United States District Court, Eastern District of Pennsylvania
June 6, 1952
ARON-DREX REALTY INC.
The opinion of the court was delivered by: Kirkpatrick, Chief Judge.
This is an action brought under Title 38 U.S.C.A. § 694c-1 by
a veteran to recover the sum of $2,175, being three times the
amount charged in excess of the approved appraised value of a
house purchased by him through the defendant's agency.
The violation occurred in 1948, at which time there was no
statute in effect giving either the veteran or the United
States the right to sue for refund of the overcharge, either
single or treble.
The statute under which this action was brought was
enacted September 13, 1951, and provides "Whoever
knowingly * * * participates in a sale * * * to a veteran for a
consideration in excess of the reasonable value of such
property * * * shall * * * be liable for three times the
amount of such excess consideration * * *. In the event the
veteran shall fail to institute any action * * * within
thirty days * * * the Attorney General * * * may proceed
therewith * * *."
I am of the opinion that the statute should not be given a
retrospective effect, for the reason that to do so would
make it a violation of Article 1, Section 9 of the
Constitution, as an ex post facto law.
The decision of the Court of Appeals for the Third Circuit
in Porter v. Montgomery, 163 F.2d 211, makes it clear that
the provision for recovery of three times the amount of
overcharge by the United States is a penal provision and, as
such, ex post facto if construed to apply to offenses
committed before its passage. The conclusion that Congress
understood it as penal is somewhat strengthened by the last
paragraph that "The remedy provided in this section shall be
in addition to any and all other penalties imposed by law."
True, a suit by a veteran, at least so far as a recovery
limited to the excess is concerned, is not penal under the rule
of Porter v. Montgomery,
supra, but, if Congress intended one part of the statute to
be retrospective and another prospective, there should be
some indication of it in the Act. There is nothing in the
statute that shows an intention that any part of it should
be construed retrospectively. In fact, the natural and
ordinary rule of prospective construction is indicated.
The motion to dismiss is granted.
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