Davies Motors v. United States

• Decision Date: 12 November 1929
• Docket Number: No. 5889.,5889.
• Citation: 35 F.2d 928
• Parties: DAVIES MOTORS, Inc., v. UNITED STATES et al.
• Court: U.S. Court of Appeals — Ninth Circuit

35 F.2d 928 (1929)

DAVIES MOTORS, Inc., v. UNITED STATES et al.

No. 5889.

Circuit Court of Appeals, Ninth Circuit.

November 12, 1929.

Young & Young and De Forrest Home, all of Los Angeles, Cal., for appellant.

Samuel W. McNabb, U. S. Atty., and Harry Graham Balter and Emmett E. Doherty, Asst. U. S. Attys., all of Los Angeles, Cal., for the United States.

Before RUDKIN, DIETRICH, and WILBUR, Circuit Judges.

WILBUR, Circuit Judge.

The intervener and appellant sold the Willys-Knight roadster automobile, respondent herein, to one Hans P. Mortensen by a conditional sales contract under which it retained ownership of the automobile. At the time the automobile was seized by a government prohibition agent, September 27, 1928, the balance due on the purchase price was $896. The district attorney filed a libel under section 3450, Rev. St. (26 USCA § 1181), alleging that at the time the automobile was seized it contained 12 pint bottles of intoxicating liquor, which had been concealed therein with the intent to defraud the United States government of the taxes due thereon. The sole question presented by the appeal is whether or not, under the facts stipulated by the parties and found by the trial court, the rights of the intervener are forfeited under section 3450, or whether, being innocent of all complicity in the wrongful acts of Mortensen, it can invoke the provisions of section 26 of title 2 of the National Prohibition Act (27 USCA § 40).

It appears from the stipulation that, at the time the automobile was seized by Paul L. Mathias, prohibition agent, he had stationed himself in the rear of the Sequoia Hotel in Fresno, and saw Mortensen remove five pints of whisky from the respondent automobile. It is stipulated that the prohibition agent would testify that, when he arrived at the rear of the hotel to make the seizure, the Willys-Knight automobile was standing still, and at the time the seizure was actually made it was not in motion, and that Mortensen would testify that on the night in question, just prior to the seizure, he drove up to the back of the Sequoia Hotel in the respondent automobile in which the liquor was found.

Upon this stipulation the court found that at the time of the arrest the respondent vehicle was being used by Mortensen for the purpose of transporting liquor seized therein. On October 3, 1928, the prohibition agent swore out a complaint before the United States commissioner, in which he charged that Hans P. Mortensen did, on the 27th day of September, 1928, "unlawfully possess and transport 12 one-pint bottles of intoxicating liquor." On the 19th of November, 1928, an information was filed, charging the said Hans P. Mortensen with violation of section 3450, Rev. Stat. On the 21st day of November, 1928, Mortensen pleaded guilty to violating the criminal provisions of section 3450 of the Revised Statutes, and was fined $250 for the violation thereof.

The United States Circuit Court of Appeals for the Fourth Circuit has recently rendered an opinion under a similar state of facts, holding that a forfeiture under section 3450, Rev. St., was proper. In that case the facts were more favorable to the intervener than in this case, for the reason that there the prohibition officer stopped the offending automobile, which was being operated along the highway, and upon searching the car found "12 gallons of whisky." In that case the court said:

"An intervening petition claiming the car was filed by the Richbourg Motor Company, the innocent holder of an unsatisfied purchase-money lien thereon, but the District Judge ordered it forfeited, and the motor company has appealed. We think that the decree of forfeiture was clearly correct. U. S. v. One Ford Coupé, 272 U. S. 321, 331, 47 S. Ct. 154, 71 L. Ed. 279, 47 A. L. R. 1025; U. S. v. Commercial Credit Co. (C. C. A. 4th) 20 F.(2d) 519; General Motors Acceptance Corporation v. U. S. (C. C. A. 4th) 23 F. (2d) 799. The case at bar differs from the cases of Port Gardner Investment Co. v. U. S., 272 U. S. 564, 47 S. Ct. 165, 71 L. Ed. 412, and Commercial Credit Co. v. U. S., 276 U. S. 226, 48 S. Ct. 232, 72 L. Ed. 541, in that in those cases the persons in the automobiles which were proceeded against were prosecuted and convicted under the National Prohibition Act, and it was held that this precluded the government from resorting to proceedings under section 3450 against the automobiles. Here the United States attorney has elected to proceed against the occupants of the car, as well as against the car itself, under the revenue statutes." Richbourg Motor Co. v. U. S., 34 F.(2d) 38.

In so deciding that court followed its previous decision United States v. Commercial Credit Co., 20 F.(2d) 519, where it dealt with the subject at length, and also its decision in the case of Gen. Motors Acceptance Corp. v. U. S., 23 F.(2d) 799, 800, decided January 10, 1928, where it stated the rule by which it had been guided in these cases, as follows: "This court has held that an automobile may be seized for violation of section 3450, Revised Statutes, and proceeded against under section 26 of title 2 of the National Prohibition Act, or vice versa, and that the report or action of the seizing officers does not bind the government to an election as to which section may be used in the forfeiture proceeding."

The Circuit Court of Appeals of the Fifth Circuit, however, in United States v. Gen. Motors Acceptance Corp., 25 F.(2d) 238, 239, reached the opposite conclusion, as shown by the following quotation from its opinion therein: "* * * Assuming that it is possible to prove that one who uses a vehicle in the removal or for the deposit or concealment of untax-paid liquor has the necessary intent under section 3450 to defraud the United States of a tax which existing law neither requires nor permits to be paid, it is nevertheless true that, if a person be caught in the act of unlawfully transporting liquor in a vehicle, there is no authority of law...