Tanimura

195 F.2d 329 TANIMURA v. UNITED STATES. No. 13014. United States Court of Appeals Ninth Circuit. March 6, 1952. As Corrected March 17, 1952. Rehearing Denied April 30, 1952. C. Dan Lange, Clyde R. Rockwell, San Francisco, Cal., for appellant. Ed. Dupree, General Counsel, Leon J. Libeu, Asst. General Counsel, Walter A. Rochow, Special Litigation Attorney, Nathan Siegel, Attorney, Office of Rent Stabilization, all of Washington, D. C., for appellee. Before STEPHENS, HEALY and BONE, Circuit Judges. STEPHENS, Circuit Judge. 1 On February 28, 1950, the United States instituted suit against Tanimura, and two others against whom it was dismissed, charging them with violation of the Emergency Price Control Act of 1942, as amended, 50 U.S.C.A.Appendix, § 901 et seq., The Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, § 1881 et seq., and the Rent Regulations under these Acts, 8 F.R. 7334 ; 12 F.R. 4302 , by collecting rents in excess of the legally fixed maximum rates. It was asked through the complaint that an injunction be issued against further violations, that restitution of the over-charges to those overcharged be ordered, and treble damages be awarded to the…

On February 28, 1950, the United States instituted suit against Tanimura, and two others against whom it was dismissed, charging them with violation of the Emergency Price Control Act of 1942, as amend-' ed, 50 U.S.C.A.Appendix, § 901 et seq., The Housing and Rent Act of 1947, as amended, 50 U.S.C.A.Appendix, § 1881 et seq., and the Rent Regulations under these Acts, 8 F.R. 7334 ; 12 F.R. 4302 , by collecting rents in excess of the legally fixed maximum rates. It was asked through the complaint that an injunction be issued against further violations, that restitution of the overcharges to those overcharged be ordered, and treble damages be awarded to the plaintiff in the sum of the overcharges which had accrued within the year prior to-the institution of the suit. The judgment went against Tanimura in accordance with the complaint except that single damages instead of treble damages were awarded the government as statutory damages.

Tanimura appeals upon the one ground that he was entitled as of right to a jury trial. Appellant makes no contention that the issues of injunction against further violations and restitution of over-payments are not equitable in nature triable by the…

Appellant’s Petition for a Rehearing.

Appellant, in his petition for rehearing in the above entitled case, asserts that we have overruled our own case of Bruckman v. Hollzer, 9 Cir., 1946, 152 F.2d 730 , and have not considered Federal Rules of Civil Procedure, rules 38(a) and 39(a), 28 U.S.C.A., which “ * * * were intended to ‘preserve’ the right of trial by jury under the Seventh Amendment to the Constitution of the United States”.

We think appellant is mistaken.

We stated in our opinion that the government is moving primarily to effectuate the purposes of the rent control law and asks “an injunction be issued against further violations, that restitution of the overcharges to those overcharged be ordered, and treble damages be awarded * * Federal Rules of Civil Procedure, rules 38 (a) and 39(a) preserve the right of trial by jury to issues not necessary to or those not merely incidental to the equitable jurisdiction. The Bruckman-Hollzer opinion recognizes and applies this principle as does our opinion in the instant case. It would seem hardly necessary to write into the opinion that issues not falling within the principle just stated could be tried without a jury in the face…