United States v. Eighteen Cases of Tuna Fish

• Decision Date: 20 April 1925
• Citation: 5 F.2d 979
• Parties: UNITED STATES v. EIGHTEEN CASES OF TUNA FISH.
• Court: U.S. District Court — Western District of Virginia

5 F.2d 979 (1925)

UNITED STATES

v.

EIGHTEEN CASES OF TUNA FISH.

District Court, W. D. Virginia.

April 20, 1925.

S. H. Hoge, Asst. U. S. Atty., of Roanoke, Va.

McDOWELL, District Judge.

This is a proceeding for forfeiture under the Food and Drugs Act. The information does not allege previous seizure of the food sought to be condemned, and admits that it is in the possession of its owner, a wholesale dealer in groceries in this district. The information is not verified or supported, otherwise than by an affidavit by an assistant district attorney, which reads: "The foregoing facts are true to the best of affiant's knowledge and belief." The prayer is for the issue of monition attachment. For present purposes I shall assume that the Food and Drugs Act (34 Stat. 768 Comp. St. §§ 8717-8728) does not contemplate or require previous seizure (see U. S. v. Geo. Spraul & Co., 185 F. 405, 406, 407, 107 C. C. A. 569; U. S. v. Two Barrels, etc. D. C. 185 F. 302; U. S. v. One Hundred Barrels, etc. D. C. 188 F. 471, 475), and on such assumption I shall discuss the question of verification of information for forfeiture of food and drugs, where a search warrant is not asked for.

If the Fourth Amendment forbids the issue of the attachment, except on probable cause, supported by oath or affirmation, or if the conformity provision of section 10 of the Food and Drugs Act (Comp. St. § 8726) requires that the information be on oath or affirmation, the affidavit here is, I think, insufficient. See Rice v. Ames, 180 U. S. 371, 375, 376, 21 S. Ct. 406, 45 L. Ed. 577; Ex parte Bollman, 4 Cranch, 75, 130, 2 L. Ed. 554; Salter v. State, 2 Okl. Cr. 464, 102 P. 719, 25 L. R. A. (N. S.) 60, 139 Am. St. Rep. 935, 939-944; Mowry v. Sanborn, 65 N. Y. 581, quoted in Clarke v. Neb. Nat. Bank, 57 Neb. 314, 77 N. W. 805, 73 Am. St. Rep. 512; Ex parte Lane (D. C.) 6 F. 34-38; Ex parte Morgan (D. C.) 20 F. 298, 307; Ex parte Spears, 88 Cal. 640, 26 P. 608, 22 Am. St. Rep. 341, 342; Leigh v. Green, 64 Neb. 533, 90 N. W. 255, 101 Am. St. Rep. 592, 595.

However, I know of no sufficient reason or authority for a belief that the Fourth Amendment was intended to apply to an attachment for the seizure of property. The bald letter of the amendment suggests that it was intended to apply only to warrants which direct both search and seizure. But, at least as to warrants for the arrest of persons charged with crime there seems no room for doubt that the amendment applies. Ex parte Burford, 3 Cranch, 448, 451, 453, 2 L. Ed. 495; West v. Cabell, 153 U. S. 78, 85, 87, 14 S. Ct. 752, 38 L. Ed. 643; In re Rule of Court, 3 Woods, 502, Fed. Cas. No. 12,126; U. S. v. Maxwell, Fed. Cas. No. 15,750, pp. 1221, 1222; U. S. v. Tureaud (C. C.) 20 F. 621; In re Gourdin (D. C.) 45 F. 842; In re Dana (D. C.) 68 F. 886, 895; Johnston v. U. S., 87 F. 187, 30 C. C. A. 612; U. S. v. Sapinkow (C. C.) 90 F. 654; U. S. v. Baumert (D. C.) 179 F. 735; Weeks v. U. S., 216 F. 292, 132 C. C. A. 436, L. R. A. 1915B, 651, Ann. Cas. 1917C, 524.

A very satisfactory reason for discriminating attachments from search warrants, and from ordinary warrants for the arrest of persons for crime, is that there is no historical evidence, so far as I know, of abuses in respect to writs of attachment, either in England or in America, prior to the adoption of the Fourth Amendment, and therefore there was no reason for an intent that the amendment should include attachments.

In Boyd v. U. S., 116 U. S. 616, 624, 6 S. Ct. 524, 529 (29 L. Ed. 746), is said, obiter: "The entry upon premises, made by a sheriff or other officer of the law, for the purpose of seizing goods and chattels by virtue of a judicial writ, such as an attachment, a sequestration, or an execution, is not within the prohibition of the Fourth or Fifth Amendment, or any other clause of the Constitution."

In Den ex dem. Murray v. Hoboken Land, etc., Co., 18 How. 272, 285, 286 (15 L. Ed. 372), in respect to the distress warrant, an extent, authorized by the Act of May 15, 1820, c. 107, § 2 (3 Stat. 592), against delinquent collectors of federal revenues, it is said:

"The remaining objection to this warrant is that it was issued without the support of an oath or affirmation, and so was forbidden by the fourth article of the Amendments of the Constitution. But this article has no reference to civil proceedings for the recovery of debts, of which a search warrant is not made part. The process in this case is termed, in the act of Congress, a warrant of distress. The name bestowed upon it cannot affect its constitutional validity. In substance, it is an extent authorizing a levy for the satisfaction of a debt; and as no other authority is conferred, to make searches or seizures, than is ordinarily embraced in every execution issued upon a recognizance, or a stipulation in the admiralty, we are of opinion it was not invalid for this cause."

A distress warrant, issued by the order of a treasury agent and directing the seizure and sale of goods and chattels, and an attachment issued by order of a court, and directing the seizure of goods and chattels, are not identical. But, if the Fourth Amendment does not apply to the distress warrant, I see no reason for saying that it applies to the attachment.

I have discovered only two adjudications relating to the application of the Fourth Amendment to the issue of attachments in forfeiture proceedings under section 10 of the Food and Drugs Act. In U. S. v. Eight Casks of Drug Products, Notice of Judgment 697, 5 F.(2d) 971, the District Court for the Southern District of Ohio in 1910 sustained a demurrer to the information because, inter alia, the "libel was not properly verified by any persons having knowledge of the facts." In U. S. v. Three Hundred Cases of Mapleine, Notice of Judgment 163 (no opinion filed), the District Court for the Northern District of Illinois, in 1909, overruled, without discussion, an exception to the information on the ground that it was not under oath. In the first case there is some discussion, but it is quite unconvincing and no authority in point is cited.

The only satisfactory conclusion I can reach is that the Fourth Amendment does not apply to the issue of the writ of attachment in forfeiture cases under section 10 of the Food and Drugs Act.

Section 10 contains a provision reading: "The proceedings in such libel cases shall conform, as near as may be, to the proceedings in admiralty. * * *" If it be assumed that the "proceedings in admiralty" intended were not those followed in forfeiture cases based on previous seizure (rule 22 of 1854, 3 How. xiii), but were those in ordinary libels in instance causes (rule 23 of 1854 and Rule 22 of 1920); still...