173 F.2d 554 | 1st Cir. | 1949
This is the second appearance before us of this action for treble damages, under § 205(e) of the Emergency Price Control Act, 50 U.S.C.A.Appendix, § 925(e), for the sale of cane blackstrap molasses at 'an overceiling price. The facts are stated in our earlier opinion, Anderson v. Mercado, 1 Cir., 163 F.2d 303, certiorari denied Mercado v. Anderson, 332 U.S. 837, 68 S.Ct. 220, remanding the case to the district
Willfulness in violating a regulatory statute implies not so much malevolent design as action-with knowledge that one’s acts are proscribed or with careless disregard for their lawfulness or unlawfulness. Zimberg v. United States, 1 Cir., 142 F.2d 132, 137, 138, certiorari denied 323 U.S. 712, 65 S.Ct. 38, 89 L.Ed. 573. As is of course well known, the Office of Price Administration and its successors have not only conducted vast operations, but have also provided extensive informational services for the benefit of those subject to regulation. In view of this, the contention that an honest and reasonable belief in the validity of all acts done pursuant to an earlier contract is sufficient to support a defense of lack of willfulness, without proof of attempted verification of such a belief from the appropriate governmental officers, presents a problem.
We need not decide this issue, however, since defendant was clearly Unable to establish the defense that it had taken practicable precautions to avoid the violation. Bowles v. Pechersky, supra. It learned of Amendment 32 to- Revised Maximum Price Regulation 183, providing a maximum price of 13.6{5 a gallon “delivered at the mill,” before it had made any of the deliveries in issue. Nevertheless it made no attempt to obtain an official interpretation of the amendment, but relied entirely on its own view of the law. This was incorrect, as the district court ruled at the first trial, 67 F.Supp. 107; and we agreed, 163 F.2d 30-3, 308. In fact, defendant took no precautions of any kind, beyond its blind reliance upon a pre-existing contract, to make sure that it had complied with these new, definite, and complete regulations affecting its business. It was not reasonable for it thus to assume that entering into a contract for the future would make it thereafter immune from changes in established maximum prices. This is particularly so, since the Act itself provides otherwise. § 4(a), 50 U.S.C.A.Appendix, § 904(a), making it unlawful to sell or deliver any commodity in violation of a price regulation, “regardless of any contract, agreement, lease, or other obligation heretofore or hereafter entered into.”
The court below made explicit findings of fact, followed by equally explicit conclu
Defendant also argues that any recovery here, either for the overcharge or for additional penalties, is prevented by § 205(d) of the Act, 50 U.S.C.A.Appendix, § 925(d), barring awards for acts done in ■good faith pursuant to any provision of the Act or any regulation or “agreement there-, under,” even though thereafter changed or found invalid.
Defendant vigorously asserts, however, that the statutory phrase “agreement thereunder” refers to just such a contract as the one before us. But we agree with the plaintiff that, as the context clearly requires, the phrase means an agreement under the terms of the Act, i.e., not a private contract, but' an agreement in the same class with a regulation or price order of the Administrator. Thus it refers to a pricing agreement which the Administrator was authorized to make with industry or other groups under § 5 of the Act, 50 U.S.C.A. Appendix, § 905. There was obviously no intent upon the part of the legislative body to nullify the provisions of § 4(a), supra, making unlawful sales or deliveries in violation of a price regulation, though made to fulfill a prior contract. Foster & Co. v. Bowles, Em.App., 144 F.2d 870, 874; Bowles v. Franceschini, 1 Cir., 145 F.2d 510, 513.
The. judgment of the District Court is affirmed.
Here defendant’s representatives had visited the local Office of Price Administration to inquire about the ceiling price of molasses before the contract of sale was entered into, but they did not exhibit the contract. The crucial question, however, as our earlier opinion shows, was as to the deliveries made under the contract with relation to the later enacted regulations. Defendant’s representatives made no subsequent visits or inquiries until an OPA investigator approached them after the deliveries had been completed. Defendant’s general awareness of the price regulation program was shown by its attempt, though unsuccessful, to contract out of any possible liability under the Act and regulations in not merely this contract, but also other earlier contracts.
“No person shall be held liable for damages or penalties in any Federal, State, or Territorial court, on any grounds for or in respect of anything done or omitted to be done in good faith pursuant to any provision of this Act or any ■ regulation, order, price schedule, requirement, or agreement thereunder, or under any price schedule of the Administrator of the Office of Price Administration or of the Administrator of the Office of Price Administration and Civilian Supply, notwithstanding that subsequently such provision, regulation, order, price schedule, requirement, or ■ agreement may be modified,-rescinded, or determined to be invalid.” 50 U.S.O.A. Appendix, § 925(d).