Brown v. Concini, Civil 4640

• Decision Date: 17 July 1943
• Docket Number: Civil 4640
• Citation: 60 Ariz. 476,140 P.2d 224
• Parties: PRENTISS M. BROWN, Administrator, Office of Price Administration, Plaintiff, v. EVO De CONCINI, Judge of the Superior Court, Pima County, State of Arizona, Defendant
• Court: Arizona Supreme Court

140 P.2d 224

60 Ariz. 476

PRENTISS M. BROWN, Administrator, Office of Price Administration, Plaintiff, v. EVO De CONCINI, Judge of the Superior Court, Pima County, State of Arizona, Defendant

Civil No. 4640

Supreme Court of Arizona

July 17, 1943

Original proceeding in mandamus. Alternative writ made peremptory.

Mr Darrell R. Parker, Chief Attorney, and Mr. John R. Franks Chief Enforcement Attorney, Office of Price Administration for Plaintiff.

Mr. W. Dunlap Cannon, Jr., of San Francisco, California, of Counsel for plaintiff.

Honorable Evo De Concini, Defendant, for himself.

OPINION

STANFORD, J.

This matter comes to us on a petition for a writ of mandamus. The petitioner, Prentiss M. Brown, Administrator, Office of Price Administration, appeared before the Superior Court of Pima County, Arizona, located at Tucson, and asked leave to intervene in a case pending in Division No. 2 of said court, presided over by the Honorable Evo De Concini. Petitioner appeared by reason of his authority pursuant to Section 205(d) of the Emergency Price Control Act of 1942, 50 U.S.C.A. Appendix, § 925(d), and that section reads as follows:

"In any suit or action wherein a party relies for ground of relief or defense upon this Act or any regulation, order, price schedule, requirement, or agreement thereunder, the court having jurisdiction of such suit or action shall certify such fact to the Administrator. The Administrator may intervene in any such suit or action."

The suit, or action that was pending in the said Superior Court was brought on complaint for damages under the aforesaid Emergency Price Control Act, and contained thirty-nine causes of action, each being for $50 as set forth in the prayer, based on thirty-nine sales by the defendant, Joe W. Tang, who apparently was conducting business under the firm name and style of Joe W. Tang's Market. The action was brought by Ethelbert L. Sand.

The complaint recited: "That jurisdiction of this action is conferred upon this Court by Section 205(c) and Section 205(e) of the Emergency Price Control Act of 1942."

In the complaint of said plaintiff he elected to sue for the sum of $50 and attorney's fee for each item sold to him where the price charged was in excess of the amount fixed by the Office of Price Administration, it being the privilege of the said plaintiff to sue for such amount, or treble the amount of the excess charge.

Pending before the filing of the petition of intervention in said court by the petitioner herein was a motion filed by the defendant to dismiss the complaint on the grounds of lack of jurisdiction, and specifically because: 1. That the complaint shows, upon its face, that the amount recoverable in this action is beneath the jurisdictional amount cognizable by the Superior Courts. 2. That the court is not obligated to entertain jurisdiction of the subject matter of this action, and, as a matter of policy, ought in the exercise of a sound discretion, to refuse it.

As stated, the matter coming before this court is on the petition of Prentiss M. Brown, Administrator, Office of Price Administration, for a writ of mandamus requiring the judge of said court to vacate the order made and entered in his court on May 8, 1943, denying plaintiff's motion for leave to intervene, and commanding him further to make and enter in said cause an order granting this petitioner leave to intervene and become a party in said cause. Defendant, however, has filed a demurrer to the alternative writ of mandate pursuant to the provisions of Rule 2, Sub. 2 of the rules of our Supreme Court upon the grounds and for the reason that:

1. It appears that the plaintiff has a plain, speedy and adequate remedy by appeal from the order of the Superior Court denying him the right to intervene.

2. Mandamus is not a proper remedy for the enforcement of an alleged right of intervention.

But the plaintiff has asked that this court pass on the constitutionality of the Act as raised by the pleadings and briefs filed herein and we feel that this cause merits our attention also in that respect.

Defendant herein, in part, contends:

"That the action, in which the plaintiff's motion to intervene was filed, is an action between two private citizens of the County of Pima, State of Arizona, under the so called treble damage provisions of the Emergency Price Control Act of 1942. That the plaintiff, Prentiss M. Brown, Administrator of the Office of Price Administration, has not interest in the subject matter of said suit, cannot be bound in any manner by the judgment therein, and wholly lacks the interest in the suit which is required of an intervenor...."

"The defendant denies that Title 50 U.S.C.A. Appendix, Section 925(d) gave the plaintiff an unconditional right to intervene in said action in violation of Sections 21-527 and 21-528, Arizona Code Annotated, 1939, which controlled the right of intervention in the Superior Court of the State o f Arizona."

Section 21-527 reads as follows:

"Intervention of right. -- Upon timely application anyone shall be permitted to intervene in an action: (1) when a statute confers an unconditional right to intervene; or (2) when the representation of the applicant's interest by existing parties is or may be inadequate and the applicant is or may be bound by a judgment in the action; or (3) when the applicant is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof."

From the record before us we do not find recognition by the Superior Court of the Price Control Act in so far as having certified to the administrator the action which he was hearing in Pima County. Reading the Act again, it is in part as follows:

"In any suit or action wherein a party relies for ground of relief or defense upon this Act or any regulation, order, price schedule, requirement, or agreement thereunder, the court having jurisdiction of such suit or action shall certify such fact to the Administrator...."

This, as we say, was evidently not done, but the administrator, hearing of the action, filed a motion to intervene. The defendant herein, however, stated in his answer to alternative writ of mandamus that the action pending before him was an action between two private citizens, but under the provisions of the Emergency Price Control Act.

To uphold the defendant in this cause we would be saying that state courts should not extend jurisdiction to the Emergency Price Control Act of 1942. From the old case of Claflin v. Houseman, 93 U.S. 130, 137, 23 L.Ed. 833, we quote the following:

"... The fact that a State court derives its existence and functions from the State laws is no reason why it should not afford relief; because it is subject also to the laws of the United States, and is just as much bound to recognize these as operative within the State as it is to recognize the State laws. The two together form one system of jurisprudence, which constitutes the law of the land for the State; and the courts of the two jurisdictions are not foreign to each other, nor to be treated by each other as such, but as courts of the same country, having jurisdiction partly different and partly concurrent. The disposition to regard the laws of the United States as emanating from a foreign jurisdiction is founded on erroneous views of the nature and relations of the State and Federal governments. It is often the cause or the consequence of an unjustifiable jealousy of the United States government, which has been the occasion of disastrous evils to the country.

"It is true, the sovereignties are distinct, and neither can interfere with the proper jurisdiction of the other, as was so clearly shown by Chief Justice Taney, in the case of Ableman v. Booth, 21 How. 506, [62 U.S 506, 16 L.Ed. 169]; and hence the State courts have no power to revise the action of the Federal courts, nor the Federal the State, except where the Federal Constitution or laws are involved. But this is no reason why the State c o urts should not be open for the prosecution of rights growing out of the laws of the...