58 F.2d 193 | 2d Cir. | 1932
The. vessel Eleanor Joan was seized by officers of the Coast Guard for violation of section 26, title 2, of the National Prohibition Act (27 U. S. C. § 40 [27 USCA § 40]). One month later it was released upon the filing of a bond, as provided by section 26, in the sum of $14,000. The bond covenanted to “return the aforesaid ‘Eleanor Joan’ to the custody of the officer approving this bond on the day of the criminal trial of the person or persons arrested at the time of the aforesaid seizure to abide the judgment of the court,” and “in the event that 4 * * the person or any of the persons arrested * * * plead guilty to a charge of transportation, or possession 4 4 * of intoxicating liquor 8 * * and the said ‘Eleanor Joan’ is returned to the custody of the officer approving this bond on the date of said plea of guilty, then this obligation to be void * * 4 and it is further agreed that in the event of the breach of the conditions * ~ 4 of this bond, that judgment upon this obligation shall be granted by the court upon oral motion upon the day of said criminal trial or at the option of the United States Attorney for the Eastern District of New York by any other appropriate action.”
The place of delivery was stipulated to be Port Totten, Long Island.
The statute provides: “When the commissioner Y' * * shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any ® ® * wafer * * 8 craft, * 4 * it shall be his duty to seize any and all intoxicating liquors found therein 4 * * he shall take possession of the * * * boat 4 * 8 and shall arrest any person in charge thereof. * * 4 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 * 4 * 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 a sale by public auction of the property seized, and the officer making the sale, after deducting the expenses 4 * * shall pay all liens 8 * * and shall pay the balance of the proceeds into the Treasury of the United States. 8 * * ”
At the opening of the trial of the defendants on the charge of transporting intoxieat
We have held that the government may not follow the proceeds of the sale of a vessel sold- under a third party libel where the vessel is seized by the United States for a violation of section 26. Edwards v. The Motor Vessel (Edwards v. United States) 55 F. (2d) 671 (C. C. A. 2). It may collect only by proceeding against the vessel under its own libel. Under the statute, the res seized is not the offender and there can be no forfeiture of the vehicle unless there is a conviction of the transporter.
In United States v. Dieckerhoff, 202 U. S. 302, 26 S. Ct. 604, 607, 50 L. Ed. 1041, relied upon .by the appellant in support of its claim, the action was brought to recover on a redelivery bond (section 2899, Rev. St.). The respondent imported a number of packages of merchandise; one package was sent to the public warehouse for inspection and appraisal; the others were turned over to the importer, as permitted under section 2899', and a bond given to the extent of double the valuation. Within ten days the collector ordered respondent to deliver to him one other package. It was not so delivered and suit was instituted on the bond. Judgment was granted for twice the value of the undelivered package. This was approved-by the Supreme Court. The purpose of the statute there considered was to provide examination and appraisal of merchandise for the imposition of customs duty. The court said: “But in our opinion it was the purpose óf this statute, and the bond executed in the case, to dispense with the necessity of resort to this method of showing damages, and to fix double the value of the package ordered to be returned, as a definite sum to be paid for the nonfulfilmerit of the statutory duty. In such cases the recovery is for the stipulated sum, and is not limited to the damages actually proven. * * * The purpose of the statute was to enforce the collection of the revenues, and to require that goods shall be as represented, and, if removed from governmental control before the facts about them are ascertained, to require them to be returned unopened, except as provided by statute, or a specific penalty be paid for failure so to.do.” But it is apparent that the decision in the Dieekerhoff Case was based upon the manifest intention of Congress to provide a specific sum as a penalty for failure to return the merchandise as required by the statute. Here section 26, title 2, is silent with respect to what shall be done in the bond in the event of failure to produce the vehicle. The provision for the sale of the vehicle and the payment of claims of innocent lienors indicates that Congress intended the government to have only the sum received by a sale at public auction, as payment for whatever penalties and damages resulted to the government.
Congress intended that such bond as was given here would save the government harmless against loss for the value of the interest of the owner in the seized vehicle.
Judgment affirmed.