1. Upon review by certiorari, no questions will be considered
except those on which the petition for the writ was based. P.
276 U. S.
229.
2. Where a person discovered in the act of unlawfully
transporting intoxicating liquor in a vehicle is proceeded against
as prescribed by § 26 of the Prohibition Act, and convicted of the
unlawful possession incident to the transportation, the vehicle
must be disposed of under that section also, which provides
protection for the interests of innocent owners or lienors, and not
under Rev.Stats. § 3450, which does not provide such protection. P.
276 U. S.
232.
17 F.2d 902 reversed.
Certiorari, 275 U.S. 511, to a judgment of the circuit court of
appeals which affirmed a decree of the district court forfeiting a
motor vehicle under § 3450 of the Revised Statutes upon the ground
that it had been used
Page 276 U. S. 227
in the removal, deposit, and concealment of intoxicating liquor
with intent to defraud the United States of the tax thereon. The
present petitioner intervened in the libel proceedings to assert
its title to the car.
Page 276 U. S. 228
MR. JUSTICE SANFORD delivered the opinion of the Court.
This is a libel brought by the United States in November, 1925,
in the Federal Court for the Western District of Washington under §
3450 of the Revised Statutes [
Footnote 1] to forfeit a Ford coupe upon the ground that
it had been used in the removal, deposit, and concealment of
intoxicating liquor with intent to defraud the United States of the
tax thereon. The Commercial Credit Company intervened as claimant,
asserting title to the car and alleging that it had no knowledge
that the car was used or intended to be used in violation of
law.
By stipulation of the parties, the case was heard by the
District Judge without the intervention of a jury. The evidence
showed that, in October, a customs inspector who, in consequence of
reports that this car was being used to distribute Canadian liquor
about the City of Seattle, had
Page 276 U. S. 229
watched its movements for some days discovered one Campbell, who
had purchased the car under a conditional sale, in the act of
backing the car out of an alley in the rear of his house, stopped
the car, searched it, found that it contained thirteen quarts of
whisky and gin, arrested Campbell, and seized the car. The liquor
bore labels indicating that it was of foreign manufacture, and
there were no stamps on the bottles showing the payment of duty or
internal revenue taxes. It was also stipulated at the hearing that
Campbell was prosecuted in the district court under the National
Prohibition Act [
Footnote 2] on
the charges of
"unlawful possession and transportation of liquor, and plead
guilty to unlawful possession, whereupon the government dismissed
as to the transportation, and that covers the identical transaction
here involved."
Thereafter the government brought the libel to forfeit the car.
[
Footnote 3] At the close of
the evidence the claimant moved to dismiss the libel on the ground,
among others, that the United States had elected to proceed under
the National Prohibition Act, and was barred from proceeding under
§ 3450. The District Judge denied this motion and entered a decree
condemning and forfeiting the car to the United States. This was
affirmed by the circuit court of appeals, which held that, as
Campbell's conviction of unlawfully possessing intoxicating liquor
was under § 3 of Title II of the Prohibition Act, and did not
entail a disposition of the car under § 26 of that title, the
government was at liberty to proceed under § 3450 for the
forfeiture of the car. 17 F.2d 902.
The petition for the writ of certiorari was based solely on the
ground that, under § 26 of the Prohibition Act, the
Page 276 U. S. 230
government was barred from proceeding to forfeit the car under §
3450, and no other question will be considered.
Alice state
Bank v. Houston Pasture Co., 247 U. S. 240,
247 U. S. 242;
Webster Co. v. Splitdorf Co., 264 U.
S. 463,
264 U. S. 464;
Steele, Executor v. Drummond, 275 U.
S. 199.
Sec. 26 provides that:
"When the Commissioner, his assistants, inspectors, or any
officer of the law shall discover any person in the act of
transporting in violation of the law, intoxicating liquors in any
wagon, buggy, automobile, water or air craft, or other vehicle, it
shall be his duty to seize any and all intoxicating liquors found
therein being transported contrary to law. Whenever intoxicating
liquors transported or possessed illegally shall be seized by an
officer, he shall take possession of the vehicle . . . and shall
arrest any person in charge thereof. Such officer shall at once
proceed against the person arrested under the provisions of this
title in any court having competent jurisdiction; but the said
vehicle or conveyance shall be returned to the owner upon execution
by him of a good and valid bond . . . approved by said officer and
. . . conditioned to return said property to the custody of said
officer on the day of trial to abide the judgment of the court. The
court, upon conviction of the person so arrested . . . , unless
good cause to the contrary is shown by the owner, shall order a
sale by public auction of the property seized, and the officer
making the sale, after deducting the expenses of keeping the
property, the fee for the seizure, and the cost of the sale, shall
pay all liens, according to their priorities, which are
established, by intervention or otherwise at said hearing or in
other proceeding brought for said purpose, as being
bona
fide and as having been created without the lienor's having
any notice that the carrying vehicle was being used or was to be
used for illegal transportation of liquor, and shall pay the
balance of the proceeds into the Treasury of the United States as
miscellaneous receipts. "
Page 276 U. S. 231
The essential distinction between § 26 and § 3450, insofar as
relates to the forfeiture of a vehicle, is that, where § 26 is the
only applicable provision for its forfeiture, the interests of
innocent owners and lienors are not forfeited, but where it may be
forfeited under § 3450 by reason of its use to evade the payment of
a tax, the interests of those who are innocent are not saved.
United States v. One Ford Coupe , 272 U.
S. 321,
272 U. S.
325.
In
Port Gardner Co. v. United States, 272 U.
S. 564,
272 U. S. 566,
which came to this Court on a certificate of the circuit court of
appeals, the driver of an automobile seized by prohibition agents
had been charged with possession and transportation of intoxicating
liquor in violation of the Prohibition Act, and had pleaded guilty
to both charges and been sentenced. In answering one of the
questions presented by the certificate, we held that the
"prosecution with effect" of the driver of a car under the National
Prohibition Act constituted "an election by the government to
proceed under § 26 of that Act," and thereby prevented the
forfeiture of the car under § 3450. As to this, we said: "The
disposition of the automobile prescribed in § 26 became mandatory
after" the driver's "conviction, and, being inconsistent with the
disposition under § 3450, necessarily precluded resort to
proceedings under the latter section."
The claimant states that the question here presented is that
which was referred to in a concurring opinion in the
Port
Gardner Co. case,
272 U. S. 567,
namely,
"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,"
and on that assumption the arguments have been largely directed
to the question whether, whenever an officer discovers a person in
the act of transporting intoxicating liquor in a vehicle, the
provisions of § 26 become mandatory in such sense as to furnish the
exclusive remedy for the forfeiture
Page 276 U. S. 232
of the vehicle. [
Footnote 4]
But, since it appears that the officer in fact seized the vehicle
and arrested Campbell, who was in fact proceeded against under the
Prohibition Act, the question of the officer's duty to proceed
under § 26 is not here involved.
In this case, Campbell was prosecuted both for the unlawful
possession and the unlawful transportation of the intoxicating
liquors. These are made criminal offenses by § 3 of Title II of the
Prohibition Act, and are punishable under § 29 of that Title.
Section 26 -- although not, in itself, making either of these acts
a criminal offense -- provides that, when an officer discovers a
person in the act of unlawfully transporting intoxicating liquor in
a vehicle, he shall seize both the vehicle and the intoxicating
liquors "transported or possessed illegally," arrest such person,
and proceed against him under the Prohibition Act, and that, if
such person is convicted, the vehicle shall be disposed of as
therein prescribed.
The stipulations in this case, read in the light of the
evidence, show that the unlawful possession for which Campbell was
prosecuted, and of which he pleaded guilty, was not a separate
possession antecedent to and independent of the transportation
which would not have entailed a forfeiture of the car under § 26,
but was the possession involved in and incidental to the
transportation itself -- that is, the "possession in
transportation" referred to in
United States v. One Ford Coupe
, supra, 272 U. S.
334.
Campbell's conviction on the charge of such possession,
following his arrest when discovered in the act of transportation,
required, we think, a disposition of the car under the provisions
of § 26. That section, read in its entirety, governs the
disposition of the car where the
Page 276 U. S. 233
person in charge of the vehicle is convicted of the unlawful
possession incidental to the transportation, as well as where he is
convicted of the unlawful transportation itself . Therefore, under
the doctrine of the
Port Gardner Co. case, the disposition
of the car under § 26 becoming mandatory after Campbell's
conviction, "and being inconsistent with the disposition under §
3450, necessarily precluded resort to proceedings under the latter
section."
This renders it unnecessary to consider whether, if Campbell had
not been convicted of the unlawful possession, the government's
voluntary dismissal of the charge of unlawful transportation,
before trial, would likewise have precluded a resort to § 3450.
The decree of the circuit court of appeals is reversed, and the
cause will be remanded to the district court, with instructions to
dismiss the libel.
Reversed.
MR. JUSTICE STONE did not sit in this case.
[
Footnote 1]
U.S.C. Tit. 26, § 1181. This section provides that:
"Whenever any goods or commodities for or in respect whereof any
tax is or shall be imposed . . . are removed, or are deposited or
concealed in any place, with intent to defraud the United States of
such tax, . . . every vessel, boat, cart, carriage, or other
conveyance whatsoever . . . used in the removal or for the deposit
or concealment thereof, respectively, shall be forfeited."
[
Footnote 2]
41 Stat. 305, c. 85; U.S.C. Tit. 27.
[
Footnote 3]
This appeared inferentially and, we understand, is admitted.
[
Footnote 4]
This question was not involved in
United States v. One Ford
Coupe, supra, 272 U. S. 334,
in which it did not appear that any person had been discovered in
the act of transporting intoxicating liquor in the car.