KOLLER v. UNITED STATES

A suit for damages under § 26(b)(1) of the Surplus Property Act is not a suit to enforce a civil fine, penalty or forfeiture and, therefore, is not subject to the five-year limitation of 28 U.S.C. § 2462. Rex Trailer Co. v. United States, 350 U.S. 148.

255 F.2d 865, affirmed.

PER CURIAM.

The judgment is affirmed. Rex Trailer Co. v. United States, 350 U.S. 148 (1956).

MR. JUSTICE STEWART, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE WHITTAKER join, dissenting.

I do not agree that disposition of this case is controlled by the decision in Rex Trailer Co. v. United States, 350 U.S. 148. Believing that § 26(b)(1) of the Surplus Property Act of 1944, 40 U.S.C. § 489 (b)(1), imposes a civil penalty, and that an action thereunder is therefore subject to the five-year limitation provided in 28 U.S.C. § 2462, I would reverse. Cf. United States ex rel. Marcus v. Hess, 317 U.S. 537; Erie Basin Metal Products, Inc., v. United States, 150 F. Supp. 561 (Ct.Cl.). See Priebe Sons v. United States, 332 U.S. 407.