284 F. 284 | S.D.N.Y. | 1922
(after stating the facts as above). [1] The provisions of the Revised Statutes for the seizure and forfeiture of goods for violations of the internal revenue laws are ancient and they are intended to be complete. Section 3453 justifies a seizure and prescribes that the ensuing forfeiture shall be enforced by libel of information in rem. Section 934 (Comp. St. § 1560) takes away the action of replevin, but section 3459 (Comp. St. § 6361) gives the owner a right to reclaim the goods upon bond while in the possession of the collector, if in “the opinion of the collector” they are “liable to perish or become greatly reduced in price or value.” No provision is made against the possibility that the collector may be wrong in that “opinion,” and none to compel him to file a libel of information against the goods with dispatch. Whatever be the hardships of the 'resulting delay, the statute means the forfeiture to be determined by plenary suit, and no such summary application as this will lie. Whether after libel (U. S. v. 300 Barrels of Whisky, 1 Ben. 15, Fed. Cas. No. 16,510) the court might release the goods under bond by virtue of its inherent powers is not up here; the petitioner does not offer any bond, and no libel has been filed.
Nevertheless it does not follow that the owner is left to the mere pleasure of the collector as to when his rights shall be determined. Delay in prosecution is an abuse of power, and any resulting expenses will be charged against the collector. U. S. v. 15 Empty Barrels, 1 Ben. 125, Fed. Cas. No. 4,778. I might feel some compunction in going further and disturbing his possession, were it not for the language of Revised Statutes, § 934; but that makes any scruples out of place. It says that the property seized “shall be deemed to be in the custody of the law and subject only to the decrees and orders of the courts of the United States.” This, of course, refers to the period before libel filed and arrest, since the goods would be in custodia legis after that in any event. It can only mean that the collector is amenable to the court before the goods are arrested. While under guise of that power I may not dispense with the necessity of plenary suit, I have power to prevent unjust delay. I can insist either that the collector proceed with the forfeiture or release the goods, and that I will do.
Therefore an order will pass directing the collector to release the goods, unless within three days after order entered he has filed a libel of information and arrested the goods; if he shall have done so, petition dismissed.
