Schaffer v. Leimberg

Decision Date21 June 1945
Citation318 Mass. 396,62 N.E.2d 193
CourtUnited States State Supreme Judicial Court of Massachusetts Supreme Court


Action of contract of tort by Maurice M. Schaffer and another against Goldie Leimberg for a penalty under the Emergency Price Control Act, wherein the Administrator of the Office of Price Administration intervened. From adverse orders, the plaintiffs and the intervener appeal, and defendant moves to dismiss plaintiffs' appeal.

Motion denied and orders reversed and set aside. Case to stand for trial.Appeals from Municipal Court of Boston; J. Riley, Judge.


C. D. Brown, of Boston, for plaintiff.

W. B. Sleigh, Jr., of Boston, for intervener.

S. Miller and E. Miller, both of Boston, for defendant.

LUMMUS, Justice.

In this action of ‘contract of tort’ begun on March 26, 1943, in the Municipal Court of the City of Boston, the plaintiffs alleged in their declaration that on March 1, 1942, they occupied as a residence an apartment in Boston which they held as tenants at will of the defendant at a rent of $40 a month; that on October 22, 1942, the administrator of the Office of Price Administration,popularly called the OPA, under the authority to the Emergency Price Control Act of 1942, Act of January 30, 1942, c. 26, 56 U.S.Stat. 23, 50 U.S.C.A.Appendix § 901 et seq., issued Maximum Rent Regulation No. 53,’ effective as of November 1, 1942, which provided that within territory of which Boston is a part, the maximum rent for housing accommodations rented on March 1, 1942, was to be the rent charged on that date; that for the two months beginning November 15, 1942, the defendant charged the plaintiffs and received from them $5 a month in excess of such maximum rent; and asked relief under section 205(e) of the Emergency Price Control Act of 1942 which provided that a person overcharged might recover either $50 or ‘trable the amount by which the consideration exceeded the applicable maximum price, whichever is the greater,’ plus reasonable attorney's fees and costs as determined by the court.

The answer began with a general denial, and then set up (a) that the female plaintiff was not a tenant, (b) that the act could not affect the tenancy in question because it antedated the act, (c) that the act and any regulations made under its authority were unconstitutional, and (d) that Congress could not delegate to the administrator the making of the regulation relied on by the plaintiffs.

On May 17, 1943, Prentiss M. Brown, administrator of the Office of Price Administration, was allowed to intervene as provided in section 205(d) of the act. On May 3, 1944, Chester Bowles, his successor in that office, was substituted as intervener.

There was evidence to support the allegations of the declaration. The judge did not find the facts, but ruled that the court had no jurisdiction, and ordered the action dismissed. On October 28, 1943, the plaintiffs having claimed a report, the judge made a report to the Appellate Division. On September 12, 1944, the Appellate Division sustained the judge by dismissing the report. Both the plaintiffs and the intervener appealed to this court.

The power of Congress ‘to declare war,’ and by plain implication, to wage war, is a power to wage war successfully, with all the means needed for that purpose. Hirabayashi v. United States, 320 U.S. 81, 93, 63 S.Ct. 1375, 87 L.Ed. 1774; Ex parte Quirin, 317 U.S. 1, 25, 26, 63 S.Ct. 1, 2, 87 L.Ed. 3. See also Godard v. Babson-Dow Mfg. Co. 313 Mass. 280, 287, 47 N.E.2d 303, 145 A.L.R. 603. Many individual rights that exist in time of peace may be denied in time of war, not because war suspends the Constitution, for it does not (Ex parte Milligan, 4 Wall. 2, 120, 121, 18 L.Ed. 281;United States v. L. Cohen Grocery Co. 255 U.S. 81, 88, 41 S.Ct. 298, 65 L.Ed. 516, 14 A.L.R. 1045;Home Building & Loan Association v. Blaisdell, 290 U.S. 398, 425, 526,54 S.Ct. 231, 78 L.Ed. 413, 88 A.L.R. 1481;A.L.A. Schechter Poultry Corporation v. United States, 295 U.S. 495, 528, 55 S.Ct. 837, 79 L.Ed. 1570, 97 A.L.R. 947;Hirabayashi v. United States, 320 U.S. 81, 110, 63 S.Ct. 1375, 87 L.Ed. 1774), but because the war power given to Congress by the Constitution itself overrides, during the emergency of war, every claim or right that might impede the successful prosecution of the war. Hamilton v. Kentucky Distilleries & Warehouse Co., 251 U.S. 146, 40 S.Ct. 106, 64 L.Ed. 194;United States v. Bethlehem Steel Corporation 315 U.S. 289, 305, 62 S.Ct. 581, 86 L.Ed. 855;Hartzel v. United States, 322 U.S. 680, 64 S.Ct. 1233, 88 L.Ed. 1534;Korematsu v. United States, 323 U.S. 214, 65 S.Ct. 193; Ex parte Endo, 323 U.S. 283, 65 S.Ct. 208. No one in the present case questions the general proposition, now firmly established by judicial decisions under the very act in question, that the power to wage war includes the power to control prices and rents in order to prevent inflation, profiteering and economic distress during a war. Highland v. Russell Car & Snow Plow Co., 279 U.S. 253, 49 S.Ct. 314, 73 L.Ed. 688;Yakus v. United States, 321 U.S. 414, 64 S.Ct. 660, 88 L.Ed. 834;Bowles v. Willingham, 321 U.S. 503, 64 S.Ct. 641, 88 L.Ed. 892;Taylor v. Brown, Em.App., 137 F.2d 654. Compare, as to price regulation in time of peace, Olsen v. Nebraska, 313 U.S. 236, 61 S.Ct. 862, 85 L.Ed. 1305, 133 A.L.R. 1500;Federal Power Commission v. Natural Gas Pipeline Co., 315 U.S. 575, 62 S.Ct. 736, 86 L.Ed. 1037;West Coast Hotel Co. v. Parrish, 300 U.S. 379, 57 S.Ct. 578, 81 L.Ed. 703, 108 A.L.R. 1330.

Even if the rule that the courts of one sovereignty will not enforce penalties imposed by the laws of another applies to penalties imposed by the law of the United States, the short answer to any objection founded on that rule is that a cause of action given to a person aggrieved to recover damages for the wrong done him is remedial and not penal within that rule even though the damages consist of a multiple of the actual loss or even are assessed without regard to the actual loss.1 This has been so held with respect to the remedy given by the act in question to a person overcharged. Miller v. Municipal Court of the City of Los Angeles, 22 Cal.2d 818, 142 P.2d 297;Lapinski v. Copacino, 131 Conn. 119, 38 A.2d 592;Lambros v. Brown, Md., 41 A.2d 78;Beasley v. Gottlieb, 131 N.J.L. 117, 35 A.2d 49; Compare Bowles v. Farmers Nat. Bank of Lebanon, Ky., 6 Cir., 147 F.2d 425.

The objection that Congress had no power to delegate to the administrator the fixing of maximum limits upon rents has already been decided to be unsound. It is true that neither Congress nor the General Court of this Commonwealth may delegate its legislative function completely. But where the legislative branch of government has determined the policy to be pursued, it has power to delegate to an administrative officer or board the working out of the details by which that policy is applied to the subject matter. Commonwealth v. Town of Hudson, 315 Mass. 335, 341-343, 52 N.E.2d 566;Opinion of the Justices, 315 Mass. 761, 767, 768, 52 N.E.2d 974, 150 A.L.R. 1482;Currin v. Wallace, 306 U.S. 1, 15, 59 S.Ct. 379, 83 L.Ed. 441;Sunshine Anthracite Coal Co. v. Adkins, 310 U.S. 381, 397, 398, 60 S.Ct. 907, 84 L.Ed. 1263. Regulations made under the act in question have already been held constitutionally valid within that rule by the controlling authority of the Supreme Court of the United States. Yakus v. United States, 321 U.S. 414, 423-427, 64 S.Ct. 660, 88 L.Ed. 834;Bowles v. Willingham, 321 U.S. 503, 512-516, 64 S.Ct. 641, 88 L.Ed. 892.

Of course an unconstitutional regulation, equally with an unconstitutional statute, must be disregarded by the courts, for the courts are bound to enforce the higher law of the Constitution in case of conflict. Arizona Grocery Co. v. Atchison, Topeka & Santa Fe R., 284 U.S. 370, 388, 52 S.Ct. 183, 76 L.Ed. 348.Pearson v. Walling, 8 Cir., 138 F.2d 655, 658. And until recently any citizen, confronted in the course of litigation with a statute or regulation that he deems an infringement of some constitutional right of his, has always enjoyed the right to defend against that statute or regulation by pointing out its conflict with the higher law of the Constitution, and requiring the court to apply that higher law and to disregard the conflicting statute or regulation of inferior rank. That right is inferable from the Constitution itself, which created, not an authoritarian government, but a government of limited powers, which are subject to certain individual rights that even majorities must respect, and that are the essence of liberty. 2

The basis for the refusal of jurisdiction by the court below was an unusual and ingenious legislative device contained in the Emergency Price Control Act of 1942, intended to make difficult any effective attack upon the constitutional validity of any regulation made by the administratorunder the authority of that act. In section 204(d) it was provided that, with the exception of the Emergency Court of Appeals created by the act, section 204(c) and the Supreme Court of the United States on certiorari from that court, section 204(d), ‘no court, Federal, State, or Territorial, shall have jurisdiction or power to consider the validity of any such regulation.’ The words ‘such regulation’ may be restricted to a regulation authorized by the act, and may leave open to any court the question whether a regulation conforms to the act. Speicher v. Sowell, 309 Mich. 54, 14 N.W.2d 651.Farmers' Gin Co. v. Hayes, D.C., 54 F.Supp. 47, 55.Hurst v. Haak, 73 Ohio App. 189, 55 N.E.2d 594. If that is true, in an action like the present a State court would be at liberty to consider (1) the constitutional validity of the act itself, but not (if the act is constitutional) the constitutional validity of regulations made under its authority, Yakus v. United...

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    • March 15, 1972
    ... ... Federal Trade [361 Mass. 409] Commn., 124 F.2d 104, 106 (5th Cir.). Kritzik v. Federal Trade Commn., 125 F.2d 351, 352 (7th Cir.). Schaffer v. Leimberg, 318 Mass. 396, 404--405, 62 N.E.2d 193. Mastrullo v. Ryan, 328 Mass. 621, 622, 105 N.E.2d 469. However, those factors alone do not ... ...
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    • United States
    • United States State Supreme Judicial Court of Massachusetts Supreme Court
    • June 21, 1945
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    • United States
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    • August 8, 1946
    ... ... procedure, above set out in the quotation from Desper v ... Warner Holding Co., has been characterized in Schaffer v ... Leimberg, 318 Mass. 396, 62 N.E.2d 193, 195, as an ... 'ingenious legislative device * * *, intended to make ... difficult ... ...
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    ... ... See United States v. Summerlin, 310 U.S. 414, 60 S.Ct. 1019, 84 L.Ed. 1283;Schaffer v. Leimberg, 318 Mass. 396, 404, 62 N.E.2d 193. We cannot adopt this contention. The short statute of limitation does not impose a jurisdictional ... ...
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