289 F. 493 | E.D. Wash. | 1923
(after stating the facts as above). [1] The forfeiture’is a summary proceeding to divest the owner of-title to property by virtue of power given under the Tariff Act, which confers the power and provides means for enforcing such power, and must be strictly construed, -and such provision is controlling. In U. S. v. Hydes (D. C.) 267 Fed. 470, at page 471, I said:
“Under various acts of Congress, property may be seized. Each act has a procedure applicable to its own provision. Under Act March 2, 1799, 1 Stat. 678, 3 Fed. Stat. Annot.. 95, the right to libel was absolute, and dependent upon statutory conditions and restrictions, and the return of a car used in violation of Act June 22,71874, § 17 (Comp. St. § 10132), could not be decreed, prior to a declaration of ‘forfeiture. U. S. v. One Certain Locomobile (D. C.) 242 Fed. 998. Act June 15, 1917 (Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 7678f), gives the owner the right to petition in restoration any time before condemnation proceedings have been instituted.”
By the provisions of section 26 (National Prohibition Act, tit. ■ 2, 41- Stat. 315), the vehicle after seizure may be instantly returned to the owner upon execution by him of a bond to produce the property at the criminal trial, • and disposition must'be decreed upon the trial in the criminal case..
“To constitute a valid seizure there must be an open, visible, possession claimed and authority exercised by the seizing officer; the parties must understand that they are dispossessed, and that they'are no longer at liberty to exercise any control over the property.”
The purpose of this provision is obvious when the various remedies provided under the several statutes providing for forfeiture are considered. If the deputy collector had seized the automobile and possession had been free from concealment, not constructive and imaginary, not merely nominal, but open, exclusive, exposed to view, the plaintiffs would have been advised in January as to the disposition to be made, and could have presented its claim, and not been foreclosed of all claim without a hearing. The jurisdictional facts as outlined by the statutes must be pursued, and the taking and detention must be in harmony with the provisions of the law. U. S. v. 267 Gold Pieces (D. C.) 255 Fed. 217. “Open” means visible, exclusive, exposed to view, free from concealment, not constructive and imaginary, not merely nominal. 6 Words and Phrases, 4983.
The indorsement and delivery of the receipt for the automobile to the deputy collector of customs did not constitute a seizure. Josefa Segunda, 10 Wheat. 312, 6 L. Ed. 329; Silver Spring, Fed. Cas. No. 12,858; The Fideliter, Fed. Cas. No. 4,755. Nor was the taking of the automobile by the prohibition officer pursuant to the provisions of the National Prohibition Act, because the automobile was not offending when taken. U. S. v. Hyde, supra.
Decree for the plaintiff.
