Ghisolfo v. United States
| Decision Date | 07 September 1926 |
| Docket Number | No. 4795.,4795. |
| Citation | 14 F.2d 389 |
| Parties | GHISOLFO v. UNITED STATES. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Williams, Kelly & McDonald, of San Francisco, Cal., for appellant.
Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal.
Robert Duncan, of San Francisco, Cal., amicus curic.
Before GILBERT, HUNT, and RUDKIN, Circuit Judges.
This was a proceeding by libel to condemn a large quantity of intoxicating liquor and property designed for its manufacture. From a decree in favor of the libelant the claimant has appealed.
The proceeding was instituted under section 25 of title 2 of the National Prohibition Act (Comp. St. § 10138?m), which provides as follows:
The libel failed to allege a seizure of the property sought to be condemned under a search warrant or otherwise, and no such seizure was in fact made. For this reason it is contended that the libel failed to state a cause of action, and that the court was without jurisdiction. Jurisdiction to condemn or make other disposition of intoxicating liquor, or property designed for its manufacture, is not inherent in the courts. It is dependent upon statute, and the statute here in question confers no general jurisdiction in that regard. It simply provides that the outlawed property may be seized under a search warrant, issued as provided in the Espionage Act (Comp. St. §§ 10496La-10496Lr), and it is only "such property so seized" that is subject to the disposition of the court. Such is the plain language of the statute and such has been the construction placed upon it whenever called in question. United States v. Franzione, 286 F. 769, 52 App. D. C. 307; United States v. Specified Quantities of Intoxicating Liquors (C. C. A.) 7 F.(2d) 835; Daeufer-Lieberman Brewing Co. v. United States (C. C. A.) 8 F.(2d) 1; United States v. 419 Barrels, More or Less, of Malt Beverage, United States v. John F. Betz & Son, John F. Betz & Son v. United States (C. C. A.) 9 F.(2d) 1022. See also, United States v. Loomis (C. C. A.) 297 F. 359.
The industry of counsel has been rewarded by finding but one case to the contrary, and that is a District Court Case, which is conceded to be contrary to later decisions of the Circuit Court of Appeals of the circuit in which the court was sitting. The case referred to is United States v. 2615 Barrels, More or Less, of Beer (D. C.) 1 F.(2d) 500.
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