The opinion of the court was delivered by: WELSH
The United States of America brought this civil action against the defendants, Benjamin Kolsky and John Gallo, pursuant to the provisions of Section 26(c) of the Surplus Property Act of 1944. 58 Stat. 780 (1944), 50 U.S.C.A.Appendix, § 1635(c), repealed June 30, 1949, and reenacted as 63 Stat. 394 (1949), 40 U.S.C.A. § 489(c), to recover damages provided in Section 26(b)(1) of that Act for wartime fraud allegedly perpetrated by said defendants in the purchase of surplus property from the War Assets Administration. Defendant, Kolsky, has moved for summary judgment on the ground that the action is barred by reason of the expiration of the applicable five year statute of limitations. 28 U.S.C. § 2462.
The record discloses that the acts and practices complained of occurred during 1946 and that the action was commenced on December 30, 1954 -- clearly after the five year statute of limitations had expired, it is contended.
I. In opposition, the government's first contention is that the action is not for the recovery of a fine or penalty but for damages sustained and, therefore, the five year statute of limitations to which references has been made is inapplicable. The contention, we think, is invalid. The language of the Section (Section 26(b)(1)) of the Surplus Property Act under which damages are sought in this action and which is set forth below,
so clearly shows that a penalty was intended that a discussion thereon is deemed unnecessary.
II. Next the Government contends, and correctly we think, that the action is not barred for the reason that the War Suspension of Limitations Act, 18 U.S.C. § 3287,
kept it alive until December 31, 1954.
The defendant, Kolsky, concedes that if the War Suspension of Limitations Act, supra, is applicable to this action said action was timely brought for said Act gave the government eight years after the termination of hostilities within which it could bring an action for alleged wartime fraud such as here. The termination of hostilities of World War II was proclaimed by the President on December 31, 1946, by Presidential Proclamation Number 2714 (see Section 601 of the Appendix to Title 50 U.S.C.A.), Thus, the government had until December 31, 1954, to bring this action; it was brought on December 30, 1954, and is therefore timely.
Defendant, Kolsky, argues, however that the Act does not apply to the instant civil action since it applies to criminal actions only.
It is agreed that the prior wartime suspension acts applied only to criminal action. 42 Stat. 220; 56 Stat. 747. However, we think, the inclusion of civil actions was intended by the present Act. In the prior statutes Congress had used appropriate language to show that it had intended to make said statutes applicable to criminal offenses only. For example, it used the words, 'now indictable'. If it wished the applicability of the present Act to be limited again to criminal offenses only it could have used similar words. Congress did not, however, and it is our opinion that by failing to do so it thereby intended the Act to apply to civil offenses as well as criminal offenses.
We think it is of no benefit to the defendant, Kolsky, that the present Suspension of Limitations Act uses the word 'offense'; for, said word is not synonymous with the word 'crime'. If it had been the intent of Congress to make said Act applicable to criminal actions only, instead of using the word 'offense' it could have used such words as 'crime', 'criminal offense', etc.
III. In view of the foregoing opinion the motion of Benjamin Kolsky for summary judgment will be denied.
An appropriate order will be prepared and submitted.
Identical orders will be prepared and submitted in the companion actions of United States of America v. Benjamin Kolsky and Rudolph Sandler, Civil Action 18289,
United States of America v. Benjamin Kolsky and Jack Scolnick, Civil Action 18290, and United States of America v. Benjamin Kolsky and Raymond Bachrach, Civil Action 18293, in each of ...