Daeufer-Lieberman Brewing Co. v. United States
| Decision Date | 18 September 1925 |
| Docket Number | No. 3268.,3268. |
| Citation | 8 F.2d 1 |
| Parties | DAEUFER-LIEBERMAN BREWING CO., Inc., v. UNITED STATES. |
| Court | U.S. Court of Appeals — Third Circuit |
John W. Crolly and Benjamin M. Golder, both of Philadelphia, Pa., for appellant.
George W. Coles, U. S. Atty., and Francis B. Biddle, Asst. U. S. Atty., both of Philadelphia, Pa.
Before BUFFINGTON and WOOLLEY, Circuit Judges, and MORRIS, District Judge.
The Daeufer-Lieberman Brewing Company held a permit from the Bureau of Internal Revenue to operate a brewery in the city of Allentown, Pa. While it was operating under the permit, Gough, a prohibition agent, together with another agent, took samples of beer from barrels on the premises of the brewing company. State Policeman Austin and other state officers made purchases of beer at the brewery. All the samples had an alcoholic content of more than one-half of 1 per cent. by volume. These facts were shown in affidavits made by Gough and Austin, and a state search warrant was issued to the captain of the Pennsylvania state police on affidavit made by one Stout, alleging probable cause. Thereupon the state police seized the brewery as though by execution process. A federal search warrant was then issued to Connelly, general prohibition agent, on an affidavit by Gough, setting forth the nature of the samples taken from the brewery. Under this warrant a like seizure of the property was made. The state police then withdrew and delivered possession to the federal agents. Immediately afterward the United States filed a libel covering the beer, raw materials, and machinery of the brewery. The libel, issuing under section 25, tit. 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½m), and under sections 3340 and 3353 of the Revised Statutes (Comp. St. §§ 6146, 6160), alleged unlawful possession by the respondent of the property described therein, and that the beer was intended for unlawful sale, and the machinery was intended for the manufacture of beer to be sold unlawfully. Motions to dismiss the libel and quash the federal search warrant were denied. The court, however, set aside the return of the search warrant as showing an illegal service and execution, and ordered that the seized property be given back to the brewery upon its filing a bond conditioned upon the return of the property to the marshal in the event of judgment against it in the libel proceedings. Thereupon the brewing company gave a bond and regained its property. On issue joined, the case was tried to the court without a jury. The court, by its decree, found that the property described therein was designed for the manufacture of liquor intended for use in violation of title 2 of the National Prohibition Act, and ordered the marshal to destroy it. The respondent appealed, and has raised several questions of little merit, which we shall dispose of briefly before coming to one of serious concern.
The first question is whether the court erred in refusing the respondent's motion to quash the federal search warrant, urged on the ground that the warrant was invalid because based on insufficient evidence of probable cause. We think the evidence was sufficient, and hold that the permit under which the brewing company was operating did not protect it from search under a valid search warrant. Lipschutz v. Quigley (D. C.) 287 F. 395.
The next question is raised on the respondent's contention that the search warrant was invalid because it was addressed to, and executed by, a prohibition agent, and that a prohibition agent is not a civil "officer" within the meaning of article 2, § 2, of the Constitution of the United States and of the provision of the Espionage Act (40 Stat. 217), incorporated in the Prohibition Act providing for the enforcement of prohibition laws by "civil officers." This question is resolved against the respondent on the ruling by this court in Altshuler v. United States (C. C. A.) 3 F. (2d) 791.
The third assignment of error charges that the seizure was unlawful because made of property already seized by state officials and therefore in custodia legis. A question of this kind might arise in a conflict between state and federal officials; but in this case there was no such conflict. While state officers made the first seizure, they voluntarily surrendered the seized property to federal officers, and it was entirely out of the possession of the state officers when the libel was filed.
The fourth assignment of error was not argued, being in substance the same as the fifth, which we shall consider last.
The sixth assignment charges error to the court in admitting testimony of alleged illegal sales prior to the times averred in the libel. For the reasons which the learned trial judge indicated, we find no error here.
The seventh assignment relates to the proceeding by libel, followed in this and like cases, and charges that the proceeding is invalid because the National Prohibition Act does not provide for it. True, section 25 of the National Prohibition Act does not specifically prescribe that its provisions in respect to forfeitures shall be enforced by libel proceedings. Yet such proceedings have long been used to enforce federal statutes where property is sought to be forfeited or destroyed. The fact that the National Prohibition Act does not prescribe the proceeding by which to do the thing which the act requires shall be done does not invalidate the proceeding by libel when that proceeding is available and appropriate to reach and dispose of the offending res.
The eighth assignment charges error to the court for including in its decree the forfeiture of various properties as to which it alleges there was no evidence of improper or unlawful use, having reference particularly to the machinery and utensils of the brewery. The question raised by this assignment is answered by section 25 of the National Prohibition Act, which provides that property used or intended to be used in violation of the act shall be destroyed. The question whether the property here condemned was designed for such use was a question of fact, in the review of which we have found nothing which persuades us that the court was wrong.
Lastly, the question raised by the fifth assignment, as stated by the respondent in the questions involved, is in these words: "Whether the libel proceeding can be sustained in view...
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