one of federal common law, in the absence of a specific federal statutory directive. Bowles v. Farmers National Bank, 147 F.2d 425 (6th Cir. 1945); Heikkila v. Barber, 308 F.2d 558 (9th Cir. 1962). For this reason state survival rules have no Survival of federal civil rig......
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Zatuchni v. Secretary of Health and Human Services, No. 2007-5034.
...Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 87 L.Ed. 838 (1943))); Bowles v. Farmers Nat'l Bank of Lebanon, Ky., 147 F.2d 425, 430 (6th Cir.1945) (stating that to determine survival of a statutory cause of action "[i]n the absence of an Act of, Congress, the federal courts ......
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Schaffer v. Leimberg
...v. Brown, Md., 41 A.2d 78;Beasley v. Gottlieb, 131 N.J.L. 117, 35 A.2d 49; Compare Bowles v. Farmers Nat. Bank of Lebanon, Ky., 6 Cir., 147 F.2d 425. The objection that Congress had no power to delegate to the administrator the fixing of maximum limits upon rents has already been decided to......
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Stevenson v. Stoufer, No. 46736.
...the courts of the United States for the recovery of penalties imposed by an act of congress.' See also Bowles v. Farmers Nat. Bk., 6 Cir., 147 F.2d 425. II. Appellant contends that the Act provides for survival of this action. The Federal courts have expressly held otherwise. Bowles v. Farm......
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Schaffer v. Leimberg
...v. Brown, Md., 41 A.2d 78;Beasley v. Gottlieb, 131 N.J.L. 117, 35 A.2d 49; Compare Bowles v. Farmers Nat. Bank of Lebanon, Ky., 6 Cir., 147 F.2d 425. The objection that Congress had no power to delegate to the administrator the fixing of maximum limits upon rents has already been decided to......
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Stevenson v. Stoufer, 46736.
...the courts of the United States for the recovery of penalties imposed by an act of congress.' See also Bowles v. Farmers Nat. Bk., 6 Cir., 147 F.2d 425. II. Appellant contends that the Act provides for survival of this action. The Federal courts have expressly held otherwise. Bowles v. Farm......
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Smith v. No. 2 Galesburg Crown Finance Corp., s. 78-2145
...cause of action is one of federal common law, in the absence of a specific federal statutory directive. Bowles v. Farmers National Bank, 147 F.2d 425 (6th Cir. 1945); Heikkila v. Barber, 308 F.2d 558 (9th Cir. 1962). For this reason state survival rules have no Survival of federal civil rig......
-
Zatuchni v. Secretary of Health and Human Services, 2007-5034.
...Trust Co. v. United States, 318 U.S. 363, 367, 63 S.Ct. 573, 87 L.Ed. 838 (1943))); Bowles v. Farmers Nat'l Bank of Lebanon, Ky., 147 F.2d 425, 430 (6th Cir.1945) (stating that to determine survival of a statutory cause of action "[i]n the absence of an Act of, Congress, the federal courts ......