The question presented is whether appellant was entitled to a jury trial in an action for compensatory and punitive damages brought under § 812 of the Civil Rights Act of 1968, 42 U.S.C. § 3612. 1
In her complaint, plaintiff alleged that the three defendants had refused to rent her an apartment because of her race. 2 She requested injunctive relief restraining defendants from renting the apartment to anyone else, money damages for her actual losses, punitive damages of $1,000, and attorney’s fees.
The district court, after an extended hearing, entered a preliminary injunction. Subsequently, with plaintiff’s consent, the injunction was dissolved; thereafter only plaintiff’s claims for compensatory and punitive damages and attorney’s fees remained. Defendants’ request for a jury trial of those issues was denied, D.C.,
On appeal defendants contend that the finding of discrimination is clearly erroneous, that it was error to award punitive damages, and that they were entitled to a jury trial. We shall not describe the evidence of discrimination except to note that it was marginal; *1112 whichever way the trial judge had ruled, his determination of that issue would not have been clearly erroneous. 3 We are also satisfied that if his finding of discrimination is accepted, an award of punitive damages was authorized by the statute notwithstanding the absence of any actual loss to the plaintiff. 4 We shall confine our analysis to the jury trial issue.
The district court held that a jury trial was not required by the Seventh Amendment 5 or by a fair interpretation of the statute. 6
The court rejected the constitutional claim on the grounds (1) that the cause of action was created by statute and not recognized at common law; and (2) that the statutory claim invoked the equitable powers of the court and the amendment has no application to the recovery of money damages as an incident to complete equitable relief. Both propositions are supported by N. L. R. B. v. Jones & Laughlin Steel Corp.,
The district court also considered the award of damages in a housing discrimination case arising under the 1968 Act analogous to an award of back pay in an employment discrimination case under the Civil Rights Act of 1964 and therefore relied on cases holding that there is no right to a jury trial in such litigation. 8 In its opinion the district court placed no reliance on the argument, sometimes advanced by proponents of civil rights legislation, that allowance of a jury trial might undermine effective enforcement of the statute. 9
Our study of the issue persuades us that (1) the constitutional right to trial by jury applies in at least some judicial proceedings to enforce rights created by statute; (2) this action for damages is “in the nature of a suit at common law”;
10
(3) the nature of the claim is “legal” within the test identified in Ross
*1113
v. Bernhard,
I.
The Seventh Amendment preserves the substance of the right to a jury trial which existed under English common law when the amendment was adopted. 11 It has never been suggested that the application of the amendment is narrowly confined to such common law writs as might be enforceable in a federal court. On the contrary, since the bulk of the civil litigation in the federal judicial system involves the assertion of a federal right derived either from an act of Congress or the Constitution itself, necessarily the principal significance of the Seventh Amendment has been in such cases. 12 It is perfectly clear that the fact that a litigant is asserting a statutory right does not deprive him or his adversary of the protection of the amendment.
In Parsons v. Bedford,
“The trial by jury is justly dear to the American people. It has always been an object of deep interest and solicitude, and every encroachment upon it has been watched with great jealousy. The right to such a trial is, it is believed, incorporated into, and secured in every state constitution in the union; and it is found in the constitution of Louisiana. One of the strongest objections originally taken against the constitution of the United States, was the want of an express provision securing the right of trial by jury in civil cases. As soon as the constitution was adopted, this right was secured by the seventh amendment of the constitution proposed by Congress; and which received an assent of the people so general, as to establish its importance as a fundamental guarantee of the rights and liberties of the people. This amendment declares, that ‘In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved; and no fact once tried by a jury shall be otherwise re-examinable in any Court of the United States, than according *1114 to the rules of the common law.’ At this time there were no states in the union, the basis of whose jurisprudence was not essentially that of the common law in its widest meaning; and probably no states were contemplated, in which it would not exist. The phrase ‘common law,’ found in this clause, is used in contradistinction to equity, and admiralty, and maritime jurisprudence. ... By common law, they meant what the constitution denominated in the third article ‘law;’ not merely suits, which the common law recognized among its old and settled proceedings, but suits in which legal rights were to be ascertained and determined, in contradistinction to those, where equitable rights alone were recognized, and equitable remedies were administered; or where, as in the admiralty, a mixture of public law, and of maritime law and equity was often found in the same suit. Probably there were few, if any, states in the union, in which some new legal remedies differing from the old common law forms were not in use; but in which, however, the trial by jury intervened, and the general regulations in other respects were according to the course of the common law. Proceedings in cases of partition, and of foreign and domestic attachment, might be cited as examples variously adopted and modified. In a just sense, the amendment then may well be construed to embrace all suits, which are not of equity and admiralty jurisdiction, whatever may be the peculiar form which they may assume to settle legal rights.”28 U.S. at 445-446 ,7 L.Ed. 732 .
In an unbroken line of cases involving enforcement of statutory rights, the Supreme Court has treated the right to a jury trial as a matter too obvious to be doubted. Thus, in a civil action to recover a statutory penalty for a violation of the immigration laws, the first Mr. Justice Harlan, speaking for the Court, said that the “defendant was, of course, entitled to have a jury summoned in this case.” Hepner v. United States,
*1115
N. L. R. B. v. Jones & Laughlin Steel Corp.,
The Court’s reference to a “statutory proceeding” rather than to a judicial proceeding brought to redress a right created by statute is important. Cases such as Parsons v. Bedford and Fleit-mann v. Welsbach Street Lighting Co. were such judicial proceedings, and their teaching is not undermined in the slightest by the Jones & Laughlin holding. The procedure approved by Jones & Laughlin was, of course, fundamentally different from a common law trial. It was administrative rather than judicial and did not invoke the original jurisdiction of a court in determining factual issues or fashioning a remedy. The initial case was not “tried” in a court of law or equity; it was “tried” in a separate proceeding created by statute. 16
Here there is no statutory proceeding. The statute authorizes a “civil action” in the courts of the United States. The rights protected and the relief available are set forth in the statute, but the proceeding is not statutory *1116 in the Jones & Laughlin or Guthrie 17 sense. 18 The issue we must consider, therefore, is whether an action for damages authorized by the Civil Rights Act of 1968 is, in the language of Jones & Laughlin, “in the nature of a suit at common law.”
II.
There are three reasons why this action is the kind of case which is appropriately described as in the nature of a suit at common law.
First, the tribunal whose jurisdiction is invoked is a court created pursuant to Article III of the Constitution. Unquestionably, congressional power to prescribe the procedures to be employed in such a court is limited by the Constitution and specifically by the Seventh Amendment. 19 The proceeding is judicial in character rather than administrative or “statutory.” In all respects — at least all except the right to a jury trial if our appraisal of that right is not correct — it is clear that the procedure to be followed in this case is precisely that which is applicable to suits at common law which are tried in the federal judicial system.
Second, the remedy sought, including both compensatory and punitive damages, is the relief most typical of an action at law. If, as the scholars have consistently indicated, we should look to history for guidance in determining whether or not a claim is of the kind which is triable to a jury, 20 unquestionably the prayer for damages points to that result. 21
*1117 Finally, the nature of the substantive right asserted, although not specifically recognized at common law, is analogous to common law rights. An English innkeeper who refused, without justification, to rent lodgings to a traveler was apparently liable in an action at law triable to a jury. 22 Refusing to rent an apartment on the false ground that an applicant is an unfit tenant, when race is the real motivation, is a species of defamation; libel and slander, of course, are common law causes of action. Discrimination might involve mental distress or other emotional harm, and the developing common law of torts recognizes a cause of action for the intentional infliction of emotional harm. 23
We therefore conclude that a suit for damages for discrimination in the sale or rental of housing facilities is sufficiently analogous to a suit at common law to be appropriately characterized as a “legal” claim triable to a jury.
III.
Although the full implications of the Supreme Court’s decision in Ross v. Bernhard,
History was unquestionably relevant to the Court’s analysis of the question whether a jury trial was required in such a case. But, following the lead set in Beacon and Dairy Queen, the traditional treatment of the entire litigation *1118 was subordinated to the traditional characterization of particular claims. Thus, the Court had “no doubt” that a claim for money damages predicated on breach of contract or gross negligence was legal in character.
This conclusion did not rest, as it might, simply on the fact that such a claim was enforceable at common law in England in 1791. Instead, the Court identified history as only one of three criteria that should be considered in determining the “legal” nature of an issue. The other two were: “second, the remedy sought; and, third, the practical abilities and limitations of juries.” 25 Indeed, not only did the Court identify these two additional criteria; it also implied, without expressly stating, that history may be a less reliable guide than the other two. 26 We have already concluded that under an historical analysis a jury trial is required in the present case; we proceed to consider the other two criteria.
Under the second and third criteria identified in Ross v. Bernhard, the civil rights claim asserted in this case was certainly appropriate for determination by a jury. The relief sought was actual damages and punitive damages. Both the determination of the amount which would adequately compensate a litigant for an unliquidated claim and the punitive element of the award are appropriate for jury determination. As we have already discussed, juries historically have been required where the remedy sought was damages, either compensatory or punitive.
The “practical abilities and limitations of juries” obviously present no obstacle to their determination of the issues presented in these civil rights cases. Typically, the facts are not complex and decision turns on appraisals of credibility and motive. Certainly such matters are far more suitable for jury determination than complicated commercial issues that routinely arise in derivative and antitrust litigation. Thus, the third as well as the second criterion identified in Ross v. Bernhard strongly militates in favor of recognition of the right to a jury trial in a case of this kind.
History indicates that a jury trial is required. And if the Supreme Court adheres to its identification of two additional criteria in Ross v. Bernhard, both the damage relief sought and the character of the issue to be tried compel the conclusion that the litigants are entitled to a jury.
IV.
The Jones & Laughlin holding that the Seventh Amendment is inapplicable to an N.L.R.B. proceeding terminating in the entry of an order directing reinstatement and awarding back pay was supported not only by the Court’s characterization of the proceeding as statutory, but also by reference to chancery practice in which damages could be awarded as an element of complete equitable relief. 27 In this case the district' court also regarded the relief authorized by the 1968 Act as primarily equitable and considered it appropriate to award damages as incident to such relief.
As the case developed, the defendant’s right to demand a jury was not determined until after plaintiff’s claim for equitable relief had been abandoned. Nevertheless, we share the district court’s view that the right to a jury trial in this kind of case may properly be tested by the character of the relief *1119 requested in plaintiff’s complaint. Our decision is not predicated on the special circumstance that only the damage claims remained when defendant’s demand for a jury was denied.
At common law, a court of equity, in a proceeding properly before it, would hear and determine any legal issues incidental to the equitable issues and award any legal relief which might be incidental to equitable relief. 28 Multiplicity of suits could thus be avoided. And if equitable relief were no longer appropriate, the chancellor might nevertheless award damages or, in his discretion, permit the complaint to be amended to state only a legal claim which would then be triable to a jury. 29
Today, however, legal and equitable issues can both be raised in one “civil action” under the Federal Rules. Thus, the avoidance of a multiplicity of suits and the desire to afford a complete remedy in one proceeding are no longer justifications for the “incidental” power of an equity court to award money damages. The right of the court, without a jury, to award “incidental” legal relief was nevertheless thought secure under the Federal Rules until the Supreme Court indicated differently in Beacon Theatres, Inc. v. Westover,
In Beacon, the Court upheld the petitioner’s right to a jury trial of his counterclaim for treble damages under the antitrust laws which he had asserted in response to a complaint seeking, in part, equitable relief. In Dairy Queen, plaintiff sought injunctive relief against use of a trademark and an accounting to determine the amount due under a contract deemed breached. The district court held that the proceeding was either “purely equitable” or that any legal issues were “incidental” to the equitable issues. Mr. Justice Black, speaking for the Court, disposed of the “incidental” issue quite bluntly: “[N]o such rule may be applied in the federal courts.” 30 Referring to Beacon, he wrote:
“The holding in Beacon Theatres was that where both legal and equitable issues are presented in a single case, ‘only under the most imperative circumstances, circumstances which in view of the flexible procedures of the Federal Rules we cannot now anticipate, can the right to a jury trial of legal issues be lost through prior determination of equitable claims.’ That holding, of course, applies whether the trial judge chooses to characterize the legal issues presented as ‘incidental’ to equitable issues or not. Consequently, in a case such as this where there cannot even be a contention of such ‘imperative circumstances,’ Beacon Theatres requires that any legal issues for which a trial by jury is timely and properly demanded be submitted to a jury. There being no question of the timeliness or correctness of the demand involved here, the sole question which we must decide is whether the action now pending before the District Court contains legal issues.” 31
*1120 It would appear that Beacon and Dairy Queen have mandated that once any claim for money damages is made, the legal issue — whether defendant breached a duty owed plaintiff for which defendant is liable in damages— must be tried to a jury whether or not there exists an equitable claim to which the damage claim might once have been considered “incidental.” 32 We therefore conclude that the right to a jury trial of a claim for damages under the Civil Rights Act of 1968 may not be denied on the ground that such damages are merely incidental to the prayer for injunctive relief. 33
*1121 V.
Since the district court relied on several cases 34 holding that in an employee’s suit for reinstatement and back pay under Title VII of the Civil Rights Act of 1964, the employer is not entitled to a jury trial, we should briefly indicate why we think the reasoning of those cases is inapplicable here.
First, insofar as the cases hold that back pay is a legal remedy which may be recovered as incidental to equitable relief, we believe they cannot stand in the face of Beacon and Dairy Queen.
Second, to the extent that they hold, relying on N. L. R. B. v. Jones & Laughlin Steel Corp.,
Third, an acceptable rationale for awarding back pay in a non-jury judicial proceeding is consistent with our analysis of the damage claims asserted in this ease. It is not unreasonable to regard an award of back pay as an appropriate exercise of a chancellor’s power to require restitution. 35 Restitution is clearly an equitable remedy. As Professor Moore put it:
“In equity, restitution is usually thought of as a remedy by which defendant is made to disgorge illgotten gains or to restore the status quo, or to accomplish both objectives.” 36
The retention of “wages” which would have been paid but for the statutory violation (of improper discharge) might well be considered “ill-gotten gains”; ultimate payment restores the situation to that which would have existed had the statute not been violated. 37
*1122 The payment of compensatory damages in a housing discrimination case, however, is not a return to plaintiff of something which defendant illegally obtained or retained; it is a payment in money for those losses — tangible and intangible — which plaintiff has suffered by reason of a breach of duty by defendant. Such damages, as opposed to rent overcharges, 38 unpaid overtime wages, 39 or back pay, cannot properly be termed restitution. 40
Whether or not the jury trial issue was correctly resolved in the back pay cases arising under the 1964 Act, 41 we are satisfied that they are not applicable to the question presented to us under the 1968 statute.
VI.
As the district court correctly emphasized, there are persuasive reasons for interpreting § 812 to authorize “the court” but not a jury to award damages to an injured party. When those words are used in connection with the allowance of fees, they clearly describe the judge rather' than the jury. 42 Therefore, it is argued that the same words in the clause providing that the “court” may award damages must also refer to the trial judge rather than the jury.
The argument is persuasive but not compelling. The “award” may refer to the entry of judgment by the court just as the amount which a plaintiff may “recover” in antitrust litigation is finally determined by the court’s judgment rather than the verdict of a jury, which is unmentioned in the Clayton Act but is undeniably required if demanded by either party.
Other language in the statute implies, without expressly stating, that a jury’s participation is appropriate. The statutory reference to “damages” and also to “punitive damages” would normally contemplate a jury verdict as an element of the judicial process leading up to the fi *1123 nal award. 43 Certainly it is highly unusual for a federal statute to authorize a court to impose punishment, even if limited to $1,000, without according the defendant the right to a jury trial. 44
The term “civil action” in legislation enacted since the merger of law and equity in 1938 is comparable to the words “action at law” or “suit in equity” which were used previously. 45 The words “action at law” implied a right to jury trial. The words “civil action,” as Beacon, Dairy Queen and Ross make clear, do not in any sense imply that there is no right to a jury trial — a “civil action” asserting a legal claim is triable to a jury.
' The legislative history of the 1968 act is silent on the question. There is no evidence that the proponents of the legislation expressed fear that the right to a jury trial would undermine the statute’s effectiveness, or conversely, that opponents accepted any compromise in reliance on an assurance that juries could be demanded. The policy considerations which prompted the legislation probably favor a denial of the right; on the other hand, the more basic constitutional considerations which surround the right to a jury as a protection against the over-zealous judge, point the other way. Nor, if the right to have a jury represent a fair cross section of the community and the desirability of broadening lay participation in judicial implementation of civil rights are kept in mind, can one assert that policy considerations unequivocally favor one view rather than the other.
In the end, we look to another canon of construction as controlling in this case. As Mr. Justice Holmes stated in United States v. Jin Fuey Moy: “A statute must be construed, if fairly possible, so as to avoid not only the conclusion that it is unconstitutional, but also grave doubts upon that score.”
*1124 Even if our discussion of the Seventh Amendment is deemed inadequate to overcome an unambiguous statutory denial of a jury trial in an action to recover compensatory and punitive damages, there are certainly enough “grave doubts upon that score” that we should place an interpretation on the statute which will avoid the constitutional issue. We therefore hold that it was error for the district court to refuse defendants’ request for a jury trial.
The judgment is reversed and the case is remanded for further proceedings consistent with this opinion.
Reversed and remanded.
Notes
. Section 812 provides, in part:
“(a) The rights granted by sections 803, 804, 805, and 806 may be enforced by civil actions in appropriate United States district courts without regard to the amount in controversy and in appropriate State or local courts of general jurisdiction. A civil action shall be commenced within one hundred and eighty days after the alleged discriminatory housing practice occurred: .
“(c) The court may grant as relief, as it deems appropriate, any permanent or temporary injunction, temporary restraining order, or other order, and may award to the plaintiff actual damages and not more than $1,000 punitive damages, together with court costs and reasonable attorney fees in the case of a prevailing plaintiff : Provided, That the said plaintiff in the opinion of the court is not financially able to assume said attorney’s fees.” 82 Stat. 88, 42 U.S.C. § 3612.
. Section 804 of the 1968 act provides, in part:
“As made applicable by section 803 and except as exempted by sections 803 (b) and 807, it shall be unlawful—
“(a) To refuse to sell or rent after the making of a bona fide offer, or to refuse to negotiate for the sale or rental of, or otherwise make unavailable or deny, a dwelling to any person because of race, color, religion, or national origin.” 82 Stat. 83, 42 U.S.O. § 3604.
. Defendants contend that their refusal was motivated by the obnoxious behavior of a white social worker who was helping the plaintiff find an apartment; they had offered to rent the apartment to any black tenant other than the plaintiff and offered considerable evidence of absence of racial prejudice by either themselves or other tenants in the apartment. On the other hand, plaintiff’s evidence tended to indicate that negotiations proceeded smoothly until defendants learned that plaintiff was a Negro.
. As we read the statute it does not require a finding of actual damages as a condition to the award of punitive damages. In any event, in other litigation the federal courts have held that punitive damages may be awarded without requiring an award of compensatory damages. See,
e. g.,
Wardman-Justice Motors, Inc. v. Petrie,
. “In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any Court of the United States, than according to the rules of the common law.” United States Constitution, Amendment VII.
. The opinion is reported at
. The district court also cited United States v. Louisiana, which holds that the Seventh Amendment is “applicable only to actions at law.”
. Hayes v. Seaboard Coast Line R.R.,
. See,
e. g.,
mention of such factors in Note, Jones v. Mayer: The Thirteenth Amendment and the Federal Anti-Discrimination Laws, 69 Colum.L.Rev. 1019, 1051; Comment, The Right to Jury Trial Under Title VII of the Civil Rights Act of 1964, 37 U.Chi.L.Rev. 167; Developments in the Law, Employment Discrimination and Title VII of the Civil Rights Act of 1964, 84 Harv.L.Rev. 1109, 1264. Among the cases, see Hayes v. Seaboard Coast Line R.R.,
. See N.L.R.B. v. Jones & Laughlin Steel Corp.,
. Baltimore & Carolina Line, Inc. v. Redman,
. “Tile right of jury trial in civil cases at common law is a basic and fundamental feature of our system of federal jurisprudence which is protected by the Seventh Amendment.” Jacob v. New York City,
. “It is not strictly a common law proceeding ; but a proceeding under the peculiar system of Louisiana; . . . # * * *
“In the state of Louisiana, the principles of common law are not recognized ; neither do the principles of the civil law of Rome furnish the basis of their jurisprudence. They have a system peculiar to themselves, adopted by their statutes, which embodies much of the civil law, some of the principles of the common law, and, in a few instances, the statutory provisions of other states. This system may be called the civil law of Louisiana, and is peculiar to that state.”
. “Since the right to a jury trial is a constitutional one, however, while no similar requirement protects trials by the court, that discretion is very narrowly limited and must, wherever possible, be exercised to preserve jury trial.”
Id.
at 510,
It is of interest that in the elaborate argument presented to us in Dasho v. Susquehanna Corp.,
. The Court’s entire discussion of the Seventh Amendment issue occupies less than one page of a 27-page opinion. That page includes the Court’s discussion of both the historic view that no jury is required if the recovery of damages is an incident to equitable relief (a proposition discussed in part IV of this opinion) and to the statutory proceeding point. The Court said :
“The Amendment thus preserves the right which existed under the common law when the Amendment was adopted. Shields v. Thomas,18 How. 253 , 262 [59 U.S. 253 ,15 L.Ed. 368 ]; In re Wood,210 U.S. 246 , 258 [28 S.Ct. 621 ,52 L.Ed. 1046 ]; Dimick v. Schiedt,293 U.S. 474 , 476 [55 S.Ct. 296 ,79 L.Ed. 603 ]; Baltimore & Carolina Line v. Redman,295 U.S. 654 , 657 [,55 S.Ct. 890 ,79 L.Ed. 1636 ]. Thus it has no application to eases where recovery of money damages is an incident to equitable relief even though damages might have been recovered in an action at law. Clark v. Wooster,119 U.S. 322 , 325 [7 S.Ct. 217 ,30 L.Ed. 392 ]; Pease v. Rathbun-Jones Engineering Co.,243 U.S. 273 , 279 [,37 S.Ct. 283 ,61 L.Ed. 715 ]. It does not apply where the proceeding is not in the nature of a suit at common law. Guthrie National Bank v. Guthrie,173 U.S. 528 , 537 [19 S.Ct. 513 ,43 L.Ed. 796 ].
“The instant case is not a suit at common law or in the nature of such a suit. The proceeding is one unknown to the common law. It is a statutory proceeding. Reinstatement of the employee and payment for time lost are requirements imposed for violation of the statute and are remedies appropriate to its enforcement. The contention under the Seventh Amendment is without merit.”301 U.S. at 48-49 ,57 S.Ct. at 629 . (Emphasis added.)
. That this is what the Court meant when it referred to a
“proceeding
not in the nature of a suit at common law” (emphasis added) is clear from the case which it cites to support the statement, Guthrie National Bank v. Guthrie,
. See note 16, supra.
. In making a similar analysis of Jones & Laughlin in the context of a damage remedy for employment discrimination under Title VII of the Civil Rights Act of 1964, one commentator drew this conclusion :
“The Court there held that a jury trial was not required in a ‘statutory proceeding’ ; its concern was to protect the comprehensive administrative scheme of the NLRB, which would have been substantially destroyed if jury trials were required. .The relevant distinction thus appears to be between those statutory actions which invoke an administrative process and those which do not. If the Congress makes a judgment that a comprehensive scheme of administrative adjudication is required, the Court will be willing to find that it is a ‘statutory proceeding’ to which the seventh amendment has no application. If, however, a statutory claim is entrusted to court decision, where there is no functional justification for not granting a jury trial, and the claim is for the type of relief normally awarded by a court of law, as would be the case in an action for compensatory damages under Title VII, the similarity to common law forms of action will require a jury trial.” Developments, supra, note 9, 84 Harv.L.Rev. at 1267-1268.
. In Minneapolis & St. Louis R.R. v. Bombolis the Court expressly noted that “the Seventh Amendment is controlling upon Congress.”
. The proposition that we should look to history for guidance is well settled. See 5 Moore’s Federal Practice jf 38.11 [7] ; 9 Wright and Miller, Federal Practice and Procedure, Civil § 2302; James, Civil Procedure § 8.1 at p. 338 (1965). Even the dissenters in Ross v. Bernhard agreed,
. Damages, of course, were traditionally awarded in legal actions to compensate a plaintiff for a breach of a legal duty owed him by defendant. That duty may be prescribed by the common law (e.
g.,
the tort law of negligence), by contract or by statute. The origin of the duty does not necessarily determine the nature of the suit. In Texas & Pacific Ry. v. Rigsby,
In concluding that a jury trial was required in a suit seeking damages under the Labor-Management Reporting and Disclosure Act of 1959, the Fourth Circuit said in part:
“The right asserted is indeed one created by statute, but we do not agree that a jury trial is necessarily unavailable because the suit for damages is one to vindicate a statutory right. There is no such cleavage between rights existing under common law and rights estab *1117 lished by enacted law, where the relief sought is an award of damages.” Simmons v. Avisco, Local 713, Textile Workers Union,350 F.2d 1012 , 1018 (1965).
. “Thus innkeepers, who have nowhere been described as public utilities, have from early times been subject to the obligation to receive and afford proper entertainment to every one who offers himself as a guest, if there be sufficient room for him in the inn, and no good reason for refusing him.” Davies Warehouse Co. v. Brown,
See also Thomas v. Pick Hotels Corp.,
. At common law, an innkeeper was liable in damages for insulting or abusing his guests or indulging in any conduct resulting in unnecessary physical discomfort or distress of mind. See Odom v. East Avenue Corp.,
. “In the instant case we have no doubt that the corporation's claim is, at least in part, a legal one. The relief sought is money damages. There are allegations in the complaint of a breach of fiduciary duty, but there are also allegations of ordinary breach of contract and gross negligence. The corporation, had it sued on its own behalf, would have been entitled to a jury’s determination, at a minimum, of its damages against its broker under the brokerage contract and of its rights against its own directors because of their negligence. Under these circumstances it is unnecessary to decide whether the corporation’s other claims are also properly triable to a jury. Dairy Queen, Inc. v. Wood,
. “As our cases indicate, the ‘legal’ nature of an issue is determined by considering, first, the pre-merger custom with reference to such questions; second, the remedy sought; and, third, the practical abilities and limitations of juries.
Of these factors, the first, requiring extensive and possibly abstruse historical inquiry, is obviously the most difficult to apply."
. In the preceding footnote we have emphasized the language which so implies.
. See quotation from the Court’s opinion in footnote 15, supra.
. For purposes of our discussion of this “incidental to equitable relief” issue, we will assume, without deciding, that compensatory damages comparable to those sought herein might have been recovered in an 18th century chancery proceeding in which equitable relief appropriate when the suit was filed later became inappropriate.
. See generally 5 Moore’s Federal Practice, H 38.19 [2] ; 9 Wright & Miller, Federal Practice and Procedure, Civil § 2308, at pp. 42-43.
.
“At the outset, we may dispose of one of the grounds upon which the trial court acted in striking the demand for trial by jury — that based upon the view that the right to trial by jury may be lost as to legal issues where those issues are characterized as ‘incidental’ to equitable issues — for our previous decisions make it plain that no such rule may be applied in the federal courts.” Ibid.
.
Id.
at 472-473,
*1120 “ . . . Rule 38(a) expressly reaffirms that constitutional principle, declaring : ‘The right of trial by jury as declared by the Seventh Amendment to the Constitution or as given by a statute of the United States shall be preserved to the parties inviolate.” Nonetheless, after the adoption of the Federal Rules, attempts were made indirectly to undercut that right by having federal courts in which cases involving both legal and equitable claims were filed decide the equitable claim first. The result of this procedure in those cases in which it was followed was that any issue common to both the legal and equitable claims was finally determined by the court and the' party seeking trial by jury on the legal claim was deprived of that right as to these common issues. This procedure finally came before us in Beacon Theatres, Inc. v. Westover, . . . . ” Id. at 472,82 S.Ct. at 896 .
. “Since the decision of the Supremo Court in Beacon Theatres, Inc. v. Westover, and Dairy Queen, Inc. v. Wood, it is clear that there is a right to a jury trial on an issue of damages, whether they are pleaded independently, or ns an incident to a request for an injunction.” 5 Moore’s Federal Practice Í 38.24 [1] at p. 190.4. See also If 39.19 [2] at p. 172.1.
There is an equitable remedy of restitution which would not, of course, be eliminated by these decisions. In Porter v. Warner Holding Co.,
. It seems quite clear that the punitive damages in this case cannot be considered “incidental” to equitable relief. See note 44,
infra.
See also Porter v. Warner Holding Co.,
. See note 8,
supra.
See also Johnson v. Georgia Highway Express, Inc.,
. This reasoning is applicable to 42 U. S.C. § 1983 as well since that statute authorizes not only '‘an action at law” but also a “suit in equity.”
. 5 Moore's Federal Practice jf 38.24 [2] at p. 190.5.
. Similarly, rent overcharges might be termed “ill-gotten gains.” Porter v. Warner Holding Co.,
. Porter v. Warner Holding Co.,
. Wirtz v. Jones,
. One commentator’s observation in the Title VII situation might apply equally well to other instances of restitution:
“However, it is important to note that the highly subjective questions of damages, which are often felt to be particularly appropriate for jury determination, are not present in Title VII cases. Back pay awards usually involve a definite amount for a definite period of time, and the total amount in controversy often can be stipulated by the parties. Most problems in determining the amount of a back pay award would be ones of computation rather than subjective evaluation.” Comment, The Right to Jury Trial Under Title VII of the Civil Rights Act of 1964, 37 U.Chi. L.Rcv’. 167, 173 (1969).
. We note the conflicting views expressed by Judge Noel in Ochoa v. American Oil Co.,
. The proviso to subparagraph (c) states that the prevailing plaintiff shall be awarded fees if “said plaintiff in the opinion of the court is not financially able to assume said attorneys’ fees.” 42 U.S.C. § 3612(c).
. Title YII of the Civil Rights Act of 1964, see 42 Ü.S.C. § 2000e-5(g), provides for back pay but not for “damages” or “punitive damages.”
. A court of equity would not enforce a penalty or forfeiture absent a specific statutory authorization. See Livingston v. Woodworth,
. See 42 U.S.C. § 1983.
. And see Parsons v. Bedford,
“If, indeed, the construction contended for at the bar were to be given to the act of Congress, we entertain the most serious doubts, whether it would not be unconstitutional. No Court ought, unless the terms of an act ren *1124 dered it unavoidable, to give a construction to it which should involve a violation, however unintentional, of the constitution. . .