United States v. One OX-5 American Eagle Airplane

• Decision Date: 04 February 1930
• Docket Number: No. 12903.,12903.
• Citation: 38 F.2d 106
• Parties: UNITED STATES v. ONE OX-5 AMERICAN EAGLE AIRPLANE, No. 5571 (KINNEAR, Claimant).
• Court: U.S. District Court — Western District of Washington

38 F.2d 106 (1930)

UNITED STATES v. ONE OX-5 AMERICAN EAGLE AIRPLANE, No. 5571 (KINNEAR, Claimant).

No. 12903.

District Court, W. D. Washington, N. D.

February 4, 1930.

COPYRIGHT MATERIAL OMITTED

Anthony Savage, U. S. Atty., and Tom De Wolfe, Asst. U. S. Atty., both of Seattle, Wash., for libelant.

Revelle, Simon & Coles, of Seattle, Wash., for claimant.

NETERER, District Judge (after stating the facts as above).

It is insisted that the libel is lacking in substance, in that it does not allege that the airplane was in the custody of the collector of customs, but, rather says, in his possession.

Custody, as distinguished from legal possession, may be said to be a charge to keep subject to order or direction. Cutter v. Howe, 122 Mass. 541, 543; People v. Burr, 41 How. Prac. (N. Y.) 293, 296. While the terms "custody" and "possession" are not convertible, temporary custody does not constitute possession, it is a qualified possession, and, by the charge of possession in the amended libel by the collector, the clear purport is custody within the intent of the statute. See Emmerson v. State, 33 Tex. Cr. R. 89, 25 S. W. 289.

A reading of the indictment forces the inevitable conclusion that the plane is in the custody of the collector to await disposition according to law, as provided by section 605, Tariff Act 1922 (19 USCA § 512).

The Court of Appeals of the Second Circuit in The Underwriter, 13 F.(2d) 433, 434, said: "The learned District Judge was in error in holding that the seizure must be lawful in its origin. * * * As it appears that the res was in the possession of the collector when the libel was filed, it is sufficient to support the jurisdiction of the libel" — citing a number of cases.

The exceptions confess the seizure and the possession of the plane, the unlawful importation as charged, and, obviously, the exceptions must be denied. In United States v. One Studebaker, etc. (C. C. A.) 4 F.(2d) 534, 535, Judge Rudkin for the court said: "At the common law any person may, at his peril, seize for a forfeiture to the government, and, if the government adopts his seizure, and institutes proceedings to enforce the forfeiture, and the property is condemned, he will be completely justified. So that it is wholly immaterial in such a case who makes the seizure, or whether it is irregularly made or not, or whether the cause assigned originally for the seizure be that for which the condemnation takes place, provided the adjudication is for a sufficient cause." See, also, United States v. One Ford, etc. (D. C.) 3 F.(2d) 64.

The claimant's citations: Ghisolfo v. United States (C. C. A.) 14 F.(2d) 389, was a procedure under section 26, tit. 2, of the National Prohibition Act (27 USCA § 40) and the holding follows United States v. Loomis (C. C. A.) 297 F. 359, where the District Court was reversed on its conclusion here asserted by claimants. United States v. Certain Malt (D. C.) etc., 23 F.(2d) 879; Castro v. United States (C. C. A.) 23 F.(2d) 263; In re Oryell (D. C.) 28 F.(2d) 639; Talent v. United States (C. C. A.) 32 F.(2d) 630; are also national prohibition cases.

This court in United States v. Hydes, 267 F. 470, held that forfeiture under the National Prohibition Act must be strictly followed, and that the res must be arrested in the illegal act of transportation, and that case has been cited with approval many times.

Section 3450 26 USCA § 1181 applies to vehicles "whether used for removal, deposit, or concealment, and even although the vehicle is not in motion and movement was never contemplated; section 26 tit. 2 (27 USCA § 40) applies only to a vehicle used in transporting contrary to law." United States v. One Ford, etc., 272 U. S. 321, 331, 47 S. Ct. 154, 157, 71 L. Ed. 279, 47 A. L. R. 1025.

Forfeiture may be made: Under the National Prohibition Act, tit. 2, § 26 (title 27, § 40, USCA); customs tariff laws (Rev. St. 3062, Tariff Act 1922, §§ 593, 594; Title 19, USCA, §§ 483, 496-498); the internal revenue laws (section 3450, R. S., title 26, USCA § 1181). See, also, narcotic and distillery statute...