State Ex Rel. Johnson v. International Harvester Co.

Court of Appeals of Oregon

State Ex Rel. Johnson v. International Harvester Co.

548 P.2d 176, 25 Or. App. 9, 1976 Ore. App. LEXIS 1918

CourtCourt of Appeals of Oregon

DecidedApril 5, 1976

Docket400622E, CA 4742

StatusPublished

Cited by8 cases

This text of 548 P.2d 176 (State Ex Rel. Johnson v. International Harvester Co.) is published on Counsel Stack Legal Research, covering Court of Appeals of Oregon primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

State Ex Rel. Johnson v. International Harvester Co., 548 P.2d 176, 25 Or. App. 9, 1976 Ore. App. LEXIS 1918 (Or. Ct. App. 1976).

Pincite

Opinions

[11]*11SCHWAB, C. J.

In this suit in equity brought under the Unfair and Unlawful Trade Practices Act, ORS ch 646, the state’s complaint charged the defendant with misrepresenting the capacity of a truck, sold to one Valeu, in violation of ORS 646.608(1)(e) and (g).¹ The state sought (1) a civil penalty, (2) attorney fees, (3) an order that the defendant modify the truck so that it complied with defendant’s representations to Valeu, and (4) an injunction restraining defendant

" ** * * from representing that goods have characteristics or qualities that they do not have, and from representing that goods are of a particular standard, quality or grade if they are of another.”

The court found that the truck had been misrepresented but that the defendant had modified it to meet the representations prior to trial. The court awarded Valeu $500 pursuant to ORS 646.636² and ordered the defendant to pay costs and attorney fees, but refused to issue an injunction. The state appeals from that portion of the court’s decree denying the injunction.

The issue on appeal is: Does the Unfair and Unlawful Trade Practices Act make it mandatory for the court to issue an injunction in every instance where it finds that a defendant in a proceedings brought under the Act has committed a violation of the Act or is the [12]*12issuance of an injunction a matter of discretion?³ We hold that it is a matter of discretion.

We are persuaded by the rationale of Hecht Co. v. Bowles, 321 US 321, 64 S Ct 587, 88 L Ed 754 (1944). That case involved an action by the Price Administrator for an injunction to restrain defendant from violating the Emergency Price Control Act. The pertinent statute provided that upon a showing that a person had engaged in acts or practices in violation of the Act, an injunction "shall be granted.” Despite the quoted language the Supreme Court found room for judicial interpretation of the Act and held that the Administrator, having established that defendant had engaged in acts or practices violative of the Act, was not entitled as of right to an injunction. The court stated:

" * * * We are dealing with the requirements of equity practice with a background of several hundred years of history. * * * The historic injunctive process was designed to deter, not to punish. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private rieeds as well as between competing private claims. We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied * * 321 US at 329-30.

This language was quoted with approval recently in Rondeau v. Mosinee Paper Corp., 422 US 49, 95 S Ct 2069, 2077, 45 L Ed 2d 12 (1975).

ORS 646.632, considered separately or together with ORS 646.636, does not explicitly and unequivocally direct that an injunction issue in every instance where it is proven that an unlawful trade practice has [13]*13or is about to occur. We agree with the United States Supreme Court’s statement that if the legislature

* * * had intended to make such a drastic departure from the traditions of equity practice, an unequivocal statement of its purpose would have been made.” 321 US at 329.

Affirmed.

Free access — add to your briefcase to read the full text and ask questions with AI

[11]*11SCHWAB, C. J.

In this suit in equity brought under the Unfair and Unlawful Trade Practices Act, ORS ch 646, the state’s complaint charged the defendant with misrepresenting the capacity of a truck, sold to one Valeu, in violation of ORS 646.608(1)(e) and (g).¹ The state sought (1) a civil penalty, (2) attorney fees, (3) an order that the defendant modify the truck so that it complied with defendant’s representations to Valeu, and (4) an injunction restraining defendant

" ** * * from representing that goods have characteristics or qualities that they do not have, and from representing that goods are of a particular standard, quality or grade if they are of another.”

The court found that the truck had been misrepresented but that the defendant had modified it to meet the representations prior to trial. The court awarded Valeu $500 pursuant to ORS 646.636² and ordered the defendant to pay costs and attorney fees, but refused to issue an injunction. The state appeals from that portion of the court’s decree denying the injunction.

The issue on appeal is: Does the Unfair and Unlawful Trade Practices Act make it mandatory for the court to issue an injunction in every instance where it finds that a defendant in a proceedings brought under the Act has committed a violation of the Act or is the [12]*12issuance of an injunction a matter of discretion?³ We hold that it is a matter of discretion.

We are persuaded by the rationale of Hecht Co. v. Bowles, 321 US 321, 64 S Ct 587, 88 L Ed 754 (1944). That case involved an action by the Price Administrator for an injunction to restrain defendant from violating the Emergency Price Control Act. The pertinent statute provided that upon a showing that a person had engaged in acts or practices in violation of the Act, an injunction "shall be granted.” Despite the quoted language the Supreme Court found room for judicial interpretation of the Act and held that the Administrator, having established that defendant had engaged in acts or practices violative of the Act, was not entitled as of right to an injunction. The court stated:

" * * * We are dealing with the requirements of equity practice with a background of several hundred years of history. * * * The historic injunctive process was designed to deter, not to punish. The essence of equity jurisdiction has been the power of the Chancellor to do equity and to mould each decree to the necessities of the particular case. Flexibility rather than rigidity has distinguished it. The qualities of mercy and practicality have made equity the instrument for nice adjustment and reconciliation between the public interest and private rieeds as well as between competing private claims. We do not believe that such a major departure from that long tradition as is here proposed should be lightly implied * * 321 US at 329-30.

This language was quoted with approval recently in Rondeau v. Mosinee Paper Corp., 422 US 49, 95 S Ct 2069, 2077, 45 L Ed 2d 12 (1975).

ORS 646.632, considered separately or together with ORS 646.636, does not explicitly and unequivocally direct that an injunction issue in every instance where it is proven that an unlawful trade practice has [13]*13or is about to occur. We agree with the United States Supreme Court’s statement that if the legislature

* * * had intended to make such a drastic departure from the traditions of equity practice, an unequivocal statement of its purpose would have been made.” 321 US at 329.

Affirmed.

Cite This Page — Counsel Stack

Bluebook (online)

548 P.2d 176, 25 Or. App. 9, 1976 Ore. App. LEXIS 1918, Counsel Stack Legal Research, https://law.counselstack.com/opinion/state-ex-rel-johnson-v-international-harvester-co-orctapp-1976.

Opinions

Related

Cite This Page — Counsel Stack