Hammel v. Little

• Decision Date: 14 December 1936
• Docket Number: No. 6648.,6648.
• Citation: 87 F.2d 907
• Parties: HAMMEL v. LITTLE.
• Court: U.S. Court of Appeals — District of Columbia Circuit

87 F.2d 907 (1936)

HAMMEL v. LITTLE.

No. 6648.

United States Court of Appeals for the District of Columbia.

Argued November 11, 1936.

Decided December 14, 1936.

Alfred M. Schwartz and Maxwell A. Ostrow, both of Washington, D. C., for appellant.

Leslie C. Garnett, U. S. Atty., and John W. Fihelly, Asst. U. S. Atty., both of Washington, D. C., for appellee.

Before MARTIN, C. J., and ROBB, VAN ORSDEL, GRONER, and STEPHENS, JJ.

GRONER, J.

This is an appeal by Louis J. Hammel, plaintiff below, from a judgment upon a verdict directed by the trial court in favor of George M. Little, defendant below.

The parties will be referred to as they were designated below.

The original action was brought against Little and William R. Blandford, but Blandford having died before trial, the action was dismissed as to him. Blandford was at the time in question Deputy Prohibition Administrator for the District of Columbia; Little, a lieutenant of the Metropolitan Police Department.

In August, 1932, on the affidavit of another prohibition agent a search warrant was issued by the United States Commissioner directed to Little as Federal Prohibition Agent and commanding him to enter and search the premises of Hammel in the city of Washington and seize all intoxicating liquor found there. Little, accompanied by Blandford and certain prohibition investigators and agents, executed the warrant on August 30th and seized a considerable quantity of beer and wine, believing the same to be nontax-paid liquor under the applicable provisions of the revenue laws. They likewise seized under R. S. § 3453 (26 U.S.C.A. §§ 1620(a), 1621) certain personal property owned and used by plaintiff in conducting a bar and restaurant business in the premises. Subsequently a criminal prosecution was instituted by the United States against Hammel and two or three others, in which they were charged with the unlawful possession of intoxicating liquor and with the unlawful maintenance of a common nuisance under the Prohibition Act (27 U.S.C.A.). In October, 1932. Hammel and the others were found not guilty upon each count of the information, and three days thereafter all the seized property was returned to Hammel, no libel, information, or other proceeding for the forfeiture of the property having been at any time filed or begun by the United States.

In his declaration Hammel charged the defendants Blandford and Little with trespass to personal property worth $16,000, in that the same, while the property of the plaintiff and located in his place of business, was seized and taken possession of and carried away by the defendants and withheld from the plaintiff for a period of six weeks — when the property was returned. Blandford and Little filed a joint plea setting out at great length the facts on which they claimed entire justification for the seizure. There was a demurrer to the plea which was overruled, and the case (against Little) was then tried to a jury, which by the direction of the court found a verdict for the defendant.

Section 3453 of the Revised Statutes (title 26 U.S.C.A. § 1185, see 26 U.S.C.A. §§ 1620(a), 1621) provides as follows: "All goods, wares, merchandise, articles, or objects, on which taxes are imposed, which shall be found in the possession, or custody, or within the control of any person, for the purpose of being sold or removed by him in fraud of the internal-revenue laws, or with design to avoid payment of said taxes, may be seized by the collector or deputy collector of the proper district, or by such other collector or deputy collector as may be specially authorized by the Commissioner of Internal Revenue for that purpose, and shall be forfeited to the United States. And all raw materials found in the possession of any person intending to manufacture the same into articles of a kind subject to tax for the purpose of fraudulently selling such manufactured articles, or with design to evade the payment of said tax; and all tools, implements, instruments, and personal property whatsoever, in the place or building, or within any yard or inclosure where such articles or raw materials are found, may also be seized by any collector or deputy collector, as aforesaid, and shall be forfeited as aforesaid. The proceedings to enforce such forfeitures shall be in the nature of a proceeding in rem in the district court of the United States for the district where such seizure is made."

It is conceded on this appeal that by the provisions of the Prohibition Reorganization Act of 1930, 46 Stat. 427, and by the action of the Attorney General pursuant to that statute, Little was a prohibition officer and as such possessed the powers and authority and protection of a deputy collector of internal revenue. And plaintiff bases his appeal wholly upon the proposition that where property is seized by an officer of the United States as forfeited to the United States for violation of the revenue laws, but where the property is never proceeded against by the filing by the United States of forfeiture proceedings but is returned after the owner of the property in a criminal prosecution has been found not guilty of the charge — on which had he been convicted taxes would have been lawfully imposed and the property subject to forfeiture — the seizing officer is guilty of a trespass and it is no defense in an action brought for damages, in the absence of a certificate as provided by R.S. § 970 (28 U.S.C.A. § 818)¹, that he had probable cause for the seizure. Or, stated a little differently, plaintiff's position is that probable cause is never a justification for an illegal seizure unless it can be claimed by virtue of a certificate under the statute.

To sustain this position, counsel rely upon Gelston v. Hoyt, 3 Wheat. 246, 4 L.Ed. 381; The Apollon, 9 Wheat. 362, 6 L.Ed. 111; Averill v. Smith, 17 Wall. 82, 21 L.Ed. 613; The Conqueror, 166 U.S. 110, 17 S.Ct. 510, 41 L.Ed. 937; and Hall v. Warren, 11 Fed.Cas. p. 275, No. 5,952, 2 McLean 332.

Gelston v. Hoyt involved the seizure of the ship American Eagle by the collector of the Port of New York, acting by the direction of the President of the United States, on the ground that she was fitted out and armed and about to leave to be employed in the service of a foreign state to commit hostilities upon the subjects of another foreign state with which the United States were then at peace. After the seizure the United States instituted proceedings to condemn the vessel, and in the trial the federal District Court ordered the ship restored to her owners and denied a certificate of reasonable cause for the seizure. Thereafter the owners brought an action in trespass against the seizing officers for taking and converting the ship to their own use, and the officers on their part undertook to defend on the ground that the ship was fitted out and intended to be used against a friendly nation, and also that they took possession under the instructions of the President. The court in which the action was pending refused to receive any evidence in justification of the trespass, and, only actual damages being claimed, left the cause to the jury to ascertain the amount. On appeal to the Supreme Court, it was held that the decision of the District Court in the condemnation proceeding against the government and in favor of the claimant of the vessel, together with a denial of a certificate of reasonable cause, was conclusive that no forfeiture was incurred and that the seizure was tortious and it was further held that these questions could not again be litigated in any other forum. Nothing else was decided except that the pleadings failed to show that the order of the President to the collector was in his capacity as commander-in-chief of the armed forces of the country but, to the contrary, that the seizure was made by the ordinary civil means — and inferentially, as we assume, that the seizure was not jure belli.

In the case of The Apollon there was a seizure by the collector of customs of a foreign vessel, while she was lying in a river within the acknowledged territories of Spain, for violation of the customs laws. After the seizure admiralty proceedings were instituted to subject the ship to the payment of tonnage duty and the cargo to forfeiture, but upon the hearing the District Court awarded a decree of restitution of ship and cargo and refused to give a certificate of reasonable cause. The claimant then sued the collector in the District Court and obtained a decree for damages, and on appeal to the Supreme Court the decree against the collector was affirmed. Mr. Justice Story, who wrote the opinion, reaffirmed the holding in Gelston v. Hoyt that a decree of acquittal in a proceeding in rem for forfeiture (without a certificate of reasonable cause) is conclusive evidence in every inquiry before every other tribunal that there was no cause for seizure. This ruling was decisive of the case, but the opinion discusses at great length the question of when probable cause may be urged as a defense in seizure cases or — as stated in the opinion — how far the existence of probable cause can be inquired into or constitutes matter of defense in an action of trespass growing out of a seizure. And upon the language used in this discussion plaintiff largely relies. Mr. Justice Story said (at page 372 of 9 Wheat., 6 L.Ed. 111): "Some obscurity arose at the argument, from not distinguishing between the effect of probable cause, in cases of capture jure belli, and the effect in cases of municipal seizures. In respect to the former, no principle is better settled in the law of prize, than the rule that probable cause will not merely excuse, but even, in some cases, justify a capture. If there be probable cause, the captors are entitled, as of right, to an exemption from damages; and if the case be of strong and vehement suspicion, or requires further proof to entitle the claimant to restitution, the law of prize proceeds yet farther...