United States v. 1,250 Cases of Intoxicating Liquors

Second Circuit

United States v. 1,250 Cases of Intoxicating Liquors

292 F. 486, 1923 U.S. App. LEXIS 2980

CourtCourt of Appeals for the Second Circuit

DecidedJune 19, 1923

DocketNos. 241-243

StatusPublished

Cited by20 cases

This text of 292 F. 486 (United States v. 1,250 Cases of Intoxicating Liquors) is published on Counsel Stack Legal Research, covering Court of Appeals for the Second Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

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United States v. 1,250 Cases of Intoxicating Liquors, 292 F. 486, 1923 U.S. App. LEXIS 2980 (2d Cir. 1923).

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Opinion

HOUGH, Circuit Judge

(after stating the facts as above). The assignments of error in these three cases merely assert that the results reached below were wrong. Each libel sets forth several causes of action ; but with respect to all but the “penalty libel” the result would be the same, if any one of the causes of action be sustained. In the penalty case, decree'is for the aggregate of penalties said to have been incurred at divers times and places; but every penalty allowed rests [488]*488on some section of title 34, Rev. Stat. It follows that the decrees below are to be judged by opr view of the applicability of two decisions, viz. United States v. Sischo, 43 Sup. Ct. 511, 67 L. Ed. -(May 7, 1923), and The Grace and Ruby (D. C.) 283 Fed. 475.

The point mooted in the Sischo Case so plainly affected these appeals that we delayed decision in order to be guided by the ruling of the Supreme Court. It is now authoritatively held that the language of Rev. St. '§ 2766 (Comp. St. § 5462), does not mean that merchandise which cannot be lawfully imported is beyond the meaning of the several statutes contained in Rev. St. tit. 34. As applied to these cases, the Sischo decision teaches that intoxicating liquor designed for beverage purposes, and therefore incapable of lawful importation, must nevertheless be manifested as if it were lawful, and, further, that all the regulations regarding the unloading of merchandise' generally may be violated in respect of intoxicating liquor which could never he lawfully unladen. This, ruling disposes of most of the causes of action at bar.

We are entirely in accord with the decision in The Grace and Ruby, supra. The difference between the facts there presented and those at bar is that, instead of arranging to unload and deliver the cargo of the schooner by, through, or with some assistance from the schooner’s crew or equipment (as in the case cited), the whole matter was performed by previous arrangement with those controlling the Marshall, but with small boats that did not belong to the schooner, and were not even partially manned by men from her crew.

But it is just as true in this case, as it was in that of The Grace and Ruby, that “the act of unlading, although beginning beyond the three-mile limit, continued until the liquor was landed.” 283 Fed. 476. It follows that the Marshall’s whisky cargo was never manifested (Rev. St. §§ 2806-2809); it was not unladen “between the rising and the setting of the sun,” and no “special license” was ever obtained for unloading at night (Rev. St. §§ 2872-2874); there was an unloading without permit (Rev. St. § 2867), and a failure to produce manifest when demanded within “four leagues” of the coast (Rev. St. § 2814) ; also a failure to report arrival on putting into a small harbor on the Long Island coast, or to make report of the distilled spirits on board (Rev. St. §§ 2774, 2775).

There is but one point necessary to decision, and not specifically covered by the two cases cited, viz. whether paragraph H, § 3, of the Tariff Act of 1913, is applicable to the first or “cargo” libel. As found below, there was an attempt to introduce all the Marshall’s cargo, and an actual introduction of a part thereof into the commerce of the United States; also such attempt and introduction was by means of fraudulent practices; i. e., evasion of the provisions of the National Prohibition Act.

Further, there were willful acts (i. e., “rum-running”) by means whereof the United States was deprived of duties upon the merchandise (i. e., whisky) affected by said acts. The government may, and in instances like this does, tax unlawful liquor as it did lawful product or importation. United States v. Yuginovich, 256 U. S. 450, 41 Sup. Ct. 551, 65 L. Ed. 1043. We agree with the court below in granting forfeiture of cargo under the section cited of the Tariff Act of 1913.

Decrees affirmed.

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HOUGH, Circuit Judge

(after stating the facts as above). The assignments of error in these three cases merely assert that the results reached below were wrong. Each libel sets forth several causes of action ; but with respect to all but the “penalty libel” the result would be the same, if any one of the causes of action be sustained. In the penalty case, decree'is for the aggregate of penalties said to have been incurred at divers times and places; but every penalty allowed rests [488]*488on some section of title 34, Rev. Stat. It follows that the decrees below are to be judged by opr view of the applicability of two decisions, viz. United States v. Sischo, 43 Sup. Ct. 511, 67 L. Ed. -(May 7, 1923), and The Grace and Ruby (D. C.) 283 Fed. 475.

The point mooted in the Sischo Case so plainly affected these appeals that we delayed decision in order to be guided by the ruling of the Supreme Court. It is now authoritatively held that the language of Rev. St. '§ 2766 (Comp. St. § 5462), does not mean that merchandise which cannot be lawfully imported is beyond the meaning of the several statutes contained in Rev. St. tit. 34. As applied to these cases, the Sischo decision teaches that intoxicating liquor designed for beverage purposes, and therefore incapable of lawful importation, must nevertheless be manifested as if it were lawful, and, further, that all the regulations regarding the unloading of merchandise' generally may be violated in respect of intoxicating liquor which could never he lawfully unladen. This, ruling disposes of most of the causes of action at bar.

We are entirely in accord with the decision in The Grace and Ruby, supra. The difference between the facts there presented and those at bar is that, instead of arranging to unload and deliver the cargo of the schooner by, through, or with some assistance from the schooner’s crew or equipment (as in the case cited), the whole matter was performed by previous arrangement with those controlling the Marshall, but with small boats that did not belong to the schooner, and were not even partially manned by men from her crew.

But it is just as true in this case, as it was in that of The Grace and Ruby, that “the act of unlading, although beginning beyond the three-mile limit, continued until the liquor was landed.” 283 Fed. 476. It follows that the Marshall’s whisky cargo was never manifested (Rev. St. §§ 2806-2809); it was not unladen “between the rising and the setting of the sun,” and no “special license” was ever obtained for unloading at night (Rev. St. §§ 2872-2874); there was an unloading without permit (Rev. St. § 2867), and a failure to produce manifest when demanded within “four leagues” of the coast (Rev. St. § 2814) ; also a failure to report arrival on putting into a small harbor on the Long Island coast, or to make report of the distilled spirits on board (Rev. St. §§ 2774, 2775).

There is but one point necessary to decision, and not specifically covered by the two cases cited, viz. whether paragraph H, § 3, of the Tariff Act of 1913, is applicable to the first or “cargo” libel. As found below, there was an attempt to introduce all the Marshall’s cargo, and an actual introduction of a part thereof into the commerce of the United States; also such attempt and introduction was by means of fraudulent practices; i. e., evasion of the provisions of the National Prohibition Act.

Further, there were willful acts (i. e., “rum-running”) by means whereof the United States was deprived of duties upon the merchandise (i. e., whisky) affected by said acts. The government may, and in instances like this does, tax unlawful liquor as it did lawful product or importation. United States v. Yuginovich, 256 U. S. 450, 41 Sup. Ct. 551, 65 L. Ed. 1043. We agree with the court below in granting forfeiture of cargo under the section cited of the Tariff Act of 1913.

Decrees affirmed.

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