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January 9, 1956



Warren, Black, Reed, Frankfurter, Douglas, Burton, Clark, Minton, Harlan

Author: Clark

[ 350 U.S. Page 148]

 MR. JUSTICE CLARK delivered the opinion of the Court.

Petitioner contends that this action brought by the Government to recover $2,000 on each of five counts of a complaint based on § 26 (b) (1) of the Surplus Property Act of 1944*fn1 places it twice in jeopardy in violation

[ 350 U.S. Page 149]

     of the Fifth Amendment. In an earlier proceeding it had pleaded nolo contendere to a five-count indictment bottomed on the same five transactions and paid fines in the aggregate amount of $25,000. In the present case the District Court granted the Government's motion for summary judgment, and the Court of Appeals affirmed, 218 F.2d 880. We granted certiorari, 349 U.S. 937, to resolve an asserted conflict between the decisions of the Courts of Appeals.*fn2

At the close of World War II the Government was faced with the problem of disposing of vast quantities of surplus war materials. A large part of this property, valued at many billions of dollars, was needed to satisfy the civilian demand caused by wartime shortages in consumer goods. To facilitate and regulate the orderly

[ 350 U.S. Page 150]

     disposal of this property, Congress passed the Surplus Property Act of 1944, 58 Stat. 765. The stated purposes of this statute included the re-establishment of returning veterans in business, agricultural, or professional life, the discouragement of speculation in surplus property, and the elimination of unusual and excessive profits to speculators. The concern of Congress for returning veterans is emphasized by its 1946 Amendment to the Act, 60 Stat. 168, which gave veterans a priority for the purchase of surplus property, second only to that of the Federal Government, and authorized the Administrator to assign the highest priority to veterans for the purchase of certain items. This legislation thus afforded veterans an opportunity to purchase goods not available elsewhere at a fair price and on good credit terms. The benefits were of great value to the millions of men and women returning to civilian life just after the war.

With this background in mind we may turn to the facts of the present case. In June 1947 the Rex Trailer Company purchased five motor vehicles from the War Assets Administration at Tinker Field, Oklahoma. Rex had only a non-priority right of purchase under the Surplus Property Act; but, by the fraudulent use of the names of five persons possessing veteran priority rights, it was able to purchase the vehicles. Admittedly, the terms of the statute were violated, but the record does not show petitioner's gain from the fraud. The United States limited itself to the recovery of the sum of $2,000 for each of the five overt acts alleged in its complaint.

Petitioner's sole contention is that § 26 (b) (1) provides a criminal penalty and, having once been convicted and fined for the transactions in question, it cannot again be subjected to punishment. The only question for our decision, then, is whether § 26 (b) (1) is civil or penal, for "Congress may impose both a criminal and civil sanction in respect to the same act or omission; for the double

[ 350 U.S. Page 151]

     jeopardy clause prohibits merely punishing twice, or attempting a second time to punish criminally, for the same offense." Helvering v. Mitchell, 303 U.S. 391, 399.

We conclude that the recovery here is civil in nature. The Government has the right to make contracts and hold and dispose of property, and, for the protection of its property rights, it may resort to the same remedies as a private person. Cotton v. United States, 11 How. 229. Liquidated damages are a well-known remedy, and in fact Congress has utilized this form of recovery in numerous situations. In all building contracts, for example, Congress has required the insertion of a liquidated-damage clause which "shall be conclusive and binding upon all parties" without proof of "actual or specific damages sustained . . . ." 32 Stat. 326, 40 U.S.C. § 269. Liquidated-damage provisions, when reasonable, are not to be regarded as penalties, United States v. United Engineering & Contracting Co., 234 U.S. 236, 241, and are therefore civil in nature.

In § 26 of the Surplus Property Act, Congress has provided three alternative remedies. The first provides a recovery of $2,000 plus double the amount of the damage sustained; the second permits a recovery "as liquidated damages" of twice the consideration agreed upon; the third permits the Government to recover the property and retain "as liquidated damages" the consideration it received. These alternative remedies are set out in three consecutively numbered subsections of § 26 (b). All three were recognized as civil remedies by Congress before the bill was passed,*fn3 and the conclusion is inescapable

[ 350 U.S. Page 152]

     that each was of the same nature and designed to serve the same purpose. Further, Congress provided in § 26 (d) that: "[the] civil remedies provided in this section shall be in addition to all other criminal penalties and civil remedies provided by law."

The case of United States ex rel. Marcus v. Hess , 317 U.S. 537, involved a provision of the False Claims Act, R.S. §§ 5438, 3490, 31 U.S.C. § 231, essentially the equivalent of § 26 (b) (1).*fn4 In Marcus, as here, the defendant had pleaded nolo contendere in an earlier criminal prosecution based on the same transaction. This Court rejected the petitioner's contention of double jeopardy and held that the statute involved was remedial and not penal, since it was unable to say that the provision for $2,000 plus double damages would "do more than afford the government complete indemnity for the injuries done it." 317 U.S., at 549. In concluding, it recognized that "[the] inherent difficulty of choosing a proper specific sum which would give full restitution was a problem for Congress." 317 U.S., at 552.

It is insisted, however, that the failure of the Government to allege specific damages precludes recovery here. But there is no requirement, statutory or judicial, that specific damages be shown, and this was recognized by

[ 350 U.S. Page 153]

     the Court in Marcus.*fn5 The Government's recovery here is comparable to the recovery under liquidated-damage provisions which fix compensation for anticipated loss. As this Court recognized in Priebe & Sons v. United States, 332 U.S. 407, 411-412, liquidated damages "serve a particularly useful function when damages are uncertain in nature or amount or are unmeasurable, as is the case in many government contracts. . . ." And the fact that no damages are shown is not fatal. Section 26 (b) (1) merely accomplishes the intended result of Congress by authorizing a separate proceeding for the recovery of a lump sum in damages.

It is obvious that injury to the Government resulted from the Rex Trailer Company's fraudulent purchase of trucks. It precluded bona fide sales to veterans, decreased the number of motor vehicles available to Government agencies, and tended to promote undesirable speculation.*fn6 The damages resulting from this injury may be difficult or impossible to ascertain, but it is the

[ 350 U.S. Page 154]

     function of liquidated damages to provide a measure of recovery in such circumstances. On this record it cannot be said that the measure of recovery fixed by Congress in the Act is so unreasonable or excessive that it transformed what was clearly intended as a civil remedy into a criminal penalty.


MR. JUSTICE FRANKFURTER concurs in the judgment substantially for the reasons given by him in his opinion in support of the Marcus decision. 317 U.S., at 553.

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