United States v. American Brewing Co.

• Citation: 296 F. 772
• Decision Date: 15 February 1924
• Docket Number: 254.
• Parties: UNITED STATES v. AMERICAN BREWING CO.
• Court: U.S. District Court — Eastern District of Pennsylvania

296 F. 772

UNITED STATES v. AMERICAN BREWING CO.

No. 254.

United States District Court, E.D. Pennsylvania.

February 15, 1924

Francis B. Biddle, Sp. Asst. U.S. Dist. Atty., of Philadelphia, Pa Burt W. Andrews, Sp. Asst. U.S. Dist. Atty., of Washington D.C., and George W. Coles, U.S. Atty., of Philadelphia, Pa.

Ladner & Ladner, of Philadelphia, Pa., for American Brewing Co.

William A. Glasgow, Jr., Theodore F. Jenkins, Francis Shunk Brown William A. Gray, Francis J. McCarthy, George Russell, and Francis J. Maneely, all of Philadelphia, Pa., and Arthur L Shay, of Lancaster, Pa., for other defendants.

Before DICKINSON and McKEEHAN, District Judges.

PER CURIAM.

There are a number of these cases. They have been argued as one and will be disposed of in one opinion, as they raise general questions common to all.

These cases primarily concern themselves with the Volstead Act (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4 et seq.) and secondarily with the revenue statutes. The latter are called in merely to buttress the law prohibiting traffic in intoxicating liquors. The broad basis of the law is that any traffic which is being so conducted as to threaten the common weal may be regulated, or, if need be, suppressed. The libel proceedings were instituted and writs of attachment issued upon the theory that all physical instrumentalities concerned in an infraction of the law become subject to seizure confiscation, and forfeiture. This raises the first and broadest question. There were also search warrants issued. This brings into question the regularity of their issuance and execution. One question raised is a general one, both because it is common to all the cases and because also it affects a general practice which has been followed in all search warrant proceedings.

The first question is the broad one of the right to seize property to be followed by a finding of confiscation and forfeiture. There are two considerations which add to the importance of the question. One is that it is doubly exasperating to any lover of law and order that persons who are given the privilege, in the form of a permit to do business, on the faith that they would observe the law, flaunt their violation of it almost in the face of those who are charged with the duty of enforcing it. The other is the claim of power given to any enforcement officer to seize thousands of dollars worth of property whenever he thinks the law has been violated, and to deprive the owners of its use until the question of violation can be determined.

This right of forfeiture under the provisions of the Volstead Act must be boldly avowed and the question of its legality squarely met and defended. There is little, if anything, gained by seeking to bolster it up with the revenue statutes, otherwise than by way of analogy and to supply modes of procedure. Resort to the expedient of having the enforcement officer, who serves the warrant, given an eleventh hour admission into the ranks of revenue agents or adding to the affidavit, which would support the warrant under the Espionage Act (40 Stat. 225), another affidavit in the verbiage of the revenue statutes, smacks too much of the proverbial grasping at straws, and is too suggestive of the frantic scrambles of one who is lost in darkness and knows no way into the light.

We are clearly of opinion that for several reasons the provisions of the internal revenue laws do not apply to any of these cases, and that these libels and search warrants must stand or fall under the authority of the National Prohibition Act. The authorization of warrants of search and seizure under the internal revenue laws and sections 3340 and 3450 of the Revised Statutes (Comp. St. Secs. 6146, 6352), dealing with the forfeiture of property, are solely in aid of the collection of taxes. But the so-called tax imposed by section 608 of the Act of February 24, 1919 (Comp. St. Ann. Supp. 1919, Sec. 6144bb), re-enacted in 1921, is clearly a penalty and not a tax. The decisions of the Supreme Court are conclusive as to this. Helwig v. U.S., 188 U.S. 605, 23 Sup.Ct. 427, 47 L.Ed. 614; Lipke v. Lederer, 259 U.S. 557, 42 Sup.Ct. 549, 66 L.Ed. 1061; Regal Drug Corporation v. Wardell, 260 U.S. 386, 43 Sup.Ct. 152, 67 L.Ed. 318.

Again, none of these warrants or supporting affidavits aver any facts showing, or tending to show, any violation of the internal revenue laws. None of them state that a tax is due, still less that any tax due is unpaid. Furthermore, none of these warrants were issued on affidavits of internal revenue agents. The affidavits are by prohibition agents, and all of them pray for the issuance of search warrants 'under the authority of title 2 of the National Prohibition Act. ' The warrants themselves recite that they are issued under that authority, and all of them are directed to prohibition agents and not to internal revenue agents. Section 3462 of the Revised Statutes (Comp. St. Sec. 6364) provides for the issuance of 'a search warrant, authorizing any internal revenue officer to search any premises * * * if such officer makes oath in writing that he has reason to believe, and does believe, that a fraud upon the revenue has been or is being committed upon or by the use of the said premises. ' This does not authorize the issuance of a warrant of search and seizure in aid of the internal revenue laws upon the affidavit of a prohibition agent. U.S. v. Spencer (D.C.) 292 F. 871.

We must therefore face the question of whether the Volstead Act authorizes a decree of forfeiture.

The argument in support of the libels proceeds upon the theory that forfeitures follow a policy of the law which condemns to confiscation any and every res, the use of which had aided in any act which the law condemns. The wisdom of this policy of the law may be commended or denied. It is, however, of ancient origin. By the Mosaic law, 'if an ox gore a man or a woman so that they die, the ox shall be stoned and its flesh shall not be eaten. ' In cases of felo de se, the instrument of self-destruction, or even all the goods and chattels of the suicide, were, under the laws of England, forfeited to the king. More modern illustrations are afforded by the seizure, confiscation, and forfeiture, followed, if need be, by the destruction of counterfeit money, and all the physical instrumentalities by which the counterfeiting was done, or by the like seizure of whatever may be said to have had a part, or to have figured in an attempted perpetration of a fraud against the revenue. Guilt is imputed to the res, and what follows is that all right of property in and of possession to the guilty thing is gone. Incidentally this denial of the right to possession takes out of the case the distinction made between questions of title to property and of the right of possession, with the forceful and impressive argument based upon it. Indeed, the distinction in itself does not exist, except that the right of property in the sense of the full ownership of anything may be divided among and shared by many, one of whom may have the sole right to immediate possession.

The conclusion is that property concerned with a violation of the Volstead Act may be forfeited by libel proceedings, and that the motions to dismiss the libels on this ground are denied.

An essential part of any legal proceeding is the process to which resort is had. Here a part of the process was a search warrant. Motions have been interposed to quash these warrants as unauthorized and as not issued, directed, and executed in conformity with law.

The questions raised on these motions are likewise of importance because they concern all whose persons, homes, papers, and other property may become the subject of arrest, search, and seizure. These cases happen to arise out of the Volstead Act, but the law discussed applies alike to all kinds of offenses with which persons may be charged. Indeed, the power of search, as expressed in the Volstead Act, is, in at least one respect, a more restricted power than that which may be exercised in the case of offenses under other laws. The statute which regulates search warrants was passed before the Volstead Act, which incorporates it by reference.

Before going into other grounds of criticism of these warrants, we will dispose of one point which has been made the subject of special emphasis. The Volstead Law refers us to the Espionage Act for the conditions of the issuance, form, and service of search warrants. This act, among other things, prescribes to whom such warrants shall be directed. The words of description employed are (inter alia) 'civil officer.' The question at once arises whether the enforcement officer, to whom these warrants were directed, was a 'civil officer' within the meaning of the law.

The very resourceful counsel who dealt with this feature in the argument addressed to us goes to clause 1, Sec. 2, of article 2 of our Constitution for a definition of who are 'officers,' and asks us to find that they are those who owe their appointment to the offices they hold, to the President (acting by and with the advice and consent of the Senate); the President alone; the courts or the heads of departments. If the premises on which the argument addressed to us proceeds are conceded, the mind is swept along to an acceptance of the conclusion reached.

This takes us to an inquiry into the premises. One is that in the designation of the persons who may execute a search warrant the words 'civil officer' in the Espionage Act are used in the sense of the word 'officer' used in the Constitution, and there mean an officer of such dignity and importance as to have been the personal selection of the President or a...