United States v. One Durant Touring Car

• Decision Date: 15 December 1924
• Citation: 2 F.2d 478
• Parties: UNITED STATES v. ONE DURANT TOURING CAR.
• Court: U.S. District Court — Panama Canal Zone

2 F.2d 478 (1924)

UNITED STATES v. ONE DURANT TOURING CAR.

District Court, W. D. Texas, El Paso Division.

December 15, 1924.

Loomis & Kirkland, of El Paso, Tex., for the motion.

H. R. Gamble, Sp. Asst. U. S. Atty., of El Paso, Tex., opposed.

ATWELL, District Judge.

At the hearing of the motion the merits of the intervener's claim were presented. If the intervener could have no property in the automobile, nor any benefit from the setting aside of the default judgment, there would be no reason to set the same aside; hence the intervention, as well as the motion, were considered together.

The facts indicate that at 3 or 4 o'clock in the morning, on the banks of the Rio Grande, at or near El Paso, Tex., where that river marks the boundary between the United States and Mexico, several United States customs officials, having had intimation that a shipment of liquors from Mexico to the United States would cross the river at or near that point and be loaded into a Durant automobile for continued transportation, watched for and detected several men taking the liquors from the bank of the river in a wheelbarrow to the automobile in question, and there loading them into the car. When the United States officers approached, the men so engaged fired upon them and ran; some of the firing came from across the Rio Grande, in the direction from which it is presumed the liquors came. The officers found a large quantity of liquor, part of which was in the back of the automobile, and some of which was on the running board of the automobile, and the remainder of which was piled near the automobile and in the wheelbarrow. There were tracks, running from the car to the edge of the water, made by the wheelbarrow. The cases in which the liquor was contained were branded "Sinaloa," and with the name of a firm in that state in Mexico which operates a large sugar plantation, the principal by-product of which is liquor. The cases themselves were Mexican manufacture.

The intervener has a lien upon the automobile. It is a good-faith transaction, and so far as the intervener is concerned there is no fraud or connivance. Under the National Prohibition Law (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.) the intervener's lien would be protected and respected. The government proceeds, however, in this case under the customs laws. Prior to the supplemental National Prohibition Act of November 23, 1921, and under the authority of United States v. Yuginovich, 256 U. S. 450, 41 S. Ct. 551, 65 L. Ed. 1043; and mentioned in Lewis v. U. S. (C. C. A.) 280 F. 5, it was thought that the National Prohibition Act repealed the customs laws in so far as the transportation of intoxicating liquor was concerned. Since that act, however, all of the courts, I believe, hold the view that both the customs regulations, which do not conflict with the National Prohibition Act, and that act itself, are alive and effective, and may be advantaged by government officials. United...