State ex rel. Bowles v. Olson

• Decision Date: 19 September 1944
• Citation: 151 P.2d 723,175 Or. 98
• Parties: STATE EX REL. BOWLES <I>v.</I> OLSON
• Court: Oregon Supreme Court

175 Or. 98

151 P.2d 723

STATE EX REL. BOWLESv.

OLSON

Supreme Court of Oregon.

Argued September 6, 1944.

Demurrer to alternative writ sustained September 19, 1944.

Courts

1. District court of Oregon has jurisdiction to entertain actions by buyer against seller for treble damages under the Emergency Price Control Act when the amount claimed is within the jurisdictional amount.

War

2. Where a state court has jurisdiction of buyer's action against seller for treble damages under the Emergency Price Control Act, refusal to permit Federal Administrator to intervene would constitute an abuse of discretion, if not a violation of the mandatory statute.

Mandamus

3. The alternative writ of mandamus, which is deemed to be the complaint, must show at least prima facie a clear right existing in relator to have the thing done which he seeks to enforce.

Mandamus

4. Alternative writs of mandamus are not favorites of the law and should state every fact necessary to entitle relator to the relief demanded and must show that relator has performed all acts which are made a condition precedent to his right to relief and the existence of all facts necessary to put respondent in default.

Mandamus

5. The alternative writ of mandamus must show the special interest of relator and must negative any facts which under the statute relied upon might defeat his right to maintain the action.

Pleadings

6. Alternative writ of mandamus, seeking to compel state district court to take jurisdiction of action involving alleged violation of Emergency Price Control regulation, did not need to set forth the text of the regulations involved since the courts are required to take judicial notice thereof.

Mandamus

7. Where statute creating right to sue for treble damages under Emergency Price Control Act required action to be brought within one year, alternative writ of mandamus to compel state district court to take jurisdiction of such action must affirmatively show that the action was brought within the year.

Limitation of actions

8. A "statute of limitations" should be differentiated from conditions which are annexed to a right of action created by statute, since a statute which in itself creates a new liability and fixes a time within which that action may be commenced is not a statute of limitations, but a statute of creation and the time element is an inherent element of the right created.

Mandamus

9. An alternative writ of mandamus to compel a state court to take jurisdiction of buyer's action against seller for treble damages under the Emergency Price Control Act was defective where there was no allegation as to the place where the sale took place, or as to defendant's residence or place of business.

Mandamus

10. An alternative writ of mandamus to compel state court to take jurisdiction of buyer's action against seller to recover treble damages under Emergency Price Control Act was defective where it failed to allege the type of electric refrigerator alleged to have been sold above the ceiling price, and it was not shown that any regulation was applicable to the sale.

Mandamus

11. An alternative writ of mandamus to compel state court to take jurisdiction of action for treble damages under Emergency Price Control Act was defective where it failed to allege that the action brought in that court was still pending or that plaintiff desired further to prosecute same.

Courts

12. Where a complaint in state district court shows that court to have jurisdiction of subject matter under the Emergency Price Control Act, it would be the duty of the district court to assume jurisdiction even though the complaint was defective, or even demurrable, in respects relating to matters other than jurisdiction.

Mandamus

13. Where mandamus is brought to compel state district court to take jurisdiction of action under Emergency Price Control Act and the alternative writ sets forth the substance of the complaint below which is otherwise sufficient, petitioner would be entitled to relief regardless of nonjurisdictional defects appearing in the complaint below.

Mandamus

14. In mandamus proceeding to compel state district court to assume jurisdiction of action under Price Control Act, where allegations of complaint below are not set forth in alternative writ, Supreme Court will not grant the writ unless the allegations

of ultimate facts, as distinguished from allegations contained in the complaint below, clearly disclose that the district court has jurisdiction under the federal statutes and also disclose a prima facie right to recover in the lower court.

Mandamus

15. In mandamus proceeding to compel district court to assume jurisdiction of action to recover treble damages under Emergency Price Control Act, where the substance of complaint in lower court was not set forth and allegations of fact in the writ itself failed to disclose that district court had jurisdiction or a prima facie right to recover, the alternative writ was demurrable.

                  See 35 Am. Jur. 93
                  21 C.J.S., Courts, § 526
                

Before BAILEY, Chief Justice, BELT, KELLY, LUSK, BRAND and HAY, Associate Justices.

Original proceeding in mandamus by the State, on the relation of Chester Bowles, Administrator, Office of Price Administration, against the Honorable Fred L. Olson, Judge of the District Court of the State of Oregon for Multnomah County, to compel respondent judge to take jurisdiction of an action to recover treble damages under the Emergency Price Control Act and to permit petitioner to intervene. On a demurrer to the alternative writ of mandamus.

DEMURRER SUSTAINED.

F.E. Wagner, of Portland (McDannell Brown and W.A. Stockman, both of Portland, on the brief), for petitioner.

Stanley Jones, of Portland (James R. Bain, District Attorney, and W.G. Harrington, Deputy District Attorney, both of Portland, on the brief), for respondent.

The issue in this case arises upon demurrer to an alternative writ of mandamus wherein the petitioner is the Honorable Chester Bowles, Administrator of the Office of Price Administration, and the respondent is the Honorable Fred L. Olson, a judge of the district court of the State of Oregon for Multnomah County. The alternative writ directs the respondent judge to take jurisdiction of an action filed in said district court, entitled Waggoner v. Anderegg, to permit petitioner, Bowles, to intervene in said cause, to vacate any orders contrary to the mandate of the alternative writ, and to proceed with the trial to a final determination thereof or, in the alternative, to show cause why he has not done so.

The action of Waggoner v. Anderegg is asserted to be one in which the plaintiff, Waggoner, acting under the provisions of the Emergency Price Control Act of 1942, seeks to recover treble damages on account of the sale of a refrigerator by the defendant, Anderegg, to the plaintiff at a price supposed to be in violation of the ceiling price established by the petitioner, Bowles.

By the provisions of the Emergency Price Control Act of 1942 the Administrator is authorized in the manner therein specified to establish such maximum prices "as in his judgment will be generally fair and equitable and will effectuate the purposes" of the Act. 56 Stat. 24, chapter 26, § 2 (a). It is further provided that "it shall be unlawful * * * for any person to sell or deliver any commodity, or in the course of trade or business to buy or receive any commodity * * * in violation of any regulation or order under section 2 * * *." 56 Stat. 28, chapter 26, § 4 (a). Fine or imprisonment is prescribed for willful violation of any provision of section 4. 56 Stat. 33, chapter 26, § 205 (b). The statute further provides that:

"If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action either for $50 or for treble 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. * * * Any suit of action under this subsection may be brought in any court of competent jurisdiction, and shall be instituted within one year after delivery is completed or rent is paid. The provisions of this subsection shall not take effect until after the expiration of six months from the date of the enactment of this Act." 56 Stat. 34, chapter 26, § 205(e).

It is also provided that:

"* * * 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." 56 Stat. 34, chapter 26, § 205(d).

The alternative writ sets forth the official position of Chester Bowles as Administrator of the Office of Price Administration and pertinent provisions of the Emergency Price Control Act of 1942, cited above, being also Code Title 50, appendix §§ 901-946, and further alleges:

"* * * That pursuant to the authority of the said Emergency Price Control Act there was duly promulgated and published Maximum Price Regulation No. 139 (7 F.R. 7871), which maximum price regulation was in full force and effect at the time of the transaction hereinafter set forth.

"III.

"On the 8th day of January 1944, Mrs. D.W. Waggoner as plaintiff brought an action against A.H. Anderegg, doing business as Art's Transfer as defendant in the District Court of the State of Oregon for Multnomah County, being case number 282-565, seeking to recover three hundred seventy-six dollars and fifty cents ($376.50), the same being treble the amount of an excessive charge on the sale by the said defendant to the plaintiff of a Stuart-Warner refrigerator bearing serial number 49164, model...