bituminous coal at prices higher than the maximum prices established by the Regulation.
Interpretations of maximum price regulations by the Price Administrator should be given great weight, and this Court is not authorized to deny enforcement of said Regulation regardless of my personal views as to the unreasonableness of the Order. That is a matter within the exclusive jurisdiction of the Emergency Court of Appeals, or the Supreme Court on review of that Court. 50 U.S.C.A.Appendix 924(a); Bowles v. Meyers et al., 4 Cir., 149 F.2d 440; Bowles v. Ruby et al., D.C. 62 F.Supp. 289.
The words which appear in Section 1340.201 of said Regulation 'no person who is a producer or a distributor shall sell, dispose of, buy or receive bituminous coal at prices higher than the maximum prices established' have distinct meanings. It must, therefore, be presumed that Congress, in enacting said statute making it unlawful to sell or deliver in violation of the price schedule which applied to coal, used such words according to their ordinary and usually accepted meaning. Schreffler et a. v. Bowles, 10 Cir., 153 F.2d 1.
The motion for summary judgment provided by Rule 56 of the Federal Rules of Civil Procedure is to permit the speedy and expeditious disposal of cases where pleadings do not as a matter of fact present any substantial questions for determination. It appears in this case there are no genuine issues for trial, and under the pleadings and testimony which has been offered in explanations therefor, the motion for summary judgment should be granted. Schreffler et al. v. Bowles, 10 Cir., 153 F.2d 1; Purity Cheese Co. v. Frank Ryser Co. et al., 7 Cir., 153 F.2d 88; Engl v. Aetna Life Ins. Co., 2 Cir., 139 F.2d 469.
On a motion for summary judgment, it is the duty of the party litigants to fully disclose all evidence which sheds any light in explanation of the allegations which appear in the pleadings. This was done in this case, and the Court furthermore proceeded to hear evidence in accordance with the provisions of Subsection (d) of Rule 56, Federal Rules of Civil Procedure. Carr v. Goodyear Tire and Rubber Co., Inc., D.C., 64 F.Supp. 40.
It is therefore, necessary to now consider the nature of the judgment or relief which should be entered in favor of the complainant against the defendants.
The defendants claim that reliance was placed on the Lucas-Smith Coal Company as a producer, that it had complied with the Regulation. The good faith of the defendant is not a complete defense to the action for damages or injunctive relief. However, the good faith provision in Section 205(d) of the Act, 50 U.S.C.A.Appendix 925(d), refers only to action taken in reliance upon and in conformity with an official interpretation by the Office of Price Administration. Schreffler et al. v. Bowles, 10 Cir., 153 F.2d 1.
Furthermore, even if the defendants had been advised by the Advisory Committee of District II, Bituminous Coal Industry Committee, or a representative of the Office of Price Administration, it would not have relieved the defendants of liability.
The administrator has prescribed a reasonable procedure by which persons subject to the regulations may obtain official interpretations. Such interpretations must be in writing and signed by an authorized person, and regardless of the harshness of this ruling, it is obvious that the Administrator cannot be bound by various interpretations which happen to be made by employees of the Administrator or other persons governed by the Regulation. Bowles v. Lentin, 7 Cir., 151 F.2d 615; Wells Lamont Corp. v. Bowles, Em.App. 149 F.2d 364; Utah Power and Light Co. v. United States, 243 U.S. 389, 37 S. Ct. 387, 61 L. Ed. 791; Schreffler et al. v. Bowles, 10 Cir., 153 F.2d 1.
It is also the duty of the defendants to prove by a preponderance of the evidence that the violation of the regulation was neither willful nor the result of failure to take practicable precaution against the occurrence of the violations if it is desired to be relieved of a penalty of more than the amount of the overcharge. Bowles v. Goebel, D.C., 58 F.Supp. 868.
The word willfully 'is a word of many meanings' depending upon the context in which it is used. Spies v. United States, 317 U.S. 492, 63 S. Ct. 364, 367, 87 L. Ed. 418.
It denotes that which is intentional or knowing, or voluntary, as distinguished from accidental, and that it is employed to characterize conduct marked by careless disregard whether or not one has the right to so act. United States v. Illinois Central R. R. Co., 303 U.S. 239, 58 S. Ct. 533, 82 . Ed. 773; United States v. Murdock, 290 U.S. 389, 54 S. Ct. 223, 78 L. Ed. 381; Zimberg et al. v. United States, 1 Cir., 142 F.2d 132.
The word practicable precaution does not mean possible, but means feasible, fair and convenient. That it is capable of being done with the exercise of reasonable care, inquiry or caution. In re Philadelphia & Reading Coal & Iron Co. (Appeal of Schrager et al.) 3 Cir. 104 F.2d 126.
The lack of willfulness or the failure to take practicable precaution does not afford complete immunity to the violation, since innocent nonconformity with the Price Control Act is as inflationary and as damaging to competitors and the public as guilty nonconformity. Bowles v. Krodel, 7 Cir., 149 F.2d 398; Bowles v. Sharp, 8 Cir., 149 F.2d 148; Brown v. Hecht Co., 78 U.S.App.D.C. 98, 137 F.2d 689; Bowles v. American Stores, Inc., 78 U.S.App.D.C. 238, 139 F.2d 377.
Furthermore, the fact that the defendants have refunded the overcharges does not relieve them from liability. Since this would have been true even if an agreement had been entered into with their customers to this effect before the sales were made. Bowles v. Hall-Holliday, D.C., 62 F.Supp. 486.
The conduct of the defendants clearly indicates that their actions were not willful but, in straining the imaginative powers of the Court, I cannot reason how it could be construed that practicable precautions were taken by the defendants to comply with the Regulation.
Even if the defendant fails to prove that practicable precaution was taken to comply with the regulation, it is discretionary with the Court to enter judgment for the amount of the overcharge or for an amount not more than three times the amount of the overcharge. In other words, the Court in its discretion can enter judgment for an amount between the minimum and maximum provided by the Emergency Price Control Act where the defendant has failed to prove both lack of willfulness and failure to exercise practicable precaution. Bowles v. Krodel, 7 Cir., 149 F.2d 398; Bowles v. Hasting, 5 Cir., 146 F.2d 94; Bowles v. Ammon, D.C., 61 F.Supp. 106; Bowles v. Goebel, D.C., 58 F.Supp. 686; Bowles v. Hall, D.C., 62 F.2d 486.
In the past, it has been the practice of this Court to enter judgment for double the amount of the overcharge where the defendant has failed to prove the exercise of practicable precaution to comply with the regulation. However, in this case we are faced with very extenuating circumstances that place these defendants in an entirely different category.
Representatives of the defendants visited the location of the mine and found it had not been previously operated, and a letter was exhibited to the defendants by the producer from the Solid Fuels Administrator for the classification of the coal and the issuance of a mine index number. These actions indicate some precaution being taken, but, in my judgment, it was not the practicable precaution intended by Congress. The defendants are really the victims of circumstances in placing such great reliance on the representatives of the Lucas-Smith Coal Company. This is an impelling force but not sufficient in law to relieve them of liability.
The Court, therefore, believes that judgment should be entered in favor of the Office of Price Administration on behalf of the United States against Charles S. B. Ward, Arthur J. McCarthy and Norman L. Parkins, individually and as partners doing business as Wieman and Ward Company, defendants, in the amount of $ 2250 together with the costs of this proceeding.
It is necessary that the defendants realize in the future that they must comply with all rules and regulations adopted by the Office of Price Administration, and it is, therefore, the belief of the Court that the request of the Government for injunctive relief should be granted.
The success of the war against inflation is dependent upon the patriotic cooperation of all persons to whom it is applicable, and the Court should not consider the controversy as existing merely between an agency of the Government and a defendant. Brown v. Hecht Co., 78 U.S.App.D.C. 98, 137 F.2d 689, 695; Henderson v. C. Thomas Stores, D.C., 48 F.Supp. 295, 301.
The Administrator does not carry the sole burden of the war against inflation, and the courts should not, therefore, administer any part of the Act grudgingly. It should be administered by the courts with their due share of responsibility, and the discretion permitted to be exercised by the courts should be in the light of the large objectives of the Act. That of all the consequences of war and now our period of post-war readjustment, inflation is the most destructive. Hecht Co. v. Bowles, 321 U.S. 321, 64 S. Ct. 587, 88 L. Ed. 754; Bowles v. Montgomery Ward and Company, 7 Cir., 143 F.2d 38.
In the enforcement of the Price Control Act, the Court should, therefore, exercise its discretion in the light of the standards of public interest. If the public interest is to be protected and the statute is to have its full and proper deterring effect on prospective wrongdoers, a defendant must be discouraged from failure to comply by the imposition of an appropriate penalty. Hecht Co. v. Bowles, 321 U.S. 321, 64 S. Ct. 587, 88 L. Ed. 754; United States v. Morgan, 307 U.S. 183, at page 194, 59 S. Ct. 795, 83 L. Ed. 1211.
It is a definitely settled rule of law that a discontinuance of practices complained of does not prevent the issuance of an injunction to restrain the offender from violating the provisions of said Regulation in the future. Henderson, Administrator, OPA v. Baldwin et al., 54 F.Supp. 438.
It is, therefore, the opinion of the Court that injunctive relief should be granted in favor of the Office of Price Administration against the defendants, Charles S. B. Ward, Arthur J. McCarthy and Norman L. Parkins, individually and as partners doing business as Wieman and Ward Company, for the following reasons:
(a) From February 23, 1944, to July 7, 1944, inclusive, the defendants sold bituminous coal but failed to keep records showing the size of coal on no less than 90 transactions, failed to keep records showing the mine index number in no less than five transactions, and failed to keep records showing the name of the mine in at least one transaction, in violation of Section 1340.205 of MPR 120;
(b) From February 23, 1944, to May 31, 1944, inclusive, the defendants as distributors made no less than 37 purchases of bituminous coal at prices which were in excess of the ceiling prices therefor established under Section 1340.213 of MPR 120, and in violation of Section 1340.201 thereof;
(c) From April 25, 1944, to June 1, 1944, inclusive, the defendants as distributors made no less than 74 sales of bituminous coal at prices which were in excess of the ceiling prices therefor established under Section 1340.213 of MPR 120, and in violation of Section 1340.201 thereof; and that the amount of said overcharges which occurred within the period of one year immediately preceding the date of the filing of the complaint in this case, totalled $ 1942.41; said sales were made to purchasers for use or consumption in the course of trade or business;
(d) From February 23, 1944, to April 19, 1944, inclusive, the defendants as distributors made no less than 13 sales of bituminous coal at prices which were in excess of the ceiling prices therefor established under Section 1340.213 of MPR 120, and in violation of Section 1340.201 thereof; and that the amount of said overcharges, which occurred more than a year prior to the date of the filing of the complaint in this case, totalled $ 400.13, said sales were made to purchasers for use or consumption in the course of trade or business.
An appropriate order directing the entry of judgment, and the granting of the injunctive relief will be filed with this Opinion.
© 1992-2004 VersusLaw Inc.