Stork Restaurant Corporation v. McCampbell

• Decision Date: 19 January 1932
• Citation: 55 F.2d 687
• Parties: STORK RESTAURANT CORPORATION v. McCAMPBELL.
• Court: U.S. District Court — Southern District of New York

55 F.2d 687 (1932)

STORK RESTAURANT CORPORATION v. McCAMPBELL.

District Court, S. D. New York.

January 19, 1932.

M. Michael Edelstein, of New York City, for plaintiff.

George Z. Medalie, U. S. Atty., of New York City (Arthur H. Schwartz, of New York City, of counsel), for defendant.

PATTERSON, District Judge.

This matter comes up on application by the plaintiff for a temporary injunction. The bill of complaint shows that the plaintiff is a New York corporation engaged in the restaurant business at 132 West Fifty-Eighth street, New York City, and that the defendant is the United States prohibition administrator in this state. The jurisdiction of this court is invoked on the ground that the constitutional provision against depriving a person of his property without due process of law is being violated by the defendant under a wrongful claim of authority from the laws of the United States. The plaintiff then alleges on information and belief that on December 22, 1931, prohibition agents under the defendant's direction entered and took possession of the plaintiff's premises, made arrests for violation of the National Prohibition Law (27 USCA) and for violation of section 3242 of the Revised Statutes (26 USCA § 191), and are preparing to remove the plaintiff's fixtures, furniture, and chattels from the premises on the pretext that they are forfeitable under section 3453 of the Revised Statutes (26 USCA § 1185): further, that the search, seizure, and arrests were made without any search warrant or warrant of arrest and without probable cause; and that section 3453 had not been violated. The bill then goes on to allege that the removal of such property from the premises prior to the institution of any forfeiture proceedings will cause irreparable damage to the plaintiff because some of the furnishings are attached to the real estate and other articles would be broken in moving them away. The defendant is said to be insolvent. The relief demanded is an injunction staying the defendant from seizing and removing any of the plaintiff's chattels, furniture, or other property.

Upon this bill and upon the affidavit of one Thomas Healy, the plaintiff on December 23, 1931, obtained a stay and an order to show cause why an interlocutory injunction against removal of the property from the premises should not be granted. Healy's affidavit shows that he is the president of the plaintiff, but it adds nothing of substance to the allegations set forth in the bill. The statements of fact in it are for the most part merely on information and belief.

In opposition to the granting of any relief to the plaintiff pendente lite, the defendant submits the affidavits of two prohibition agents, together with his own affidavit. In the affidavits of the two agents, they state positively that they purchased intoxicating tax-unpaid liquor on the premises on several occasions prior to the seizure and arrests as well as on that occasion. The details of the purchases are set forth. These affidavits describe also the circumstances surrounding the arrests and seizure. The premises are described in detail, showing that on the first four floors there are barrooms, dining rooms, and a kitchen, with the usual equipment, and on the fifth floor employees' quarters. Seizure of any articles on the fifth floor is disclaimed. In his own affidavit, the defendant states that he intends to have the equipment and furnishings which were associated with the carrying on of the alleged liquor business removed to a storage warehouse, to be kept there until the question of their forfeiture shall be determined in a libel to be instituted as soon as removal and inventory can be completed. He further states that in removing and storing articles, all means within reason will be taken to prevent breakage, waste, and deterioration. He disavows any intention of removing anything in the nature of real estate and also any intention of destroying any property without proper court order directing such destruction. After the oral argument, a supplemental affidavit was also filed by the defendant, showing that under his appointment as prohibition administrator, dated August 30, 1930, he was authorized by the Attorney General to enforce the National Prohibition Act and also all laws having to do with the taxation of intoxicating liquors.

On the motion papers, therefore, the case is one where prohibition agents, having probable cause to believe that intoxicating liquors, tax-unpaid, were being sold on the plaintiffs premises in violation of law, seized the liquors and the furnishings and equipment connected with the selling of the liquors, and now threaten to remove such articles from the premises for storage until legal proceedings looking to their forfeiture shall be instituted and determined. And the single question is whether the owner, having immediately brought a suit in equity to enjoin the removal of the furnishings from the premises, is entitled to a temporary injunction against the removal of such property from the premises prior to the filing of a libel by the United States for forfeiture.

As a general proposition, the right of a public officer to seize personal property carries with it the right to remove the property from the premises. This is certainly true of a sheriff on attachment or execution, unless removal would result in destruction of the property. "When he seises, he may remove it for safe keeping, and this not only to give effect to the seisure, but for his own security." Catlin v. Jackson, 8 Johns. (N. Y.) 520, 548. See also Mills v. Camp, 14 Conn. 219, 36 Am. Dec. 488; Williams v. Powell, 101 Mass. 467, 3 Am. Rep. 396; Fullam v. Stearns, 30 Vt. 443; Grey v. Sheridan Electric Light Co., 19 Abb. N. C. (N. Y.) 152, 155. It must be fully as true in the case of an officer exercising the right of distraint or of seizure for forfeiture. The denial of power to remove seized articles to a place of security designated by law or selected by the officer would beyond doubt be an unwarranted restraint upon him and might seriously cripple the enforcement of the law. In fact, it is a trespass for the officers to remain on the premises longer than is necessary to remove the seized property, unless they have the owner's permission. See United States v. American Brewing Co. (D. C.) 296 F. 772, 777; Rowley v. Rice, 11 Metc. (Mass.) 337. It is plain, therefore, that such articles as the defendant had the right to seize on the plaintiff's premises he has the right to remove from the plaintiff's premises.

Under the National Prohibition Act, intoxicating liquors may be seized by prohibition agents as a step preliminary to proceedings for their forfeiture. So also as to property designed for unlawful manufacture of liquor and as to vehicles used for unlawful transportation of liquor. Sections 25 and 26 of title 2 of the act (27 USCA § § 39, 40). These are the limits so far as seizure for forfeiture is concerned. The furnishings and...