United States v. 1,250 Cases of Intoxicating Liquors

• Decision Date: 19 June 1923
• Docket Number: 241-243.
• Citation: 292 F. 486
• Parties: UNITED STATES v. 1,250 CASES OF INTOXICATING LIQUORS. THE HENRY L. MARSHALL.
• Court: U.S. Court of Appeals — Second Circuit

292 F. 486

UNITED STATES v. 1,250 CASES OF INTOXICATING LIQUORS.

THE HENRY L. MARSHALL.

Nos. 241-243.

United States Court of Appeals, Second Circuit.

June 19, 1923

Charles H. Hyde and Robert H. Elder, both of New York City, for appellant.

William Hayward, U.S. Atty., and John Holley Clark, Jr., and Francis A. McGurk, Asst. U.S. Attys., all of New York City.

Certiorari denied 263 U.S. . . ., 44 Sup.Ct. 38, 68 L.Ed. . . . .

Appeals from final decree in admiralty entered in the District Court for the Southern District of New York. The Marshall is a small vessel, formerly used as a fishing schooner, which in the summer of 1921 was sailing under British registry. In July of that year she obtained clearance from West End Bahama Islands, actually laden with a cargo of assorted liquors of an intoxicating nature, mostly whisky. She was given two clearances, both dated the same day, signed by the same collector of revenue, one of which stated that she had cleared for Halifax with the cargo above described, and the other that she had cleared for Gloucester, Mass., in ballast. The same collector furnished two bills of health similarly differing as to destination.

It was abundantly proven that the real object and only business of the Marshall was to peddle liquor along the coast of the United States. Particularly did she pursue her vocation while lying some nine or ten miles off Atlantic City, and there sent liquor on shore, pursuant to previous arrangement made in the United States, by motorboats. These small craft did not, so far as shown, belong to the Marshall or her owner they were certainly no part of the schooner's equipment. The Coast Guard vessel in the neighborhood, having learned of this business, boarded the Marshall more than three miles from the New Jersey coast, found that she had no manifest and had still on board the liquor seized under one of the libels at bar. The Marshall was thereupon taken in custody towed into New York harbor, and there proceeded against ut supra.

The libel for forfeiture of cargo is based on (1) violation of paragraph H, Sec. 3, of the Act of October 3, 1913 (Comp. St. Sec. 5526), conjointly with the National Prohibition Act (41 Stat. 305); and (2) violation of sections 2806-2809 of the Revised Statutes (Comp. St. Secs. 5503-5506). Forfeiture of the schooner is demanded in the second libel because of violation of Rev. St. Secs. 2872-2874 (Comp. St. Secs. 5563-5565), within the limits of divers enumerated ports or subports along the Atlantic coast. The penalties sought to be assessed against the schooner in the third libel rest upon alleged violation at divers times and places of Rev. St. Secs. 2867, 2814, 2809, 2774, and 2775 (Comp. St. Secs. 5555, 5511, 5506, 5470, 5471); procedure by libel being justified by Rev. St. Sec. 3088 (Comp. St. Sec. 5792).

The evidence overwhelmingly proved the summary statement above made. The District Court gave decrees for libelant under all three libels; it did not accept all the causes of action, but the rejection of those not accepted has not been made the subject of appeal. From the decrees entered claimant took these appeals.

Before ROGERS, HOUGH, and MAYER, Circuit Judges.

HOUGH Circuit Judge (after stating the facts as above).

The assignments of error in these three cases merely assert that the results reached below were wrong. Each libel sets forth several causes of action; but with respect to all but the 'penalty libel' the result would be the same, if any one of the causes of action be sustained. In the penalty case, decree is for the aggregate of penalties said to have been incurred at divers times and places; but every penalty allowed rests on some section of title 34, Rev. Stat. It follows that the decrees below are to be judged by our view of the applicability of two decisions, viz. United States v. Sischo, 43 Sup.Ct. 511, 67 L.Ed. . . . (May 7, 1923), and The Grace and Ruby (D.C.) 283 F. 475.

The point mooted in the Sischo Case so plainly affected these appeals that we delayed decision in order to be guided by the ruling of the Supreme Court. It is now authoritatively held that the language of Rev. St. Sec. 2766 (Comp. St. Sec 5462), does not mean that merchandise which cannot be lawfully imported is beyond the meaning of the several statutes contained in Rev. St. tit. 34. As applied to these cases, the Sischo decision teaches that intoxicating liquor designed for beverage purposes, and therefore...