
    UNITED STATES OF AMERICA v. THE SCHOONER “KAWAIULANI”, her tackles apparel, etc.
    Decided: June 20, 1902.
    1. In a proceeding to condemn as forfeited, under Section 3450 R. S. U. S., the schooner Kawaiulani, for being used in the removal of certain distilled liquors whereon a U. S. revenue tax was imposed where such liquors were found concealed on said vessel, and it appeared that the same were deposited and secreted thereon by the Captain thereof, acting under a verbal lease from the owners and admitted to be rightfully in. possession, of the said vessel, and who admitted to the Collector of the Internal Revenue, who seized the liquor and the vessel, that he knew that it was contrary to the laws of the United States to manufacture distilled spirits where the tax was not paid to the Internal Revenue Department; and it appearing that no taxes have ever been paid in these Islands to that Department on this class of liquors;
    
      Held, that the intent of the Captain of said vessel to defraud the Government of the United States of the tax imposed on such liquors is clear, and by depositing and concealing the same on said schooner Kawaiulani, a forfeiture of said vessel was worked.
    2. Okolehao has a definite meaning in the Territory as belonging to a special intoxicating liquor distilled from the ti root, and where it was shown that the okolehao seized in this case was obtained somewhere in the mountains on thie other side of the Island of Oahu near a place called Kahana, the presumption is that it was made in the Islands.
    3. Under Section 3333, R. S. U. S., the burden of proof in this class of cases is upon the claimant of the property seized.
    y vessel ' States. Libel of Information under Sec-m 3450 D. S. U. S. to- condemn ssel as forfeited toi the United
    
      Robert W. Brechons, U. S. District Attorney, for government.
    
      G. W. Ashford, for claimants.
   Estee, J.

This is a libel of information based upon Section 3450 of the Devised Statutes of the United States and brought to condemn as forfeited to the United States, the schooner “Kaw-aiulani”, seized in the port of Honolulu, by the Collector of Internal Devenue, for being used in the removal of certain distilled liquors whereon .a United States, tax was imposed, am'd ■which liquors were deposited and concealed on board said vessel by one John Moses Ulunahele, the master thereof, with intent to defraud tdiei United States of the said tax.

It is claimed that one Hong Qnom and one L. Apaña were at the time of the seizure of the said vessel, th'ei owners of the same; the said John Moses Ulunahele, acting as their lessee in command of the said vessel as its master, under an oral lease.

It is further 'admitted that thei Collector of the Internal Revenue found locked away on board the said schooner, two one-gallon demijohns of a native liquor, commonly known in the islands as “okolehao',” upon which it is claimed by the government no tax has been paid as required by law.

It is claimed by tire staid alleged owners of the vessel, that admitting that the said schooner had on board deposited and concealed, the said okolehao, yet as they were utterly ignorant of the fact and entirely innocent of any connivance at the said alleged act, that they should not be made to suffer for the act of another'.

Section 3450 of the Revised Statutes provides in part, as follows:

“Whenever any goods or commodities for or in respect whereof any tax is or shall be imposed, or any materials, utensils or vessels proper or intended to- be made use of or in thei making of such goods, or commodities are removed or are. deposited or concealed in any place with intent to defraud the United States of such tax, or any part thereof, all such goods and commodities ..........shall be forfeited; and in every such case........ every vessel, boat, cart, carriage or other conveyance whatsoever, and all horses or other animals and all tilings used in the removal or for .the deposit or concealment thereof, respectively, shall be: forfeited..........”

It appears from the testimony of Roy H. Chamb'erlain, the Collector of Internal Revenue, and of Mr. Handy, the United States Deputy Marshal, who made the seizure, on May 24th, 1902, that they, in company with a Deputy Internal Revenue Collector, went down to the wharf in Honolulu, where the vessel was-tied up., having just arrived from Kahana, a point on the Island of Oahu; that the captain was aboard of the vessel and the Collector made himself known to 1dm in bis official capacity and asked him if there: was any okolehao being made at Rabana, to' which thei Captain replied there was, but upon being interrogated as to whether there was any on board bis schooner, said “no”. It further appears that the Collector asked Mm if be knew what okolehao was, and he said he did, and upon being questioned further as to whether be knew it was contrary to the laws of tbe United States and to the Internal Revenue department to manufacture distilled spirits where the taxes were no-t paid to the Internal Revenue Department* be said he did know it.

The Collector then served him with his search warrant, and went down into the cabin and proceeded ten make a search of the vese'el for okolehao, the Captain denying up to that time that he-had any aboard the vessel, but upon the Collector making a strenuous search and commencing to pull up a lot of sail cloth, the Captain- finally produced some empty bottles and one that had a small amount of liquor in it, and he stated that he had it for his own use and for his m'en. Being asked if he had anymore, ho answered no-. The Collector continued his search., whereupon Captain Moses went to -a locker in the side of that vessel and unlocked the cover which had a padlock on it, and took out a sack and prilled out a onfe-gallon demijohn of the-liquor, and then went- down arad got another. The Collector made a further search, but found noi more.

It appears from the testimony of one Peter Makia, a witness introduced by the government, and who testified that he lived at Kaharaa* that he saw the captain of thei vessel on tbe 22nd day of May, 1902, on the porch of bis bo-use at Kaharaa, arad at the captain’s request, sent for and got him tire liquors that the-captain wanted, and bad asked him to get for him, namiely, some okoleh-aoi,- that be, Makia, went to a Japanese for the liquor; that the Japanese went up into tire mountains and was gone three hour’s, coming back with tire two demijohns of the liquor; (which were produced in Court) and which were taken dowm to tiie schooner by the captain and a. German hoy.

It seems to he clear from the testimony that Captain Mos'e® knew that he was violating the law when he received and took this liquor aboard of his vessel. The circumstances of the cage-all tend to show a knowledge of thei law and an intent to evade its provisions. He denied the existence of the liquor aboard the-vessel, as is shown by botli the testimony of Chamberlain and the Deputy Marshal, and then produced it when he saw it was certain to be discovered.

No testimony was introduced whatever on the part of the claimants, save that of oaie of the alleged Chinese owners of the vessel, a Chinaman who claimed the schooner seized and who professed to be ignorant of the transactions of the master thereof in relation to this liquor. It is admitted, however, that the master of the vessel was acting’ as such under a verbal lease from these claimants and that he was rightfully in possession of the boat. In fact it is tacitly admitted that the main facts of the libel are true.

In the absence of any satisfactory explanation, it must be presumed from an examination of all of the facts, that Captain Moses intended to defraud the Internal Revenue Department •of the government of the tax imposed on such liquors, and a forfeiture of the vessel is thereby worked. Section 3450 R. S. U. S. United States v. Brewery Utensils, Fed. Case No. 14,-641.

Soane discussion was bad tending to show that no proof was made as to this liquor being' of an illicit character, or that it was produced in the United States since the 14th clay of June, 1900, the date when -the Act of Congress for the government of the territory went into effect, but not -the date of annexation. It was shown conclusively that the liquor involved in this inquiry was okolehao, and that term has a, definite meaning in the territory as belonging to a liquor distilled in the Islands from the dried ti root. The Supreme Court of the territory in the ease of the Republic of Hawaii v. Akoni, 11 Haw. 53, held that “okolehao is a well known spirituous liquor distilled from the ti root, and very intoxicating.”

It was also shown at the trial where this liquor was obtained, to-wit; somewhere in the mountains on the other side of the Island of Oahu, near a placo called ICahana. The presumption is that this liquor was made in these Islands. The testimony of the Collector of tire Internal Revenue shows that no tax has «ver been paid on any of this liquor distilled in the Islands, although it is a matter of common knowledge that it is being made constantly. It is difficult to determine at exactly what period of time this liquor was manufactured, but it was produced in an illicit and secret manner. All prosecutions on tbe part of tbe government would bo unavailing, 'and collections under tbe revenue laws would be defeated, if the government was compelled to prove when illicit liquors were produced. Of necessity, it was produced in this territory because it is distilled from the ti root, which is grown here and no testimony appears showing it is grown elsewhere.

And again, the burden of proof in this class of cases is upon the claimants of the property seized. Section 3333 R. S. U. S.; United States v. 508 Barrels of Spirits, 5 Blatch. 407 Fed. case No. 15,113; United Slates v. 6 Barrels of Distilled Spirits, 5 Blatch. 542, Fed. case 16, 294; Boyd, et al v. United States, 14 Blatch. 317; Fed. case 1749; United States v. 78 Barrels, 7 Int. Rev., Rec. 4; Fed. case, 16,257.

A consideration of the facts that influenced Congress ini the passage of these laws, apparently so harsh in their nature, enables us to appreciate the necessity for the same. The many opportunities afforded to evade th'e internal revenue laws, and the numerous violations thereof, doubtless induced Congress to pass these stringent measures, so as toi not alone punish the .guilty trespasser against the law, but also to- impress upon the owners of property the necessity for a vigilance in the selection of their agents or lessees or those to whom they intrust the same, that the said property may not be put to illegal purposes. In the malting of these laws, Congress trusted to the strong sensei of self-protection that actuates men, to. impress upon them a prudence and a vigilance that would be a factor in the prevention of many of these frauds upon the government.

Thus, in the case of the United States v. Two Horses, Fed. Case No. 16,578, 9 Ben. 529, the Court said:

“The reason why this express provision was made in respect to- the forfeiture of things used in removing spirits contrary to law, was to link the fate of the vehicle with that of the article conveyed in order to deter parties from putting their vehicles ait tbe disposal of those who would bei likely to nsei them for the purposes of fraud..........It is 'expected that thei owner of property will see to the uses made of it at Iris peril.” United States v. Two Barrels of Whiskey, 96 Fed. 479; United States v. Two Bay Mules, 36 Fed. 84.

It appears from the decision of the Supreme Court of the territory hiereiiib'efore referred to that okolehao is a native liquor, a strong intoxicant and a product of these Islands. None of this class of liquors has ever paid a tax to- the government in this territory so that no tax could ha.vei been paid on this particular liquor.

Counsel for libellees submit thei proposition that this liquor may haWe been smuggled into the territory and addlsi that there was no evidence1 that it was not so smuggled, and hence assumes that it might have been brought into the -territory. That was no ji'arb of the evidence to be offered by thei government, but was a matter -of proof for the claimants-, if any defense of that nature was to be relied upon. The further point made by counsel that the time o-f the production of this liquor is all important, because the territorial enabling act went into effect -on June 14, 1900, aind -that it must appear affirmatively that tire liquor was made since that date, or it could not be considered a production of the United! States, and was -therefore a foreign instead of an American product, may be answered in the sam'e manner, that that proposition too; if made, was for the proof of the claimants, and no evidence was offered on their part.

The -right of taxation for national purposes is a right inherent in the national sovereignty, and is unlimited except by national laws. This territory may and does levy taxes for' municipal purposes, but the- niati-on levies and collects taxes for national purposes, and the laws providing for internal revenue collections are national laws binding alike on tbe people of -thei states and territories-. The courts have nothing to do with the character or the policy of these laws; the single duty of the counts is to enforce thlem. In pursuance of that duty the court -holds in -this case, that from all tíre testimony presented, okolehao is distilled spirits and a most d-angero-us intoxicant; that the liquor in question here is -oikoilehao; tha-t it was made in the territory; that it was illicitly manufactured, and has paid no in-t'eraml revenue tax, and that Captain. Moisés knew líbese facts when ha secreted it on board the schooner Kawaiulani. That the depositing, secreting and removal of this liquor on board his said vessel was don© with intent to defraud the government of th© United States of the tax due upon it. No testimony appearing' to the eont* this court will presume that from all the circumstances surrounding the case the liquor was distilled since th© annexation, of the territory by tíre United States, and that in any event it was liable to' the tax prescribed by the laws of the United States.

Let a, judgment of condemnation of the vessel Kawainlani, her apparel, tackle, etc., b© entered in accordance with this opinion, with costs of suit.  