United States v. Buick Automobile, License No. 6077

OdliN, Judge, delivered tbe following opinion':’ Two questions bave arisen in connection witb tbis matter, wbicb bave been tborougbly argued by counsel and witb respect to wbicb tbe court bas reached certain conclusions. Tbe first question is as to tbe procedure. Tbe framework of tbe libel wbicb was filed by tbe United States attorney was evidently based upon tbe National prohibitory law, because tbe prayer of tbe libel prays for tbe forfeiture of a certain automobile under thé National prohibitory law because it was seized while not in motion and while there was no one found in possession of tbe automobile, but inside tbe automobile there were found certain packages of intoxicating liquors. I am satisfied that tbe decision of Judge Sibley, reported in 276 Fed. 28, being tbe case of United States v. One Essex Touring Auto, must control tbe decision in tbe present case. Judge Sibley held that where tbe United States Attorney at Atlanta, Georgia, bad filed a libel praying condemnation upon tbe ground-that tbe auto [442] mobile bad been used by some unknown persbn for tbe deposit of 80 gallons of distilled spirits, upon wbicb no tax bad been paid, and with tbe intent to defraud tbe United States, and where a judgment bad been rendered and tbe term of court bad been closed, it was in order for tbe party claiming tbe machine to submit a motion to set aside tbe judgment of forfeiture. On page 30 of bis opinion be distinctly states that where tbe person in charge of tbe automobile fled and is unknown be cannot be prosecuted and convicted, no matter bow clear tbe proof is of bis guilt, and Judge Sibley states that for that reason a case like this cannot be reached by a proceeding for forfeiture, as provided by § 26 of tbe Prohibition Act. In tbe case before this court it is conceded that there has been no conviction and no arrest; that tbe automobile alone was seized, and is now in the possession of tbe marshal of this court. I am satisfied that tbe proper order to be made in this case so far as tbe question of procedure is concerned is that tbe present libel be dismissed, but without prejudice to tbe rights of tbe United States district attorney to proceed for tbe forfeiture of Buick Automobile, License No. 6077, under tbe appropriate act of Congress, and it is SO' ordered. Tbe second question wbicb this court is called upon to decide is in connection with a certain bond executed in proper form on June 6, 1924, by Mr. Jose M. Perez, with proper sureties, in the sum of $800 in order that be might regain possession of tbe said Buick Automobile License No. 6077, be claiming to be tbe owner thereof. This bond has been placed in tbe bands of tbe undersigned judge by tbe marshal of this court, asking for instructions, because it appears that this bond has never been approved. Tbe claimant of tbe car, Jose M. Perez, is also [443] desirous that this question as to the nonapproval of this bond should be determined, because Perez, whether he is the owner of the automobile or not, is clearly entitled to the possession of the machine, provided he gives a good bond in accordance with the provisions of the statute. I have carefully read § 26 of the National Prohibitory Law, and it seems to me that the proper person to approve the bond is the officer who seizes the machine. It is admitted that in this case the machine was seized by a member of the Insular police force. Of course in malting this seizure he acted as the agent of and the subordinate representative of the chief of Insular police. The seizure was never made by any Federal official. It is true that the machine was turned over and delivered to the Marshal of this court, but I do not believe that the marshal has authority to approve this bond, as he would have if the machine had been seized by himself or by a deputy. The best construction that I can put upon § 26 of the Volstead Act is that the bond should be approved by the chief of Insular police. I therefore Order and Direct that this bond be submitted by the clerk of this court to the chief of the Insular police, with a copy of this order, and, that, in case the chief of Insular police shall approve this bond, it then be filed with the clerk of this court and the marshal of this court then deliver to the said Jose M. Perez the said Buick Automobile, License No. 6077. Done and Ordered in open court at San Juan, Porto Pico, this 24th day of June, 1924.