Bowles v. Trowbridge

• Decision Date: 06 April 1945
• Docket Number: No. 23550-S.,23550-S.
• Citation: 60 F. Supp. 48
• Parties: BOWLES, Adm'r, Office of Price Administration, v. TROWBRIDGE et al.
• Court: U.S. District Court — Northern District of California

60 F. Supp. 48

BOWLES, Adm'r, Office of Price Administration, v. TROWBRIDGE et al.

No. 23550-S.

District Court, N. D. California, S. D.

April 6, 1945.

Thomas C. Ryan, George A. Faraday, and Ralph Golub, all of San Francisco, Cal., for plaintiff.

George M. Naus, of San Francisco, Cal., and Hagar, Crosby & Crosby, of Oakland, Cal., for defendant.

ST. SURE, District Judge.

Plaintiff has proposed written interrogatories to be answered by defendant under Rule 33, Federal Rules of Civil Procedure, 28 U.S.C.A. following section 723c, in an action for injunction and treble damages for alleged violations of section 4(a) of the Emergency Price Control Act, 50 U.S.C.A.Appendix § 904(a). Defendant objects to the interrogatories on the ground that they are proposed in violation of the Fifth Amendment to the United States Constitution, wherein it is provided that "No person * * * shall be compelled in any Criminal Case to be a witness against himself * * *." An action for a penalty is considered a "criminal case" within the purview of this clause. Boyd v. U. S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746; Lees v. United States, 150 U.S. 476, 14 S.Ct. 163, 37 L.Ed. 1150. The question for decision is whether an action for treble damages brought by the Administrator of the Office of Price Administration under section 205(e) of the Act, 50 U.S.C.A.Appendix § 925(e), is one for a penalty.

The District Court decisions upon this question are in conflict, and the question was left open by the Circuit Court of Appeals of this Circuit in Bowles v. Glick Bros. Lumber Co., 9 Cir., 146 F.2d 566, 571. In that case the Office of Price Administration had examined certain documents belonging to defendants before suing for an injunction and treble damages. The District Court held that the action was one for a penalty, and that defendants were entitled to a dismissal based on their immunity against self-incrimination. The Circuit Court of Appeals reversed the District Court, on the ground that the documents produced for inspection were quasi-public in nature, and that to require the production of such documents would not violate defendants' rights under the Fourth or Fifth Amendment. The Court said, "This is true whether the action be regarded as remedial or penal."

The present situation does not involve the production of documents, but is a direct attempt to compel defendant to testify.

In Huntington v. Attrill, 146 U.S. 657, 673, 683, 13 S.Ct. 224, 230, 36 L.Ed. 1123, the Supreme Court said that the test of whether a statute is remedial or penal "depends upon the question whether its purpose is to punish an offense against the public justice of the state, or to afford a private remedy to a person injured by the wrongful act. * * * The test is not by what name the statute is called by the legislature or the courts of the state in which it was passed, but whether it appears to the tribunal which is called upon to enforce it to be, in its essential character and effect, a punishment of an offense against the public, or a grant of a civil right to a private person."

Section 925 of 50 U.S.C.A.Appendix, is entitled "Enforcement," and provides for fine and imprisonment, suspension of licenses, injunctions, and treble damages, for violations of the Act. Section 925(e), relating to suits for treble damages, limits suits thereunder by private individuals to the ultimate consumer or tenant, each of whom is designated in the Act as the "buyer." Actions for treble damages may not be brought by one who purchases in the course of trade or business, and the Administrator is empowered in such cases to sue on behalf of the United States. The damages for which he sues are usually based upon an accumulation of sales to a number of customers, and are many times greater than the amount of damages the buyer may ordinarily claim. As originally enacted, the statute permitted the buyer to sue within a year of the violation. By amendment of June 30, 1944, 50 U.S.C.A.Appendix § 925(e), the limitation of the buyer's action has been reduced to thirty days after the violation, and at the end of that time the Administrator may sue in the buyer's stead on behalf of the United States, and such suit by the Administrator operates as a bar to any subsequent action by the buyer for damages for the same violation. No notice to the buyer of the Administrator's intention to sue is required by statute, and he may presumably lose his right of action without being aware that such right existed. The relatively short period within which the buyer may exercise his right to damages under this provision indicates that the true...