Henderson v. Mann Theatres Corp.

• Decision Date: 28 December 1976
• Court: California Court of Appeals Court of Appeals
• Parties: Anne T. HENDERSON and Helen T. Wilkes, Plaintiffs and Appellants, v. MANN THEATRES CORPORATION OF CALIFORNIA, a corporation, Defendant and Respondent. Civ. 48810.

Page 266

135 Cal.Rptr. 266

65 Cal.App.3d 397

Anne T. HENDERSON and Helen T. Wilkes, Plaintiffs and Appellants, v. MANN THEATRES CORPORATION OF CALIFORNIA, a corporation, Defendant and Respondent.

Civ. 48810.

Court of Appeal, Second District, Division 1, California.

Dec. 28, 1976.

Hearing Denied Feb. 23, 1977.

Charles L. Crouch, Jr. and David J. Prager, Los Angeles, for plaintiffs and appellants.

O'Melveny & Myers, and Phillip F. Westbrook, Jr. and Bennett W. Priest, Los Angeles, for defendant and respondent.

WOOD, Presiding Justice.

In 1929 the owners of vacant land on Hollywood Boulevard leased the property for a term of 99 years. Plaintiffs are successors in interest to the lessors; and defendant is the successor in interest to the lessee. Plaintiffs seek a declaration that a provision in the lease that the rent be paid in gold coin of the United States of America is valid. The trial court concluded that the provision for payment of the rent in gold coin is prohibited by the 'Joint Resolution of 1933' enacted by Congress (31 U.S.Code, § 463); that the Joint Resolution was not repealed, expressly or impliedly, by the 1973 Amendment of the Par Value Modification Act (Pub.Law 93--110, Cong., H.R. 6912), and that defendant is not obligated to pay the rent in gold coin.

Plaintiffs (lessors) appeal from the judgment. They assert that said Joint Resolution was repealed by said 1973 Act, effective December 31, 1974, and the repeal revived the gold clause in the lease, effective on that date. They assert further if the 1973 Act did not repeal the Resolution, the Resolution violates due process of law. Appellant also makes other contentions, which relate to the contractual doctrines of 'Impossibility' and 'Illegality.'

The case was submitted to the trial court on an agreed statement of facts. There is no controversy as to the facts. Appellants assert that the findings of fact and conclusions of law provide no basis for the judgment; and that the 1973 Amendment of the Par Value Modification Act 'mandates that judgment be granted' in favor of plaintiffs. The facts (and findings) are in substance as follows:

On October 8, 1929, the predecessors in interest to the parties herein entered into a written ground lease whereby the property was leased by the lessors to the lessee for a period of 99 years, commencing November 1, 1929. A provision of the lease was: The rental for such 99-year term shall be $1,457,500, which sum the lessee agrees to pay the lessors in installments as follows: $750 on the first day of each calendar month of said term commencing November 1, 1929, to and including May 1, 1934; $1,250 on the first day of each calendar month of said term commencing June 1, 1934, to and including October 1, 2028. 'The lessee agrees to pay said rentals to the lessors in gold coin of the United States of America of the present standard of weight and fineness (one dollar containing twenty-five and eight-tenths grains of which twenty-three and twenty-two hundredths grains are fine gold) or its equivalent in lawful money of the United States of America, at such place in the City of Los Angeles, California, as the lessors may, from time to time, in writing, designate as the place for the payment of the rent. But the lessee may make such rental payments by bank check in accordance with prevailing business practices, and the place for the payment of the rent shall be at the Hollywood Office of California Bank in the City of Los Angeles, California, until otherwise specified by the lessors as aforesaid.'

A theatre building was constructed on the land; and, through mesne conveyances the plaintiffs are the lessors, and the defendant is the lessee, of the ground lease.

In June 1933, Congress enacted the Joint Resolution of 1933 as the result of the monetary change referred to as 'going off the gold standard.' Said Joint Resolution was thereafter codified in section 463 of Title 31 of the United States Code, as follows:

'Provision for payment of obligations in gold prohibited; uniformity in value of coins and currencies.

'(a) Every provision contained in or made with respect to any obligation which purports to give the obligee a right to require payment in gold or a particular kind of coin or currency, or in an amount in money of the United States measured thereby, is declared to be against public policy; and no such provision shall be contained in or made with respect to any obligation hereafter incurred. Every obligation, heretofore or hereafter incurred, whether or not any such provision is contained therein or made with respect thereto, shall be discharged upon payment, dollar for dollar, in any coin or currency which at the time of payment is legal tender for public and private debts. Any such provision contained in any law authorizing obligations to be issued by or under authority of the United States, is repealed, but the repeal of any such provision shall not invalidate any other provision or authority contained in such law.

'(b) As used in this section, the term 'obligation' means an obligation (including every obligation of and to the United States, exception currency) payable in money of the United States; and the term 'coin or currency' means coin or currency of the United States, including Federal Reserve notes and circulating notes of Federal Reserve banks and national banking associations. June 5, 1933, c. 48, § 1, 48 Stat. 113.'

Since the enactment of said Joint Resolution in 1933, the lessee has paid and is presently paying the rent due under the herein lease in legal tender money of the United States, including payment of $1,250 for the month of January 1975 and $1,250 for the month of February 1975.

In September 1973, the Congress enacted Public Law 93--100 (93rd Cong., H.R. 6912), which provides in part as follows:

'An Act to amend the Par Value Modification Act, and for other purposes ( ) . . .

'Sec. 3. (a) Sections 3 and 4 of the Gold Reserve Act of 1934 (31 U.S.C. 442 and 443) are repealed.

'(b) No provision of any law in effect on the date of enactment of this Act, and no rule, regulation, or order under authority of any such law, may be construed to prohibit any person from purchasing, holding, selling, or otherwise dealing with gold.'

In July 1974, Congress enacted Public Law 93--373 (93rd Cong., S. 2665, 88 Stat. 445) which provides in part as follows:

'Sec. 2. Subsections 3(b) and (c) of Public Law 93--110 (87 Stat. 352) are repealed and in lieu thereof add the following:

'(b) No provision of any law in effect on the date of enactment of this Act, and no rule, regulation, or order in effect on the date sub-sections (a) and (b) become effective may be construed to prohibit any person from purchasing, holding, selling, or otherwise dealing with gold in the United States or abroad.

'(c) The provisions of subsections (a) and (b) of this section shall take effect either on December 31, 1974, or at any time prior to such date that the President finds and reports to Congress that international monetary reform shall have proceeded to the point where elimination of regulations on private ownership of gold will not adversely affect the United States' international monetary position.' Said provisions became effective on December 31, 1974.

The trial court's conclusions of law were in substance as follows: Enforcement of the gold clause provision of the lease pertaining to payment of the rent in gold coin of the United States is prohibited by the provisions of the Joint Resolution of 1933. Defendant is not obligated to make payment in gold coin of the weight and fineness in effect on October 8, 1929, or its equivalent in lawful money of the United States. The Joint Resolution of 1933 was not repealed, either expressly or by implication by the 1973 Amendment of the Par Value Modification Act. The gold clause provision of the lease was not and is not a contract for payment in gold coin or gold bullion as a commodity, but was and is a contract for the payment of money. Defendant has fully performed all conditions of the lease to be performed on its part and has fully discharged its obligation to pay rent to plaintiffs for the months of January and February 1975.

(As hereinabove stated, defendant paid $1,250 as rent for each of those months. Plaintiffs alleged in their complaint that the rental due for those months in gold coin or its equivalent was $19,300.)

As above stated, appellants assert that the trial court erred in concluding that the 1973 Act did not repeal the Joint Resolution of 1933, expressly or impliedly.

As above shown, section 3, subdivision (a) of the 1973 Act expressly repealed sections 3 and 4 of the Gold Reverse Act of 1934 (31 U.S.C. §§ 442, 443). No provision of the 1973 Act expressly repealed the Joint Resolution of 1933. A recognized rule of statutory construction is that the expression of certain things in a statute necessarily involves exclusion of other things not expressed--Expressio unius est exclusio alterius. (See Gilgert v. Stockton Port District, 7 Cal.2d 384, 387, 60 P.2d 847.)

Appellants argue that subdivision (b) of section 3 of said 1973 Act impliedly repealed the Joint Resolution of 1933. Subdivision (b), as heretofore stated, provides that 'No provision of any law in effect on the date of enactment of the Act, and no rule, regulation, or order under authority of any such law, may be construed to prohibit any person from purchasing, holding, selling, or otherwise dealing with gold.'

Appellants assert that subdivision (b) 'effectively repealed all laws restricting transactions in gold,' and that legislative intent to repeal 'all laws which prohibit the private purchase or dealing with gold' is shown by cited statements of a congressional committee that analyzed the bill from which the Act arose and by a cited statement by Representative Windall. One of the cited statements of the committee (H.R.Rep. No. 93--203, 93rd Cong., 1st Sess., 2...