On appeal from the First District Court of the City of Newark.
For the plaintiff-appellant, Rothbard, Greenstone & Harris (Samuel L. Rothbard).
For the defendant-respondent, George R. Sommer.
Before Justices Case, Donges and Porter.
The opinion of the court was delivered by
CASE, J. Plaintiff sued in the First District Court of the City of Newark to recover $50 on each of two counts, $100 in all, plus attorney's fees and costs, upon the allegation that
the defendant had demanded and received from the plaintiff the sum of $28 rent for a living apartment for the month of July, 1942, and a like sum for the month of August, 1942, whereas the maximum monthly rental permitted under a regulation established by the Administrator of the Emergency Price Control Act of 1942 was $22 -- an overcharge on each of the two months of $6. The judge, holding that the suit was to recover a penalty imposed by the federal statute and that his court therefore lacked jurisdiction, dismissed the suit. The pertinent statutes are the New Jersey statute fixing the jurisdiction of District Courts:
R.S. 2:8-40: "Every action of a civil nature at law, or to recover any penalty imposed or authorized by any law of this state, where the debt, balance, penalty, damage or other matter in dispute does not exceed, exclusive of costs, the sum or value of five hundred dollars, shall be cognizable in the district courts of this state," and the federal statute setting up the right to sue, being a part of the Emergency Price Control Act of 1942:
50 U.S.C.A. App., § 925 (e): "If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, the person who buys such commodity for use or consumption other than in the course of trade or business may bring an action for $50 or treble the amount by which the consideration exceeded the applicable maximum price, whichever is the greater, plus reasonable attorney's fees and costs as determined by the court. For the purposes of this section, the payment or receipt of rent for defense-area housing accommodations shall be deemed the buying and selling of a commodity, as the case may be. If any person selling a commodity violates a regulation, order, or price schedule prescribing a maximum price or maximum prices, and the buyer is not entitled to bring suit or action under this subsection, the Administrator may bring such action under this subsection on behalf of the United States. Any suit or action under this sub-section may be brought in any court of competent jurisdiction, and shall be instituted within one year after delivery is completed or rent paid. The provisions of this subsection shall not take
effect until after the expiration of six months from the date of enactment of this Act."
The decision of the United States Supreme Court in Huntington v. Attrill, 146 U.S. 657; 36 L. Ed. 1123, chiefly relied upon by appellant, states that the demarcation between penal actions and civil actions, in the international sense, depends upon whether the purpose is to punish an offense against the public justice of the state or to afford a private remedy to a person injured by the wrongful act and holds that the statute in which that action grounded was remedial and not penal. The New York statute, out of which the litigation arose, made the officers of a corporation who signed and recorded a false certificate of the amount paid in on its capital stock jointly and severally liable for all the debts of the corporation contracted while they were officers thereof. Attrill, as a director of the company, signed and recorded a certificate that the whole capital stock of the corporation, $700,000, had been paid in, whereas, in truth, no part of it had been paid in. The litigation was to enable a creditor to reach personal property of Attrill in Maryland wherewith to satisfy a judgment, in the amount of the corporation debt, obtained in the State of New York. It was held that while the statute was penal as against defaulting trustees, it was remedial in favor of creditors. The reasoning is plain and convincing: the ...