United States v. Bize

• Decision Date: 02 September 1949
• Docket Number: 42-49,Civ. No. 39-49,51-49.
• Citation: 86 F. Supp. 939
• Parties: UNITED STATES v. BIZE et al. UNITED STATES v. BIRD et al. UNITED STATES v. FREY.
• Court: U.S. District Court — District of Nebraska

86 F. Supp. 939

UNITED STATES v. BIZE et al.

UNITED STATES v. BIRD et al.

UNITED STATES v. FREY.

Civ. Nos. 39-49, 42-49, 51-49.

United States District Court D. Nebraska, Lincoln Division.

September 2, 1949.

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William S. Kaplan and Patrick O'Connor, both of Chicago, Illinois, and Ralph Adams of Omaha, Nebraska, for the plaintiff in all cases.

Max Kier of Lincoln, Nebraska, for the defendants in 39-49 and 51-49, and J. Victor Eitel, also of Lincoln, Nebraska, for the defendants in 42-49.

DELEHANT, District Judge.

Each of the foregoing actions is brought under the Housing and Rent Act of 1949, 50 U.S.C.A.Appendix, § 1881 et seq., and involves two counts, one within the amended Section 206(b) of the Housing and Rent Act of 1947 for injunctive relief including an order for restitution of alleged excessively collected rentals not limited to the period of one year prior to the filing of the complaint, the other within the amended Section 205 of the Act of 1947 for judgment for triple damages in respect of such excessive collections within one year before the filing of the complaint, but diminished by the amount of restitution which may be ordered, if any, in respect of rentals collected during the like period. In each case a motion has been filed by each defendant against whom the action remains pending. In case No. 39-49 a voluntary dismissal has been ordered as against Mrs. Ella Bize, leaving the action pending only against David Bize.

There is essential similarity, though not exact identity, in all of the motions; and the rulings severally made upon them will be explained very briefly in this single memorandum.

Each motion demands the dismissal of the entire action at which it is aimed, and also of each of its several counts, for failure of the complaint to state a claim upon which relief can be granted. Under the reasoning of Leimer v. State Mutual Life Assurance Co., 8 Cir., 108 F.2d 302; Musteen v. Johnson, 8 Cir., 133 F.2d 106; Sparks v. England, 8 Cir., 113 F.2d 579; Louisiana Farmers' Protective Union, Inc., v. Great Atlantic & Pacific Tea Co., 8 Cir., 131 F.2d 419; Cool v. International Shoe Co., 8 Cir., 142 F.2d 318; Publicity Building Realty Corp. v. Hannegan, 8 Cir., 139 F.2d 583; and United States v. Arkansas Power & Light Co., 8 Cir., 165 F.2d 354; that portion of the motion is without merit and is, therefore, denied and overruled.

Alternatively, each motion asks that, so far as the motion to dismiss for inadequacy of claim be not sustained, the plaintiff be required separately to state and number the several causes of action supposedly contained within each count of the complaint assailed. The assumption of multiple causes of action within the several counts is mistaken. That is obviously true of each equitable count; and by statute, it seems also to be true of the several counts seeking personal judgments. (see penultimate sentence of Section 205 of the Act of 1947, carried through the several amendments of the Act).

Each motion challenges the jurisdiction of the court over the action by it assailed and over the several counts of such action, first because Section 206 (b) and (c) of the Act of 1947, as amended, assertedly fails to grant such jurisdiction to this court, and secondly, because the complaint fails to allege the presence of a controversy involving, exclusive of interest and costs, the amount or sum of $3000.00. Upon the first point no argument is made in support of the motion, and it is without any foundation. Upon its second ground, such motion is not well taken. In each count of each action the United States is the plaintiff. Its status is real, not merely ostensible or nominal. In the equitable count, it appears in virtue of its paramount interest in the current post-war economic stability of the nation and its citizens. In the count for the recovery of a judgment for damages, it appears in its own behalf seeking money, which, if it be successful, it proposes to retain. Jurisdiction, therefore, rests on Title 28 U.S.C.A., § 1345 under which there is no requirement in respect of a minimum amount in controversy. Presumably counsel for the moving defendants have in mind certain reported opinions of which Fields v. Washington, 3 Cir., 173 F.2d 701 is the leading example. Shortly stated, this court disagrees with the reasoning in the Fields case and those which have followed its lead. See Adams v. Backlund, D.C.Neb., 81 F.Supp. 643. But, even if the thought of Fields v. Washington, supra, be valid, it is quite inapplicable, as that opinion itself clearly discloses, to a case prosecuted by the United States in its own name and for its own benefit.

There is not the slighest merit in the contention, as a ground for dismissal, that the plaintiff is not the real party in interest. The observations of the foregoing paragraph effectively reject that supposition.

In No. 42-49 dismissal is sought for alleged misjoinder of defendants. But, even if it were a ground for dismissal, no such misjoinder appears upon the face of the complaint which clearly alleges joint action by both defendants. So, the request must be denied, as must also the alternative prayer for the specification of the several violative actions attributable to each defendant separately. So far as the complaint discloses, they are charged with equal participation in all violative acts. If that pleading be mistaken or false, the error may be pointed out in the answer or answers.

The motions in cases numbered 39-49 and 51-49 severally seek the striking from the complaint of all allegations touching the exaction of excessive rental charges at times more than one year before the institution of the respective cases. But such allegations are clearly pertinent in each of the counts dealing with the plaintiff's quest of equitable relief. That is true, first, because violative acts antedating the time as of which relief may be granted are instructive upon the purpose and intent with which overcharges still remediable were received, and upon the probability of continued future violations; and secondly because the power to order restitution is not limited by the statutory prescription of one year in reference to the recovery of damages based on rental overcharges. Creedon v. Warner Holding Company, 8 Cir., 166 F.2d 119 (Construing and applying Porter v. Warner Holding Company 328 U.S. 395, 66 S.Ct. 1086, 90 L.Ed. 1332) Edwards v. Woods, 8 Cir., 168 F.2d 827; Ebeling v. Woods, 8 Cir., 175 F.2d 242; Blood v. Fleming, 10 Cir., 161 F.2d 292; Co-Efficient Foundation, Inc., v. Woods, 5 Cir., 171 F.2d 691; Creedon v. Randolph, 5 Cir., 165 F.2d 918; Woods v. Minucci, D.C.N.Y., 84 F.Supp. 535. The motions to strike such material are being denied and overruled.

The defendants in No. 42-49 move for the dismissal of the entire action because the prayer for triple damages seeks relief in respect of violations allegedly occurring within one year before the institution of the action but before April 1, 1949, when, by the amendment of 1949, the right to sue for damages measured by rent overcharges was first conferred contingently on the United States of America. That motion must be denied and overruled, because a mere prayer for relief in excess of a plaintiff's right will not require the dismissal of his entire suit. If the rule were otherwise, few complaints would survive the period of preliminary pleading. Upon the question of the recoverability of a personal judgment based upon violations of the Housing and Rent Act antedating April 1, 1949, an expression of the still tentative opinion of the court will be offered in the course of its discussion of the final aspect of the motions in the other two cases.

In No. 51-49 the defendant moves to dismiss on the ground that the Housing and Rent Act of 1949 is unconstitutional and void in that it vests in state and local authorities an unconstitutionally delegated power, namely the right to determine whether, and for what period of time the act shall be operative in the respective territorial areas of those state and local governments. Section 204 (j) (1) and (2), Housing and Rent Act of 1947, as amended by the Act of 1949. That contention is obviously grounded upon the thought of a substantially publicized decision denying the validity of the Act of 1949, rendered during the pendency of the other two cases now ruled upon, in and by the United States District Court for the Northern District of Illinois, in the case of Woods v. Shoreline Cooperative Apartments, Inc., D.C.,Ill., 84 F.Supp. 660. This court does not share the informally reported view of the judge who made the ruling in that case. It is understood, also that an appeal is being prosecuted from his ruling; pending which, it appears to be appropriate that the Act should not be considered to be void. Actually, this court regards the reasoning and opinion of Judge Yankwich in United States v. Emery, D.C.Cal., 85 F.Supp. 354, as well founded and accurate.

Finally, in each of cases numbered 39-49 and 51-49, the motion demands the striking "from the petition and each and every count thereof of all allegations pertaining to overcharges which occurred prior to the effective date of the last amendments to the Housing and Rent Act of 1947, towit, April 1, 1949". The premise of this request is the assumption that the granting in and by the Act of 1949 to the United States of America of any right to sue for a personal judgment based on overceiling rental exactions is prospective only in its operation and has no application to violations which occurred prior to April 1, 1949.

Regardless of the court's construction of the effective date of the Act of 1949 in the particular involved, the motion to strike of each of the several defendants must be, and is being denied. In the form in which it is framed, it seeks the complete elimination of all references in any part of the complaint to violations...