In re Jackson

• Decision Date: 29 November 1929
• Parties: In re JACKSON.
• Court: U.S. District Court — Northern District of New York

35 F.2d 931 (1929)

In re JACKSON.

District Court, N. D. New York.

November 29, 1929.

Hugh J. O'Brien, of Rochester, N. Y., for petitioner.

Oliver D. Burden, U. S. Atty, of Syracuse, N. Y. (B. Fitch Tompkins, Asst. U. S. Atty, of Syracuse, N. Y., of counsel), for the United States.

BRYANT, District Judge.

This is an application by the owner for release on bond of a certain airplane described as Waco No. 10 Land Biplane, libeled (as the court understands) for violation of section 593(a) and 593(b) of the Tariff Act of 1922 (19 USCA §§ 496, 497). The alleged violations are the smuggling of foreign bottles and liquors from Canada to a place in or near Ogdensburg, N. Y., and the concealing thereof after such importation. The plane was thereafter seized for forfeiture and is now held by the United States Marshal awaiting the determination of the libel.

Section 401 of the Tariff Act of 1922 (19 USCA § 231) classifies the airplane in question as a "vehicle." Section 938 of the Revised Statutes (Comp. St. § 1564 28 USCA § 751) must be construed as providing for bonding in cases where "vehicles" as well as "vessels" are seized "under any law respecting the revenue from imports, etc." This is clearly shown by sections 3095-3097 of the Revised Statutes (repealed by the Tariff Act of 1922) and the text of the 1922 act.

The collector of customs contends that the court is without power to release the plane in the instant case because of the limitations contained in section 941 of the Revised Statutes (28 USCA § 754). I cannot interpret section 941 as a limitation in this case. My interpretation coincides with the law, as stated in The Lynx II (D. C.) 14 F.(2d) 697, rather than as stated in The Lorraine Rita (D. C.) 6 F.(2d) 175. The fact that vehicles have long been released on bonds in this district when seized for violation of the revenue laws is an additional reason for my interpretation.

The collector of customs takes the position that the court should refuse to release on bond any and all vessels and vehicles seized under circumstances similar to the alleged facts in this case, because of the probability that they will again be used in an attempt to violate the Revenue Laws of the United States. This contention might receive serious consideration if the court upon condemnation had authority to order destruction of the property. Section 939 of the Revised Statutes 28 USCA § 752) provides that this airplane, if not released under bond, must, upon condemnation, be sold at public auction. In view of this mandatory provision for final disposition, I am unable to follow the reasoning presented. Refusal to release under bond means that the government holds the seized property under expense for a period ranging from a few to several months and then sells it in a deteriorated condition. The result is that it receives less for the property and pays more expense connected therewith. If released on bond the...