United States v. Fernandez

Fifth Circuit

United States v. Fernandez

254 F. 302, 166 C.C.A. 42, 1918 U.S. App. LEXIS 1310

CourtCourt of Appeals for the Fifth Circuit

DecidedNovember 18, 1918

DocketNo. 3293

StatusPublished

Cited by3 cases

This text of 254 F. 302 (United States v. Fernandez) is published on Counsel Stack Legal Research, covering Court of Appeals for the Fifth Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook

United States v. Fernandez, 254 F. 302, 166 C.C.A. 42, 1918 U.S. App. LEXIS 1310 (5th Cir. 1918).

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Opinion

BATTS, Circuit Judge.

Libel by the United States government to forfeit $40,300 in gold coin, alleged to have been “delivered for export and shipment, and for the purpose of being taken out of tbit United Stales,” in violation of title 7 of the Act of June IS, 1917, c. 30, 40 Stat. 225, and of the President’s proclamation of September 7, 1917. Judgment was that the coin be forfeited, but that it should be delivered to the claimant, Jesus Fernandez, upon the giving by him of a bond, conditioned that it would not be exported or employed contrary .to law.

[Í] The judgment is evidently based upon section 5 of title 6 of the cited act. The subtitle of title 6 is “seizure of arms and other articles ini ended for export.” The title deals with “arms and munitions of war, and other articles” intended for export, in violation of laws for the protection of neutrality. The law is general and permanent in character. Title 7 deals with exports “during the present war.” The words “or other articles,” as used in section 1 of title 6, while literally all-inclusive, should be construed with reference to “arms and munitions of war,” used in connection with them, and should be limited to articles exportation of which is at all times unlawful, or to be made so by proclamation of the President. The reference in section 6 of title 6 to the action of the President “as provided in section 1 of this title” might (no action being there provided for) present difficulties iii applying title 6, but the conclusion reached obviates necessity for construing that section.

Title 7, the only law under which a forfeiture could be had in this case, does not provide for the giving of a bond and the release of the property.

[304]*304[2] Instead of amending the judgment by eliminating the provision with reference to the giving of the bond, the entire judgment will be reversed. It is possible that the forfeiture would not have been adjudged, except as the predicate for a bond. We' prefer that the questions of law and fact involved in the forfeiture, under the assumption that title 7 is alone applicable, should be primarily determined by the trial court.

The judgment is therefore reversed, and the cause remanded.

Reversed and remanded.

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BATTS, Circuit Judge.

Libel by the United States government to forfeit $40,300 in gold coin, alleged to have been “delivered for export and shipment, and for the purpose of being taken out of tbit United Stales,” in violation of title 7 of the Act of June IS, 1917, c. 30, 40 Stat. 225, and of the President’s proclamation of September 7, 1917. Judgment was that the coin be forfeited, but that it should be delivered to the claimant, Jesus Fernandez, upon the giving by him of a bond, conditioned that it would not be exported or employed contrary .to law.

[Í] The judgment is evidently based upon section 5 of title 6 of the cited act. The subtitle of title 6 is “seizure of arms and other articles ini ended for export.” The title deals with “arms and munitions of war, and other articles” intended for export, in violation of laws for the protection of neutrality. The law is general and permanent in character. Title 7 deals with exports “during the present war.” The words “or other articles,” as used in section 1 of title 6, while literally all-inclusive, should be construed with reference to “arms and munitions of war,” used in connection with them, and should be limited to articles exportation of which is at all times unlawful, or to be made so by proclamation of the President. The reference in section 6 of title 6 to the action of the President “as provided in section 1 of this title” might (no action being there provided for) present difficulties iii applying title 6, but the conclusion reached obviates necessity for construing that section.

Title 7, the only law under which a forfeiture could be had in this case, does not provide for the giving of a bond and the release of the property.

[304]*304[2] Instead of amending the judgment by eliminating the provision with reference to the giving of the bond, the entire judgment will be reversed. It is possible that the forfeiture would not have been adjudged, except as the predicate for a bond. We' prefer that the questions of law and fact involved in the forfeiture, under the assumption that title 7 is alone applicable, should be primarily determined by the trial court.

The judgment is therefore reversed, and the cause remanded.

Reversed and remanded.

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254 F. 302, 166 C.C.A. 42, 1918 U.S. App. LEXIS 1310, Counsel Stack Legal Research, https://law.counselstack.com/opinion/united-states-v-fernandez-ca5-1918.

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