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UNITED STATES v. JEPSON

April 18, 1950

UNITED STATES
v.
JEPSON et al.



The opinion of the court was delivered by: FAKE

The issues now before the court arise on a motion to strike the defendants demand for a jury trial.

The complaint contains two counts; the first count alleges that the defendants received for the use or occupancy of certain accommodations, rents in excess of the maximum legal rents established by authority of Sec. 2(b) of the Emergency Price Control Act of 1942, 56 Stat. 23 as found at page 25, 50 U.S.C.A.Appendix 902(b). This count alleges that defendants received from Mr. and Mrs. Fazio, as rent $ 111 in excess of the maximum fixed by regulations and seeks treble damages, to wit, $ 333.

 Defendants answering deny that they received rent in excess of that allowed by law. It is noted that this count in the complaint seeks nothing more than a money judgment. It is upon the issue thus joined that defendants seek a jury trial.

 In this connection the Constitution of the United States provides as follows: 'In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved * * * .' Amendment 7.

 This raises, at once, the question as to whether or not the cause of action here is one which was recognized as an action at common law prior to our severance from the mother country.

 In the government's brief it is argued that 'the present action is of statutory origin and is an emergency right created by Congress. Accordingly, defendants are not, as a matter of right, entitled to a jury trial.' To sustain this argument counsel cite Woods v. Endekay Realty Corp., *fn1" Civil Action No. 44-302 & No. 43-704, D.C.S.D.N.Y., 8 F.R.D. 265. Another case cited by petitioner is U.S. v. Osipoff, Gibson, et al., *fn1" No. 1106, D.C.S.D. Cal., apparently the granting of a motion, without opinion, striking defendants demand for a jury. For reasons hereafter given I am not able to follow those cases.

 Long prior to our independence there had grown up under original writs certain well-defined actions at common law, among them, the action of debt covering, among other causes, suits for statutory penalties and qui tam actions. See Chitty on Pleading, Vol. I, Seventh American Edition, page 126. That such an action was recognized as a suit at common law in this country, in the year 1797, is made sparklingly clear in U.S. v. Mundell, 27 Fed.Cas. 23, No. 15,834. In that case the court had before it the problem as to just what was meant by 'trials at common law' and it is there pointed out that 'A distinction is sometimes taken between a suit at common law and a suit upon a statute, where the latter is grounded upon different principles from the former, in which case perhaps it may properly be said that the one is a trial at common law, the other upon the statute * * * thus, in this case, though it be an action on the statute, it is an action of debt, which is a common law action, and will be tried in a common law manner, * * * Whatever, therefore, the laws order anyone to pay, that instantly becomes a debt which he hath before hand contracted to discharge, * * * .'

 A thorough treatise on the subject of the action of debt arising on statutory penalties is found in the opinion of Mr. Justice Harlan in the case of Hepner v. U.S., 213 U.S. 103, 29 S. Ct. 474, 53 L. Ed. 720, 27 L.R.A.,N.S., 739. In that decision many cases are reviewed dealing with debt actions brought for statutory penalties. It is there stated, 213 U.S.at page 115, 29 S. Ct.at page 479, ' * * * The defendant was, of course, entitled to have a jury summoned in this case * * * .'

 Further substantiating this position, the United States sUpreme Court, speaking through Mr. Justice Murphy in Porter v. Warner Holding Co., 328 U.S. 395, at page 401, 66 S. Ct. 1086, 1090, 90 L. Ed. 1332, in a decision involving the nature of actions brought by the Price Administrator under the Emergency Price Control Act of 1942, 50 U.S.C.A.Appendix, 901 et seq., for rent overcharges stated: 'It is true that Sec. 205(e) authorizes an aggrieved purchaser or tenant or sue for damages on his own behalf. and if that person has not sued within the statutory period, or for any reason is not entitled to sue, the Administrator may institute an action for damages on behalf of the United States. To the extent that damages might properly be awarded by a court of equity in the exercise of its jurisdiction under Sec. 205(a), see Veazie v. Williams, 8 How. 134, 160, 12 L. Ed. 1018, Sec. 205(e) supersedes that possibility and provides an exclusive remedy relative to damages * * * Moreover, a court giving relief under Sec. 205(e) acts as a court of law rather than as a court of equity * * * .'

 The study here should not be closed without reference to the early case of Holmes ads. Walton, cited in 9 N.J.L. 444, which was tried in New Jersey before a Justice of the Peace in the year 1778, and appealed from the Justice's court to the Supreme Court of the State where it was decided in the year 1780. The then Constitution of the State, which had been adopted in the year 1776, contained the following provisions: 'That the common law of England, as well as so much of the statute law, as have been heretofore practiced in this colony, shall still remain in force, until they shall be altered by a future law of the legislature; such parts only excepted, as are repugnant to the rights and privileges contained in this charter; and that the inestimable right of trial by jury shall remain confirmed, as a part of the law of this colony, without repeal, forever.' Section 22.

 In the year 1778 a State statute, Pamphlet, Laws of New Jersey 1778, page 104, was enacted to prevent intercourse with the then British enemy. The act made it 'lawful * * * for any person or persons whomsoever to seize and secure * * * Provisions, goods, wares of merchandise, attempted to be carried or conveyed into, or brought from within the lines or encampments, or any place in the possession of the subjects or troops of the King of Great-Britain.' It further provided that the persons in whose possession such property might be found were to be taken before a Justice of the Peace. The law required the Justice, on demand of either party, to grant a jury trial according to the law of 1775 which provided for a jury of 6 men and further stipulated that in every cause where a jury of 6 men gave a verdict as aforesaid there should be no appeal allowed. The law of 1778 provided that if plaintiff should win the suit the goods were to be sold and the proceeds of the sale of the goods were to be divided among the persons seizing them.

 While the foregoing law was in effect one Elisha Walton seized a quantity of goods in the possession of Holmes and Ketcham, whom he charged with having brought them from within the lines of the enemy. The goods were of considerable value, to wit, 29,428 pounds 13 shillings and 4 pence halfpenny. The cause was tried before a Justice of the Peace of Monmouth County on May 24, 1779 with a jury of 6 men who brought in a verdict in favor of Walton.

 Holmes and Ketcham appealed to the Supreme Court and the court issued a writ of certiorari to the Justice of the Peace. The Supreme Court consisted of Chief Justice David Brearley, with Isaac Smith and John Cleves Symes, associates. It is thought by historians and scholars that the opinion of the court was an oral opinion. A minute of it appears in the court record as follows: 'This cause having been argued several terms past and the court having taken time to consider of the same * * * gave the seriatim for the plaintiffs in certiorari * * * and on motion of Boudinot, for plaintiff; judgment is ordered for the plaintiffs and that the judgment of the Justice in the court below be reversed and the said plaintiffs be restored to all thinks, * * * .'

 The late Dr. Austin Scott, some time President of Rutgers College; is the author of a priceless essay on the subject of that case. It there appears in the language of Dr. Scott that 'persistent search failed to discover the opinion of Chief Justice Brearley. * * * It was probably an oral opinion and never written. Happily, however, there exists incontestable proof of its import. On the afternoon of the 8th of December, 1780, in the House of Assembly, a petition from sixty inhabitants of the County of Monmouth was presented and read, complaining that the Justices of the Supreme Court have set aside some of the laws as unconstitutional * * * to the encouragement of the disaffected and great loss to the loyal citizens of the State * * * '

 It appears that the decision of the Supreme Court was based upon the contention that the legislation above mentioned was unconstitutional in that the jury thereunder 'consisted of 6 men only contrary to law.' Chief Justice Brearley held the legislative enactment unconstitutional because the Constitution provided that such trials should be by jury and at that time the word 'jury' clearly connoted 12 men and not 6 men.

 An analysis of the cause of action involved discloses that it was an action in debt as at common law, and so meticulously careful was Chief Justice Brearley in his allegiance to the Constitution that he fearlessly set the legislation at naught. The war of the Revolution was still raging in this State, and the result of that opinion was to return the goods to disloyal and subversive persons. Moreover, prior to become Chief Justice, Brearley had served as a Colonel in the Continental Army. One has but to read the history of that period in this State to realize the antagonism with which his very logical opinion was met. This was the first case known to our jurisprudence when an act of the legislature was declared unconstitutional by a court. I know of no case in the annals of jurisprudence which required greater judicial courage than that displayed by Chief Justice Brearley and his associates in that case.

 In the year 1789 Chief Justice Brearley was elevated by President Washington to become the first Judge of the United States District Court, in which I, and my four colleagues, now sit. The case of Holmes ads. Walton is lost to all save professional historians and a few lawyers. It is of such importance to the federal bench and bar that I take the liberty to annex a copy of Dr. Scott's essay as an appendix to this opinion. The case is pertinent here because of its bearing upon the common-law action of debt, and also because of the importance of jury trials now as in the past.

 It is my thought that when a federal statute embraces a common-law form of action, that action does not lose its identity merely because it finds itself enmeshed in a statute. The right of trial by jury in an action for debt still prevails whatever modern name may be applied to the action. To hold otherwise would be to open the way for Congress to nullify the Constitutional right of trial by jury by mere statutory enactments. It is by such methods that courts lose their power to enforce the Bill of Rights.

 An order will be entered herein providing for a trial by jury on the issues joined on the first count of the complaint. The trial of the equitable issues will be stayed abiding the event of the jury trial.

 APPENDIX *fn1"

 HOLMES vs. WALTON:

 THE NEW JERSEY PRECEDENT: *fn1"

 A Chapter in the History of Judicial Power and Unconstitutional Legislation

 After the battle of Monmouth in June, 1778, the British commander made his way to Sandy Hook and thence to New York, where he established permanent headquarters, retained, during the rest of the war, possession of Staten Island adjacent to New Jersey. On the 8th of October, 1778, the New Jersey legislature passed a law to prevent the increasing evil of intercourse with the enemy. This act made it 'lawful for any person or persons whomsoever to seize and secure provisions, goods, wares and merchandise attempted to be carried or conveyed into or brought from within the lines or encampments or any place in the possession of the subjects or troops of the King of Great Britain.' These goods and the persons in whose possession they might be found were to be taken before a justice of the peace of the county. The law required the justice, on the demand of either party, to grant a jury according to the law of February 11th, 1775, which provided for a jury of six men, and further stipulated, 'that in every cause where a jury of six men give a verdict as aforesaid there shall be no appeal allowed.' The law of October, 1778, further provided that if the plaintiff should win the suit the proceeds from the sale of the goods were to be divided among the persons seizing them. *fn2"

 By virtue of this law, Elisha Walton, a major of militia, seized a quantity of goods in the possession of John Holmes and Solomon Ketcham, whom he charged with having brought them from within the lines of the enemy. The goods were of considerable value, there being between seven hundred and eight hundred yards of silk, between four hundred and five hundred yards of silk, gauze, 'mode,' and many other articles, 'such a quantity and such a quality as could not be purchased in all the stores of New Jersey.' *fn3" The case was tried before John Anderson, a justice of the peace of Monmouth county, on the 24th of May, 1779, with a jury of six men, who brought in a verdict in favor of Walton and judgment was given accordingly. *fn4"

 While the suit was pending, the defendants had already applied to the Supreme Court then in session at Burlington, and the Chief Justice, Robert Morris, issued a writ of certiorari to Anderson, returnable at the next session of the Supreme Court to be held at Hillsborough in Somerset county, the first Tuesday of September. Meantime Morris resigned his seat on the bench and on the 10th day of June, David Brearley was appointed Chief Justice. The court opened at Hillsborough on the 7th of September, and on the 9th it was ordered that the case of Holmes v. Walton be argued on the . . . Thursday of the next term. Accordingly on Thursday, November 11th, 1779, the case was argued before the Supreme Court sitting at Trenton. *fn5" In offering his argument for the plaintiffs in certiorari, William Willcocks, their attorney, filed his reasons why the judgment of Justice Anderson should be reversed. The seventh reason reads as follows: 'Because the jury sworn to try the above cause and on whose verdict judgment was entered, consisted of six men only, when by the Laws of the Land it should have consisted of twelve men.' The same attorney, at the same trial, also filed separately 'additional reasons,' which read as follows:

 'For that the said justice had not jurisdiction of the said cause or plaint but the same was coram non judice.

 'For that the jury who tried the said plaint before the said justice consisted of six men ...


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