
    UNITED STATES v. ONE DODGE COUPÉ.
    District Court, D. Massachusetts.
    October 8, 1929.
    No. 4050.
    
      Frederick H. Tarr, U. S. Atty., and Elihu D. Stone, Asst. U. S. Atty., both of Boston, Mass., for tbe United States.
    Sborey & Tiffin and Gregory D. Sborey, all of Boston, Mass., for defendant.
    Harold R. Semple, of Providence, R. I., for claimant.
   MORTON, District Judge.

This is a “libel of information” under Rev. St. § 3450 (26 USCA § 1181), to forfeit a Dodge coupé alleged to bave been used for concealing and removing distilled spirits with intent to defraud tbe United States of tbe tax thereon. A claim was made by tbe C. I. T. Corporation as owners of tbe automobile; and tbe case has been fully beard on oral and documentary evidence.

Tbe facts are as follows: State officers noticed the ear in question being operated in a suspicious manner. As they approached, tbe men in it ran away and were never identified or apprehended. The ear was searched and was found to contain 20 gallons of distilled spirits. Tbe present proceedings were thereupon instituted, and tbe C. I. T. Corporation appeared as claimant. Tbe government admits that tbe plaintiff was and is tbe owner of the automobile in question and bad neither knowledge nor reasonable cause to believe that it was to be used illegally. Tbe question is whether upon such facts tbe interest of tbe innocent owner is subject to forfeiture, under tbe statute referred to.

In United States v. One Ford Coupé, 272 U. S. 321, 47 S. Ct. 154, 71 L. Ed. 279, 47 A. L. R. 1075, it was held, by a bare majority of tbe court and against tbe view which bad generally prevailed in tbe lower courts, that Rev. St. § 3450, was not superseded in cases of .this character by National Prohibition Act, tit. 2, § 26 (27 USCA § 40). The case arose on a motion to quash the libel. No evidence was taken, and tbe question what constituted sufficient proof of “intent to defraud tbe United States of such tax” (Rev. St. § 3450) was not considered. It is said in tbe opinion that “tbe place from which tbe removal is made, and tbe special relation to tbe manufacturer or importer of him who used tbe 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 tbe liquor with such knowledge may tend to prove an intention to deprive the United States of tbe tax due thereon. But with these questions we bave no concern now. Tbe ease is here on review of a judgment of dismissal upon a motion to quash. Therefore, we must accept as true tbe allegations of the libel.” Brandeis, J., 272 U. S. 330, 47 S. Ct. 154, 157.

Section 3450 is to be considered in tbe light of tbe conditions which existed when it was passed. At that time intoxicating liquor was heavily taxed; but it was as legal to transport it over tbe roads as wheat. Tbe present day restrictions on tbe movement of liquor were then unknown. Tbe section in question was designed, in aid of tbe tax laws, to prohibit tbe removal or concealment of liquor for tbe purpose of evading taxation. Tbe intent to which tbe statute refers is an actual intent, which enters into tbe act of removal or transportation; it is, as tbe above quotation shows, a fact to be proved.

In tbe present ease tbe liquor was outlawed property. To disclose it to government officers would bave exposed it, not to taxation, but to immediate forfeiture. Those transporting it undoubtedly knew that it bad not been taxed; but there is no evidence that their transportation of tbe liquor was undertaken with any thought or intent of thereby evading taxation. I do not think that such an intent is inferable from the facts shown. An intent to violate tbe prohibition law, which undoubtedly existed, is not tbe same thing as tbe special intent which this statute requires. There is no occasion to extend beyond its plain and rather narrow provisions this extreme section, tbe very validity of which is so deeply open to question. Under tbe National Prohibition Act, tit. 2, § 26, tbe government has an adequate remedy for illegal transportation which safeguards the rights of innocent owners of property' unlawfully used.

On all the evidence I find and rule that the intent to defraud the United States of the tax required under section 3450 is not proved.

Libel dismissed.  