Bowles v. Skaggs

• Decision Date: 12 November 1945
• Docket Number: No. 10018.,10018.
• Citation: 151 F.2d 817
• Parties: BOWLES, Price Administrator, v. SKAGGS.
• Court: U.S. Court of Appeals — Sixth Circuit

151 F.2d 817 (1945)

BOWLES, Price Administrator, v. SKAGGS.

No. 10018.

Circuit Court of Appeals, Sixth Circuit.

November 12, 1945.

Nathan Siegel (no address) (George Moncharsh, Fleming James, Jr., David London, and Samuel L. Cohen, all of Office of Price Administration, of Washington, D. C., Samuel J. Weiner, of Cleveland, Ohio, and Fritz Krueger, of Louisville, Ky., on the brief), for appellant.

Edward A. Dodd, of Louisville, Ky. (Edward A. Dodd, of Louisville, Ky., on the brief), for appellee.

Before SIMONS and ALLEN, Circuit Judges, and RAYMOND, District Judge.

SIMONS, Circuit Judge.

The principal question presented by the appeal is said to be one of first impression. It is whether the district court is empowered, under § 205(a) of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix § 925(a), to enforce compliance with a provision of § 4 of the Act, 50 U.S. C.A.Appendix § 904, by ordering restitution of overcharges made by a seller in violation of such section. The court answered this question in the negative and dismissed the proceeding, and the OPA Administrator appeals.

The appellee is the duly appointed administrator of the estate of his deceased father, and proceeded to sell certain personal property of the estate in order to pay the debts of his decedent. Included in such personal property was a household Westinghouse refrigerator which, on January 29, 1944, was sold by the appellee through a public auctioneer for the sum of $352.50. On October 2, 1944, the appellant filed suit against the appellee alleging that the sale came within the purview of Maximum Price Regulation 139 which placed a ceiling price on the refrigerator of $76.83. The appellant did not seek an injunction to restrain future sales, but sought an order of restitution requiring the appellee to restore to the purchaser of the refrigerator the difference between the sale price and the ceiling price. His complaint was dismissed upon the sole ground that § 205(a) of the Act limits the court to the granting of an injunction to restrain future violations of price regulations promulgated by the Administrator, and does not include power to grant an order of restitution.

Before considering the principal question in the case in respect to the authority conferred upon the Administrator and the court by § 205(a), it is necessary to note a preliminary issue raised in the brief of the appellee. Whether it was pressed upon the district judge we are not advised. His memorandum opinion does not refer to it and the appellant's brief gives us no help. We consider it, however, under the familiar rule that a judgment may be right even though based on the wrong reason.

The appellee says that as administrator of his father's estate he is, under Kentucky law, an officer of the court; that as such officer it is his duty to pay the debts of the estate out of the personal property belonging to it; that it was not necessary for him to procure a court order to sell the refrigerator because he was empowered to do so by both Common Law and Kentucky statutes; that it is his duty to realize the best price obtainable for the property, and if he fails in this duty he is personally liable to creditors and others interested. Finally, he says, that Revised Supplementary Order No. 10, (§ 1), promulgated by the appellant on the 14th day of August, 1944, excludes from the operations of price schedules and maximum price regulations, all sales held by a duly qualified executor or administrator in liquidating the assets of a decedent pursuant to applicable state law. It is to be noted, however, that the sale here in question was made on January 29, 1944, and that Supplementary Order No. 10 was not issued until August 14, 1944, to become effective August 19, 1944. It is not, by its terms, made retroactive. Section 2 (c) provides that exemptions do not extend to judicial sales in respect to commodities for which price regulations or orders establish a specific dollar and cents maximum price when sold by a seller otherwise affected, and § 2(d) includes within such exceptions used household mechanical refrigerators covered by MPR 139. He urges the applicability of Supplementary Order No. 10 upon the authority of Bowles, Adm'r v. Texas Liquor Control Board et al., 5 Cir., 146 F.2d 155. That case, however, did not require consideration of the exceptions to the exemptions established by the Supplementary Order. Moreover, it was there specifically held that the revised order constituted the rule of law by which the appeal must be decided because an injunction operates in futuro and the propriety of future sales must be tested by it. In the present case no injunction is asked for, and the mandatory order sought is not in respect to future sales but solely in respect to a sale made prior to the effective date of the supplementary order. Our conclusion, therefore, is that the order does not relieve the appellee from the application of any remedy permissible under § 205(a) even were we to hold that the appellee is a judicial officer.

The principal question in the case requires a construction of § 205(a) of the Act. It is recited in the margin.¹ It will be noted that the Administrator may make application to the court "for an order enjoining such acts or practices," or "for an order enforcing compliance with such provision." It will also be noted that the court is thereby empowered to grant "a permanent or temporary injunction, restraining order, or other order." No consideration appears to have been given to the phrase "or for an order enforcing compliance with such provision." It would appear to be somewhat difficult to exclude from the scope of orders enforcing compliance, an order that compels restitution to a purchaser of the excess of a sale over a ceiling price. Such an order would seem to be, in final analysis, an order enforcing compliance even though less effective, perhaps, as a deterrent than the provisions of § 205(e) which give to the buyer, under certain circumstances, a right of action for treble the amount by which the consideration exceeds the applicable maximum price.

The controversy concerns itself mainly, however, with the construction to be placed upon the phrase "or other order" in the last line of § 205(a). The appellee urges, and its argument prevailed, that only such orders are within the connotation of the phrase as are needed to make the injunction order practicable and understandable in its application. This contention would seem to be tenuous. Certainly were the phrase entirely eliminated one could hardly deny the power of the court to amend and clarify an injunctional order which concededly it has power to grant, nor to punish for contempt because of its violation. Nothing in the section contained, were such phrase omitted, would seem to confine the court to the original form or content of the injunction or restraining order, or to support an inference that having once granted it, the power is at an end however ineffective,...