United States v. 63,250 GALLONS OF BEER, ETC.

• Citation: 13 F.2d 242
• Decision Date: 28 April 1926
• Docket Number: No. 3307.,3307.
• Parties: UNITED STATES v. 63,250 GALLONS OF BEER, etc.
• Court: U.S. District Court — District of Massachusetts

13 F.2d 242 (1926)

UNITED STATES v. 63,250 GALLONS OF BEER, etc.

No. 3307.

District Court, D. Massachusetts.

April 28, 1926.

Harold P. Williams, U. S. Atty., and Bennett Sanderson, Asst. U. S. Atty., both of Boston, Mass.

David H. Keedy, of Springfield, Mass., for Mt. Tom Corporation.

BREWSTER, District Judge.

The government has brought proceedings for the forfeiture of intoxicating liquor and property designed for the manufacture of such liquor contained in the brewery plant of the Mt. Tom Corporation, located in Chicopee, in this district. The libel alleges that on December 19, 1925, the federal prohibition administrator for the state of Massachusetts seized, upon the premises of the Mt. Tom Corporation, the items of intoxicating liquors, containers, utensils, and property more particularly set forth in the schedule annexed to the libel. In this schedule are included engines, boilers, pumps, and other machinery which the government admits are so affixed to the real estate as to constitute what is known in the law as fixtures, and thus a part of the realty.

The Mt. Tom Corporation had a permit to manufacture beer by the so-called "dealcoholizing" process, which permitted it to manufacture beer containing more than one-half of 1 per cent. of alcohol by volume, and thereafter, and before sale, to reduce the alcoholic content to the limit prescribed by law. This permit did not expire until December 31, 1925. During the previous September steps were taken by the prohibition director looking to a revocation of the permit, and hearings were held, but never completed. The permit was never revoked but allowed to expire by its own limitation. On December 18, 1925, a search warrant was issued by the United States commissioner, by virtue of which a seizure was made on December 19, as alleged in the libel. The entire brewery plant was seized. The prohibition agent, named in the search warrant, remained on the premises during the day, and when he left guards were put in possession, and this possession was maintained until December 24, 1925, when possession was taken over by a deputy marshal, acting under a warrant and monition issued December 22 on the libel above mentioned. The property seized has remained in the possession of the deputy marshal, or his representatives, up to the present time. None of it has been removed from the premises where the seizure was made.

The Mt. Tom Corporation has filed a motion that the search warrant and all proceedings thereunder be quashed, and that the property seized and now held be returned to the claimant. It has also filed its claim and answer to the libel, praying that the libel be dismissed and property returned to the claimant.

The proceeding is before the court at the present time only on the claimant's motion to quash and for a return of the property seized. The validity of the seizure on the warrant is attacked on several grounds, which may be briefly stated in two propositions:

First, that the warrant on which the seizure was made is on its face invalid.

Second, that the execution of the warrant was wholly unlawful, in that (a) the officer executing the warrant exceeded his authority in seizing fixtures; and (b) that his seizure of movable personal property not classed as fixtures was illegal, for the reason that he did not remove, or make any attempt to remove, any of said property from the premises of the corporation, but elected to impound it on the premises.

I will first dispose of the less important objections made to the search warrant. It is urged that the warrant was issued upon insufficient affidavits. While some of the facts recited were remote as to time, and other facts were obviously not within the personal knowledge of the affiant, still enough is shown in the five affidavits submitted to the commissioner to justify him in finding that probable cause which the Espionage Act requires before a search warrant may issue. Act June 15, 1917, tit. 11, §§ 3-6, 40 Stat. 228 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, §§ 10496¼c-10496¼f); Steele v. U. S., 267 U. S. 498, 45 S. Ct. 414, 69 L. Ed. 757; Dumbra v. U S., 268 U. S. 435, 45 S. Ct. 546, 69 L. Ed. 1032.

The objection is also made that the property to be searched for and seized was not described in the search warrant with that degree of particularity which the Constitution of the United States and the provisions of the Espionage Act demand. Article 4 of Amendments; section 3, Act June 15, 1917. I think the warrant meets all requirements of the law in this respect. Steele v. U. S., supra.

The validity of the warrant is challenged upon other grounds, however, which are not so easily disposed of, because they present a fundamental question which may be thus stated: Is a warrant which directs the officer to search and seize property which is so affixed to the real estate as to become, in contemplation of law, a part of the realty, or, in other words, a fixture, a valid warrant?

In order to properly present a consideration of this question, it is necessary to recite more in detail the language employed in the search warrant. The warrant authorized and commanded the prohibition agents to seize and secure certain property located in a fourstory brick brewery building on premises of the Mt. Tom Corporation, which property was more particularly described in said warrant as follows:

"Intoxicating liquor and containers therefor, and certain property and articles designed to be used and used in the unlawful manufacture of intoxicating liquor, to wit, kettles, vats, tanks, pipes, washer, refrigerating machine, racking, and other apparatus and machinery usually found in breweries, and including dynamos, pumps, hose, pipe, engines, and boilers, and a quantity of mash, malt, hops, syrup, sugar and yeast."

It was conceded at the hearing that this description of the property to be seized was broad enough to include, and did actually include, property affixed to the real estate, which would be in law and in fact regarded as "fixtures" and a part of the realty. In this case, therefore, we have presented squarely for the first time in this circuit the question whether a warrant which directs and commands the officer to seize fixtures, such as machinery, engines, and other like property, is wholly bad.

If authority to seize such property on a search warrant is to be found, it must be found in the provisions of the Espionage Act or in section 25 of the Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½m). Beyond any doubt section 2 of the Espionage Act (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 10496¼b) contemplates searches and seizures of movable personal property only. It is argued by the government that all property designed for the manufacture of liquor intended for use in violation of the act, or which has been so used, is outlawed by section 25, and that therefore a right exists in the government to seize for forfeiture any such property, though it is affixed to the real estate, so as to become a part of it. This suggestion seems to have slight support in other jurisdictions. See U. S. v. Auto City Brewing Co. (D. C.) 5 F.(2d) 362; Daeufer-Lieberman Brewing Co., Inc., v. U. S. (C. C. A.) 8 F(2d) 1. But this contention cannot be sustained without doing violence to an opinion handed down in this district in the case of U. S. v. Nine 200-Barrel Tanks (D. C.) 6 F.(2d) 401, where Judge Morton clearly states that:

"Section 25 of the National Prohibition Act is to be read in connection with the Espionage Act, which it incorporates. It relates to property which is movable, and can be disposed of as movable property by destruction or return, and which could be made the subject of replevin proceedings. Real estate and things annexed to real estate are not within its purview, but are to be dealt with under section 22 of that act, in connection with the use of the premises."

The same conclusion has been reached in other jurisdictions. See Mellet & Nichter Brewing Co. v. U. S. (D. C.) 296 F. 765; U. S. v. American Brewing Co. (D. C.) 296 F. 772-777.

Running throughout the entire opinion in the case of U. S. v. Nine 200-Barrel Tanks, supra, is the...