Godat v. McCarthy

• Decision Date: 25 September 1922
• Docket Number: 1925.
• Citation: 283 F. 689
• Parties: GODAT v. McCARTHY et al.
• Court: U.S. District Court — District of Massachusetts

283 F. 689

GODAT v. McCARTHY et al.

No. 1925.

United States District Court, D. Massachusetts.

September 25, 1922

Nathan Ullian, of Boston, Mass., for petitioner.

Elihu D. Stone, of Boston, Mass., for defendant.

MORTON District Judge.

This is a proceeding to recover possession of intoxicating liquor seized from the plaintiff by the prohibition officers, and now in the possession of the federal prohibition director for this state. The facts are as follows:

The prohibition officers, accompanied by local police, demanded admission into a closed and locked garage hired by the plaintiff. This demand was made in the absence of the plaintiff upon the general caretaker of the premises. By direction of the landlord, he admitted the officers by means of a pass key. In the garage the officers found an automobile belonging to the plaintiff, and a box on the floor, in which were about 35 quarts of liquor. In one of the door pockets of the automobile was a bottle containing about a pint of whisky. Thereupon they seized the automobile and the box of liquor. While the automobile was being driven around the city by the officers, they found in it some 90 bottles more of whisky which, on the evidence before me, had been there at the time when it was seized and had been overlooked. The officers retained the automobile and the liquor.

This happened on December 6, 1920. From that day to this no proceeding has ever been instituted for the forfeiture of the liquor so seized, nor does it appear that any formal notice of the seizure was ever given to the plaintiff.

In the Six Carpenters Case, 8 Co. 146, it is said:

'When an entry authority, on license, is given to any one by the law, and he doth abuse it, he shall be a trespasser ab initio.'

In Kent v. Willey, 11 Gray (Mass.) 368, a horse and wagon which was employed in the illegal transportation of intoxicating liquors was seized by an officer without a warrant. The officer failed within a reasonable time to procure any warrant or to institute any proceedings for forfeiture of property seized. It was held that he could not defend the seizure and was liable as a trespasser ab initio. It was said that the seizure of property by an officer without adopting any legal means to enforce the forfeiture provided by statute, 'is contrary to elementary principles.' Bigelow, J.

In Russell v. Hanscomb, 15 Gray (Mass.) 166, a fish warden seized a seine which was being illegally used, but instituted no proceedings to forfeit it. There was apparently no direction in the statute that forfeiture proceedings should be instituted by the officer, but there was a statutory provision under which they could be brought. In an action against the officer to recover the value of the seine, it was held that he was a trespasser ab initio, and judgment was given for the plaintiff.

'Without such judicial proceeding, an owner might be stripped of his property, by an officer of the law and under color of the law,...