criminal case since the imposition of treble damages often times is sufficiently burdensome to deter potential violators and to punish actual violators.
Law enforcement generally is for three purposes: To punish the offender, to deter potential violators from commission of a similar crime, and to subject a person to such confinement as might be deemed advisable to train and help him to re-adjust himself so that he can return to his place in society and the community. Although authority exists to impose treble damages, the sum exacted from a violator is in a majority of instances greatly disproportionate to the actual loss sustained or the overcharge made, and this situation carries all the earmarks of a penalty rather than damages.
The fact that the sum is to be recovered in the nature of a civil action, does not determine the nature of the exaction. Hepner v. United States, 213 U.S. 103, 29 S. Ct. 474, 53 L. Ed. 720, 27 L.R.A.,N.S. 739, 16 Ann.Cas. 960.
It is true that penalties are of many types and are elastic in meaning, sometimes uncertain, and found to be varied. There are penalties recoverable in vindication of the public justice. There are other penalties designed as reparation to sufferers from wrongs. It appears to me that the treble damage provision is a penalty 'designed as reparation to sufferers from wrongs,' and that its motivating purpose is to protect the public at large from inflationary tendencies. Bowles, Price Administrator, v. Seitz, et al., D.C., 62 F.Supp. 773, 774.
It has furthermore been held that in an action for treble damages, a defendant cannot be required to give evidence viva voce or to produce his private papers, since to so require would deny the defendant his constitutional rights under the provisions of the Fourth and Fifth Amendments. Bowles, Price Administrator, v. Amato et al., D.C., 60 F.Supp. 361.
If Congress had provided that recoveries under the provisions of the Emergency Price Control Act were to be considered compensatory or liquidating damages, such a declaration would be controlling in the instant case, and the right to substitute the representatives of said estate would be definite.
It, therefore, appears that the provisions as to treble damages should be read in the light of the purpose of the statute, and of the enforcement of said provisions. It appears to me that the intrinsic nature of the enforcement provisions of said Act, and the purposes for which it was enacted, carry the mind to no other conclusion than the fact that the treble damage provision was a penalty rather than liquidating damages or compensation.
In the case of Bowles, Administrator, v. Farmers Nat. Bank of Lebanon, Ky., reported in 6 Cir., 147 F.2d 425, it has been held that where an action has not been filed prior to death under the provisions of the Emergency Price Control Act, that such right of action, if any existed, abated with the death of the claimed violator.
The only distinction between the case just cited and the one before the Court for consideration is that in the present case the action had been filed prior to the death of the claimed violator.
It is very difficult to draw a distinction between a cause of action abating where it has not been filed prior to death, and a cause of action not abating which has been filed but which has not been adjudicated prior to death. I, therefore, find that it was the intent of Congress, in the enactment of the provision which provided for treble damages, to prevent the practice of selling above ceiling prices and that a penalty rather than damages is involved.
The motion of the Administrator for leave to substitute Laura Blair Montgomery and Charles B. Montgomery, administrators of the estate of Charles H. Montgomery, deceased, as party defendants is, therefore, refused.
An appropriate order will be filed with this opinion.
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