United States v. Larkin (208 U.S. 333)

This was an information filed on behalf of the United States June 8, 1905, in the district court for the northern district of Ohio, for the forfeiture of certain jewels which, it was set forth, had been fraudulently imported into the United States without the payment of duty, and that, upon May 19, 1905, the jewels so smuggled had been seized by Charles F. Leach, collector of the district of Ohio, within the said district.

July 5, 1905, Adrian H. Larkin, being interested as a claimant, came in, and, entering his appearance specially, filed his plea therein to the jurisdiction of the court below to adjudicate the forfeiture of said jewels. To this plea a demurrer was filed, which, upon argument, was overruled. A reply to the plea was then filed, and to this reply Larkin demurred, and the demurrer was sustained. The government, declining to amend its reply or plead further, the court, May 22, 1906, sustained the plea and dismissed the information.

The district judge expressed the opinion that, 'considering the circumstances under which the collector of customs obtained possession of the articles of jewelry which are the subject of this action, as shown by the statement of facts, and especially by the receipt which the collector gave for them, it is quite apparent that no seizure of them could be made in this district.'

The United States prayed an appeal to the United States circuit court of appeals for the sixth circuit, which was allowed, and the appeal was duly prosecuted. April 5, 1907, a judgment was entered by that court affirming the decision of the United States district court, and an opinion was filed, which is reported in 82 C. C. A. 247, 153 Fed. 113. The mandate from the circuit court of appeals and the opinion of that court were filed below May 7, 1907.

On the same day Larkin applied to the district court for an order for the delivery of the property to him. Before this was acted on the United States, May 21, 1907, petitioned that court for a writ of error from the Supreme Court of the United States, which was allowed notwithstanding the proceedings and judgment in the circuit court of appeals, and the court certified 'that the judgment and decree herein was based solely on the ground that the district court of the United States for the northern district of Ohio, on the facts as they appear by the record, had no jurisdiction in the premises.'

It appeared from the pleadings that the articles against which this proceeding in forfeiture was begun were illegally imported through the port of New York, and were subsequently found in the state of New York and in the possession of Larkin as bailee. They had been pledged to one Friend, and he, learning that a claim had been made that the articles had been illegally and surreptitiously imported through the port of New York, visited the Secretary of the Treasury and disclosed his possession of the same and his rights, and agreed with the Secretary that the same should be kept in the city of New York, open to the inspection and examination of any official of the Department. Friend, not being himself a resident of New York, placed them in the custody of Larkin as bailee and attorney, with authority to conduct any transactions with the Treasury Department growing out of the claim that they had been fraudulently imported.

At the request of the Department, Mr. Leach, collector of customs at Cleveland, went to New York for the purpose of examining the articles and determining by inspection whether they had been illegally imported and whether they were subject to seizure and forfeiture. He applied to Larkin to be allowed an inspection, and this was permitted.

The plea then stated that Leach informed said Larkin that certain of said jewelry had not been wrongfully imported and that he did not care to make further examination thereof, but that certain of said pieces he was in doubt about and would like to exhibit them to a person located in New York city, who was expert in such matters, for his opinion, and asked permission to take the jewelry away from Larkin's office for that purpose, he agreeing to return the same to Larkin at his office, in New York city, on the afternoon of that day. Thereupon Larkin, relying upon the promise and agreement of Leach, delivered the property into his possession and custody, receiving from Leach a receipt therefor in writing, which read: 'New York, March 14, 1905. Received of A. H. Larkin, attorney for J. W. Friend, the following pieces of jewelry, for examination and identification:' (Then followed list of jewelry.) The receipt was signed 'Chas. F. Leach, Collector of Customs.'

The plea then averred that Leach, in violation of his agreement, carried the articles to Cleveland. That from there he returned certain articles to Larkin as not subject to seizure, and assumed to seize the remainder at Cleveland, and then caused this proceeding in forfeiture to be instituted in the district court for the northern district of Ohio. After demurrer to the plea had been overruled, the district attorney replied; but, in the view taken of the case, it is unnecessary to restate the contents of that reply. The district judge said: 'An examination of the reply discloses practically the same question as that which was heretofore presented on the demurrer to the plea.' The circuit court of appeals held the reply to be evasive, and not to deny the substantial averments of the plea, and said: 'We quite agree with the court below that, under the circumstances of this case, these jewels were not subject to seizure in Cleveland, but should have been seized in the district of New York. The articles were found in the latter district, and should have been there seized.'

Assistant Attorney General Cooley for the United States.

Mr. Warwick M. Hough for the A. Graf Distilling Company.

[Argument of Counsel from pages 336-338 intentionally omitted]

Mr. Chief Justice Fuller, after making the foregoing statement, delivered the opinion of the court: