# Commonwealth v. Musser Forests, Inc.

> Supreme Court of Pennsylvania · November 25, 1958 · 394 Pa. 205

URL: https://www.frixlaw.com/law-library/cases/9763499

## Case

- **Full name:** Commonwealth, Appellant, v. Musser Forests, Inc.
- **Court:** Supreme Court of Pennsylvania
- **Decided:** November 25, 1958
- **Citations:** 394 Pa. 205; 146 A.2d 714; 1958 Pa. LEXIS 310
- **Precedential status:** Published
- **Opinion:** Dissent by Bell
- **Judges:** Jones, Bell, Musmanno, Arnold, Cohen
- **Cited by:** 53 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9763499

## How later opinions describe it (automated extraction)

- stating that the name by which clause is called not determi native as to whether it is a liquidated damages provision

## Opinion text

Dissenting Opinion by
Mr. Justice Bell :
On February 8, 1956, the Commonwealth instituted the present action seeking to recover over $490,000., representing three times the so-called “sale value” of seedlings and transplants purchased by a number of the defendants from time to time during the period *219 1937 to 1950. The Commonwealth’s action, which charged “a conspiracy to defraud the Commonwealth”, was clearly and unquestionably based upon the Forest Tree Seedling Act of May 5, 1927, P. L. 817, as amended 32 P.S. §453. That Act provided for the sale by the Department of Forests and Waters of forest tree seedlings and transplants to persons desiring to plant them. Section 2 required the buyer to agree “that if such trees . . . are sold . . .” the buyer would become liable to the Commonwealth “for the payment of a penalty * equal to three times the sale value of the trees . . . sold”.
The law has for centuries recognized that it is wise and necessary for the welfare and repose of society that every person should be secure, from claims and actions (even criminal actions, except murder) unless they are made or brought within a reasonable time. For his own self-protection, it is clear from the majority opinion, that a person must keep records and documentary evidence of transactions and (small) sales for 20 years, .and as against the Commonwealth, ** for 100 years. It seems to me that a construction of an Act which requires such a result is so unreasonable, impractical and unrealistic as to be absurd; What is the use of having Statutes of Limitations? What. is .the use of having an applicable Statute of Limitations, if it can be avoided and nullified merely by charging.that a conspiracy existed 20 years ago and then prove it only, if at all, by pretrial discovery of. defendants’ records (if they are still in existence)?.
Moreover, if the Commonwealth’s charges are true, defendants are guilty of the crime of conspiracy. *220 When this Court grants the Commonwealth in a civil case a right to pretrial discovery of defendants’ records, which will disclose what is both a civil and a criminal conspiracy, the cases hold that this is equivalent to compelling a defendant to be “a witnéss against himself in a criminal case” in violation of the Fifth Amendment of the Constitution of the United States, and an unreasonable search and seizure in violation of the-Fourth Amendment.
In Boyd v. United States, 116 U. S. 616 , where the question involved was whether in a civil action for forfeiture, based on fraud committed against public revenue, a defendant could be compelled to produce his papers, the Court, in its opinion, said (pages 631-632, 634-635) : “Now it is elementary knowledge, that one cardinal rule of the court of chancery is never to decree a discovery which might tend to convict the party of a crime, or to forfeit his property. And any compulsory discovery by extorting the party’s oath, or compelling the production of his private books and papers, to convict him of crime, or to forfeit his property, is contrary to the principles of a free government. It is abhorrent to the instincts of an Englishman; it is abhorrent to the instincts of an American. It may suit the purposes of despotic power, but it cannot- abide the pure atmosphere of political liberty and personal freedom .... If the government prosecutor elects to waive an indictment, and to file a civil information against the claimants — that is, civil in. form — can he by this device take from the proceeding its criminal aspect and deprive the claimants of their immunities as citizens, and- extort from them a production of their private papers, or, as an alternative, a confession of guilt? This cannot be. . . . As, therefore, suits for penalties and forfeitures incurred by the commission of offences against the law, are of this *221 quasi-criminal nature, we think that they are within the reason of criminal proceedings for all the purposes of the Fourth Amendment of the OonstitutioU, and of that portion of the Fifth Amendment which declares that no person shall be compelled in any criminal case to be a witness against himself; and we are further of opinion that a compulsory production of the private books and papers of the owner of goods sought to be forfeited in such a suit is compelling him to be a witness against himself, within the meaning of the Fifth Amendment to the Constitution, and is the equivalent of a search and seizure — and an unreasonable search and seizure — within the meaning of the Fourth Amendment.”
Boyd v. United States has been cited with approval by the Supreme Court of the United States in 73 cases and the language of the opinion, commencing with the words “As, therefore, suits for penalties . . .” has been quoted with approval in United States v. Zucker, 161 U. S. 475 , 479-480 and in Stone v. United States, 167 U. S. 178, 187 .
In Osborn v. First National Bank of Athens, 154 Pa. 134 , 26 A. 289 , there was an action of assumpsit to recover from the bank, as provided by an Act of Congress, twice the amount of usurious interest paid. This Court held (pages 136, 137) : “That the sums sought to be recovered are penalties, pure and simple, cannot be doubted, .... ‘The plaintiffs claim . . . arises from the defendant’s violation of a statute, remedial and penal, which gives the borrower the right to recover back from the bank twice the amount of illegal interest paid, for the twofold purpose of compensation and example, the recovery being a recompense to the one and a punishment of the other.’
“In the case of Boyle v. Smithman, 146 Pa. 255 , we held that in an action to recover penalties under a *222 ■státute, the defendant can neither be compelled to testify against himself, nor to produce, his books to be used" as . evidence against him.”
In Corry v. The Pennsylvania Railroad Company, 194 Pa. 516 , the Court approved Osborn v. First National Bank, 154 Pa., supra, and said (pages 519-520)': . . we held that no affidavit of defense could be required in an action of debt to recover a penalty, for the double reason that it' was substantially an action ex delicto, and that being an action to recover penalties, the defendant cannot be required to furnish evidence' against himself.”
• As'Judge Walter R. Sóhn (speaking for the lower Court), in an able, comprehensive opinion, convincingly said: “One of the earliest' American cases to be found on the subject of discovery is that of U. S. v. The Saline Bank of Virginia, 1 Peters 100 (1828), in which Chief Justice Marshall said: ‘This is a bill in equity for a discovery' and relief.' ' The defendants set up a plea in bar, alleging that the' discovery would subject them to penalties * under the statute of Virginia. ' ' "
“"‘Thé court below decided in favor of the validity of the plea, and' dismissed the bill. ’
“ ‘It-is apparent that, in every step of the suit, the facts required to be discovered, in.support of this suit, would expose the parties to danger. The rule clearly is, that a party is not bound to make any discovery which would expose him to penalties,, and this case ■falls within it/
“This rule enunciated in the Saline Bank case .takes root in the constitutional protection against self-incrimination.. It is, however, by no means restricted *223 to cases where a defendant either has been, or is likely to be, indicted for a criminal offense.
“. . . as late as 1950, our Superior Court invoked the rule and recognized that it applied to civil suits for the recovery of penalties as well as to purely statutory actions. In Commonwealth v. Rohanna, 167 Pa. Super. Ct. 338 (1950), Judge Arnold, now Mr. Justice Arnold of our Supreme Court, said: ‘. . . In a criminal or quasi-criminal proceeding, the defendant may not be called by the Commonwealth, as on cross-examination or otherwise, in violation of his constitutional privilege. It has even been held in a proceeding to recover a statutory fine or penalty that the defendant may take advantage of his constitutional privilege to refuse to give evidence against himself, and this though the action is brought on the civil side of the court: Philadelphia v. Cline et al., 158 Pa. Superior Ct. 179 , 44 A. 2d 610 ; 328 U.S. 848 . See also Commonwealth v. Tracey, 137 Pa. Superior Ct. 221 , 8 A. 2d 622 . . . .’
“In Dexter v. Walker & Lathrop, 7 Pa. Co. Ct. 274 (1889), we find a case which is most similar to the one at bar, even to the fact that it involved trees and so-called treble damages. The court there said: ‘The action here is trover brought under the Act of March 20, 1824, .to recover the penalty of treble damages for cutting and converting timber growing on lands the plaintiff claims to own. The pending application is for an order on the defendant to produce upon the trial certain books, etc., averred by the plaintiff to contain evidence pertinent to the issue. ... As we have seen, the pending action is really to recover a penalty in damages. . . . Yet in Hare on Discovery, 131, we find that a discovery will not be ordered, “if the answer of the defendant might be evidence tending to subject him to punishment by any judicial or competent authority, or to any penalty or forfeiture.” Then Story’s *224 Equity, §1494: “Courts of equity will not entertain a bill for a discovery to aid the promotion or defence of a suit which is not purely of a civil nature. Thus, for example, they will not compel discovery in aid of a criminal prosecution or a penal actionSo, also, Brightly’s Equity, §480. . . . But the case in hand is to recover the penalty of treble damages for cutting and converting the plaintiff’s timber trees. In such a case, it would appear, a discovery will not lie. The reason for the rule excluding a discovery in actions of a penal character would seem to be in harmony with the policy of our criminal jurisprudence, which will not require the person charged to produce evidence against himself. . . .’
“In Ladenburg, Thalmann & Co. v. Pennsylvania Railroad Co., 6 D.R. 453 (1897), where discovery was sought of the defendant, a corporation, the court said: ‘To the first rule there are two valid objections, the first being that as the action is for a penalty, the officers and employees of the defendant cannot be compelled to testify or produce its books at the trial ....
“ ‘The second objection is that the court will not permit a party to resort to this mode of proceeding for the purpose of fishing up a defence or making an attack upon the other party from its books and papers. . . .’
“A leading case on this subject is Boyle v. Smithman, 146 Pa. 255 (1891), where the plaintiff sued the defendant for a statutory penalty for failing to post certain statements respecting the operation of a pipe line business. In that case, the court said, at page 274: ‘The second assignment is to the refusal of the court to compel the defendant to produce his books in court, so that they might be used as evidence against him on the trial. The act of 1878 is highly penal. This action is in form a penal action. Its object is to punish *225 the defendant for disobeying the direction of the statute, by imposing penalties amounting to about eighty thousand dollars. The defendant could not be compelléd' to testify against himself as a witness, and for the same reason he cannot be compelled to aid in his own conviction by the. production of his boohs and papers. He had an unquestionable right to insist upon his privilege, and the court was bound to protect him in the enjoyment of it: Logan v. Railroad Co., 132 Pa. 403 .’ ”
When a party sues under a statute it takes the favorable provisions of the statute cum onere. We agree with the Court below that the facts alleged in the Commonwealth’s complaint are based, no matter how camouflaged, upon that statute, and that the action is penal in nature and is barred by the two year Statute of Limitations which is and has been the pertinent law of Pennsylvania since the Act of March 26, 1785, 2 Sm. L. 299, §6, 12 P.S. §44.
I would affirm the judgment of the lower Court which sustained defendants’ preliminary objections..
Italics throughout, ours.
I thoroughly disagree with the philosophy that our Commonwealth' continues to have all the immunities which were anciently attached to a Royal Sovereign.
For violation of a provision of the banking laws of Virginia.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9763499. Public record. Not legal advice.