defendant does not justify or afford complete immunity to the violator.
Where there is a lack of willfulness in respect to the violation of maximum ceiling prices, such fact justifies a reduction of maximum responsibility from three times the amount of the overcharge to an amount which would be commensurate with the circumstances, but such fact does not afford to the violator exoneration from the penalties of law. Bowles v. Hall (Bowles v. Holliday) D.C., 62 F.Supp. 486.
The questions, therefore, arises as to the maximum amount of recovery which should be allowed in favor of the government and assessed against the defendant, and as to the granting of injunctive relief in favor of the government against the defendant.
Under the provisions of Emergency Price Control Act of 1942, paragraph 205(e), as amended, 50 U.S.C.A.Appendix, § 925(e), it is provided inter alia as follows: That any person who violates a regulation, order or price schedule, shall be liable for (1) such an amount not more than three times the amount of the overcharge, or the overcharges, upon which the action is based as the court in its discretion may determine; provided however, that such amount shall be the amount of the overcharge, or overcharges, if the defendant proves that the violation of the regulation, order or price schedule, was neither willful nor the result of failure to take practicable precautions, or (2) an amount not less than $ 25.00 nor more than $ 50.00 as the court in its discretion may determine.
This last provision was intended to take care of the small violators who sold low priced items at amounts slightly in excess of the ceiling price, and where suit for three times of the overcharge would have no practicable law-enforcing effect because the amounts were so small.
It, therefore, appears that the amount of the recovery under circumstances such as we have in this case should be a fair and equitable figure between $ 25 and $ 50 without reference to the precise amount of the overcharge. The Court is aware that it has been held that where the defendant fails to prove that his actions were not willful or the result of failure to take practicable precautions, that the Court should direct the entry of judgment in the amount of $ 50, and in cases where the overcharge is in excess of $ 25, a judgment should be entered for three times the amount of the overcharge. Bowles v. Krasno Bros. Glove & Mitten Co., D.C., 59 F.Supp. 581.
However, few cases are alike in all respects. Degrees of guilt or of wrongdoing are varied and widespread, and the penalty, therefore, should be made to fit the violation. Under the provisions of the Emergency Price Control Act, where a sale exceeds the ceiling price, recovery should be limited to the amount of overcharge if the defendant sustains the burden of proving that the violation was neither willful nor the result of failure to take practicable precautions. In the event the defendant has failed to sustain said burden of proof, recovery should not be less than the overcharge and not more than three times said overcharge, and where the amount of the overcharge is less than $ 25, said recovery should be limited to an amount not less than $ 25 nor more than $ 50 as the Court in its discretion may determine. Bowles v. Goebel, D.C., 58 F.Supp. 686; Bowles v. Ammon, D.C., 61 F.Supp. 106.
It is also necessary for the court to exercise its discretion in light of the major objectives in the act. For the standards of public interest, not the requirements of private litigation, measure the propriety and need for the amount of damages which are assessed. That discrection should also reflect an acute awareness of the congressional admonition that of all the consequences of war and the post-war economic readjustment period, except human slaughter, inflation is the most destructive and that indifference to the regulations of the Office of Price Administration will be fatal. Hecht Co. v. Bowles, Price Administrator, 321 U.S. 321, 64 S. Ct. 587, 88 L. Ed. 754; Bowles, Office of Price Administration, v. Goebel, D.C. 58 F.Supp. 686.
The Court, therefore, believes that judgment should be entered in favor of the Office of Price Administration, on behalf of the United States, against the defendant, Louis Pechersky, t/a L. Pechersky's Market, for the amount of $ 25 together with the costs of this proceeding.
In connection with the allegation of the plaintiff that the defendant sold Chef's Bay-Or-Dee Spaghetti at a price of 39 cents per can, which was in excess of Maximum Price Regulation 423 and which provided a selling price of $ 0.35 for said commodity, the plaintiff has failed to prove by the preponderance of the evidence that a sale or sales on the basis just mentioned have been made by the defendant. The Court, therefore, dismisses the claim of the plaintiff for the alleged violation of the defendant in connection with the sale of said commodity.
It is also true that innocent nonconformity with the Price Control Act is as inflationary and as damaging to competitors and the public as guilty nonconformity. Bowles v. Hall (Bowles v. Holliday), D.C., 62 F.Supp. 486; Brown, Adm'r. v. Hecht Co., 78 U.S.App.D.C. 98, 137 F.2d 689, 691; Bowles v. American Stores, Inc., 78 U.S.App.D.C. 238, 139 F.2d 377, certiorari denied 322 U.S. 730, 64 S. Ct. 947, 88 L.Ed 1565.
It is, therefore, necessary that the defendant realize in the future that he must comply with all rules and regulations adopted by the Office of Price Administration, which would govern any commodity that he might have occasion to sell at his place of business. It is, therefore, the belief of the Court that the request of the government for injunctive relief should be granted and an appropriate order granting the injunctive relief will be filed with this opinion.
And Now, to wit this 14th day of February, 1946, the above case having been heard by the Court, and a stipulation filed by each of the parties to this proceeding waiving the right to file suggested Findings of Fact and Conclusions of Law, and argument having been made by counsel; and thereupon, upon consideration thereof, it is ordered, adjudged and decreed as follows, viz.:
(a) Judgment is hereby entered in favor of the Office of Price Administration on behalf of the United States against the defendant, Louis Pechersky, t/a L. Pechersky's Market, for the amount of $ 25.
(b) The defendant, defendant's officers, agents, servants, employees, attorneys and all persons in active concert or participation with any of them jointly and severally be, and they are, permanently enjoined and restrained from engaging in or causing, directly or indirectly, any of the following acts or omission to act:
1. Selling or delivering or offering to sell or deliver any grocery item unless and until defendant has his current selling price for each item of food covered by said regulation clearly shown on the item or at or near the place in his store where the items are offered for sale.
2, Selling, offering to sell, delivering or offering to deliver, at retail any grocery item at a price higher than the maximum prices established therefor by MPR 423 or any other regulation or price schedule promulgated by the Office of Price Administration establishing or relating to maximum retail prices for groceries.
3. Offering, soliciting, attempting or agreeing to do any of the foregoing.
Costs to be paid by the defendant.
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