United States v. One Ford Coupe Automobile/Opinion of the Court

This is a proceeding commenced in the federal court for Northern Alabama, under Revised Statutes of the United States, § 3450 (Comp. St. § 6352), to forfeit an automobile 'said to belong to Garth Motor Company,' on the ground that it was being used with intent to defraud the United States of the tax on distilled spirits found therein by depositing and concealing the liquor. The libel, which was filed in September, 1923, recites that it is 'a case of seizure on land under the internal revenue laws of the United States.' The company intervened as claimant and moved to quash the libel. It also filed a claim by which it asserted title to the automobile and denied knowledge or notice, prior to seizure, that the automobile was being used or was to be used in any illegal manner. No action was ever taken on the claim. The motion to quash was allowed; and upon that motion alone the District Court entered judgment dismissing the libel. The judgment was affirmed by the Circuit Court of Appeals for the Fifth Circuit. 4 F.(2d) 528. The case is here on writ of certiorari. 268 U.S. 687, 45 S.C.t. 640, 69 L. Ed. 1157.

The libel alleges that on August 11, 1923, the federal prohibition director for Alabama had seized the automobile in the possession of one Killian being used by him 'for the purpose of depositing and concealing certain illicit distilled spirits' on which 'the taxes imposed by law had not been paid' with 'intent * *  * to defraud the United States of such taxes,' alleges that the automobile is forfeit under section 3450, and prays relief thereunder. To the libel is attached, and made part thereof, a complaint, dated August 13, 1923, by a federal prohibition agent. In that complaint, the affiant charged, with specification, only that Killian unlawfully had there in his possession 27 quarts of rye whisky, in violation of section 29 of title 2 of the National Prohibition Act (Act Oct. 28, 1919, c. 85, 41 Stat. 305, 316 (Comp. St. § 10138 1/2 p)), and he prayed that Killian 'may be apprehended and further dealt with according to law.' The complaint made no reference to removal or transportation of liquor; nor to the use of a vehicle for such purpose, nor to any seizure, nor to section 26 of the Prohibition Act (Comp. St. § 10138 1/2 mm). It did not even mention an automobile or other vehicle. Nor did the libel state that a warrant issued on the complaint, or that Killian had been arrested or in any way prosecuted for any alleged violation of the Prohibition Act, or that his whereabouts was known.

The sole question for decision is whether an automobile, which was seized by a prohibition agent, may be forfeited under section 3450, if it was being used for the purpose of depositing or concealing tax-unpaid illicit liquors with the intent to defraud the United States of the taxes imposed thereon. Obviously the mere fact that the seizure of the automobile had been made by the prohibition director (instead of by an internal revenue officer) does not preclude the possibility of a proceeding to forfeit under section 3450. It is settled that, where property declared by a federal statute to be forfeited, because used in violation of federal law, is seized by one having no authority to do so, the United States may adopt the seizure with the same effect as if it had originally been made by one duly authorized. The Caledonian, 4 Wheat. 99, 101, 4 L. Ed. 523; Taylor v. United States, 3 How. 197, 205, 11 L. Ed. 559. See United States v. One Studebaker Seven-Passenger Sedan (C. C. A.) 4 F.(2d) 534.

The serious question presented is whether there is such a direct conflict between the National Prohibition Act, and particularly section 26 of title 2 thereof, and section 3450 of the Revised Statutes, as to render the latter section inoperative and unavailable to the government, where the vehicle was being used for the purpose of depositing and concealing illicitly distilled liquors under the circumstances set forth in the libel. On this question there has been much difference of opinion in the lower courts. If a forfeiture may be had under section 3450 for such use of a vehicle to evade a tax on illicitly distilled liquor, the interests of innocent persons in the vehicle are not saved. If section 26 is the only applicable provision for forfeiture of the car, the interests of those who are innocent are not forfeited. The claimant contends, on several grounds, that section 3450 was not applicable and that the libel was properly dismissed.

First. The claimant contends that, at the time of the seizure, the law did not impose any tax upon liquor illicitly made. Congress has power to tax such liquor. United States v. Yuginovich, 256 U.S. 450, 462, 41 S.C.t. 551, 65 L. Ed. 1043; United States v. Stafoff, 260 U.S. 477, 480, 43 S.C.t. 197, 67 L. Ed. 358. By Rev. Stats. § 3248 (Comp. St. § 5982) the tax attaches to distilled spirits 'as soon as it is in existance as such' (United States Fidelity & Guaranty Co. v. United States, 220 F. 592, 136 C. C. A. 50), and upon its production the tax becomes a first lien thereon (United States v. Ulrici, 111 U.S. 38, 42, 4 S.C.t. 288, 28 L. Ed. 344). The Revenue Act of 1918 (Act Feb. 24, 1919, c. 18 § 600, 40 Stat. 1057, 1105 (Comp. St. § 5986e)), lays the tax 'on all distilled spirits now in bond or that have been or that may be hereafter produced in or imported into the United States.' The provision in section 600b of the act (Comp. St. § 5986f), concerning liquor which could not during the period of warprohibition be lawfully sold or removed, did not remit the tax; it merely deferred, the time for payment. It is clear that, before the enactment of the National Prohibition Act, it imposed the basic production tax upon all distilled spirits, although illicitly made.

The continued existence of taxes upon illicit liquor is indicated in section 35 of the National Prohibition Act (page 317 (Comp. St. § 10138 1/2 v)), which provides:

'This act shall not relieve anyone from paying any taxes or     other charges imposed upon the manufacture or traffic in such      liquor.'

That Congress in enacting that law would intentionally have exempted illicit liquor from taxation, is not likely. Moreover, we are not dealing with the construction of the law as enacted in 1919. The Willis-Campbell Act (Act Nov. 23, 1921, c. 134, § 5, 42 Stat, 222, 223 (Comp. St. § 10138 4/5 c)), supplemental thereto, continued in force or re-enacted, by express provision, all laws in regard to the taxation of intoxicating liquor not directly in conflict with the prohibitory legislation. Furthermore, the Revenue Act of 1921 (Act Nov. 23, 1921, c. 136 § 600, 42 Stat. 227, 285 (Comp. St. § 5986 e)), enacted on the same day, shows that Congress had no intention then of relieving liquor from taxation merely because illegally dealt with; for it provided specifically that if distilled spirits, tax-paid for nonbeverage purposes, be diverted to beverage purposes, an additional tax of $4.20 per gallon must be paid, although under the law such diversion could not be made legally.

The claimant argues that it could not have been the intention of Congress to impose the tax, because it had become very difficult, if not impossible, to pay the tax. The claimant points to the fact that the payment of the tax contemplated by the revenue laws existing at the time of the passage of the National Prohibition Act was by means of tax-paid stamps, to be affixed when liquor was withdrawn from the distillery or bonded warehouse, after complying with the minutely prescribed proceedings incident to its manufacture and custody set forth in Taney v. Penn Nat. Bank, 232 U.S. 174, 181-184, 34 S.C.t. 288, 58 L. Ed. 558; that since the National Prohibition Act, there has been no way in which the tax could be so paid on intoxicating liquor made for beverage purposes; that stamps are no longer obtainable and no officer is authorized to receive payment. These supervening obstacles to paying the tax do not, however, establish that the intention was not to continue it in force. A law which imposes a tax on intoxicating liquor, whether legally, or illegally made, is not in conflict with another law which prohibits the making of any such liquor. Compare United States v. Stafoff, 260 U.S. 477, 43 S.C.t. 197, 67 L. Ed. 358; Vigliotti v. Pennsylvania, 258 U.S. 403, 42 S.C.t. 330, 66 L. Ed. 686. There is no direct conflict between any provision of the prohibitory legislation and the imposition of the tax here in question.

Second. The claimant contends that the so-called tax on illicitly distilled spirits theretofore imposed ceased to be a tax, and became in law a penalty, when the enactment of the National Prohibition Act changed the purpose of the tax from raising revenue to preventing manufacture, sale, and transportation, and that to enforce such penalty by forfeiture of the property rights of innocent third partied would be a denial of due process of law. It is true that the use of the word 'tax' in imposing a financial burden does not prove conclusively that the burden imposed is a tax, and that, when it appears from its very nature that the imposition prescribed is a penalty solely, it must be treated in law as such. But the imposition here in question is not of that character. A tax on intoxicating liquor does not cease to be such because the sovereign has declared that none shall be manufactured, and because the main purpose in retaining the tax is to make law breaking less profitable. What was sought to be enforced and held to be a penalty in Lipke v. Lederer, 259 U.S. 557, 561, 42 S.C.t. 549, 66 L. Ed. 1061, was the so-called double tax. Here, we are dealing with the basic production tax.

With respect to the character of the impositions called taxes, there is nothing in either the Revenue Acts or the Prohibition Act which makes any distinction between the product of legal and illegal distillation. The acts left in effect the basic tax of $2.20 per gallon, which was and is a true tax on the product, whether legally or illegally distilled, and added to it the additional amounts in case of illegal distillation or diversion to illegal uses. These additional amounts also are called taxes by Congress, and were understood by it to be such. Whether they were intrinsically penalties, and should be treated as such, we need not determine. The basic tax of $2.20 a gallon on liquor illegally produced is not imposed because of illegality, but despite of it. It is a tax within the meaning of section 3450, and, being unpaid, makes that section applicable even if the additional amounts imposed by the acts be deemed penalties. Moreover, there is no constitutional objection to enforcing a penalty by forfeiture of an offending article. Lipke v. Lederer holds merely that the enforcement of a penalty by an administrative official, without giving notice and an opportunity to defend, is a denial of due process. A proceeding under section 3450 is a judicial proceeding, in which the claimant is accorded fully the right to litigate. A claim was filed in this case, but that is not now before us. Instead of asking for a hearing thereon, the claimant chose to move to quash the libel. If the judgment dismissing the libel is set aside, a hearing on the merits of the libel and of the claim may still be had. But we may not consider now allegations in the claim.

Third. The claimant contends that a proceeding under section 3450 will not lie to forfeit a vehicle, unless it was being used to remove the tax-unpaid article from the place where the tax was required by law to be paid; that is, the place of manufacture or of importation or a bonded warehouse. This narrow meaning of the word 'remove' is urged upon us, as contrasted with the broad term 'transport' employed in section 26. We have no occasion to determine the exact scope, in this connection, of the term 'remove.' The libel makes no reference to removal. It charges only that the automobile was being used to deposit or conceal.

Under section 3450, it is not essential that the offender must have been either the manufacturer or importer of the liquor, or a person directly associated with him. The government may look for payment also to the liquor itself and to whoever has possession of it. Nor does the language of section 3450, or its history, indicate that Congress intended to limit the proceeding under that section to cases where the vehicle was used for deposit or concealment as part of the illegal act of removal, or to make it applicable only where the article concealed had been unlawfully removed from the place where the tax should have been paid. If the intent to defraud the United States of the tax is established by any competent evidence, a use of the vehicle for the purpose of concealment satisfies the requirement of section 3450, even if it appears that the offender obtained it, not from a distillery, bonded warehouse, or importer, but from a stranger.

It is argued that Killian's purpose cannot have been to evade the tax; that it was only to violate the Prohibition Act. The place from which the removal is made, and the special relation to the manufacturer or importer of him who used the vehicle, are of evidential significance only. Knowledge that liquor was illicitly distilled may tend to prove knowledge that it was tax-unpaid. Removal or concealment of the liquor with such knowledge may tend to prove an intention to deprive the United States of the tax due thereon. But with these questions we have no concern now. The case is here on review of a judgment of dismissal upon a motion to quash. Therefore we must accept as true the allegations of the libel.

Fourth. The claimant contends that section 3450, in so far as it applied to intoxicating liquor, was superseded by section 26 of the National Prohibition Act. There was no repeal in terms. There cannot be held to have been a repeal by implication, unless section 3450 is in direct conflict with some provision of the National Prohibition Act or of the supplemental act; for Congress has declared in section 5 of the Willis-Compbell Act that, in ascertaining its intention in this connection, the standard of mere inconsistency, which had been applied in United States v. Yuginovich, 256 U.S. 450, 41 S.C.t. 551, 65 L. Ed. 1043, shall not prevail.

The two statutes cover different ground. Different purposes underlay their enactment. Section 3450, extending to every taxed article, seeks to enforce the obligation to pay the tax by subjecting to forfeiture also articles used in the attempt to evade such payment. The purpose of section 26 is to prevent the manufacture, sale, or transportation of intoxicating liquor. Carroll v. United States, 267 U.S. 132, 154, 155, 157, 45 S.C.t. 280, 69 L. Ed. 543, 39 A. L. R. 790. It is true that many acts punishable under section 3450 are punishable also under section 26. But many are not. Thus section 3450 applies to a vehicle, whether used for removal, deposit, or concealment, and even although the vehicle is not in motion and movement was never contemplated; section 26 applies only to a vehicle used in transporting contrary to law. Section 3450 may apply, although a permit was obtained to transport the liquor; section 26 cannot. On the other hand, section 3450 as applied to liquor relates only to that on which taxes have not been paid; section 26 applies whether taxes have been paid or not. It is clear that the mere existence of two provisions penalizing acts which are part of the same transaction does not prove direct conflict between them. Nor does the difference in purpose which underlay their enactment.

In the absence of conflict resulting from differences in the scope and purposes of the statutes, the claim of implied repeal must rest upon essential conflict incident to the prescribed methods of their operation. None such has been shown. Direct conflict is not established by showing merely differences in details of procedure. That some other mode of disposition must now take the place of the requirements in section 3450 for the sale of the seized liquor is not sufficient to establish a conflict of the provisions as applied to a seized vehicle. To establish an implied repeal there must, under the legislative mandate, be shown some necessary contradiction, so extreme as to justify this court in finding it impossible to permit the government the choice between the two remedies where the facts bring the offense within the provisions of both statutes. Such a contradiction is said to exist, because under section 3450 the vehicle is the offender, and must be forfeited if there is a guilty intent on the part of him who used it, whereas under section 26 a person is the offender and the forfeiture of the vehicle extends only to the interests of those who share in his guilt by having notice that it was to be used for the illegal purpose; that under section 3450 the vehicle may be forfeited, although no person is convicted of the offense involved or is even prosecuted, whereas under section 26 there can be no forfeiture, unless there has been a conviction of one discovered in the act of transportation in violation of law. But it is not true that these differences show direct conflict. The provisions for forfeiture of the vehicle and for arrest of the transporter are both incidental to the main purpose of section 26 of reaching and destroying the forbidden liquor in process of transportation. Carroll v. United States, 267 U.S. 132, 155, 45 S.C.t. 280, 69 L. Ed. 543, 39 A. L. R. 790. The contradiction urged relates only to the nature of the incidental penalty and the effect of its imposition. It is clearly possible to apply to a particular state of facts either one or the other remedy, and to give to the government the choice. To hold that where the tax-unpaid spirits were illegally distilled, there could be forfeiture of the vehicle only under section 26 while in case of tax-unpaid legally distilled liquor the vehicle could be forfeited under section 3450, would involve holding that where the crime of tax evasion is preceded by the offense of illegal distillation, a less severe forfeiture is inflicted than if tax evasion alone were involved.

Fifth. The claimant contends that section 26 has modified section 3450, as applied to intoxicating liquors, so as to deny a forfeiture of the interest in the vehicle of one who had no guilty knowledge that it was to be used for an illegal purpose. That there was no such protection of the innocent interest prior to the National Prohibition Act is conceded. Goldsmith, Jr.-Grant Co. v. United States, 254 U.S. 505, 41 S.C.t. 189, 65 L. Ed. 376. That, since the Willis-Campbell Act, Congress has not intended to restrict any remedy theretofore given in aid of the revenue laws is clear. The argument that by section 26 Congress manifested the intention to protect generally innocent interests is unfounded. The section is narrow in scope. The protection accorded is stated explicitly. It does not apply generally to violations of the Prohibition Act, nor to the violation of any provision of the revenue laws. It applies solely to cases of forfeiture incident to the prosecution, as therein provided, of a person transporting liquor by a vehicle in violation of the Prohibition Act.

The suggestion is made that in this view of section 3450 there may be a forfeiture where a stranger has surreptitiously deposited or concealed the liquor in the vehicle while in the possession and use of the owner, or has obtained possession of the vehicle by theft and then made such use of it. But we are not here concerned with such a state of facts, and therefore may dismiss the suggestion by repeating what was said of like possibilities pressed on our attention in the Goldsmith, Jr.-Grant Co. Case (page 512 (41 S.C.t. 191)):

'Whether the indicated possibilities under the law are     justified we are not called upon to consider. It has been in     existence since 1866, and has not yet received such amplitude      of application. When such application shall be made it will     be time enough to pronounce upon it; and we also reserve      opinion as to whether the section can be extended to property      stolen from the owner or otherwise taken from him without his      privity or consent.'

Sixth. The claimant contends that, as applied to intoxicating liquors, section 3450 and section 26 are alternative remedies, and may not be employed cumulatively. Section 26 commands that, when a person is discovered in the act of transporting, by means of a vehicle, intoxicating liquors in violation of the law, the officer shall take possession of the vehicle and shall arrest the person in charge thereof; that the person shall be proceeded against for the violation; that, pending the proceeding against him, the vehicle shall be surrendered to the owner upon giving bond to return it to the custody of the officer on the day of the trial to abide the judgment of the court; that, in case of conviction of the person, the vehicle shall be sold under conditions and in a manner prescribed; that the proceeds remaining after paying the expenses shall be paid over to lienors innocent of wrongdoing; and that, unless and except so far as there are such lienors or others entitled thereto, the net proceeds shall be paid into the Treasury of the United States. The claimant insists not only that the government must elect between section 26 and section 3450, but that the commencement of proceedings under section 26 bars a resort to section 3450.

The case at bar does not present any conceivable question of cumulative remedies or of election. While the second sentence in section 26 uses the words 'transported or possessed,' the context makes it very plain that the possession intended is possession in transportation. Hence that section is applicable only if a person is discovered in the act of transporting intoxicating liquor in violation of law. There is no allegation in the libel that the automobile had been so discovered or was being so used. There is no allegation that Killian, who had possession of the automobile, has ever been prosecuted. It appears that a complaint was made, but not that a warrant issued, or that he was arrested, or even that he was found. The motion to quash must be determined on the showing in the libel.

Reversed.

Mr. Justice STONE (concurring).

I agree that the Willis-Campbell Act requires section 3450 of the Revised Statutes and section 26 of the National Prohibition law to be so construed as to stand together in so far as they are not in direct conflict. I agree also that there conceivably may be a deposit or concealment of illicit liquor in an automobile with intent to defraud the United States of the tax upon it, which is not transportation within the meaning of section 26, and to that extent the two sections are not in conflict. But I cannot subscribe to those expressions in the opinion which seem to suggest that the two sections are not in direct conflict, in a case where there is transportation of liquor in a vehicle in violation of the National Prohibition law with intent to defraud the United States of the tax. In that case section 26, it seems to me, plainly directs that the seizure shall be made and proceedings for forfeiture of the seized vehicle had under that section. In that event section 26 saves the interest of the innocent owner or lienor from the forfeiture required by section 3450. It appears to me that the conflict in such a case is direct, and that section 26 by its terms is controlling.

Mr. Justice BUTLER (dissenting).

1. No tax, as distinguished from penalty, is imposed on the manufacture, sale, or transportation of intoxicating liquor for beverage purposes.

The Eighteenth Amendment by its own force invalidated all laws which in any manner sanctioned the manufacture, sale, or transportation of such liquor. National Prohibition Cases, 253 U.S. 350, 386, 40 S.C.t. 486, 588, 64 L. Ed. 946. And it empowered Congress to pass appropriate legislation to enforce the prohibition. The manufacture of intoxicating liquor for medicinal or other nonbeverage purposes may be authorized or encouraged; but an attempt so to deal with liquor for beverage purposes would be a plain violation of the amendment.

If Congress has any power to impose a tax, as distinguished from a penalty, on the production of beverage liquor forbidden by the Constitution, its purpose so to do must be disclosed unmistakably by language that is not susceptible of any other meaning. All exactions now imposed on such manufacture should be held to be penalties to enforce prohibition. The question whether the exactions called taxes were in fact penalties was not involved in United States v. Yuginovich, 256 U.S. 450, 462, 41 S.C.t. 551, 65 L. Ed. 1043, or in United States v. Stafoff, 260 U.S. 477, 43 S.C.t. 197, 67 L. Ed. 358. When reading and applying the legislation here in question, it should be borne in mind that it is the duty of Congress to impose penalties to enforce the prohibition of beverage liquor, and that Congress has undertaken vigorously to discharge that duty.

The libel for condemnation of the automobile does not refer to the statute under which the so-called tax is claimed, and does not state the amount demanded. But the government relies on section 600(a) of the Revenue Act of 1918, approved February 24, 1919. 40 Stat. 1057, 1105, c. 18. This provision was enacted before the War Prohibition Act (Comp. St. §§ 3115 11/12 f-3115 11/12 h), the Eighteenth Amendment, and the National Prohibition Act took effect. The language is:

'That there shall be levied and collected on all distilled     spirits now in bond or that have been or that may be      hereafter produced in or imported into the United States, *  *      * in lieu of the internal-revenue taxes now imposed thereon      by law, a tax of $2.20 (or, if withdrawn for beverage      purposes or for use in the manufacture or production of any      article used or intended for use as a beverage, a tax of      $6.40) on each proof gallon, *  *  * to be paid by the      distiller or importer when withdrawn, and collected under the      provisions of existing law.' And, after national prohibition became effective, that provision was amended by section 600 of the Revenue Act of 1921 (42 Stat. 227, 285, c. 121), which added:

'Provided, that on all distilled spirits on which tax is paid     at the nonbeverage rate of $2.20 per proof gallon and which      are diverted to beverage purposes *  *  * there shall be levied      and collected an additional tax of $4.20 on each proof      gallon, *  *  * to be paid by the person responsible for such      diversion.'

The government contends that, within the meaning of section 3450, $2.20 per gallon is a true tax on all liquor whether legally or illegally distilled. And as to the imposition made by section 600 of the act of 1921 it rightly says that the so-called additional tax of $4.20 on each proof gallon diverted to beverage purposes is a penalty. Clearly it is an imposition by way of punishment to enforce prohibition.

The $6.40 exaction per gallon specified in section 600(a) of the act of 1918 cannot be claimed as the liquor was not 'withdrawn' for beverage or at all. That exaction was imposed before national prohibition. It applied to all distilled spirits then in bond or that had been or thereafter might be produced or imported into the United States, with exceptions not here material. But, when the Eighteenth Amendment and the National Prohibition Act became effective, the production of beverage liquor was prohibited. Intoxicating liquors cannot be 'withdrawn for beverage purposes.' The whole charge of $6.40 per gallon was held to be a penalty, and not a tax, in Regal Drug Co. v. Wardell, 260 U.S. 386, 289, 392, 43 S.C.t. 152, 67 L. Ed. 318.

But it is said that the continued existence of taxes, as distinguished from penalties, on liquor for beverage purposes, is indicated by section 35 of the National Prohibition Act. The meaning of the sentence on which the majority relies will be more clear when other provisions there found are called to attention. The section provides:

'All provisions of law that are inconsistent with this act     are repealed only to the extent of such inconsistency and the      regulations herein provided for the manufacture or traffic in      intoxicating liquor shall be construed as in addition to      existing laws.'

Manifestly, these 'regulations' apply only to nonbeverage liquor, because the manufacture, sale, or transportation of beverage liquor is forbidden by the Constitution. The section proceeds:

'This act shall not relieve any one from paying any taxes or     other charges imposed upon the manufacture or traffic in such      liquor.'

This is the sentence relied on. That the 'taxes' there mentioned relate to nonbeverage liquor is apparent from the sentence immediately following:

'No liquor revenue stamps or tax receipts for any illegal     manufacture or sale shall be issued in advance, but upon      evidence of such illegal manufacture or sale a tax shall be      assessed against, and collected from, the person responsible      for such illegal manufacture or sale in double the amount now      provided by law (meaning that imposed on liquor lawfully      made) with an additional penalty of $500 on retail dealers      and $1,000 on manufacturers. The payment of such tax or     penalty shall give no right to engage in the manufacture of      sale of such liquor, or relieve anyone from criminal      liability, nor shall this act relieve any person from any      liability, civil or criminal, heretofore or hereafter      incurred under existing laws.'

As to nonbeverage liquor legally made, the tax is upon production. That is the only 'tax.' The further exaction is a special imposition to enforce prohibition. As to beverage liquor, the so-called double tax together with the additional penalty of $500 or $1,000, as the case may be, is upon the person responsible. It is a punishment by penalty in a sum equal to double the tax plus the specified 'additional penalties.' The amount cannot be paid as a tax. The liability attaches only on commission of crime-'illegal manufacture or sale.' In Lipke v. Lederer, 259 U.S. 557, 42 S.C.t. 549, 66 L. Ed. 1061, it was held that these exactions are penalties. The court said (pages 561, 562 (42 S.C.t. 551)):

'The mere use of the word 'tax' in an act primarily designed     to define and suppress crime is not enough to show that      within the true intendment of the term a tax was laid. Child     Labor Tax Case, 259 U.S. 20 (42 S.C.t. 449, 66 L. Ed. 817). When by its very nature the imposition is a penalty, it must     be so regarded. Helwig v. United States, 188 U.S. 605, 613     (23 S.C.t. 427, 47 L. Ed. 614). Evidence of crime (§ 29) is     essential to assessment under section 35. It lacks all the     ordmary characteristics of a tax, whose primary fanction 'is      to provide for the support of the government' and clearly      involves the idea of punishment for infraction of the law-the      definite function of a penalty, O'Sullivan v. Felix, 233 U.      S. 318, 324 (34 S.C.t. 596, 58 L. Ed. 980).

Again, after the effective date of the Eighteenth Amendment, a collector of internal revenue levied under section 600(a) of the Revenue Act of 1918 a 'so-called assessment or tax at the rate of $6.40 per gallon' on distilled liquors withdrawn from bonded warehouses between October, 1918, and June, 1920. This court reiterated what it had said in Lipke v. Lederer, and held that the sums so imposed were penalties, not taxes. Regal Drug Co. v. Wardell, supra, pages 389, 392 (43 S.C.t. 152, 67 L. Ed. 318). The exaction of $6.40 per gallon there claimed included the $2.20 per gallon for which the automobile in this case is held subject to confiscation.

Section 5 of the Willis-Campbell Act of November 23, 1921, c. 134, 42 Stat. 222, 223, is also relied on. The purpose of that section is clear when regard is had to the scope of the act of which it is a part. That is 'An act supplemental to the National Prohibition Act.' It was passed to aid enforcement of prohibition, and not to raise revenue. It authorizes and purports to regulate the prescribing of liquors for medicinal purposes, prohibits importation and manufacture until the supply then in distilleries and other bonded warehouses shall be reduced to an amount not sufficient for nonbeverage purposes, permits spirits produced in this country and exported to be returned for redeposit in bonded warehouses from which originally taken, extends the National Prohibition Act to all the territory of the United States, and makes all violators liable to the penalties provided for in the original act.

The words upon which the majority relies are these:

'That all laws in regard to the manufacture and taxation of     and traffic in intoxicating liquor, and all penalties for      violations of such laws that were in force when the National      Prohibition Act was enacted, shall be and continue in force,      as to both beverage and nonbeverage liquor, except such      provisions of such laws as are directly in conflict with any      provision of the National Prohibition Act or of this act; but      if any act is a violation of any of such laws and also of the      National Prohibition Act or of this act, a conviction for      such act or offense under one shall be a bar to prosecution      therefor under the other. All taxes and tax penalties     provided for in section 35 of title 2 of the National      Prohibition Act shall be assessed and collected in the same      manner and by the same procedure as other taxes on the      manufacture of or traffic in liquor.'

Then follows a provision exempting from taxation spirits lost by theft from distilleries or other bonded warehouses without negligence or collusion, and the act provides punishment for certain misconduct of government enforcement officers and others.

The act does not make a 'tax' out of what was, before its passage, a 'penalty.' It does not change the classification of exactions declared in Lipke v. Lederer and Regal Drug Co. v. Wardell. The Constitution forbids, and the National Prohibition Act denounces as crime, the manufacture, sale, and transportation of intoxicating liquor for beverage purposes. The exactions in respect of such liquor were properly to be considered to enforce prohibition and to punish violations of law. The Willis-Campbell Act expressly saved all measures for enforcement. The exaction still depends on the commission of crime. The government's argument that the total charge of $6.40 per gallon is to be divided, so that $4,20 of that amount may be regarded as penalty aimed at beverage liquor, and $2.20 as a tax imposed on all liquor, is without support in the language used, and is contrary to the decisions of this court. It was beverage liquor that Killian had in the automobile. The nonbeverage rate does not apply.

2. There is direct conflict between section 26 and section 3450 in respect of the disposition of vehicles seized. The facts disclosed by the record bring the case under section 26.

Section 3450 relates to all goods and commodities on which taxes are imposed, and it provides that whenever any such things 'are removed, or are deposited or concealed in any place, with intent to defraud the United States of such tax, * *  * all such goods and commodities *  *  * shall be forfeited; and in every such case *  *  * every *  *  * carriage, or other conveyance whatsoever, *  *  * and all things used in the removal or for the deposit or concealment thereof, respectively, shall be forfeited.'

Section 26 of the National Prohibition Act lays down the course to be followed by the enforcing officers. They are given no discretion. It provides:

'When the commissioner, his assistants, inspectors, or any     officer of the law shall discover any person in the act of      transporting in violation of the law, intoxicating liquors in      any *  *  * automobile, *  *  * 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 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 arrested under the provisions of this title *  *  * but      the said vehicle *  *  * shall be returned to the owner'

-upon giving a bond conditioned to return the vehicle to the officer on the day of the trial to abide the judgment of the court. Upon conviction of the person arrested the court is required to order the liquor destroyed, 'and unless good cause to the contrary is shown by the owner, shall order a sale by public auction' of the vehicle, and the officer making the sale, after deducting expenses, the fee for seizure and costs of sale shall pay all liens according to their priorities which are established at the hearing '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. * *  * ' All liens are transferred from the property to the proceeds. If no one shall be found claiming the vehicle notice by publication is required, 'and if no claimant shall appear within ten days * *  * the property shall be sold and the proceeds after deducting the expenses and costs shall be paid into the Treasury. * *  * '

Section 3450 forfeits the vehicle of an innocent owner or lienor. Section 26 expressly protects his property. The conflict as to the disposition of the automobile is direct, and that is the matter in controversy.

The great weight of judicial opinion is that illicit whisky is not subject to a tax, as distinguished from a penalty. This is held in the Second, Sixth, and Eighth Circuits, and in the Court of Appeals of the District of Columbia. No Circuit Court of Appeals has held directly that such a tax is imposed; and the decisions of the lower courts are overwhelmingly to the effect that section 26, National Prohibition Act, and R. S. section 3450, are in direct conflict. It is so held by the Circuit Court of Appeals of the Second, Fifth, Sixth, and Eighth Circuits, and the Court of Appeals of the District of Columbia. The Ninth Circuit has certified the question here in Port Gardner Investment Co. v. United States (No. 173) 272 U.S. 564, 47 S.C.t. 165, 71 L. Ed. -, decided this day.

There is shown in the margin substantially in chronological order the reported decisions since National Prohibition in the Circuit Courts of Appeals and District Courts, bearing on the application of section 3450 in respect of intoxicating liquors.

3. The opinion proceeds on the theory that transportation of whisky in the automobile is not shown outside the claim of the Garth Motor Company. And it is held that, the dismissal being set aside, hearing on the question whether Killian was transporting the whisky may be had in the lower court. It seems to me the litigation need not be so delayed, and that the important question pressing for decision should be decided now. It is true that the allegations of the company's claim are not to be considered on the motion to quash the libel; but, quite independently of the company's allegations, the court would be fully warranted in holding that Killian was found offending against section 26. The government does not here contend that he was not taken while violating that section; it does not attempt to avoid decision on the merits. On the other hand it urges that, where one is taken in the act of transporting whisky in the automobile of another, the vehicle may be forfeited, notwithstanding the owner appears and shows that he was innocent. It insists that, in case of conviction of the driver for transportation, the interest of the guilty may be forfeited, and, if the tax is not paid on the illicit beverage, the interest of the innocent owner may be confiscated. The claimant challenges that position squarely.

The information filed by the United States on September 18, 1923, states that this is a 'case of seizure on land under the internal revenue laws of the United States; there is attached and made a part of the information an affidavit and sworn complaint by R. A. Smith, a federal prohibition agent, which charges that Killian, on or about August 11, 1923, unlawfully had in his possession 27 quarts of whisky for beverage purposes, otherwise than as authorized by the National Prohibition Act; and the information alleges that Edgar N. Read, acting prohibition director, seized the automobile described 'which said automobile was then and there in the possession of one Ed. L. Killian and being used by him for the purpose of depositing and concealing' the 27 quarts of whisky, that the automobile was said to belong to the Garth Motor Company, and that Read 'now has the same in his custody.' It states that the automobile was being used by Killian with intent to defraud the United States of taxes on the whisky, and that the automobile 'then and there contained' the whisky.

The information-with apparent purpose-avoids the use of the word 'removal,' found in section 3450; it does not allege that the whisky had been 'withdrawn,' and so was subject to the $2.20 tax specified in section 600(a); and it also avoids the word 'transporting,' used in section 26. It does not show whether the automobile was moving or standing still when discovered and seized by the prohibition officers. If transportation in the automobile had been alleged, the owner would have opportunity to show his innocence under section 26. The purpose of the pleader in avoiding the use of the word 'transporting' was to forfeit the automobile of an innocent owner, on the theory that section 3450 would then apply, and that section 26 need not be followed.

When the information was filed, the court issued a writ of attachment, commanding the marshal to attach the automobile 'which is now being held by Edgar N. Read, acting prohibition director,' to detain it until the further order of the court, and to give notice to the claimant. The marshal made his return that he had executed the writ by handing a copy to Acting Director Read and by seizing the automobile. December 6, 1923, the claimant filed a motion to quash the libel. April 14, 1924, it filed its claim, alleging that the title to the automobile which was seized while being used by Killian 'in and about the unlawful transportation of intoxicating liquors' was in the company, subject to a conditional sales contract, and gave the bond provided for in section 26, which was approved by the district judge. The motion to quash was sustained and the libel was dismissed. The District Judge filed no opinion. The Circuit Court of Appeals affirmed the judgment. 4 F.(2d) 528. In its opinion that court said:

'The position now taken by the government in this case is     that the interest of an innocent owner or lienholder may be      forfeited if the automobile is standing still, but that such      interest is protected if the automobile is in motion. That     view could easily result in manifest injustice; for under it,      as an illustration, the interest of an innocent holder of a      lien on an automobile could be forfeited upon proof that,      while it was parked on a public street, liquor was concealed      in it by some one who had the intent to defraud the government of      its internal revenue tax.'

And the court held that section 3450 is superseded by section 26, in so far as there is conflict between them. It dealt with the case as one involving a violation of section 26.

I think that court's interpretation of the record was right. The prohbition agent discovered Killian in possession of an automobile containing 27 quarts of illicit whisky in violation of the National Prohibition Act. The agent seized the vehicle; and, as it was his duty so to do, it must be found that he also seized the whisky. The prosecution of Killian was commenced by filing complaint charging him with the crime of illegal possession in violation of that act. The facts stated make out 'transportation.' The use of automobiles for transportation of, and in the furtherance of traffic in, intoxicating liquors for beverage purposes, is so notorious that, when Killian was found unlawfully possessing illicit whisky in the automobile, he reasonably may be held to have been transporting, even though the vehicle happened to be standing still at the moment the prohibition agent discovered the crime and made the seizure. The facts alleged in the libel and complaint attached to it justify a finding that he was using the automobile for transportation of the whisky. On proof of such facts, a denial of transportation by Killian would not be entitled to respectful attention. Moreover, when these facts are considered in the light of what every one knows, they utterly fail to support the allegation that Killian had the illicit whisky concealed in the automobile with intent to defraud the United States of a tax on that whisky. Indeed, the facts alleged negative that purpose. The attempt to make out a case against the revenues has no foundation in fact. It was impossible to pay the so-called tax. Crime had to be committed before liability for the imposition arose. Taxes are not so conditioned.

I am of opinion that the decree should be affirmed:

1. Section 3450 does not apply. There was no tax, as distinguished from penalty, imposed upon the whisky that Killian had in the automobile when discovered by the prohibition agent.

2. Section 26 directs the proceedings to be taken in respect of the vehicle 'whenever intoxicating liquors transported or possessed illegally shall be seized by an officer.' The libel brings the case within the words and meaning of the clause just quoted.

I am authorized to say that Mr. Justice McREYNOLDS and Mr. Justice SUTHERLAND concur in this opinion.