Henderson v. Nixon
| Decision Date | 06 May 1946 |
| Docket Number | 7240 |
| Citation | 168 P.2d 594,66 Idaho 780 |
| Parties | C. V. HENDERSON and MRS. C. V. HENDERSON, his wife, Appellants, v. S. M. NIXON, Respondent |
| Court | Idaho Supreme Court |
[Copyrighted Material Omitted] [Copyrighted Material Omitted]
Original Opinion of October 17, 1945, Reported at 66 Idaho 780.
Respondent contends he was prevented from prosecuting his application of February 27, 1943, before the local rent director by the injunction which was issued June 3, 1943, in connection with appellants' main complaint herein, May 29, 1943, and not dissolved until September 28, 1944.
The basic rent directive for the area involved was promulgated September 23, 1942, as appears in the main opinion herein, and fixed the basic rent as that being charged March 1, 1942, [1] effective October 1, 1942. (Kalwar v. McKinnon, 152 F.2d 263.) Thus, any time after October 1, 1942, respondent might have filed his application for modification with the local rent director. [2] During all of that time and subsequently, respondent was charging or attempting to charge an amount greater than that which had been charged March 1, 1942. His application was filed February 27, 1943, and the injunction was not issued until June 3, 1943 -- substantially eight months after the effective date of the original directive and substantially three months after the application was filed.
If respondent desired to increase the original rent as fixed by the statute, it was incumbent upon him to not only make the application, but secure favorable action thereon as a condition precedent to charging or collecting a greater amount. [3] (Kalwar v. McKinnon, supra; Hayes v. Osborn, 160 P.2d 956.) The injunction, therefore, did not so interfere with his timely proceeding as to overthrow the holding that, the legal amount of rent being exceeded absent proper modification, the imposition of a penalty herein was justified. [4] (Kalwar v. McKinnon, supra; Exparte Taylor, 58 F.Supp. 488.)
Respondent contends we erred in authorizing the payment of costs and attorney's fees because the appeal was not from the immediately succeeding section of the decree.
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED That neither the plaintiffs Hendersons nor the defendant Nixon shall be allowed any costs or attorneys fees in said actions so consolidated and tried".
The appeal, however, was from a preceding paragraph as follows:
"IT IS FURTHER ORDERED, ADJUDGED AND DECREED That the defendant S. M. Nixon has not violated any of the provisions of the Emergency Price Control Act of 1942, Public Laws 421, of the 77th Congress, or any rule or regulation promulgated thereunder, and that he is not liable for any penalty or attorneys fees by reason of any alleged violation thereof, and that the plaintiffs C. V. Henderson and Mrs. C. V. Henderson, his wife, are not entitled to recover any sums of money whatsoever in respect to any alleged violation of said Act, or any of the rules or regulations made in pursuance to said Act".
The paragraph appealed from was thus as effective in denying attorney's fees or penalties as the section not appealed from and was in fact more inclusive than that not appealed from. Our holding, therefore, was within the scope of the appeal.
Appellant argues that if we reverse, we should remand the case for a further general hearing because, though the court found: "That the agreed rental for the said premises between the said plaintiffs Henderson and the defendant Nixon herein was * * * the sum of $ 55 per month from February 7, 1941 to March 7, 1942, * * *" (thus $ 55 on March 1, 1942, the controlling date). The court likewise found that: "The defendant S. M. Nixon has not knowingly or at all violated any provision of the Emergency Price Control Act of 1942 * * *". And likewise concluded as last quoted. As indicated in the original opinion, the latter is a conclusion and not a finding.
The period of claimed excessive charges was from October 1942 through November 1943. The original statute of January 30, 1942, effective six months thereafter, authorized a penalty without alleviation. [5]
This section was amended June 30, 1944, providing a reduction if the violation was not wilful. [6]
The original Act of 1942 thus being in force at the time the excess charges were made, controls and the conclusion that there was no violation of the statutes could have no ameliorating effect on the penalties. (Bowles v. American Stores, 139 F.2d 377; Carmelly v. Hanson, 43 A. 685; Bowles v. Miller, 19 N.W.2d 285; Desper v. Warner Holding Co., 19 N.W.2d 62; and Hayes v. Osborn, supra.)
The original opinion is therefore reaffirmed and adhered to.
Holden and Miller, JJ., and Lee, D.J., concur.
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Notes:
[1] "1388.134. Maximum rents. Maximum rents (unless and until changed by the Administrator as provided in No. 1388.135) shall be:
(a) For housing accommodations rented on March 1 1942, the rent for such accommodations on that date". 7 F.R. 7502, September 23, 1942.
[2] .
. 7 F.R. 7504, September 23, 1942.
[3] . 7 F.R. 7503, September 23, 1942.
[4] ...
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