Lajoie v. Milliken

242 Mass. 508 | Mass. | 1922

Rugg, C.J.

This is an action of tort brought by Charles Lajoie, a coal dealer in the city of Lowell, hereafter called the plaintiff, and prosecuted after his death by the executor of his will. The defendants are James J. Storrow, who was the federal fuel administrator both for New England and for Massachusetts, three persons appointed by him as the members of the Lowell fuel committee, and three local coal dealers doing business in the city of Lowell. The declaration contains two counts, the first alleging that the several defendants conspired to destroy the plaintiff’s business by doing numerous specified acts averred to be illegal, and the second alleging trespass upon the plaintiff’s land and the carrying away of personal property of the plaintiff. Each defendant filed a general denial. The defendant Storrow and the three fuel commissioners of Lowell answered further that each was a public officer of the United States and that all his acts were done pursuant to authority vested in him by law as such officer. Each of the local coal dealers answered further that all their acts were done on the invitation and with the approbation of the plaintiff, his servants and agents. The plaintiff filed a replication, setting up that acts of his tending to show sales to the local dealers or consent to or approval of their acts, if proved, were induced by duress exerted upon him by the defendants. It is not necessary to decide whether a replication was necessary as setting up special equitable avoidance of matters pleaded in the answers. G. L. c. 231, §§ 34, 35, 36. Comstock v. Livingston, 210 Mass. 581. De Propper, petitioner, 236 Mass. 500. Commonwealth v. Kozlowsky, 238 Mass. 379, 385.

The events on which the right of recovery is founded occurred during the first five months of 1918, and chiefly during the first three months of that year.

There was evidence tending to show these facts: For some years prior to 1918 the plaintiff had conducted a retail coal business in Lowell, and owned real estate and personal property especially adapted for that purpose. On January 1, 1918, he had on storage at his yard about five thousand tons of coal, and on the way to him by transportation thirty-two carloads, containing about twelve hundred and eighty tons, of coal. There was a great shortage of coal in Lowell and other dealers had very little coal to meet the demand. The shortage affected everybody who had not a supply of coal, there were thousands of families of small means who did not have coal, and the winter was exceptionally severe. It would have taken the plaintiff about sixty-six days to deliver to customers ordering four or five tons each the coal which he had on storage in his yard on January 1, 1918, and until the middle of April to deliver it in ton lots or half or quarter ton lots. Under date of January 1,1918, the son of the plaintiff signed in the name of his father an order directing the Boston and Maine Railroad to deliver all shipments of anthracite coal consigned to the plaintiff to the order of the Lowell fuel committee until further notice. The chairman of the Lowell fuel committee said to the son that, if he did not sign the order, the committee would take steps to stop all coal from coming to the plaintiff. There was ample evidence of the authority of the son to sign such an order. The fact of signing it was immediately known to the plaintiff, who made no protest nor denial of its authenticity, validity and scope to the railroad, to the Lowell fuel committee, or to any one else. The plaintiff did not at the trial deny the authority of his son to sign the order in question and acknowledged that he sent his son to see the local fuel committee. The order plainly was admissible in evidence. The son was clerk and bookkeeper and took care of the office for the plaintiff and gave orders for coal as well as the plaintiff, and had been in the plaintiff’s employ seventeen years. The plaintiff knew that his son was representing him in conversations with the fuel committee, but, as he testified, “I was there in case he did something wrong and I was there to break it up then.” The plaintiff in important particulars did not heed the requests and directions of the fuel committee concerning the conduct of his business. He refused to keep the accounts suggested in order to make certain that coal was distributed in small quantities to families in need and to prevent any from getting more than their equitable proportion, he declined to make reports in the form and at the times requested and he unloaded cars in his own yard after January 1, 1918, desired to be reconsigned to other dealers, all contrary to the declared policy of the fuel committee. The plaintiff was told that if he did not do just as the fuel committee wanted with respect to his coal, they had taken steps to prevent him from getting any more coal; that they delivered to him many lists of persons to whom coal was to be delivered; that he could not deliver in accordance with all these orders, which amounted to thousands, because of his lack of equipment; that he was barred in large measure from doing business himself because his yard was filled with people; that he was prevented from receiving any of the coal consigned to him because he did not co-operate with the fuel committee in furnishing data as to whom he delivered coal. Thirty-two carloads of coal originally consigned to the plaintiff were reconsigned to other dealers. The plaintiff complied with requests of the fuel committee as to sales to be made and prices to be charged because of a belief that, if he failed to do so, his future supply of coal would be curtailed or cut off by the'Federal Government at the instigation of the fuel committee. The prices for which the plaintiff made sales were less than the value of the coal and less than he could have got but for the acts of the fuel committee. He made no objection to the delivery of coal to other dealers, nor to such dealers coming to his yard to get coal. He regularly sent bills and accepted payments from other dealers for the coal taken by them from his stock or from cars consigned to him. For all coal so taken the plaintiff has been paid according to bills sent by him, except for one carload about the weight of which there is dispute. Treating the testimony of the plaintiff as binding him and disregarding the evidence of the defendants and making every assumption in favor of the plaintiff, the foregoing might have been found to be the facts on the evidence reported.

The defendant Storrow was federal fuel administrator for New England and also for Massachusetts by appointment of the United States fuel administrator by an instrument which purported to authorize him amongst other matters to appoint local committees and local administrators and in general to carry out the policy of the government concerning the conservation and distribution of coal.

While there was nothing to indicate that the defendant Storrow personally did anything with particular respect to the business or property of the plaintiff, it might have been inferred that he devised or approved the general methods of supervising the conservation and distribution of coal prevalent in Lowell.

The defendants O’Donoghue, Ball and Milliken were the Lowell fuel committee appointed by the defendant Storrow. Numerous cars loaded with coal consigned to the plaintiff were by them after January 1, 1918, ordered to be reconsigned to other coal dealers in Lowell. Under their direction plans were carried into execution to ensure so far as possible the delivery of coal in small quantities to families in need and to prevent any from getting more than a fair share with due regard to the needs of others.

The other defendants, being coal dealers in Lowell, went to the yard of the plaintiff for coal or took it by reconsignment to them of cars originally destined for him and paid for it according to bills sent by him, with the exception of the single carload as to the weight of which (as heretofore stated) there was dispute.

All these events occurred during the period when the United States was engaged in the great war and was struggling to maintain its existence and to do its share in overcoming its enemies. The manufacture and transportation of supplies and munitions of war and the moving of soldiers overseas, with innumerable incidental and allied activities, caused among other abnormal conditions a great shortage of domestic coal, especially in this part of the country. There was also an extraordinarily heavy fall of snow and extreme cold weather lasting for several weeks during the winter of 1917-1918. Of these facts, extraneous to the record but of common knowledge, the court will take judicial notice. Kehlor Flour Mills Co. v. Linden, 230 Mass. 119, 123. Opinion of the Justices, 231 Mass. 603, 610. Underhill v. Hernandez, 168 U. S. 250, 253.

The fuel administrator for New England and for Massachusetts, and the Lowell fuel committee justify their acts by reference to the Lever Act, so called, approved on August 10, 1917, c. 53, 40 U. S. Sts. at Large, 276,287. It is entitled "An Act to provide further for the national security and defense by encouraging the production, conserving the supply, and controlling the distribution of food products and fuel.” The act declares that, by reason of the war, "it is essential to the national security and defense, for the successful prosecution of the war, and for the support and maintenance of the Army and Navy, to assure an adequate supply and equitable distribution, and to facilitate the movement, of” fuel amongst other articles called “necessaries,” “to prevent, locally or generally, scarcity, monopolization, hoarding, injurious speculation, manipulations, and private controls, affecting such supplies, distribution, and movement; and to establish and maintain governmental control of such necessaries during the war.” The declared purpose of a legislative enactment is to be accepted as true unless incompatible with its meaning and effect. S. 8. White Dental Manuf. Co. v. Commonwealth, 212 Mass. 35, 40. Flint v. Stone Tracy Co. 220 U. S. 107, 145. There is no rational ground for doubting that the purpose of the so called Lever Act as thus declared was true and genuine. General authority to enforce the act was conferred upon the President, and in carrying out its purposes he was authorized amongst other matters “to create and use any agency or agencies.” By § 25 the President was expressly authorized “to fix the price of coal ... to establish rules for the regulation of and to regulate the method of production, sale, shipment, distribution, apportionment, or storage thereof among dealers and consumers.”

The war powers of the Federal Government are not strictly and narrowly defined. The power is conferred "to declare war . . .; to raise and support armies . . .; to provide and maintain a navy; to make rules for the government and regulation of the land and naval forces . . .; to make all laws which shall be necessary and proper for carrying into execution the foregoing powers.” Art. 1, § 8 of the United States Constitution. These are broad grants of extensive power. They include not only those matters specifically stated, but all others reasonably implied as necessary to the execution of the main matter of waging war to a successful conclusion. These powers are not limited to battle on land and sea, in the air and under the waters. They inherently carry with them subsidiary faculties to deal comprehensively with all exigencies created by war or arising from its inception, progress and termination. Miller v. United States, 11 Wall. 268, 304-314. Stewart v. Kahn, 11 Wall. 493, 506, 507. Legal Tender Cases, 12 Wall. 457. Hamilton v. Dillin, 21 Wall. 73. Selective Draft Cases, 245 U. S. 366. McKinley v. United States, 249 U. S. 397. Northern Pacific Railway v. North Dakota, 250 U. S. 135, 149. Jacob Ruppert v. Caffey, 251 U. S. 264.

The existence of war does not suspend nor affect the operation upon the power of Congress of the guarantees and limitations of the Fifth Amendment to the United States Constitution to the effect that “No person shall ... be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use, without just compensation,” in those parts of the country where there is not an actual state of war and where the courts are open for the administration of justice. Ex parte Milligan, 4 Wall. 2, 121, 127. Monongahela Navigation Co. v. United States, 148 U. S. 312, 336. United States v. Joint Traffic Association, 171 U. S. 505, 571. McCray v. United States, 195 U. S. 27, 61. United States v. Cress, 243 U. S. 316, 326. United States v. Cohen Grocery Co. 255 U. S. 81, 88. A state of war, however, may affect with a public interest articles, which under normal conditions are free to commerce in its usual channels, and thus render subject to governmental regulation that which otherwise would be unobstructed and unhindered by the law. The war powers of the Federal Government in such circumstances would at least be as extensive as the police power of the several States. Hamilton v. Kentucky Distilleries Co. 251 U. S. 146, 156. Fuel is a vital and indispensable necessity. It has been held that its supply and distribution is a public purpose justifying the imposition of taxation for its support and maintenance even in times of peace. Jones v. Portland, 245 U. S. 217, affirming 113 Maine, 123. See Opinions of the Justices, 155 Mass. 598, 601; 182 Mass. 605; art. 47 of Amendments to the Constitution of Massachusetts. The manufacture and transportation of munitions and other necessities of war may require preferences as to fuel not permissible in times of peace. It is not necessary to .consider and pass upon the constitutionality of the several parts and details of the Lever Act. It seems to us not open to serious doubt that in this climate and in the present state of economic art and invention as to production of heat, light and power, the public regulation of the sale, shipment, distribution and apportionment of coal during war is among the powers conferred upon Congress by the Constitution. It is sufficient to say that in our opinion the main purpose of the Lever Act in these particulars is not open to successful attack. There can be no question that the war created a public exigency as to coal. As was said in German Alliance Ins. Co. v. Kansas, 233 U. S. 389, 411, “A business, by circumstances and its nature, may rise from private to be of public concern and be subject, in consequence, to governmental regulation. . . . ‘The underlying principle is that business of certain kinds holds such a peculiar relation to the public interests that there is superinduced upon it the right of public regulation.’” There seems to us to be nothing at variance with this, conclusion in United States v. Cohen Grocery Co. 255 U. S. 81. The part of the Lever Act there held violative of the guarantees of the Fifth and Sixth Amendments to the United States Constitution are separable from the provisions here invoked. Ashley v. Three Justices of the Superior Court, 228 Mass. 63, 81, and cases there collected. Reagan v. Farmers’ Loan & Trust Co. 154 U. S. 362, 395. Moreover, it was the intent of Congress as declared by § 22 of the act that no unconstitutional provision therein should taint in any particular other parts not in themselves violative of constitutional guarantees.

The appointments of the fuel administrator and of the fuel committee appear to have conformed to the terms of § 2 of the act and do not in our opinion contravene the provisions of art. 2, § 2 of the Constitution of the United States. It is manifest that the President could not attend in person to the execution of the Lever Act and that he must act through representatives. Williams v. United States, 1 How. 290, 297. Wilcox v. Jackson, 13 Pet. 498, 513. United States v. Weeks, 259 U. S. 326. West v. New York, New Haven & Hartford Railroad, 233 Mass. 162.

The documents showing the appointment of Mr. Storrow as federal fuel administrator for New England and Massachusetts and his appointment of the members of the Lowell fuel committee were admissible. It thereby appeared at the lowest that they purported to be acting as de facto officers of the United States.

These facts and the Lever Act afford the background in the light of which the rights of the parties must be tested. We are of opinion that no liability to the plaintiff is disclosed.

Since Mr. Storrow had no direct connection with the acts of which the plaintiff complains, and inwall that he did was undertaking to perform duties imposed by his appointment under the provisions of the Lever Act, the record discloses no ground for liability against him. While performing official duties for government he could not be held liable for the acts of his associates or subordinates. Keenan v. Southworth, 110 Mass. 474. Robertson v. Sichel, 127 U. S. 507. Burroughs v. Rane, 241 Mass. 1.

The letters on stationery of the New England or Massachusetts fuel administration with the name of Mr. Storrow printed thereon, but signed by another and not shown to have been sent by his direction or with his knowledge, were excluded rightly. Butler v. Price, 115 Mass. 578. Deane v. American Glue Co. 200 Mass. 459, 462. Indeed, the decision of the preliminary question, whether they were written by an authorized agent so as to be admissible against him as principal, rested with the trial court. Hathaway v. Congregation Ohab Shalom, 216 Mass. 539, 544. Coghlan v. White, 236 Mass. 165, 168, 169. See Pilon v. Viger, 198 Mass. 118.

It is apparent from all the testimony that the defendants the fuel committee were striving with the purpose to prevent suffering and hardship, to preserve the public health and to promote the general welfare in Lowell by securing so far as possible deliveries of coal in small quantities to those in imminent need, and to thwart all efforts of one to gain advantage over others by duplicating orders among several dealers or in other ways. In all that they did they proceeded under the presumed authority of the Lever Act. There is no evidence to support a finding that the plaintiff acted under the duress of the defendants either in signing the order to the Boston and Maine Railroad or in selling coal to other dealers or to the public, or in doing other acts pursuant to intimations of the Lowell fuel committee. The utmost extent of the so called coercion, which is relied upon as constituting duress, is that if the plaintiff did not sign the order to the railroad, or make deliveries of coal as requested, the fuel committee said that they would take steps to prevent him from getting coal. This was not a menace to prosecute for a crime. It was not a threat to do anything shown to be illegal or ethically wrong. In their setting the words as used by the fuel committee to the plaintiff naturally would have been intended and understood to mean simply that legal methods to that end would be adopted. There may have been rules and regulations issued by the President under the Lever Act applicable to the situation. While of course purity of motive cannot justify invasion of the rights of others, every presumption is in favor of legality and of innocence of officers acting as were the fuel committee. In the absence of evidence to the contrary, this presumption prevails. Duffy v. Treasurer & Receiver General, 234 Mass. 42, 50, and cases there collected. Bank of United States v. Dandridge, 12 Wheat. 64, 69, 70. Sunday Lake Iron Co. v. Wakefield, 247 U. S. 350, 353. It was stated in Morse v. Woodworth, 155 Mass. 233, 250, that “The rule as to duress per minas has now a broader application than formerly. It is founded on the principle that a contract rests on the free and voluntary action of the minds of the parties meeting in an agreement which is to be binding upon them. If an influence is exerted on one of them of such a kind as to overcome his will and compel a formal assent to an undertaking when he does not really agree to it, and so to make that appear to be his act which is not his but another’s, imposed on him through fear which deprives him of self-control, there is no contract, unless the other deals with him in good faith, in ignorance of the improper influence, and in the belief that he is acting voluntarily. ... It has often been held that threats of civil suits and of ordinary proceedings against property are not enough, because ordinary persons do not cease to act voluntarily on account of such threats.” That principle, applicable to the facts here disclosed, shows no liability on the part of these defendants connected with the United States fuel administration. Wilcox v. Howland, 23 Pick. 167. Harris v. Carmody, 131 Mass. 51. Fairbanks v. Snow, 145 Mass. 153. Bryant v. Peck & Whipple Co. 154 Mass. 460. Silsbee v. Webber, 171 Mass. 378. United Shoe Machinery Co. v. La Chapelle, 212 Mass. 467, 477. Anthony & Cowell Co. v. Brown, 214 Mass. 439, 442. Stevens v. Thissell, 240 Mass. 541. United States v. Huckabee, 16 Wall. 414, 431, 432. United States v. Child & Co. 12 Wall. 232. Gaar, Scott & Co. v. Shannon, 223 U. S. 468. Ward v. County Commissioners, 253 U. S. 17, 23.

So far as the plaintiff’s right of action rests on the reconsignment of carloads of coal consigned to him, its foundation is gone if the order of January 1, 1918, signed in his name by his son directing the railroad to deliver to the order of the fuel committee all shipments of coal consigned to him, is binding on him. It is plain that the failure of the plaintiff to renounce this order at any time, although knowing of it forthwith, and his sending of bills for the coal to the persons to whom it was so reconsigned and acceptance of payment therefor, constituted a ratification and confirmation by acquiescence and consent even if its signing was not originally authorized. The plaintiff was free to deliberate and take his own course whether to abide by the order signed by his son, or to repudiate it, or to withdraw it at any time. By its own terms it was to continue in force only “until further notice” by the plaintiff. The opportunity for reflection as to his course was instant, ample, unconstrained and without compulsion in any legal sense. The duty rested on the plaintiff as principal, when informed of the act of his agent, to dissent and given notice of his dissent within a reasonable time; otherwise his approval would be inferred. Brigham v. Peters, 1 Gray, 139, 147. Murray v. Mayo, 157 Mass. 248. Webb v. Lothrop, 224 Mass. 103, 105. In any event his conduct is a bar to complaint by the plaintiff as to acts performed in good faith by the defendants, the fuel committee, in reliance upon the order.

No cause of action is shown based upon the prices of coal fixed by the fuel committee, nor the quantities in which it was sold. Whether the prices thus fixed were valid or void is immaterial. The plaintiff voluntarily and without coercion throughout the period here in question sold his coal at these prices. It was said in Morrisdale Coal Co. v. United States, 259 U. S. 188 (a case under the Lever Act), “If the law requires a party to give up property to a third person without adequate compensation the remedy is, if necessary, to refuse to obey it.” Pine Hill Coal Co. Inc. v. United States, 259 U. S. 191. That statement applies with even greater force to directions given by a subordinate governmental officer. If the plaintiff doubted the authority of the defendants or their rights in the premises, his remedy was to decline to comply with their suggestions, rather than to obey without protest, and then seek to hold them responsible in damages for his losses which in fact flowed from deliberate and free submission to such suggestions.

No cause of action is disclosed on this record against the defendants who are coal dealers. The plaintiff made no objection whatever to their coming upon his premises and getting coal. He treated every transaction to which they were parties as a sale of chattels, sent them bills for the amount claimed and accepted their payment in settlement. This was an affirmation of the incident as that which on its face it appeared to be, namely, a simple sale closed by delivery and payment. Foster v. Rockwell, 104 Mass. 167. Auringer v. Cochrane, 225 Mass. 273.

The plaintiff kept a place of ordinary trade and impliedly, according to present conventions, invited the public to come and deal with him, in the absence of conduct manifesting a contrary purpose. There is no foundation for an action of trespass. Lakin v. Ames, 10 Cush. 198, 220. Riley v. Harris, 177 Mass. 163. Blease v. Webber, 232 Mass. 165.

It follows without further discussion from what has been said that in our opinion there was no evidence tending to show conspiracy between these defendants. DeWolfe v. Roberts, 229 Mass. 410. Attorney General v. Tufts, 239 Mass. 458, 493, 494.

The controversy between the plaintiff and the defendant Cawley as to the weight of one carload of coal sold to the latter cannot be adjudicated in this form of action.

The ruling excluding the testimony of the expert rested in the discretion of the court, which is not shown to have been abused. Coghlan v. White, 236 Mass. 165, 169.

It is not necessary to discuss further the exceptions taken to the admission or exclusion of evidence. No error is disclosed.

Exceptions overruled.