Opinion
November 19, 1925.
Emory R. Buckner, U.S. Atty., and Francis A. McGurk, Asst. U.S. Atty., both of New York City, for the United States.
John A. Bolles, of New York City, for claimant.
Forfeiture Libel. Proceeding by the United States against Three Quarts of Whisky and Fay E. Spawn, claimant of an automobile sought to be forfeited. Libel dismissed.
Libel by the United States for forfeiture of automobile, etc., submitted on agreed statement of facts. Jury trial waived.
The facts in this case are very similar to U.S. v. Garth Motor Co. (C.C.A.) 4 F.2d 528, approved by the Circuit Court of Appeals, Second Circuit in U.S. v. One Reo Truck Automobile, The William L. Mantha Co., Inc., Claimant, 9 F.2d 529, decided November 16, 1925.
I think that section 26, title 2, of the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138½mm), operates to supersede the provisions of R.S. § 3450 (Comp. Stat. 6352). Both of the cases cited so held. Upon the submission of this case, I expressed my views as to the drastic penalty of section 3450. It is quite possible that Congress, in considering section 3450, which fails to protect an innocent interest in the thing forfeited, found that this section was too severe and had that thought in mind at the time of the enactment of the National Prohibition Act. This conclusion accords with the expression of opinion in the case of U.S. v. Garth Motor Co., supra.
Libel dismissed. Decree to be settled on notice.