289 F. 125 | D. Ariz. | 1923
The defendant Marshal Montgomery was arrested while unlawfully transporting intoxicating liquor in an automobile, which was seized at the time of his arrest. He was convicted in this court of such unlawful transportation and sentenced accordingly, and a sale of the automobile was ordered.
The contract is attached to the petition in intervention and made a part thereof. It has none of the essential requisites of a chattel mortgage and cannot become such by mere recordation. It does not create a lien in favor of the vendor with title passing to the purchaser, but reserves title absolutely in the vendor. The provision is as follows:
“Title to tbe car shall not pass by delivery to buyer but shall remain vested in and be the property of the seller or assigns until the purchase price has been fully paid.”
So that we are not now dealing with a lienor asserting rights accorded him by title 2, section 26, of the National Prohibition Law (41 Stat. 315), but with an owner who has voluntarily parted with the possession and control of the car and has received $1,230 for so doing.-
Section 26 of the National Prohibition Law provides:
“Whenever intoxicating liquors transported or possessed illegally shall be seized by an officer he shall take possession of the vehicle and team or automobile * * *, and shall arrest any person in charge thereof. * * * The court upon conviction of the person so arrested shall order the liquor destroyed, and 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 * * *' shall pay all liens, according to their priorities, which are established * * * as being bona fide and as having been created without the lienor having any notice that the carrying vehicle was being used or was to be used for illegal transportation of liquor.”
It is to be observed that the court shall order a sale of the car “unless good cause to the contrary” is “shown by the owner.” What constitutes such “good cause” on the part of the owner is nowhere specified, but as to a lienor it is declared sufficient to show that the lien was bona fide and created without the lienor having any notice that the vehicle was being used or was to be used in'the illegal transportation of liquor. The difference between the provisions applicable to owners and those applicable to lienors is significant. It is not Unreasonable to suppose that Congress had in mind the fact that an owner may determine who shall have the use of a vehicle, and thus in a measure
The petition of the intervener is therefore denied.