United States v. One Reo Truck Automobile, 76.

• Decision Date: 16 November 1925
• Docket Number: No. 76.,76.
• Citation: 9 F.2d 529
• Parties: UNITED STATES v. ONE REO TRUCK AUTOMOBILE (WILLIAM L. MANTHA CO., Inc., Claimant).
• Court: U.S. Court of Appeals — Second Circuit

9 F.2d 529 (1925)

UNITED STATES v. ONE REO TRUCK AUTOMOBILE (WILLIAM L. MANTHA CO., Inc., Claimant).

No. 76.

Circuit Court of Appeals, Second Circuit.

November 16, 1925.

Ralph C. Greene, U. S. Atty., of Brooklyn, N. Y. (William A. De Groot, Asst. U. S. Atty., of Brooklyn, N. Y., of counsel), for the United States.

Herbert G. McLear, of New York City, for defendant in error.

Before HOUGH, MANTON, and HAND, Circuit Judges.

HAND, Circuit Judge (after stating the facts as above).

The claimant argues that the proof in any event was insufficient, as it did not appear that the bottle of whisky analyzed by the chemist came from the seized truck. It seems to us clear that the bottle was properly identified, but it makes no difference in any event. The evidence shows that the transported cases were marked "Whisky," and that their contents smelled like whisky and had its general appearance. While it may be safer in such cases for the government to show by chemical analysis the character of the beverage, it is by no means essential. The proof was prima facie good.

The claimant did not prove its answer; i. e., that it was a bona fide lienor. However, the case was apparently argued below on the assumption that the facts of the answer were true, and it was certainly so argued before us. We shall dispose of the writ, therefore, on the assumption that the parties concede the facts alleged. If the government is not content with this disposition, we will grant a rehearing.

On the facts so understood the dismissal was correct. The question of law involved is whether Revised Statutes, § 3450, can stand alongside section 26 of title 2 of the National Prohibition Act. Section 5 of the Act of November 23, 1921 (Comp. St. Ann. Supp. 1923, § 10138 4/5c), provided that all laws relating to the manufacture and taxation of, and to the traffic in, intoxicating liquors should continue in force unless directly in conflict with the National Prohibition Act, and we shall assume for the sake of argument only that "traffic" includes "transportation," though the contrary was ruled as to "importation" by a divided court in Bruno v. U. S., 289 F. 649 (C. C. A. 1). On this assumption the question is presented whether there is a direct conflict between the two provisions here in question. U. S. v. Stafoff, 260 U. S. 477, 43 S. Ct. 197, 67 L. Ed. 358. Under Revised Statutes, § 3450, the bona fides of the owner or of any lienor is in every case irrelevant. Goldsmith-Grant Co. v. U. S., 254 U. S. 505, 41 S. Ct. 189, 65 L. Ed. 376. Under section 26 of title 2 of the National Prohibition Act, the rights of a bona fide lienor are preserved and forfeiture is allowed only in case the offender is convicted. It directs the court in that event to order a sale of the vehicle and out of the proceeds to pay all bona fide liens.

Now Revised Statutes, § 3450, at least as matter of logic, may still be in force as against the owner and mala fide lienors, but it cannot be in force as against bona fide lienors when the offender has been convicted....