United States v. Loomis

• Decision Date: 28 March 1924
• Docket Number: 4142.
• Citation: 297 F. 359
• Parties: UNITED STATES v. LOOMIS.
• Court: U.S. Court of Appeals — Ninth Circuit

297 F. 359

UNITED STATES v. LOOMIS.

No. 4142.

United States Court of Appeals, Ninth Circuit.

March 28, 1924

Thomas P. Revelle, U.S. Atty., and J. W. Hoar, Sp. Asst. U.S. Atty both of Seattle, Wash.

John J Sullivan, of Seattle, Wash., for appellee.

Before ROSS, HUNT, and RUDKIN, Circuit Judges.

HUNT Circuit Judge (after stating the facts as above).

The petition was based upon the statute cited, and the question presented is whether under the National Prohibition Act the local officer was under a duty to take possession of the automobile and arrest the person in charge thereof. United States v. Grundy, 3 Cranch, 337, 2 L.Ed. 459. The general rule is that a statute whereby a man may be deprived of his personal property by way of a punishment should be construed with strictness; hence those who assume authority to take possession of such property should have clear warrant for their action. Section 26 of title 2 (Comp St. Ann. Supp. 1923, Sec. 10138 1/2mm) does not expressly mention officers of the state or any local subdivision thereof, and in the absence of including words our construction is that in using the language 'when a commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors,' Congress confined the duty of seizure of the automobile to officers of the United States. Some confirmation of this view is found in section 5, of title 1 (Comp. St. Ann. Supp. 1923, Sec. 10138 1/4e), which provides that the Commissioner of Internal Revenue, his assistants, agents, and inspectors and other officers of the United States, whose duty it is to enforce criminal law, shall have all the power for the enforcement of the War Prohibition Act or any provision thereof which is conferred by law for the enforcement of existing laws relating to the manufacture and sale of intoxicating liquors under the laws of the United States.

We are cited to section 15 (35 Stat. 622 (Comp. St. Sec. 2953)), conferring power upon 'any civil officer having authority under the laws of the United States or of any state, territory, or district to arrest offenders, to summarily arrest a deserter from the Navy or Marine Corps * * * and deliver him into the custody of the naval authorities'; but it is to be noted that the express language of that statute makes it lawful for any such civil officer to arrest. There is express authority also under Rev. St. Sec. 3071 (Act July 18, 1866, 14 Stat. 180 (Comp. St. Sec. 5774)), for marshals, their deputies, sheriffs or their deputies, constables and police officers to apprehend, arrest, and receive the surrender of deserters. So, in the Act of July 5, 1884 (23 Stat. 118 (Comp. St. Sec. 4299)), pertaining to the admission of Chinese laborers, ' * * * all peace officers of the several states and territories * * * are hereby invested with the same authority as a marshal or United States marshal in reference to carrying out the provisions of this act,' etc.; and in the later Act of September 13, 1888 (25 Stat. 479 (Comp. St. Sec. 4313)), 'all peace officers of the several states and territories * * * are hereby invested with the same authority in reference to carrying out the provisions of this act, as a marshal or deputy marshal of the United States,' etc. Cases which decide upon the admissibility of evidence are not persuasive, for the regularity of a seizure is not always a necessary condition to the use of the thing seized as evidence upon a criminal trial, where conviction of an offense is sought. The courts will not try the collateral question of how the evidence was obtained. Robinson v. United States (C.C.A.) 292 F. 683.

But in a direct...