United States v. About 151.682 Acres of Land

• Decision Date: 18 November 1938
• Docket Number: 6580.,No. 6579,6579
• Citation: 99 F.2d 716
• Parties: UNITED STATES v. ABOUT 151.682 ACRES OF LAND IN McHENRY COUNTY, ILL. SAME v. JURSICH. SAME v. LOJK.
• Court: U.S. Court of Appeals — Seventh Circuit

99 F.2d 716 (1938)

UNITED STATES v. ABOUT 151.682 ACRES OF LAND IN McHENRY COUNTY, ILL.

SAME v. JURSICH.

SAME v. LOJK.

Nos. 6579, 6580.

Circuit Court of Appeals, Seventh Circuit.

November 18, 1938.

Alfred E. Roth, of Chicago, Ill., for appellants.

Michael L. Igoe, United States Attorney, and Daniel D. Glasser, Assistant United States Attorney, both of Chicago, Ill., Attorneys for Libellant-Appellee.

Elbert H. Loyd and Joseph H. Collier, Attorneys U. S. Treasury Department, both of Chicago, Ill., of Counsel.

Before EVANS, SPARKS, and MAJOR, Circuit Judges.

MAJOR, Circuit Judge.

No. 6579 is a libel action for the forfeiture of certain real and personal property, including a farm of 151 acres located in McHenry County, Illinois, a tractor and various stills and distilling apparatus used in the production of distilled spirits with intent to defraud the Government of taxes imposed thereon. The libel inter alia charged that the interests of claimants, John Jursich and Elinor Gladys Jursich in said real estate were forfeited because they knowingly suffered and permitted the business of a distiller to be there carried on or connived thereat; and because they knowingly suffered and permitted the premises to be used for ingress and egress to and from the illicit distillery situated thereon. 26 U.S.C.A. § 1184.

In view of the question which we regard as controlling, hereinafter discussed, there is no occasion to relate, in detail, the facts and circumstances. Briefly they disclose that John Jursich purchased the farm involved in 1933, taking title to the same in his daughter, Elinor Gladys Jursich, then 17 years of age. The farm is located about 2,000 feet from a public highway and is entered by a lane extending therefrom. Jursich and his family, shortly after the purchase of the farm, moved thereto where they engaged in farming until about March 1, 1937, at which time the farm was sold to one John W. Horn for the sum of $15,000, to be paid according to the terms of a contract for warranty deed executed by the parties. Shortly prior to this time, Jursich conducted a public sale of his livestock, farming equipment and other personal property and moved with his family to the City of Chicago. On April 22, 1937, officers of the Alcohol Tax Unit and other officers, armed with a search warrant, went to the farm where they found and seized in the barn a 1,700 gallon St. Louis type still, a 1,500 gallon recooking still, about 45,000 gallons of mash in ten vats, each with a capacity of 5,000 gallons, and still equipment including a steam boiler used to operate the distillery. Two men were found in the barn which housed the still and two others, who had been observed by the officers carrying supplies to the Jursich farm, were seen on an adjacent farm at the time of the seizure.

There is no claim by the Government, either in the allegations of its libel, or otherwise, that Jursich was the owner, possessor or had anything to do with the actual operation of the still, but it is charged that he connived at and knowingly suffered and permitted the business of a distiller to be transacted on said real estate and knowingly permitted the same premises to be used as a means of ingress and egress. There was attached to the libel a copy of the contract for warranty deed, and also an exhibit referred to as a farm lease between John W. Horn, lessor, and Wm. Gehrke, lessee, by which the latter acquired an interest as lessee to all of the land in controversy except ten acres on which was located the dwelling house and barn. The lease appears to be of standard form containing the usual terms and conditions, with reference to the cultivation of the farm. The purported lease, however, is not signed by the respective parties and nowhere in the record is it otherwise mentioned or considered, and there is nothing disclosed with reference to the purported lessee, Wm. Gehrke, other than it appears that a person by the same name was the owner of an adjacent farm.

Claimants answered the libel, disclaiming all knowledge as to the distillery and prayed to be restored to the ownership, custody and control of the forfeited property. The cause was submitted to a jury solely on the issue of knowledge, which was determined adversely to claimants, and after denial of motion for new trial a decree of forfeiture was entered. It is from this decree the appeal is taken. Numerous errors are assigned which, with the exception of the one hereinafter discussed, do not require more than passing notice. It is claimed the court erred in overruling claimants' motion for a directed verdict because of the insufficiency of the evidence to establish knowledge on the part of claimants. We find, however, the evidence bearing upon this question sufficient for the consideration of a jury and under well established authority, it is not within our province to retry an appropriate jury question. In fact, we are convinced from the record that the jury could not well have done otherwise than found the requisite knowledge. It is also claimed the burden was on the Government to establish its libel beyond a reasonable doubt. This contention is answered and disposed of adversely to claimants in U. S. v. Regan, 232 U.S. 37, 49, 34 S.Ct. 213, 58 L.Ed. 494, wherein the cases cited and relied upon by claimants are distinguished. We likewise find no error which could have harmed claimants in certain questions propounded by the court, in the cross examination of the claimant, Jursich, or in the court's charge to the jury.

There is a question, however, which we regard as important, the answer to which requires a construction of certain language found in Sec. 1184, upon which the libel is founded and which, so far as here pertinent, reads: "* * * and all the right, title, and interest of such person in the lot or tract of land on which such distillery is situated, and all right, title, and interest therein of every person who knowingly has suffered or permitted the business of a distiller to be there carried on, or has connived at the same; and all personal property owned by or in possession of any person who has permitted or suffered any building, yard, or inclosure, or any part thereof, to be used for purposes of ingress or egress to or from such distillery which shall be found in any such building, yard, or inclosure, and all the right, title, and interest of every person in any premises used for ingress or egress to or from such distillery, who has knowingly suffered or permitted such premises to be used for such ingress or egress, shall be forfeited to the United States."

To be more specific, the solution depends upon the construction of the following phrase of the paragraph just quoted "and all the right, title, and interest, of such person in the lot or tract of land on which such distillery is situated."

The position of the Government is aptly stated in its brief: "The statute does not limit the forfeiture to the distillery and the specific real estate upon which it is located. It does not limit the forfeiture to the part of the `lot or tract of land' used in connection with the carrying on of the illicit distillery business. The statute forfeits the `lot or tract of land' on which the distillery is situated, without any reservation or restriction whatsoever."

On the other hand it is claimants' contention that the forfeiture must be limited to the "lot or tract of land" used in connection with the carrying on of the business of a distillery and does not include such portions of the farm as are in no way related to or connected with such operation.

With the exception of one District Court case hereinafter discussed (U. S. v. Certain Piece of Land, 25 Fed.Cas. p. 366, No. 14,767), we are cited to no authority and our own research convinces us there is none where this question has been raised or decided, and this, notwithstanding the fact that the statute, either in its present or similar form, has been in effect since February 8, 1875. Many cases are cited by the Government which it is claimed lend support to its theory, foremost of which is U. S. v. Stowell, 133 U.S. 1, 10 S.Ct. 244, 33 L.Ed. 555. True, this is a leading case on the forfeiture of property under this statute, yet it throws little, if any, light on the instant question. The essential matter there decided was that the statute did not permit the forfeiture of land and buildings as against the right, title, and interest of those other than the distiller or of persons having consented to the carrying on of such business, or having knowledge of the same. The court did approve the forfeiture of the real estate described in the libel, but it is important to note, as stated in the opinion, page 11, 10 S.Ct. page 245: "The real estate was a single lot of land, part of which was covered by a building and sheds opening by doors into one another, and the rest of which was a yard connected with the buildings." The situation thus described is far different from the one here involved where a "tract of land" consisting of 151 acres is sought to be forfeited without any showing as to the part or portion of said land used or related to the distillery operation.

Next we come to the case of Norbriga v. United States, 1 Cir., 55 F.2d 146, in which the forfeiture was sustained, but the court in doing so said on page 149: "From the description of the premises, it is evident that the barn in which the still was found, garage and dwelling house were all located on a single lot of land designated as `Lot numbered eighty-eight (88) on that plat entitled "Samoset Plat."' The gas pipe that supplied gas for the still was connected with the gas pipe in the cellar of the dwelling house. As constructed, the still could not be operated without this house connection. The decree of the District Court properly included the entire lot with the barn, garage, and dwelling house thereon."

There is no comfort for the Government in this case — in...