The prosecution with effect, under § 26, Title II, of the
National Prohibition Act, of the driver of an automobile for
illegal possession and transportation of liquor therein makes it
mandatory to dispose of the vehicle as prescribed by that section,
and precludes resort to forfeiture proceedings under Rev.Stats. §
3450. P.
272 U. S.
566.
Response to question certified by the Circuit Court of Appeals
upon a review by writ of error of a judgment of the District Court
forfeiting an automobile under Rev.Stats. § 3450.
Page 272 U. S. 565
MR. JUSTICE BRANDEIS delivered the opinion of the Court.
This is a proceeding, commenced in the Federal Court for Western
Washington, Northern division, under Revised Statutes of the United
States, § 3450, to forfeit an automobile on the ground that it was
being used with intent to defraud the United States of the tax on
distilled spirits found therein. The use alleged was in removal and
for the deposit and concealment. The claimant intervened in the
district court, asserted title to the automobile, and denied
knowledge or notice, prior to the seizure, that the automobile was
being used or was to be used in any illegal manner. The case comes
here on certificate from the Circuit Court of Appeals for the Ninth
Circuit, that court having heard the case on writ of error to the
district court, which had entered a decree of forfeiture. Six
questions are presented by the certificate. The fifth is:
"Did the prosecution of the driver of the car under the National
Prohibition Act constitute an election by the government to proceed
under § 26 of that Act, and thereby prevent the forfeiture of the
car under § 3450 of the Revised Statutes of the United States?"
The facts are these. Neadeau, the driver of the automobile
seized by prohibition agents, had been charged with possession and
transportation of intoxicating liquor in violation of the National
Prohibition Act. He pleaded guilty to both charges, and was
sentenced to pay a fine. The claimant insisted that this proceeding
under § 3450 would not lie. In addition to the objections
considered in
United States v. One Ford Coupe Automobile,
ante, p.
272 U. S. 321, the
claimant contended that the government should not prevail because
the plea of guilt followed by the sentence constitutes a prior
conviction under § 5 of the Willis-Campbell Act, which provides
that "if any act is a violation of" any tax law concerning
intoxicating
Page 272 U. S. 566
liquors and also of the National Prohibition Law, or the
supplement thereto, "a conviction for such act or offense under one
shall be a bar to prosecution therefor under the other." The
argument is that, under § 26, no separate action is taken to
forfeit the vehicle; that forfeiture is an incident of the
conviction of the person, which operates as a forfeiture also of
the vehicle taken possession of, subject only to the right of the
innocent third party to establish his lien or other interest, and
that the order of sale is merely a step in the execution of the
judgment of conviction and forfeiture. It is argued, further, that
the term "act," as used in § 5, means transaction, and that, for
this reason, independently of the doctrine of election, a
conviction of the person under § 26 will bar the proceeding under §
3450 because, on the facts recited in the certificate, the
proceeding to forfeit under § 3450 rests upon the same transaction
for which Neadeau was sentenced. Whether the principle embodied in
this contention is sound we need not determine. For there is
another ground on which the conviction of Neadeau under § 26 bars a
proceeding to forfeit under § 3450.
The disposition of the automobile prescribed in § 26 became
mandatory after Neadeau's conviction, and, being inconsistent with
the disposition under § 3450, necessarily precluded resort to
proceedings under the latter section. Construing the fifth question
as referring to the prosecution with effect, we answer the question
in the affirmative.
We need not determine whether the mere commencement of a
proceeding under § 26 constitutes an election. Nor need we give
specific answers to the other questions asked, since the
certificate does not disclose any reason why the sale of the
automobile, subject to the interests of innocent parties, should
not have been ordered by the district court after the conviction of
Neadeau.
Yes, to question 5.
Page 272 U. S. 567
MR. JUSTICE BUTLER, concurring.
I agree that the answer to question 5 should be in the
affirmative.
In the opinion, it is said, "Construing the fifth question as
referring to the prosecution with effect, we answer the question in
the affirmative." This means prosecution and conviction of the
driver constitute an election to proceed against the vehicle under
§ 26, and prevents forfeiture under § 3450. The answer is enough to
guide the circuit court of appeals in this case. But it leaves open
the question which is not decided in
United States v. Ford
Coupe, ante, p.
272 U. S. 321. The
substance of that question is whether the prohibition officer,
discovering one in the act of transportation, may disregard the
plain and direct commands of § 26 to proceed against the vehicle as
there directed. I think he has no more right to ignore that command
than he has to let the liquor and offender go. The law makes the
election. I regret that this Court's answer is so qualified and
restricted. Section 26 is not so restrained.
I am authorized to say that MR. JUSTICE STONE concurs in this
opinion.