Bechtold v. Wilson , 182 Or. 360 ( 1947 )

9. Appellants have filed a petition for rehearing in which they suggest that, under any construction of the scope of the writ of review, they were entitled to invoke that remedy because the justice of the peace, in ruling on the demurrer to defendants' answer, exceeded his jurisdiction.

The answer alleged that appellants were holding the premises in question under a written lease, the stipulated rental in which had been reduced by a regulation of the Office of Price Administration under the provisions of the Emergency Price Control Act of 1942, as amended by the Stabilization Extension Act of 1944 (50 U.S.C.A., §§ 901 to 946, 961 to 971), and that all rent as so reduced had been paid. To this answer respondents filed a general demurrer, which was sustained by the justice of the peace. The point urged is that by this determination the court held the regulation invalid, whereas it had no jurisdiction to consider the validity of the regulation under § 204(d) of the Act. But the record does not disclose that any such question was presented to, or considered by, the justice of the peace. For all we know, he held the Act itself unconstitutional — a ruling which, however erroneous, it would be within his jurisdiction to make. Or, he may have based his ruling upon some one or more of the alleged defects in the answer which were argued by counsel for respondents in this court and which had nothing to do with the validity of the regulation. Counsel for appellants himself says in his original brief that "there is here really no pleading or evidence on the record challenging the regularity of the same" (i.e., of the regulation). That being so, this court cannot assume that the justice of the peace considered that question.

The petition for rehearing is denied.