United States v. Hunter

• Decision Date: 03 January 1936
• Docket Number: No. 7713.,7713.
• Citation: 80 F.2d 968
• Parties: UNITED STATES v. HUNTER.
• Court: U.S. Court of Appeals — Fifth Circuit

80 F.2d 968 (1936)

UNITED STATES v. HUNTER.

No. 7713.

Circuit Court of Appeals, Fifth Circuit.

January 3, 1936.

John W. Holland, U. S. Atty., of Jacksonville, Fla.

L. A. Schroeder, Jr., and Marion E. Sibley, both of Miami, Fla., for appellee.

Before SIBLEY, HUTCHESON, and WALKER, Circuit Judges.

SIBLEY, Circuit Judge.

On April 22, 1933, Fokker monoplane No. NC-9133 arrived from the British West Indies into Florida carrying about forty cases of liquors whose value does not appear, which were secretly unloaded in a field without the plane having reported arrival, been entered at the customs, received permit to unload or to proceed inland, or having filed manifest. It was later seized, and on December 5, 1933, a libel for forfeiture was filed. L. M. Hunter was allowed to file an intervention setting up that he had a purchase-money mortgage for $400 on the monoplane which entitled him to defend it, and because of his innocence to protect his interest against forfeiture. To save expense of keeping, the plane was sold for $370 and that sum paid into court. On a trial the facts above stated were found by the court on stipulated evidence, but because the libel was expressed to be brought under sections 459 and 460 of the Tariff Act of 1930, 19 U.S.C.A. §§ 1459, 1460, which the court thought inapplicable to airplanes, the libel was dismissed and the fund awarded to Hunter. On appeal the United States contend that the cited sections are by section 644, 19 U.S.C.A. § 1644, made capable of application to aircraft by regulations of the Secretary of the Treasury, and have been so applied by him in Regulations, Art. 253 and Art. 254. In reply, appellee Hunter contends that to apply these regulations to forfeit this airplane would be to recognize secretarial legislation.

The libel alleged the arrival of the plane in the Nineteenth Collection District, Fla., from the British West Indies, the failure of the person in charge to give notice of arrival to the nearest customs officer, and the unloading from it of unknown merchandise without report of entry or the filing of a manifest "whereby it became subject to forfeiture under sections 459 and 460 of the Tariff Act of 1930." These sections, copied in the margin,¹ apply only to "vessels and vehicles" arriving from "contiguous countries." The definition of "vessel" and "vehicle" contained in section 401 (a, b), 19 U.S.C.A. § 1401 (a, b), expressly excludes aircraft. Moreover, we take judicial notice that the British West Indies are not a "contiguous country" within the meaning of the act. Etymologically and generally contiguous means touching together, in contact with. An examination of the cases collected in Words and Phrases shows that this meaning is generally applied by the courts, but a looser meaning has been given where the legislative or contractual intent so requires. The term "foreign contiguous territory" has appeared in our immigration laws at least since 1882, Supp.Rev.Stats. c. 374, 8 U.S.C.A. §§ 145, 216, and we are informed it has always been construed in the strict sense as referring only to Mexico and Canada. Coastal islands belonging to those countries would no doubt be included with them. The Danube (D.C.) 55 F. 993. All lands separated by water touch one another in a sense beneath the water, but when the intervening water is the high seas over which neither of them has exclusive jurisdiction they are not contiguous countries though no dry land intervenes. Ireland was not thought contiguous to the United States in Hamburg-American Line v. United States, 291 U.S. 420, 54 S.Ct. 491, 78 L.Ed. 887, nor the West Indies in Bermuda & West Indies S. S. Co. v. Elting (D.C.) 45 F.(2d) 411; nor Barbadoes in Lamport & Holt, Ltd. v. Elting (C.C.A.) 64 F.(2d) 93; else the penalties there enforced would not have been incurred. This monoplane from the British West Indies did not arrive from a contiguous country. It follows that sections 459 and 460 referred to in the libel do not themselves authorize forfeiture.

But the reference to them does not prevent forfeiture if the facts stated in the libel authorize it under other effective laws and regulations. In the case of The Hoppet, 7 Cranch, 389, 3 L.Ed. 380, it was held that a libel for forfeiture, analogized to an indictment, ought to contain a statement of the facts, and that a reference to the forfeiting statute would not aid it. "The reference to the statute may direct the attention of the court and of the accused to the particular statute by which the prosecution is to be sustained, but forms no part of the description of the offense." For like reason an inaccurate statutory reference is not fatal. It is, after all, but the pleader's opinion as to what law the facts pleaded violate, but the pleaded facts alone fix the offense. This is well established as to indictments. Williams v. United States, 168 U.S. 382, 18 S.Ct. 92, 42 L.Ed. 509; Hammer v. United States, 271 U.S. 620, 46 S.Ct. 603, 70 L.Ed. 1118; and more directly in point are Ex parte King (D.C.) 200 F. 622; Biskind v. United States (C.C.A.) 281 F. 47, 28 A.L.R. 1377; Taylor v. United States (C.C.A.) 2 F.(2d) 444; Harper v. United States (C.C.A.) 27 F.(2d) 77; United States v. Tye Ah Woo (D.C.) 40 F.(2d) 751. By the provisions of section 11 (b) of the Air Commerce Act, 49 U.S. C.A. § 181 (b), proceedings to forfeit an airplane though seized on land are, except as to a right to jury trial, to conform as nearly as may be to civil suits in admiralty. No greater strictness of pleading than in an indictment at law can be insisted on; though in civil cases the difficulty may and should usually be removed by amendment. The maxim, "Falsa demonstratio non nocet," is fairly applicable. A complete setting forth of the facts constituting an offense is not hurt by a false reference to the law involved. We must therefore inquire whether this libel is supported by other legal provisions.

The appellant calls attention to section 644 of the Tariff Act, which extends the authority given the Secretary of the Treasury and the Secretary of Commerce by section 7 of the Air Commerce Act, 49 U.S.C.A. § 177, to provide by regulations for the application to civil air navigation the laws and regulations relating to the administration of customs and relating to the entry and clearance of vessels respectively, so as to apply in like manner any of the provisions of this Tariff Act or the regulations thereunder; and points to Regulations, Art. 253 and Art. 254, promulgated thereunder and copied in the margin,² asserting that they are effective to make sections 459 and 460 extend to the forfeiture of aircraft, and to aircraft from a foreign country whether it be contiguous to the United States or not. A careful reading of the Regulation, Art. 253, shows that it does purport to apply to aircraft arriving from any foreign port or place the administrative provisions of the customs laws and regulations touching vehicles from contiguous foreign territory, and Art. 254 similarly applies the penalties prescribed in case of vehicles arriving from foreign contiguous territory to aircraft from any foreign country. We think this extension of the penal provisions of the statute to be unwarranted by the power of regulation granted. The Tariff Act of 1922, § 401, 19 U.S.C.A. § 231, included aircraft among vessels and vehicles. The Air Commerce Act of 1926 put aircraft in a special class for regulation, and section 7, 49 U.S.C.A. § 177, excluded them from the definition of vessel or vehicle in the navigation laws, but in subsection (b) gave the Secretary of the Treasury authority "by regulation to provide for the application to civil air navigation of the laws and regulations relating to the administration of the customs and public health laws to such extent and upon such conditions as he deems necessary." A similar authority was by subsection (c) given the Secretary of Commerce touching laws relating to the entry and clearance of vessels. The Air Commerce Act in section 11 (b), 49 U.S.C.A. § 181 (b), enacted: "Any person violating any customs or public-health regulation made under Section 7 (b) section 177...