274 F. 470 | E.D. Mich. | 1921
“When the commissioner, his assistants, inspectors, or any oflicer 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 of-licer he shall take possession of the vehicle and team or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof. Such oflicer 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, with _sufficient sureties, in a sum double the value of the property, which said bond shall be approved by said officer and shall be 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 shall order the liquor destroyed, and unless good cause to the contrary is shown by the owner, shall order a saie by public auction of the property seized, and the officer making ihe sale, after deducting the expenses of keeping' the property, the fee for The seizure, and the cost of the sale, shall pay ail liens, according to iheir 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 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. All liens against property sold under the provisions of this section shall be transferred from the property to the proceeds of the sale of the property. If, however, no one shall be found claiming the team, vehicle, water or air craft, or automobile, the taking of the same, with a description thereof, shall he advertised in some newspaper published in the city; or county where taken or if there be no newspaper published in such city or county, in a newspaper having circulation in the county, once a week for two weeks and by handbills posted in three public places near the place of seizure, and if no claimant shall appear within ten days after the last publication of the advertisement, the property shall be sold and the proceeds after deducting the expenses and costs shall be paid into the Treasury of the United States as miscellaneous receipts.”
After the arrest of the persons in charge of the car at the time of its seizure, and before their trial on the charge of violation of the
Claimant has- filed a petition praying for the release of the car and the cancellation of the bond already referred to. The principal ground on which he bases his petition is that there has been no conviction of any person for the illegal transportation of intoxicating liquor in said car, and that consequent^, by the terms of section 26, hereinbe-fore quoted, this court is without power to order said car confiscated and sold. '
It will be noted that the section of the statute under consideration provides, first, that, when an officer of the law discovers a person transporting intoxicating liquor in an automobile or other vehicle “in violation of the law,” he shall seize the liquor which is being transported “contrary to law.” It is next provided that, when intoxicating liquor 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 so arrested, and the vehicle shall be returned to the owner upon his execution of a proper bond conditioned to return the property to the officer “on the day of trial,” to abide the judgment of the court. Finally, it is provided that “upon conviction of the person so arrested” the court shall order a public sale of the property so seized, unless good cause to the contrary is shown by the owner. This being a special statutory proceeding, the procedure thus prescribed must, of course, be strictly followed. It seems clear that the section in question contemplates and requires, as a prerequisite to the sale of the property seized, a judicial determination that such property has been used in violation of the law. Considering, then, the reference to the “person” discovered in the act of violating the law, to the “person in charge” who is to be arrested, to the “person arrested” who is to be prosecuted, to the' “day of trial,” and to the order of sale which is to be made by the court “upon conviction of the person so arrested,” I reach the conclusion that the statute requires as a jurisdictional basis for the sale in question a conviction of the person so arrested, and that until such conviction the court cannot order such sale by virtue of any authority conferred by said section. United States v. Slusser (D. C.) 270 Fed. 818; United States v. Stephens Automobile (D. C.) 272 Fed. 188.
An order will be entered denying the prayers of both the libel and the petition filed herein, without prejudice to the right to a renewal thereof on a sufficient showing of such a change in circumstances as would warrant proper relief.
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