Bowles v. Barde Steel Co. , 177 Or. 421 ( 1945 )

The exhaustive opinion written by Mr. Justice BRAND shows that the courts of any state have jurisdiction over causes of action governed by a federal statute in which the plaintiff is a private party who seeks redress for a wrong done to him in violation of the statute, but the opinion leaves me unconvinced that the Federal Government entrusts to the courts of any state actions purely penal in which the government itself is the plaintiff and in which it demands the imposition of punishment. The two situations, I think, are very dissimilar. I can not believe that any government would yield to another government's courts the interpretation and enforcement of its penal laws in actions brought by the government itself.

As the majority opinion points out, § 256 of the Judicial Code (28 U.S.C.A., § 371) says:

"The jurisdiction vested in the courts of the United States in the cases and proceedings hereinafter mentioned, shall be exclusive of the courts of the several States: * * *

"Second. Of all suits for penalties and for forfeitures incurred under the laws of the United States."

That statute precludes this court from entertaining jurisdiction over this action, unless we can say that § 256 has been repealed. Obviously, the Emergency Price Control Act does not expressly repeal § 256; in fact, it does not mention it. Hence, § 256 has not been expressly repealed. Time after time the courts have pointed out that repeals by implication are not favored. No statute is deemed repealed by implication unless no other view is available. The majority depend upon Forsyth v.Central Foundry Co., 240 Ala. 277, 198 So. 706, and Cox v.Lykes Bros., 237 N.Y. 376, 143 N.E. 226, for the point that when a federal act employs such a term as "liquidated damages" and not the word "penalty", the courts assume that Congress did not intend that actions brought under the act should be subject to § 256. However, in both of those cases a private party was the plaintiff and the sums sought could readily be construed as damages. In the present case, a penalty, and nothing but a penalty, is sought. The pleadings do not employ the term "damages" and, of course, the government could be entitled to no damages in any of these five actions. A penalty, and nothing but a penalty, can be awarded to it. The Forsyth and Cox opinions, in my belief, have no application to this case.

To me, it seems that the words of Chief Justice Marshall, inThe Antelope, 23 U.S. 66, 6 L. Ed. 268, (10 Wheat.): "The courts of no country execute the penal laws of another", are controlling. That decision has never been overruled. When Congress enacted the Emergency Price Control Act it must be presumed to have been familiar with the legal principle that the courts of one country do not enforce, in actions instituted by another government, the penal laws of the latter. That principle is not only one of lawyer's law, but is also a fundamental rule of good government which is universally recognized. Surely Congress, when it wrote the Emergency Price Control Act, intended that in the construction of its words the foregoing principle would be employed.

The implications of the majority opinion are great. If treble damages aggregating thousands of dollars are recoverable in the present action, it will not be long before the state courts, at the behest of federal officials and agencies, will be imposing fines and jail sentences. Do we stand prepared to sustain and impose the numerous sanctions to which the federal administrative agencies daily resort? To me, it seems that we are bound by the rule enunciated in The Antelope, supra: "The courts of no country execute the penal laws of another." That is not only the pronouncement of the highest court of our land, written by our country's most brilliant jurist, but its practical wisdom is inescapable. When Chief Justice Marshall wrote the words just quoted he, manifestly, had in mind penalties imposed in actions maintained by a sovereign, as distinguished from an award of damages granted a private party who claims he was injured through the violation of a federal statute.

I dissent.