Bowles v. Rock, 70.

• Citation: 55 F. Supp. 865
• Decision Date: 07 July 1944
• Docket Number: No. 70.,70.
• Parties: BOWLES, Administrator, Office of Price Administration, v. ROCK.
• Court: U.S. District Court — District of Nebraska

55 F. Supp. 865

BOWLES, Administrator, Office of Price Administration, v. ROCK.

No. 70.

District Court, D. Nebraska, Grand Island Division.

July 7, 1944.

DELEHANT, District Judge.

To the plaintiff's suit as administrator for triple damages against the defendant, charged with selling certain items of farm equipment at prices in excess of those prescribed in Maximum Price Regulation No. 133, 7 F.R. 3185, promulgated under authority of the Emergency Price Control Act of 1942, Public Law No. 421, 77th Cong., 2d Sess., 56 Stat. 23, 50 U.S.C.A. Appendix, § 901 et seq., the defendant has filed a motion to dismiss under Rule 12 of the Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c. That motion has been presented for ruling.

In its terms, the motion is broad enough to challenge the constitutionality of the applicable act and regulation. No such challenge is made in the defendant's typewritten brief submitted to the court; and the constitutionality of the act was conceded upon oral argument. Still, confronted with the motion in its sweeping form, it is appropriate, and sufficient, upon the constitutional question, simply to observe that it has lately been placed beyond examination here by the affirmance of the constitutionality of the Act by the Supreme Court of the United States in several cases; Lockerty v. Phillips, 319 U.S. 182, 64 S.Ct. 1019, 88 L.Ed. 1339; Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660; Bowles v. Willingham, 321 U. S. 503, 64 S.Ct. 641; and by the determination of that court, that, under the provisions of Sections 203 and 204 of the Act, Title 50 U.S.C.A.Appendix, §§ 923, 924, the validity of the Regulations promulgated under the Act may be assailed only by the procedure erected in those sections, involving protest before the administrator and direct review by the specially constituted Emergency Court of Appeals, and on certiorari by the Supreme Court; and may not be drawn in question in proceedings, whether civil or criminal, instituted in this court, Yakus v. United States, supra, and Bowles v. Willingham, supra. This court's duty, therefore, is to accept, and give force to, the Act and the implementing Regulations as they have been written.

But the defendant's more explicit, and only seriously defended, contention is that the complaint fails to disclose the administrator's right to bring this action under Section 205(e) of the Act, Title 50 U.S.C. A.Appendix, § 925(e).

The complaint charges that the defendant, on February 22, 1944, sold four separate items of farm equipment, each to a separate vendee at a designated price, in excess by a specified amount, over the highest maximum price therefor chargeable under the Regulation; that in violation of Section 1361.3a(e) of the Regulation, each of the sales was made, not by itself or separately, but under an option granted in the sale of another item of property; and, by amendment of the complaint allowed before hearing on the motion to dismiss, "that each of the sales of farm machinery involved in this action were (was) made to farmers (a farmer) for use in the course of their (his) trade and business of farming."

The Administrator's right under the Act to institute civil actions in this court, see Title 50 U.S.C.A.Appendix, § 925(c, e), Section 205(c, e) of the Act, is to be found in Section 205(e) of the Act, Title 50 U.S.C.A.Appendix, § 925(e), which, so far as it is now material, 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." (Emphasis added). Thus the critical question is whether the purchasers of the several articles bought them "for use or consumption other than in the course of trade or business." If they did, then they and they alone, have severally the right to bring suits in respect of the articles sold to them respectively. If not, then such right exists only in the Administrator and this suit is properly instituted.

While it is not imperative that the court perceive the foundation for a distinction of this nature made by the Congress within its competency, the distinction may be more clearly understood if its reason is obvious. And here it is readily apparent. Section 4 of the Act sets out its prohibitions, and its subsection (a), Title 50 U.S.C.A.Appendix, § 904(a), provides that: "It shall be unlawful * * * for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * in violation of any regulation or order under section 2, or of any price schedule." Thus, while the act fastens guilt upon all sellers disobedient of its terms, only those buyers are made guilty who purchase in the course of trade or business. Quite consistently, then, the buyer for use or consumption other than in the course of trade or business, not being himself guilty of an offense defined in the act, is accorded the right to sue for civil recovery under the Act, while the buyer for use or consumption in the course of trade or business, being guilty alike with the seller, is denied the right to appear as plaintiff against his equally guilty vendor in a civil suit; which right is, therefore, conferred on the Administrator. The court is not at all concerned with the wisdom or logic of an enactment which makes one buyer a violator of the law and absolves another from guilt. Those are questions that are addressed to legislative discretion.

In his motion and even more emphatically in his argument the defendant insists that, because — as he alleges — he sold the designated items of equipment at a "selling out farm auction sale", which is a rare and unusual event in the career of a farmer, such sale was not made by him "in the regular course of trade or business", and that, on that account, under the quoted language of Section 205(e) of the Act, Title 50 U.S.C.A.Appendix, § 925(e), the right to sue for triple damages is exclusively accorded to the several buyers and denied to the Administrator. His position in that...