Petition for Writ of Certiorari — United States v. Commercial Credit Co.

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s+ Specification of error to be urged__--.-._.-...----- eee es

> - Reasons for granting the writ_,-_-.._.._...-....----------- 4

_ Appendix A (Statutes involved) __-........-_- ree acnnene. -

- Appendix B (Cases) -.-------.---------------------------- 9-21

oe CITATIONS

ni. Hanlon, §0 F. (2d) ee aateniaine 11

-Corriveau v. United States, 53 F. (2d) .736...--.--.--__- Ie -

a a> ah, OO. GP GOR... nn ncicninenuiiacmmenen 6 ae

General Motors. Acceptance Corporation, et al. v. The

"United States of America, No. 574.-.....--.-_-_____-- 4

—. e. — B sg 5 RR pereenenee ty amnern e B

Richbourg Motor Co. v. United States, 281 U. 3 , eon) a

Ruth Mildred, 47 F. (2d) 336.-.--.-..-.------...---.-- 10

Sebastopol, The, 47 F. (2d) 336__.--.-.<-...---------.-. 10

United States v. Buick Coupé (decicad Dec. 30, 1931 (Fla.). ~-14

United States'v. Ford Coupé Automobile; 43 F. (2d) na se

-, United States v. Hayes et al., 52 F. (2d) 977........------ 14

+ United States v>One Fargo Truck, 46 F. (2d) 171_.--.-.-- 3

United States v. One Reo Coupé Automobile, 46 F. (2d) 815. 13

United States v. One Studebaker Automobile, 45 F. (2d)° 430_ 9

” Btatutes:”

’ “National Prohibition Act, Title II, c. 85, 41 Stat. 305, —_

~ Sec. 26 (U. 8. C., Title 27, Sec. 40)...--..-_-- ashlee a

_ Revised Statutes— meee

Sec. 3061 (U. S. C., Title 19, Sec. 482)...---2.------ 6

‘Bee. 3062 (U. 8. C., Title 19, Sec. 483)---..--------- 6

108387—82——-1 (‘b ae é

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. athe Supreme out of heed Ses

OctoBER TERM, 1931

No. al aie! m

~UNFTED STATES OF AMERICA, PETITIONER |

ae v j v.

COMMERCIAL CREDIT CoMPANY, INC. .

PETITION FOR A WRIT OF CERTIORARI TO THE UNITED

‘STATES CIRCUIT COURT OF APPEALS FOR THE FIFTH

CIRCUIT :

The Solicitor General, on behalf of the United

States, prays that a writ of certiorari issue. to.re-

view the judgment of the Circuit Court of Appeals. ~

"for the Fifth Circuit entered December 2, 1931, re-

_versing the decrees of the District Court for the’

_ Southern District of Texas declaring the f6rfeiture

of three « utomobiles libelled under Sections 3061

and 3062 of the Revised Statutes (U. 8S. ©; Title

a 19, Secs. 482-483). The three cases weie consoli-

dated arid decided. together on one record in the

court below and i in each case the Commercial Credit te

(1) ‘:

es

.

2

Company was the intervening lien ‘claimant. - The.

3 opinion below (R. 73) is reported, in 53°F. (2d)

977. The jurisdiction of this Court is invoked

under Section 240°(a) of the J udicial Code: as

amended by the Act of February 13, 1925.

QUESTION PRESENTED ,

Does Section 26 of Title II of the National Pio.

hibition Act (U. S. C., Title 27, Section 40) pré-

vide the exclusive saielly for the forfeiture. of a

vehicle seized by customs officers while used in con-

ezaling and transporti ng intoxicating liquor im-

ported in violation ‘of R. S., Sections 3061 and

3062 t. : :

STATEMENT

Three vehicles, two De Soto automobiles and: one

Fargo Truck, were separately libelled by: the >

United States in-the Southern District of Texas

for alleged violation of Sections 3061 and 3062 of

_ the Revised Statutes.* (R. 6,35, 56.) In each libel

. it was charged that the vehicle was. seized while -

being used in concealing and transporting substan-

tial amounts of intoxicating liquors unlawfully. im- ys

ported into the United States. |

The respondent intervened as a lien claimant i in:

each of the three cases, filing answers and motions —

to dismiss. (R. 7, 36,58.) It pleaded that it had -

-- " geeured liens upon the several\ vehicles in good

faith, that it had no knowledge that they. would be

* The pertinent statutory provisions are set: forth in -

” Appendix A, pp. 68, ~—.

a

3,

put to an illegal use, and that the United States

could proceed for forfeiture. only under ms Na-

@ tional Prohibition Ack: uy

Jury trials were waived i in writing (R. 18, 46, 69),

ahd in due course the District Court made findings -

of\fact ‘(R. 13, 41, 63). In each case it found that

the vehicle was seized in the act of transporting

liquor which had been imported illegally into the.

United States, and that the several liens of the

claimant were acquired i in good faith and without

knowledge that the vehicle would be used in viola-

tion of law. But it. rejected the claimant’ s conten-

tion that the Government’s exclusive remedy , was

‘that.given by Section 26 of Title IT of the National,

Prohibition Act, and judgments of forfeiture wére

; accordingly entered.. (R. 18, 50, 69.) )

In only one of the cases—the first decided—did .

the District. Court deliver an opinion. (R. 47.) i

United States v. Pne Fargo Truck, 46 F. (2d) 171.

The claimant’s appeals in the three cases were

_consolidated in the Circuit Court of Appeals pur-

suant to stipulation, and thé cases docketed and .

considered as a single case. (R. 21-22.) That —

. court reversed the judgments of the. District Court.

Ss , | See ?

SPECIFICATION OF ERROR TO BE URGED

~ The. Circuit Court of Appeals erred in holding :

that Section 26 of Title II of thé National Prohibi-

tion’ Act provides the exclusive remedy for the for-

: feiture’of a vehicle seized by customs officers while - :

a X\ x at .

J f d ww & 7 7

et

Sein uged. in se concealment and tecsaciiebadien

-./ Of intoxicating liquor imported in ‘Viglatiqn of

eS ee R. Ss. Sections ‘3061 and 3062.

BEABONS FOR GRANTING THE WRIT. ca

“Tp Richbourg Motor Co. v. United States, : 281

“U. 8. 528, this Court held that Section 26, Title ao

. 4 the N ational Prohibition Act excluded the Govern-

ment from the: right to forfeit, under R. 8. Section

~ 3450, vehicles used inthe: removal or concealrnent of .

intoxicating liquor witkintent t to deprive the United

‘States of its taxes, if the vehicle was a at the time

transporting, intoxicating. liquor in violation of the —

Y, National Prohibition Act.

A great divergity of opinion | has arisen among “

-the lower Federal courts in respect of the applica-

* tion of-the decision im the: Richbourg « case to the

' forfeiture of vehicles and vessels under the cus-

toms and na igation laws where transportation fa

_ liquor in viola’ ion of the National Prohibition Act

is Yala involyed. (A Sypopsis of the decisions ap-

pears in Appe ndix B, pp. 9-21, infra.)

The question involved herein i is now before this

% Court i in General Motors Acceptance Corporation’

viU nited Siar No. 574, on certificate from the

ef Circuit Court of Appeals for the-Ninth Circuit. In

that case the libelled vehicles were seized at estab-

dished "ports of entry on the Mexican border after

* having transported liquor from Mexico into the

Ynited States. In the instant case none of the ve-

’ -Ricles had heen ysed in transporting the liquor into

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PENS

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"the United States. It is believed that these differ:

ences of fact make it desirable.that the instant case

be also considered by this; Court, so that it may: -

have before it several of the great variety of situa-

tions arising in these forfeiture cases. It is of °

major intportanoe to the Goyernment that the doubt

and confusion which now exists by reason ‘of the

divergent opinions in the lower courts. should, 86

far as possible, be definitely removed.

“Wherefore, it is respectfully submitted that the

petition should be granted.

ay THomas D. THACHER, |

Solicitor General.

‘Pesca, 1932,

~

APPENDIX bes

: Bn 2061 and 3062 of the Revised Statutes °

+ (U8. Code, Title 19, Sections 482 and (483)

eae * po. 3061. ‘Any of the officers or persons author-

“ized to board or search vessels: aay stop, search, and |

examine as well without as within their respective -

districts, any. vehicle,-beast, or person, on which or

| “whom he or‘they shall suspect there is merchandise _

\.. which is subject to duty, or shall have been intro- » -

duced into the United States in apy manner con- °

> law, whether by the person in possession or - :

_. charge, t by, in, or upon such-vehicle or beast, or

otherwise, 3 to search any trunk or envelope, .

2 wherever ‘ound, ie ch he may have-a reasonable

% PALE

gause to suspect, there-is merchandise which .was iS

: em er contrary to‘law; and if any such officer or

person so authorized shall find any peat me

dise on or.about, any such vehicle, beast, or pe

ee of in any such trunk or envelope, which he shall

reasonable cause to believe is ‘subject to: duty, r :

to have been unlawfully introduced into the United

States, whether by the person in possession or "

| charge, or by, in, or upon such vehicle, beast, or

otherwise, he shall seize and secure the same for |

SEC. 3062. Every such vehicle ané beast, or éither,

together with teams or. other motive power used in

"<_. eonyeying, drawing, or propelling such vehicle or

wey merghandise, and-all other, appurtenances, includ: .

_ ae oe |

PE ne

Ee a Tite” ot m “

or GES ees ‘ ; yk ae He & J

- genlment; anid all the equipage, trappings, ond. other

. ppurtenances of stich beast, team, or velwole, shall

~ ection 26, Title I, of the National Prohibition Act =

=" (Act of October 28, 1919, c, 85, See, 26, 41 Stat,

305, 815--U. 8, Code, Title 27, Sec. 40) the

_' ‘When the commissioner, his agsistante, jpspe> 4

| tors; of any officer of the law shall discover any pet- ee

“gon in the act of transporting im violation of the —

a law, inte . ting hie ofS in any Can j , p ne

4

* take posbestion Of the vehicle and team or automo :

-” bile, boat, aif or water eraft, or any other convey-

x ance, and shall arrest an'y person in charge thereof. Ses

ee Such officer shall at orice proceed against the person

-” . appested under ‘the provisions of this title in any

court having competent jurisdiction; but the said

_ yehiele or conveyance shall be returned to the

_ Owner upon-execution by him ‘of a good and valid

. “bond; with sufficient sureties, in a sum double the. -

value of the property, which said bond shall be ap- . ~

proved by said officer and shall be conditioned to

103887822

se |

e sebacts said isinaiine to the custody’ of said officer

- on the day of trial to abide the. judgment of the

_ court.- The court upon conviction of the person so ~*~

‘ . arrested shall order the liquor destroyed, and unless

‘good cause:to the contrary is shown by the owner,

shall order.a sale by public auction of the property -

seized, and the-officer making the sale, after deduct- .

ing the expenses of keeping the property, the fee

- for the seizure, and-the cost of the sale, shall pay all ~~

-' liens, according to their priorities, which are estab- -_

_lished, by intervention or otherwise at said hearing

or in other proceeding brought for said purpose, as -

__ being bona fide and as having been created without -

\ the lienor having any notice that the carrying ve-

“hicle was being used or was to be used for illegal ee

* trarisportation of liquor, and shall pay the balance. .

of the proceéds into the Treasury. of the United —

States as miscellaneous receipts. All liens against =

‘property ‘sold under ‘the provisions of this seetion ~~ .

shall be transferred from the ptoperty to the pro- *e

ceeds of the sale of the property.. If, however, no

- one’shall be found claiming the team, vehicle, water

_ or air craft, or automobile, the taking of the same, ee

with 9 description thereof, shall be advertised in

_ sOme newspaper published in the city or. county.

where taken or if there be no newspaper published .

in such city or county, in a newspaper having cir-

culation in the county, once a‘week for two weeks ~~

and by handbills posted in three public places near > ae

the place of seizure, and if no claimant shall appear _

within' ten days after the last publication of the ad-

vertisement, the property shall be sold and the pro-"

ceeds after deducting the expenses and costs shall>

be paid into the ‘Treasury of the United States as

miscellaneous receipts. ?

be

+ APPENDIXB ,

United States v. Ford Coupé Automobile, 43 F. |

Sue ». (2d). 212 (8. D. Fla.) pS OES

, The automobile in this case was: seized while

transporting merchandise (liquor) which had been

introduced: into the United State in violation of

Jaw. The driver was indicted for transportation-of

, . liquor in violation of the National Prohibition Act. -

- Subsequently, after the driver had forfeited his ap-

- pearanee hond and absconded, the United States . -

Attorney filed a libel for forfeiture against the ve-.

| }ficle under Sections 3061 and 3062 of the Revised

Statutes (U. 8. C., Title 19, Sections 482, 483). The -

- --gourt -held that the Government’s exclusive .

yemedy against the car was found in Section 26,

- "Pitle IL of the National Prohibition Act, and

. ordered the libel to be dismissed.

at United States v. One Studebaker Automobile, 45 F.

(2d) 430 (Aris.) Bike

The atitomobile in this case was seized in Arizona

in close’ proximity to the Mexican border while .

transporting smuggled liquor. The ggiver was

charged and eonvicted of violating Section 593 of

the Tariff Act of 1922 (U..8. C., Title 19, Secs.

496-497). Subsequent to ‘the termination of the

_. eriminal case the Government filed a libel: for the .

forfeiture of the vehicle under the provisions of

Sections. 3061 and 3062. of the Revised Statutes

hn re Re a

10

(0.8. C., Title 19, Secs. 482, 483). The Exporters -.

_.; Insurance Company intervened in the libel suit as a

lien claimant and contended that the libel-as filed

would not lie and that the Government’s exclusive ,

- . pemedy in rem was that defined in Section 26 of -

‘Title IT of the National Prohibition Act. The

court held that the forfeiture provisions of Sec-

_ tion 26 were exclusive under the facts and ordered

7

-_ the libel to be dismissed.

The Sebastopol, 47 F. (2d) 336 (8. D. N. y)

The Sebastopol, a British vessel, was seized while

transporting a large cargo of smuggled liquor in the

-waters of the port of New York. Her crew were ~

charged with conspiracy to violate the liquor laws

of the United States. The Government filed a libel

against the vessel, claiming the penalty prescribed ~

by.Section 584 of the Tariff Act of 1922 (U. 8.:C.,

Title 19, Sec. 486). This was a proceeding author-

ized under Section 594 of the same Act (U. 8. C.

. Title 19, Sec. 498). The Distriet Court held that

the Government’s exclusive remedy was under Sec-

tion 26 of Title II of the National Prohibition Act

and ordered the ‘dismissal of the libel. The case

is now pending in the Circuit Court of Appeals for

the Second,Circuit on the Government’s appeal.

“The Ruth Mildred, 47 F. (2d) 336 (S. D. N. Y.).

’ The Auxiliary Schooner Ruth Mildred, a vessel

licensed: under United States law for fishing, was

discovered transporting a cargo of intoxie¢ating liq-

uor in Long Island Sound and was seized therefor.

A criminal prosecution for conspiracy to violate the

liquor laws was instituted against. her master and.

er others unknown. The Government filed a forfei-

es

ll |

tute libel against the ship under Section 4377 of the. .

' Revised Statutes (U. 8. €., Title 46, Sec. 325): ‘The

District Court held that the libel could not be sus-

tained because the Government’s sole rights of for-

feiture were those declared in Section 26 of Title

It of the National Prohibition Act. The case is

- now pending in the Circuit Court of Appeals for tle

cs Second Circuit on the Government’ 8 appeal.

Colon v. Hanlon, 50 F. (2d). 353 (C. C. A. Ist)"

In this case the Motor Boat Norberta, a licensed

vessel of the United States, was seized while trans- -

porting. liquor within United States territorial

waters in Porto Rico. The:act.constituted a viola- _

tion of the provisions of her license. ‘The four men

who composed her crew were prosecuted for illegal

possession and transportation of liquor in violation _

of the National Prohibition Act. . The jury found

- them all ‘not guilty.” Before the criminal pro- |

. ceedings were terminated the Collector of Customs,

who had custody of the seized vessel, proceeded

against it summarily for forfeiture under the pro-

visions of Sections 607 and 609 of the Tariff Act of

1922 (U, S. C., Title 19, Sees. 514, 516), alleging

violation of Sécti 4377 of the Revised Statutes -

‘(U. S. C., Title 48, Sec. 325). In due time, no

claimant having appeared, the vessel was declared

forfeited and was ordered to be delivered to the

_. Customs for official use under the provisions of the.

. Act of March 3, 1925 (U. 8. C., Title 19; Sec. 522)..

After the acquittal in the criminal case Colon, the

owner of the boat, filed proceedings in the District ©

Court of Porto Rico, claiming that the admjnistra-

__ tive forfeiture of the -boat was nugatory, that the

Government’ 8 exclusive rights of forfeiture were

12

declared in Section 26, Title rat of the National Pro- .

"hibition Act, and asking the court to return the

"vessel to his possession. The District Court denied . |

the owner’s petition and the Circuit cian of

_ Appeals reversed on appeal. o |

Cérrivean v. United States, 53 F. (2d) 135.

‘yh (C. C. A. 1st).

+ Bwo American licensed vessels, the Overland and

_ the Alibi IT, were seized and libelled by the United

States for alleged violations of Section 4377 of the ._

Revised Statutes (U. 8. C.,-Title 46, Sec:-325), and

Section 453. of the Tariff "Act of 1930. (U. 8..C.,

Title 19, Sec. 1453). The evidence indicated that 7

ie they had been, engaged in the liquor smuggling busi-_

... ness, but they were not seized unitil the completion.

.. of their unlawful enterprise and no one was ar-

rested thereon in the act of transporting liquor.

The Circuit-Court of Appeals held that the provi-

sions of Section 26 of Title IT of the National Pro-

a hibition Act were mandatory wherever they could

be applied, but found that they were not applicable |

‘under ‘the facts of the two'cases. Decrees of for-

feiture were entered in favor of the United States. -

The Pilot, 43 F (2d) 491 (C. 0. A. 4th)

‘The Pilot. was seized: in the United States terri- ©

torial -waters+while transporting a cargo of ©

smuggled liquor.. She was a vessel of the United

_ States licensed for fishing. The crew of the vessel :

was indicted for violation of Section 593 of the

Tariff Act of 1922 (U. 8. C., Title 19, Secs. 496,

497),.and two members thereof were convicteds ag

The vessel was libélled for forfeiture under Sec- ~~

tion 587 of the. Tariff Act of 1922 (U.S. C., Title

19, See. 489) and ‘Bestion: 4377 of the Revised

‘Statutes (U. 8. C., Title 46, Sec. 325.) . It was con-

"tended by the owner of the Pilot that the Gov-

. ernment’s exclusive rights of forfeiture were those. -

defined in Section 26 of Title II of the National _

Prohibition Act, but this contention was rejécted —

by the Circuit Court of Appeals. The court or-

dered the forfeiture of the vessel under the libel -

as filed.

United States v. One eo Coupé ‘Avtoipobite, 46 F.

(2d) 815 (Mass.)

rs this case the vehicle was seized while contain-

ing smuggled liquor and was. libelled for forfeiture

by the United States for alleged violation of See-

' tions 3061 and 3062 of the Revised Statutes (U.S. __

C., Title 19, Secs. 482, 483). The driver was prose-

- euted under Section 593 (b) of the Tariff Act of

1922 (U. S. C., Title 19,, See. 497). The District:

+ Court held that the forfeiture provisions of Sec- ~

tion:26 of Title IL of the National Prohibitiom Act.

were not exclusive and authorized forfeiture under

the libel ag filed: ‘ The court appears td have been .

. of the view, however, that the vehicle was not seized, !

- while. it was transporting liquor. .

‘The Daisy T., 48 F. (2d): 870 (Del)

The Daisy T..was a licensed vessel which was

' seized while adrift in Delaware Bay laden with

liquor. No one was arrested. Libel for forfeiture ~

was filed by the United States, alleging violations

of several sections of. the. Tariff Act of 1930, the

= Internal. Reveriue Statutes, and the Navigation.

_ laws. Claimant.contended that, since there was evi-

oe - dence of liquor transportation, the forfeiture pro- -

~ Visions of Section 26 of: Title il ot ~ National

=

- 14.

Prohibition Act were exclusive and that the libel

should be dismissed. .The District Court held that

even though the facts did constitute.a violation of

the National Prohibition Act the Government was

_ Rot thereby precluded. from claiming forfeiture

' under the other statutes pleaded in the libel. The

. eourt decreed forfeiture of the Doasy T. under Seé-

tion 4377 of the Revised Statutes = S.C. , Tithe 46,

Sec. 325). /

United States v. Sheen rs 52 F. (24) 971 (E. D.

N.. ¥.) ie .

The American Yacht Surf was seized by the |

Coast Guard while transporting a cargo of intoxi-

cating liquor in United States territorial waters off — -

- Montauk Point, New York. Members of her crew, _

Hayes and others, were indieted in the Eastern

District of New York for conspiracy to violate the

liquor laws. A motion was made by the defend-.

ants to suppréss the evidence. Although the for-

ferture of the yacht was not in issue, the court ex-

. pressed the opinion, that the forfeiture provisions .

of Section 26, Title II, of the National Prohibition

Aet did not supersede or displace the forfeiture

provisions of the Tariff Act. —

". United States v. Buick Coupé (8. D. Fla.), decided 2

December 30, 1931, not yet reported, and set out

in fall below Con 7

Unrrep Stares OF AMERICA, LIBELLANT

vs.

Bom Cour, Engine N UMBER 2439476, RESPONDENT ’

'Sreum, District J udge:

In this proceeding, a by information of

libel, the United States/seeks the forfeiture of one.

a

- Buick coupé, invoking for that purpose the provi-

gions of the customs laws, Secs. 3061, 3062, Rev.

> " Btat. ;19 U.S. C. A. 482, 483.

fonnant Finance Corporation intervened as

_ claimant. The matter comes up for final hearing

. upon an agreed statement. of facts, from which the

following pertinent facts are found by the Court:

On October 1, 1929, one James Provenza, while

' driving a Buick eoupé over the highway bridge

- connecting the- City of St. Augustine, Florida, with _

_Anatasia Island, in St. Johns County, Florida, was -

stopped by customs patrol inspectors, who immedi-

_ ately searched said automobile and found therein a

: large quantity of imported whiskey fit for use, and

intended for use, for beverage purposes, upon a

which no duty had been paid, all of which the said —

Provenza acknowledged, and which liquor had been

unlawfully imported: apparently in violation of.

both the Tariff Act of 1922 and the National Prohi- i

bition Act. The liquor was imported, also, with —

intent to defraud the United States of taxes im- |

posed ‘thereon by law. Said - officers thereupon

‘arrested Provenza, seized thé automobile and de-

livered the latter tothe Collector of Customs of Gus

district, who: now holds the same.

Provensza was indicted upon two somite the first

count charging unlawful transportation contrary

to the National Prohibition Act, the second charg-

ing ‘concealment of unlawfully imported liquor .

contrary te—Sec. 593-b, Tariff Act of 1922, 19 .

U.S. C. A, Sec. 497. Provenza pleaded guilty to

the second count. What disposition was made of |

the first count does not appear.

The intervening claimant is the innocent owner

of a conditional sales contract, by which title to the

3061, 3062, Rey. Stat. (19 U. 8. C. A.'482, 483) ; Bee.

jo |

said aitomobile is reserved ‘to ‘said claimant, said

contract being now in defaujt and claimant entitled

. to possession of the one thereunder : as against

. Provenzg. G

Thus is presented the ‘much-debated question .

whether the United States, in seeking the forfeiture —

of a land vehicle, in these circumstances, must pro- _

ceed under Section 26 of the Natiqnal Prohibition

Act, 27 U. §. ©. A. 40, by which the rights of inno-

gent owners or lienors are saved, or whether, as has . »

been done here, the United States may proceed

under. the cust ms - -laws, Secs. 3061, 3062, Rev.

Stat.; 19 U. 8. Q. A. 482, 483, which take no notice -

of innocent owneys and liengrs. ~~

Fhe United States relied upon U. S. vs.. One Ford

Coupé, 272 U. 8. 321, 71 L..Bd. 279, 47 ALL. R.

-' 1026; U.S. vs. Qne Farga Truck, 46 Fed. (2) 171; —

U. &. vs. One Ford, 31 Fed. (2) 628. |

The claimant relies upon Richbourg Motor ‘Co.

vs. U. §., 281 U. 8. 528, 74 L. Ed. 1016; U. 8. vs.

Qne Whippet Sedan, 41 Fed. (2) 496; Colon’ vs.

- Hamlon, 50 Fed. (2) 353; U.S. vs. One Studebaker,

45 Bed. (2) 480;.0 . 8. ‘vs. Ford Coupé, 43 Fed. ae

_ (2) 232.

From these cases, aa jdhonn upon the subject,

including the recent decision in Commercial Credit

- Oo. ys. U. 8. (©. C. A. 5), No. 6221, decided De-.

cember 2, 1931, — Fed. (2) —, the following _ a

ciples are deducible, at least as to land vehicles;

Frest. There is an effective and distinct field of ~

operation a each of the forfeiture provisions of

the~ laws, the revenue laws, and the Na-

tional Prohibition Act, found, respectively, in Secs.

“ee

1

“3450, Rey. Stat. (26 U.S. C. A. 1181) ; and See. 26,

National Prohibition Act (27 DU. 8. C. A. 40),

Each is operative in its own field. Neither the rev- ;

enue nor the customs laws, in the respect mentioned, | ©

‘are repealed by Section 26 of the National Prohibi-

tion Act, but the latter ‘‘is in the nature of specific -

legislation which operates where it applies, hy way

. of exception’’ to the general customs and revenue

laws just mentioned. The mandatory provisions

of Section ‘26, National Prohibition Act, must be

followed where they apply. The latter must be ac- _

= -eorded an effective field of operation in harmony

.. with its purpose, as evidenced by both its terms and

ifp- legislative: history. Richbourg Motor Co. vs.:

“U. 8., supra; Commercial. Credit Co. vs. U.'S.

(C.C.A. 5) No. 6221, decided December 2, 1931, —

Fed. (2) —; United States vs. Qné Ford Coupé,

+ 992. Y 8. 921, 71 L. Ed. 279, 47 A. L. BR. 1025.

Seconn. The gominant character of the enter-

| prise in which’ the. vehicle is engaged when cap-

tured, to. be deduced from the facts‘of each case, is

the controlling test in determining the appropriate

procedural statute. U..§. vs. One Ford Coupé, —

— 272: U. §. 321, 71 L. Ed..279, 4A. L.. R. 4025; Fwo

Ford Coupés vs. U.§.(C.C. A.5),.No. 6008, decided -

November 10, 1931, — Fed. (2):—. As ‘was said by

way of illustration in the Richbourg Mator case,

” supra, ‘with the eriactment of prohibition there can

be few eases of illegal transportation which do not -

. involve the concealment of non-tax- paid liqnor.’’

On the other hand, as was said jn U. §. vs. Qne Reo

Coupé, 46 Fed. (2) 815, ‘‘it is difficult to conceive

| of any case Of smuggling where the element of

. transportation would not. have been at some time

present.”’

18 aa

_ Tutrep. If the paramount purpose of the enter-

‘ prise in which the vehicle is presently engaged __

when captured, is to move the situs of the liquor —

from one place to another, for which purpose the %

vehicle is primarily in use asa conveyance only, the

. dominant character of the enterprise is transporta- °

‘tion, and it is'the mandatory duty of the United .. -

- States to proceed under Section 26 of the National

~ Prohibition Act; 27 U.-8. C. A. 40.'*That section, . -

in the circumstances last mentioned, furnishes the

--. exclusive remedy.for forfeiture, a condition prece- —

- dent to which is the conviction of the offending atid

son under the National Prohibition Act. -This is _

_ true even though the liquor in question has an .

be antecedent history as duty or tax un-paid liquor,

| imported or manufactured contrary. to the customs

~or revenue laws above mentioned, and although

there ig concealment incidental to the transporta-

tion. Richbourg Motor Co. VS. U: S., supra; U. 8.

vs. One Chevrolet, 21 Fed. (2) 4T?, affirmed, 25 Fed. .

(2) 238; U.S. vs. One Studebaker, 45 Fed. (2) 430; .

rs Commercial Credit Co. vs. U.S. (C. C. A. 5), No.

| 6221, — Fed: (2) —. In the latter case the ‘liquors . ©

were. clearly of foreign origin aad unlawfully im- ©

ported, .but importation had been, fully aecom-.°

plished and pure transportation undertaken prior

. to capture, so it was held that the forfeiture must {

proceed under Section 26, National. Prohibition -

‘Act. . Inability, due-to circumstances, to prosecute

_- the gffender under the National Prohibition Act,

may not be fatal to a libel against the vehicle under.

the customs or revenue laws, if the facts: warrant

- such action. Commercial Credit Co. vs. U. S.;-just

cited; U. S. vs. Chevrolet Truck, 30.Fed. (2a) 830.

19.

© Fourts. If the person in possession of the ve- .

-hicle has been convicted of unlawful transportation _

under the National Prohibition Act,-Section 26 of ©

that Act (27.U. S. C. A. 40) mandatorily requires -

that the forfeiture proceed under that section, pre-

eluding a resort to the forfeiture provisions of

-.. .gither the customs laws or the revenue laws. Port

Gardner Inv. Co. vs. U. S., 272 U. 8. 564, 71 L. Ed.

412; Commercial Credit .Co. vs: U. S, 276 U. 8. 226,

"99.1, Ed. 541; Commercial Credit Co. vs: U. S.

. (C.C. A. 5), supra; U. 8. vs: One Ford Coupé, 43

“- Fed.. (2d) 212.

. . If the enterprise upon which the vehicle |

4s "presently epgaged when captured is essentially .

. the unlawful importation of liquor, or the unlawful

. facilitation or concealment of smuggled liquor, and

the enterprise has not lost its character as such, a

libel against the vehicle involved in such enterprise

may be grounded upon Secs. 3061, 3062, Rev. Stat.

(19 U. S.C. A. 482, 483). If there has been mere —

incidental and subordinate transportation solely in

__ furtherance of such concéalment, or in facilitation

‘of the smuggling, and as an element thereof; as dis-

tinguished from transportation for other purposes,

such incidental and subordinate facilitating trans-

portation will not defeat a libel under the customs

laws just mentioned, provided the enterprise ‘still

retains its primary and dominant character as an

- unlawful importation. In order, ‘however, to pre-

‘vail under the customs statiites, the Government

must bring its case wholly and-fairly within those

' statutes. U.S. vs. Cahili, 13 Fed. (2) 83; U.S. vs. .

One Reo Coupé, 46 Fed. (2d). 815; U. S. vs. One

Reo Sedan, 39. Fed. (2) 120; see also as to vessels

20 .

Alkane vs. U: S., 39 Fed. (2) 62, certiorari denied

281 U.S. 768, 741. Ed. 1175; The Pilot, 45 Fed.,(2)

491. . The same determinative principles would also -

apply i in cases of forfeiture brought under the reve-

mue Jaws, Sec. 3450, Rev. Stat. (26 U.S. C. A.1181), (44

where the dominant character ofthe enterprise is _-

the removal, deposit or concealment of liquor with

intent to deprive the United States of the tax -

thereon imposed by the revenue laws. '

See also with reference to the applicability. of

See. 3450, Rev. Stat., where the transportation of .

narcotics and other contraband i is involved, U.S. vs.

-M angano, 299 Fed. 492.

It is conceded that the liquors here in question

are of foreign origin, but how recently as to the e.

time of capture is ‘not shown. There is nothing to

“egnnect the vehicle with the importation, nor with .

: e subsequent concedlment, except the bare cir-

(comstae that it was proceeding northward on an —

xtensively travelled public highway, about three

or four miles distant from:the coast, with imported

liquors aboard it. Standing alone, that circum-

- stance is insufficient to connect the vehicle with the

importation.. Commercial Credit Co. Vs.- Uz Ba

supra.

’ Although the liquors » were probably. wiaaiadle F

~; imported originally, and were tax and duty unpaid,

the paramount ‘and dominant character of the en-

--terprise, when the vehicle was captured, was not _

concealment but was pure transportation, to which -

coricealment was merely incidental.. It is clearly a |

_ ease in which a person was ‘‘discovered in the act

of transpasting’’ in contemplation of Sec. 26,

J

21

NPA. , aS interpreted-in the Richbourg Motor C6.

oase, supra.

The fact .that the dviver pleaded guilty to an

' offense under the customs laws does not, standing _

_ alone, authorize a forfeiture under those laws, since

the facts otherwise show that the vehicle was en-

gaged in pure transportation. U..S. vs. One Chev---”

rolet, 21 Fed. (2) 477, affirmed 25 Fed. (2) 288. |

The libel ig dismissed, and the vehicle awarded

to the claimant: | :

ies

U. 6. GOVERNMENT PRINTING OFFICE: 1932