United States v. One Studebaker Seven-Passenger Sedan
| Decision Date | 23 March 1925 |
| Docket Number | No. 4457.,4457. |
| Parties | UNITED STATES v. ONE STUDEBAKER SEVEN-PASSENGER SEDAN. |
| Court | U.S. Court of Appeals — Ninth Circuit |
Frank R. Jeffrey, U. S. Atty., and H. Sylvester Garvin, Asst. U. S. Atty., both of Spokane, Wash.
Munter & Munter and Powell & Herman, all of Spokane, Wash., for defendant in error.
Before ROSS, HUNT, and RUDKIN, Circuit Judges.
This was a proceeding under section 3450 of the Revised Statutes (Comp. St. § 6352) to forfeit an automobile used in the removal of a commodity upon which an internal revenue tax was imposed, with intent to defraud the United States of such tax. A demurrer to the libel for want of sufficient facts was sustained, and, the libelant refusing to amend or plead further, an order of dismissal was entered. The order of dismissal has been brought here by writ of error for review.
It appeared on the face of the libel that the seizure was made by police officers of the city of Spokane, and for that reason the demurrer to the libel was sustained by the court below, on the authority of United States v. Loomis (C. C. A.) 297 F. 359. In the Loomis Case the forfeiture was claimed under section 26 of title 2 of the National Prohibition Act, and we there held that there could be no forfeiture unless the automobile was seized by the commissioner, his assistants, inspectors, or some officer of the law, and that city police officers were not officers of the law within the meaning of that section. That was the only question before the court and the only question decided. It must be conceded that the discussion in the opinion extended to forfeitures generally, but that part of the discussion was mere dicta, and upon further consideration we are convinced that seizure by a United States revenue officer is not a necessary prerequisite to a forfeiture under section 3450, supra. Thus, in Taylor et al. v. United States, 3 How. 197, 11 L. Ed. 559, it was contended that the seizure upon which the information was based was irregularly and improperly made, because made by the collector of customs of the port of Philadelphia, instead of by the collector of customs of the port of New York; but the court held that the contention was without foundation, adding:
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