THE NG KA PY CASES

• Decision Date: 19 March 1928
• Docket Number: No. 5208-5221.,5208-5221.
• Parties: The NG KA PY CASES (fourteen cases).
• Court: U.S. Court of Appeals — Ninth Circuit

24 F.2d 772 (1928)

The NG KA PY CASES (fourteen cases).

Nos. 5208-5221.

Circuit Court of Appeals, Ninth Circuit.

March 19, 1928.

Russell P. Tyler, Herbert Chamberlin, John L. McNab, Byron Coleman, and Timothy Healy, all of San Francisco, Cal., for plaintiffs in error.

Geo. J. Hatfield, U. S. Atty., and T. J. Sheridan, Asst. U. S. Atty., both of San Francisco, Cal., for defendant in error.

Before HUNT, RUDKIN, and DIETRICH, Circuit Judges.

DIETRICH, Circuit Judge.

With a possible exception later to be noted, these 14 cases are in their legal posture substantially identical, and a statement of the salient facts in the first will serve for all.

On October 25, 1921, the steamship Golden State arrived at the port of San Francisco from China, carrying as a part of her cargo 680 cases of a Chinese liquor called "Ng Ka Py," shipped in three lots from China to three consignees in San Francisco. As was at the time known to the collector of customs and other customs officials at the port of San Francisco, Ng Ka Py is intoxicating liquor within the definition of the National Prohibition Act (27 USCA), and there was no permit for the importation of this consignment. The liquors were landed on the dock in the customary way, where they lay a few days awaiting an application for their entry. No application having been received, they were taken to a customs bonded warehouse as unclaimed goods to be held until application, supported by the requisite permit, should be made for their entry. No such permit having been procured, the liquors were never entered, and never went into the possession of the consignees.

On December 16, 1921, and while they were in the customs warehouse the collector of customs formally "seized" them and declared them forfeited to the United States, in the method usually followed by customs officials in the case of illegal importations. The collector thus held possession of the liquors as forfeited goods and prohibited withdrawal thereof, and ever since that time they have been in San Francisco in the possession of the United States, acting through its collector of customs, except in so far as his custody may have been modified by the attachment of the United States marshal acting under process issued in this action. No search warrant was ever issued in respect to the liquors, nor has any one been prosecuted criminally for the illegal possession, importation, or transportation thereof.

This proceeding was brought to obtain a judgment of forfeiture and for the destruction of the liquors as being contraband under the National Prohibition Act. The claimant appeared, issue was joined, and a trial by jury ensued, resulting in a verdict for the government; whereupon it was adjudged that the liquors be forfeited to the United States and destroyed. The claimant brings error.

No question is raised touching the sufficiency of the evidence to show that the goods were and are "intoxicating liquors," or of the regularity or propriety of any proceeding had in the course of the trial. As concisely stated in the brief of plaintiff in error, the single point urged by him is that "the court was without power to order forfeiture or condemnation under the National Prohibition Act for illegal importation"; the specific contention being that, because the liquors were not seized under a search warrant, the court is without the power to entertain the action.

If it be conceded that the proposition finds a measure of support in certain language used in Ghisolfo v. United States (C. C. A.) 14 F.(2d) 289, it is to be noted that there no seizure at all had been made, by search warrant or otherwise, and there was wholly wanting the jurisdictional prerequisite of possession of the offending res. The language relied upon was therefore unnecessary to the decision and must be regarded as obiter. That the real point intended to be decided was that possession is a necessary prerequisite to the maintenance of such an action becomes clear upon reference to the citations, which with a single exception are pertinent only to that question.

The National Prohibition Act expressly declares (section 25 27 USCA § 39) that "it shall be unlawful to have or possess any liquor or property designed for the manufacture of liquor intended for use in violating this title or which has been so used, and no property rights shall exist in any such liquor or property," and further that, "if it is found that such liquor or property was so unlawfully held or possessed * * * it shall be destroyed, unless the court shall otherwise order." Hence, under the circumstances shown, the intoxicating liquors here in controversy were contraband and forfeitable. They never were in the possession of claimant, and in them he could have no property rights. Gallagher v. United States (C. C. A.) 6 F.(2d) 758. Th...