United States v. Gramling

• Decision Date: 12 April 1950
• Docket Number: No. 12824.,12824.
• Parties: UNITED STATES v. GRAMLING.
• Court: U.S. Court of Appeals — Fifth Circuit

180 F.2d 498 (1950)

UNITED STATES v. GRAMLING.

No. 12824.

United States Court of Appeals Fifth Circuit.

March 9, 1950.

Rehearing Denied April 12, 1950.

Cavett S. Binion, Asst. U. S. Attorney, Fort Worth, Texas, for appellant.

Cecil A. Morgan, Fort Worth, Texas, for appellee.

Before McCORD and WALLER, Circuit Judges, and RICE, District Judge.

RICE, District Judge.

In a proceeding in rem against a taxicab used to violate the narcotic laws, under the provisions of Sections 781 to 787, inclusive, Title 49 United States Code Annotated, judgment was rendered returning the taxicab to the claimant, and the United States appeals.

The facts were stipulated substantially as follows:

On the night of June 18, 1948, a narcotic agent and an informant went to the City Cab Company cab stand at 1110 Commerce Street, Fort Worth, Texas, in search of Elwin E. Haire in an attempt to purchase some marihuana, acting on information that Haire was handling marihuana. After locating Haire the narcotic agent asked Haire if it were possible to get any marihuana and Haire told the narcotic agent he could get a match box full for $5.00. Haire then had the narcotic agent get into City Cab No. 22, a 1946 Model Plymouth Sedan, Motor No. P-15-140476, which was the cab being driven by Haire, and Haire then drove the narcotic agent to the corner of Lipscomb and West Bowie Streets in Fort Worth. Haire then instructed the narcotic agent to get out of the cab and wait for him, which the narcotic agent did. Haire drove away and came back in about ten minutes. Upon the narcotic agent's entry into the cab, he handed Haire a $5 bill, whereupon Haire then handed the narcotic agent a match box containing marihuana. Haire then drove the narcotic agent to the Bomber Grill, Fort Worth, Texas.

The owner and operator of the City Cab Company, M. R. Gramling, had no knowledge or notice of any of the foregoing transactions, did not consent to the use of said automobile for the aforesaid purpose and was not guilty of any conspiracy, acquiescence, or other action on his part in connection with said transaction. Haire operated the above mentioned cab under permit issued by the Chief of Police of the City of Fort Worth in compliance with city ordinance; M. R. Gramling, the owner, had no knowledge or notice as to any criminal record of Haire. Haire was prosecuted in the United States District Court for the Northern District of Texas, at Fort Worth, for a violation of the Marihuana Tax Act, 26 U.S.C.A. § 2590 et seq., the imposition of sentence being withheld and he was placed on probation.

The District Judge made Findings of Fact in 180 F.2d 557, a companion case to this case, which he referred to and adopted as his Findings of Fact in this case except as to the description of the automobile used. Among other facts, the District Judge found that marihuana was obtained on the occasion in question and was used in the prosecution of Haire for a violation of the narcotic laws, of which he was convicted. The Court further found that shortly after the vehicle was seized by the narcotic agent the owner filed a sworn petition with the Bureau of Narcotics, Internal Revenue Division, United States of America, for the return of said vehicle and for remission or mitigation of forfeiture; that said Narcotics Bureau referred said petition and supporting affidavits to the United States Attorney for the Northern District of Texas, at Fort Worth, and the latter referred the same to the Attorney General of the United States, at Washington, by letter of October 6, 1948, wherein he indicated his opinion that the owner of the taxicab involved had not exercised due care in the hiring of his employees; that on August 13, 1948, the owner of the taxicab mailed a sworn petition to the Attorney General of the United States, requesting the return, remission or mitigation of forefeiture of said vehicle, wherein he stated that Haire had previously worked for a taxicab operator in the city and had come to him with all proper commendations; that no formal hearing at which testimony was taken was held by the Treasury Department or by the Attorney General, to whom the matter had been referred, and the only information shown by the record to have been used by the government to show a failure to exercise due care in the hiring of Haire was that indicated in the letter of the United States Attorney above referred to, and that if the United States Attorney had any other evidence before him except that set out in the court's findings it was not disclosed to the court. The court further found that the claimant has exhausted his administrative remedies and been denied any relief; that the failure of the Treasury Department to grant the petition for remission or mitigation of forfeiture was an abuse of discretion and unreasonable and arbitrary, and bears no reasonable relation to the collection of revenue on the said narcotics, but as indicated in a letter from the Attorney General, was based on the question of whether it would constitute too severe a punishment; that the driver, Haire, was caused to violate the law, and his duty as driver of a taxicab used as a common carrier, by Narcotic Agent Griffin.

The District Judge concluded as a matter of law that there was no substantial evidence to support the action of the Treasury Department in the rejection of the sworn petition of the claimant for the remission or mitigation of forfeiture; that such refusal was an abuse of discretion, unreasonable and arbitrary, and amounted to a confiscation of property without a hearing and without due process of law; that the claimant was entitled to a hearing before his property could be confiscated; that the determination of the Treasury Department and the Attorney General that the forfeiture or non-forfeiture of the vehicle depended upon whether the same would constitute too severe a punishment was an abuse of discretion, arbitrary and unreasonable, and bears no reasonable relation to the express purpose of the act to enforce the revenue laws. The District Court finally concluded that the vehicle in question was not in violation of the Marihuana Revenue Act as defined by the Congress. The Court rendered judgment denying the relief prayed for by the government; that the vehicle be not forfeited,...