In re Alpern

• Decision Date: 03 March 1922
• Citation: 280 F. 432
• Parties: In re ALPERN et al.
• Court: U.S. District Court — Western District of New York

280 F. 432

In re ALPERN et al.

United States District Court, W.D. New York.

March 3, 1922

William J. Donovan, U.S. Atty., of Buffalo, N.Y. (Edward N Mills, Asst. U.S. Atty., of Buffalo, N.Y., of counsel), for the United States.

O'Connor Newton & Doyle, of Buffalo, N.Y., for petitioners.

HAZEL District Judge.

This is a petition for the return of a quantity of intoxicating liquor in bottles, an internal revenue book, and physicians' prescriptions in the possession of the petitioners, seized under a search warrant pursuant to the provisions of the National Prohibition Act (41 Stat. 305). The petitioner Gritz concededly is a licensed druggist engaged in partnership with one Alpern in business at Buffalo under the firm name of Alpern-Gritz Drug Company. The petition, which is not controverted, shows that on October 24, 1921, in accordance with law, the petitioners in their firm name applied for and later received from the Commissioner of Internal Revenue a permit and authority to sell and dispense intoxicating liquors under the provisions of the National Prohibition Act. On January 20, 1922, while the permit was in full force and effect, the United States commissioner issued a search warrant on information that the petitioners had sold liquor illegally. Federal Prohibition Agent Christal was authorized to search the drug store of petitioners, which was the place specified in the permit, and there seize all intoxicating liquors discovered therein. Pursuant thereto the property above specified was taken and is now in the possession of the local prohibition agent.

It is now contended that the search and seizure were in violation of the National Prohibition Act; that the search warrant was void, and the United States Commissioner was without authority in law to issue the same. This contention involves the construction of title 2, Secs. 2-25, of the National Prohibition Act, and comparison with the Act of June 15, 1917 (Espionage Act, tit. 11 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 10496 1/4a-10496 1/4v)) to which section 25 refers. Section 2 of title 2 of the National Prohibition Act provides as follows:

'Sec. 1014 of the Revised Statutes of the United States is hereby made applicable in the enforcement of the act. Officers mentioned in said section * * * are authorized to issue search warrants in the method provided in title XI of the Act approved June 15, 1917.' In section 25 of title 2 of the National Prohibition Act it is provided:

'A search warrant may issue as provided in title XI of public law numbered 24 of the Sixty-Fifth Congress, approved June 15, 1917, and such liquor, and containers thereof, and such property so seized shall be subject to such disposition as the court may make thereof. If it is found that such liquor or property was so unlawfully held or possessed, or had been so unlawfully used, the liquor, and all property designed for the unlawful manufacture of liquor, shall be destroyed, unless the court shall otherwise order.'

By section 1 of title 11 of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4a) a search warrant may be issued by a judge of the United States District Court or by a United States commissioner for the district wherein the property sought is located, and section 16 (section 10496 1/4p) reads:

'If it appears that the property or paper taken is not the same as that described in a warrant or that there is no probable cause for believing the existence of the grounds on which the warrant was issued, the judge or commissioner must cause it to be restored to the person from whom it was taken.'

The above provisions relating to the disposition of liquor or property taken, 'designed for the manufacture of liquor,' or 'property or paper taken,' are apparently conflicting, for in the one it is subject to disposition or destruction by the court, while in the other the judge or commissioner must cause the property to be returned to the person from whom it was unlawfully taken. It is true that section 25 of the Prohibition Act, read in connection with section 1 of title 11 of the Act of June 15, 1917 (Espionage Act), vests the District Judge and United States commissioner for the district where the property is located with the power to issue search warrants and to vacate the same. This power under section 25 is, I think, limited to such issuance and vacation, and does not include the disposition or return by the commissioner of any liquor unlawfully seized or found to have been unlawfully possessed or used. That section specifically provides that, the 'property so seized shall be subject to such disposition as the court may make thereof * * * and shall be destroyed, unless the court shall otherwise order. ' This enactment as to disposition or destruction by the court supersedes section 16 of title 11 of the Espionage Act, relating to the return of property by the judge or commissioner.

The case of Francis Drug Co. v. Potter (D.C.) 275 F. 615, is direct authority for this construction. There the question arose in a proceeding to punish the Prohibition Director for contempt in failing to obey an order of the United States commissioner to return liquor unlawfully seized. Judge Morton held that the commissioner did not have the power to order the return of the liquor, and he said:

'Both the Espionage Act and the Prohibition Act contemplate the possibility that property may be seized which ought not to have been seized. The Espionage Act gives the Commissioner who has issued the search warrant the power to cause such property 'to be restored to the person from whom it was taken.' The Prohibition Act provides that 'property so seized shall be subject to such disposition as the court may make thereof.' The latter is the later enactment, and refers specifically to property seized under the Prohibition Act. As to such property it supersedes, I think, the broader provision of the Espionage Act.'

It is however, contended by the...