United States v. Musgrave

• Decision Date: 03 December 1923
• Docket Number: 3168.
• Parties: UNITED STATES v. MUSGRAVE et al.
• Court: U.S. District Court — District of Nebraska

293 F. 203

UNITED STATES v. MUSGRAVE et al.

No. 3168.

United States District Court, D. Nebraska, Omaha Division.

December 3, 1923

James C. Kinsler, U.S. Dist. Atty., and George A. Keyser, Asst Dist. Atty., both of Omaha, Neb.

E. D O'Sullivan and Geo. N. Mecham, both of Omaha, Neb., for defendant.

WOODROUGH District Judge.

It is complained that the search warrant in this case was void. The United States commissioner, on probable cause, issued and directed it to one Samardick, a general prohibition agent under the Commissioner of Internal Revenue, whose appointment, however, by the Commissioner of Internal Revenue is shown to have been approved by the Secretary of the Treasury. The contention of the defendant is that the approval of the Secretary of the Treasury of the appointment was without authority of law, because Congress had vested the appointment in the Commissioner alone. There is no law requiring or authorizing any approval by the Secretary.

The contention is specifically that the general prohibition agent was not a civil officer of the United States, because no head of a department was authorized to appoint him, and the United States commissioner, having no power under the law to issue a search warrant to any other person than a civil officer of the United States, could not issue it to an incumbent whom Congress directed to be appointed by the Commissioner of Internal Revenue.

The defendants insist that the power to issue search warrants in the enforcement of the National Prohibition Act is strictly limited by the provisions of the Espionage Act of June 15 1917 (40 Stat.p. 217 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, Secs. 10496 1/4a-10496 1/4v)), and that the commissioner can issue the warrants only to a civil officer of the United States in the constitutional sense; i.e., to an officer appointed by the President, or by the courts, or by the head of a department. On behalf of the government, attention was called to the fact that the practice is general, and probably universal, for United States commissioners to issue search warrants to the national prohibition agents, and a considerable list of cases is presented, both in the District Court and appellate courts, wherein such search warrants, although attacked and frequently defeated on other grounds, have not excited any comment by the courts as to these particular contentions. In re Search (D.C.) 284 F. 914; Diligannis v. Mitchell (D.C.) 279 F. 131; In re Alpern (D.C.) 280 F. 432; Salata v. U.S. (C.C.A.) 286 F. 125; Ryan v. U.S. (C.C.A.) 285 F. 734; Giles v. U.S. (C.C.A.) 284 F. 208; U.S. v. Boasberg (D.C.) 283 F. 305; Petition of Barber (D.C.) 281 F. 550; U.S. v. Mitchell (D.C.) 274 F. 128; U.S. v. Metzger (D.C.) 270 F. 291; U.S. v. Vatune (D.C.) 292 F. 497.

The government further contends that the National Prohibition Act and acts supplemental thereto, considered together with the provisions of the Espionage Act, should convince that the designation 'civil officer of the United States,' in the Espionage Act, ought to be considered in the popular sense, rather than in the constitutional sense, and so should include prohibition agents. U.S. v. Syrek (D.C.) 290 F. 820; U.S. v. Daison (D.C.) 288 F. 199; U.S. v. Keller (D.C.) 288 F. 204.

To me it appears clear that many provisions of the National Prohibition Act (41 Stat. 305) evince the will of the Congress to have the act broadly and liberally applied to accomplish the suppression of the liquor traffic. That spirit runs through the entire act, even at the risk of duplicating penalties, impositions, and restrictions upon the use of property owned by innocent persons, and by retaining in force incongruous older laws. But, when we come to the provisions concerning search warrants, it is in those provisions alone, so far as I recall, that the extension of powers for the enforcement of the act includes words of express limitation. Section 2, title 2, of the National Prohibition Act, provides:

'Section 1014, * * * Revised Statutes of the United States (which is the section designating the magistrates who may issue search warrants), is hereby made applicable in the enforcement of this act. Officers mentioned in said section 1014 are authorized to issue search warrants under the limitations provided in title XI of the act approved June 15, 1917.'

The language referred to in title 11 is as follows:

'Sec. 6. If the judge or commissioner is thereupon satisfied * * * he must issue a search warrant, signed by him with his name of office, to a civil officer of the United States duly authorized to enforce or assist in enforcing any law thereof, or to a person so duly authorized by the President of the United States commanding him forthwith to search. * * * Comp. St. 1918, Comp. St. Ann. Supp. 1919, Sec. 10496 1/4f.

'Sec. 7. A search warrant may in all cases be served by any of the officers mentioned in its direction, but by no other person, except in aid of the officer on his requiring it, he being present and acting in its execution. ' Section 10496 1/4g.

The form of these provisions demonstrates that, notwithstanding the determination of Congress, reflected throughout the entire act, to use to the full the power of the government to suppress the liquor traffic, great pains were taken to introduce no novel or extraordinary methods of searches and seizures. On the contrary, Congress expressly reaffirms its limitations upon search warrants which are provided in the Espionage Act. The wording of the National Prohibition Act reflects the same spirit of caution about writs of search and seizure that has always characterized our law. Such writs are necessary in the execution of governmental power, and the right to their use is fundamental and lawful; but the courts rarely exercise a more vitally important function than to preserve absolutely inviolate every constitutional and legislative safeguard against the abuse of such process.

Therefore, in construing the provisions of the Espionage Act, no intendment should be indulged in other than the words used clearly disclose, and the search warrant should be quashed unless issued in all respects and particulars as authorized by law and within its constitutional limitations. Liberal application called for in the general provisions of the National Prohibition Act has no place, and is not intended to have any place, in the consideration and interpretation of the search warrant law. Such is the manifest intention of Congress. Those writs are to issue under the limitation provided in the Espionage Act, and not otherwise.

The clearly stated limitation concerning the issuance of search warrants is that the commissioner 'must issue a search warrant to a civil officer of the United States duly authorized to assist in enforcing any law thereof,' and the inquiry simply is whether the prohibition agent is 'a civil officer of the United States duly authorized to assist in enforcing any law thereof. ' The provision of the National Prohibition Act under which the agent, Samardick, was appointed is as follows:

'Sec. 38. The commissioner of Internal Revenue and the Attorney General of the United States are hereby respectively authorized to appoint and employ such assistants, experts, clerks, and other employees * * * as they may deem necessary for the enforcement of the provisions of this act.'

The agent, Samardick, has been appointed by the Commissioner of Internal Revenue, and the appointment approved by the Secretary of the Treasury. Inasmuch as the acts of Congress conferred the power to make appointments...