STEPHENS, Circuit Judge.
The United States appeals from a judgment of the District Court of the United States for the District of Arizona, decreeing restoration of a Plymouth truck to the owner, Miguel Morachis in a proceeding-wherein appellant claimed forfeiture of the truck to it under Title VI of the Espionage Act of 1917, 22 U.S.C.A. §§ 401-408.1
Miguel Morachis, claimant-appellee,, maintained an office in Nogales, Arizona, at-the time of the seizure. His business was, [919] that of buying and selling produce and shipping the same from the United States into Mexico. Rodolpho Tapia (sometimes •called Rodolpho Tapia Montano), an employee of Marachis and in charge of his business, used the vehicle in question for attempting to take into Mexico lemons, ■grapefruit and canned milk in violation of the Export Control Law of 1940, 50 U.S. C.A.Appendix § 701.2
The Export Control Law makes no pro-vision for seizure of property sought to be illegally exported, but the government relies upon the forfeiture provisions in the Espionage Act as authority for the forfeiture of the truck. United States v. 21 Lbs. 8 Oz. More or Less of Platinum, D.C.Md.1944, 53 F.Supp. 971.
The seizure occurred June 3, 1944, and' within ten days thereafter a warrant for further detention of the property seized was issued by the court. On June 10th a libel of forfeiture was filed by the United States against both the food and truck. No petition for restoration of the food was filed by a claimant or owner, and it was forfeited to the government. Timely petition for restoration of the vehicle was filed by Morachis, and the court held that the Espionage Act does not authorize forfeiture of the vehicle, and accordingly ordered it restored to the owner. Execution of the order was stayed pending the result of this appeal.
The case was submitted to the trial court upon an agreed statement of facts.
The question here is: Did the court err in holding that Title VI of the Espionage Act of 1917 does not authorize forfeiture of a vessel or vehicle.
By the weight of authority the trial court erred. The point was inherent but not directly raised in the following cases: United States v. 251 Ladies Dresses, D.C.Tex.1943, 53 F.Supp. 772; United States v. One Ford Coupe Automobile, D.C.Tex.1944, 54 F.Supp. 852, 853; United States v. One Chevrolet Truck, D.C.Tex.1945, 62 F.Supp. 670. An early case arising shortly after the enactment of the Espionage Act, involving a libel of forfeiture was filed against the automobile carrying the illegal export, is United States v. Two Hundred and Sixty-Seven Twenty Dollar Gold Pieces, D.C.Wash. 1919, 255 F. 217, 218. The only allegation therein asserted against the automobile in support of its forfeiture was that by the use of it claimant did wilfully and feloniously attempt to export gold pieces. The court in The Cachalot III, D.C.Fla.1945, 60 F.Supp. 527, took an opposite view.
[920] Section 1 of the Act, in part, is as follows: “Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war, or other articles, in violation of law, or whenever there shall be known or probable cause to believe that any such arms or munitions of war, or other articles, are being or are intended to be exported, or shipped from, or taken out of the United States, in violation of law, the several * ■ * * marshals * * * may seize and detain any articles or munitions of war about to be exported or shipped from, or taken out of the United States, in violation of law, and the vessels or vehicles containing the same, and retain possession thereof until released or disposed of as hereinafter directed. If upon due inquiry as hereinafter provided, the property seised shall appear to have been about to be so unlawfully exported, shipped from, or taken out of the United States, the same shall be forfeited to the United States. [Emphasis added.]”
The question arises whether the phrase “property seized,” as used in the last sentence of the section, refers only to “arms or munitions of war, or other articles,” or whether it is inclusive of the “vessels or vehicles” seized.
It is quite clear that the primary purpose of the law is to provide for the seizure and the forfeiture of the “load.” Secondarily, and for practical purposes, the seizure of the “vessels or vehicles” used is authorized. It remains to be determined whether or not the “property seized” inclusive of the “vessels or vehicles” may be forfeited as a deterrent from the act of smuggling.
Before we go further with the consideration of the meaning of the Act, we interject comment and citation of authority relating in general to remedial statutes.
It is said in United States v. 21 Pounds, 8 Ounces, of Platinum, 4 Cir., 1945, 147 F.2d 78, 83, 84: “* * * ‘Statutes to prevent frauds upon the revenue are considered as enacted for the public good, and to suppress a public wrong, and therefore, although they impose penalties or forfeitures, not to be construed, like penal laws generally, strictly in favor of the defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature.’ United States v. Stowell, 133 U.S. 1, 12, 10 S.Ct. 244, 245, 33 L.Ed. 555. See also, Johnson v. Southern Pacific Co., 196 U.S. 1, 17, 25 S.Ct. 158, 49 L.Ed. 363; United States v. A. Graf Distilling Co., 208 U.S. 198, 199, 205, 206, 28 S.Ct. 264, 52 L.Ed. 452; United States v. Ryan, 284 U.S. 167, 172, 52 S.Ct. 65, 76 L.Ed. 224. For like reasons, the Espionage Act of June 15, 1917, which- was enacted for equally important public purposes, should be construed in a fair and reasonable manner.”
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STEPHENS, Circuit Judge.
The United States appeals from a judgment of the District Court of the United States for the District of Arizona, decreeing restoration of a Plymouth truck to the owner, Miguel Morachis in a proceeding-wherein appellant claimed forfeiture of the truck to it under Title VI of the Espionage Act of 1917, 22 U.S.C.A. §§ 401-408.1
Miguel Morachis, claimant-appellee,, maintained an office in Nogales, Arizona, at-the time of the seizure. His business was, [919] that of buying and selling produce and shipping the same from the United States into Mexico. Rodolpho Tapia (sometimes •called Rodolpho Tapia Montano), an employee of Marachis and in charge of his business, used the vehicle in question for attempting to take into Mexico lemons, ■grapefruit and canned milk in violation of the Export Control Law of 1940, 50 U.S. C.A.Appendix § 701.2
The Export Control Law makes no pro-vision for seizure of property sought to be illegally exported, but the government relies upon the forfeiture provisions in the Espionage Act as authority for the forfeiture of the truck. United States v. 21 Lbs. 8 Oz. More or Less of Platinum, D.C.Md.1944, 53 F.Supp. 971.
The seizure occurred June 3, 1944, and' within ten days thereafter a warrant for further detention of the property seized was issued by the court. On June 10th a libel of forfeiture was filed by the United States against both the food and truck. No petition for restoration of the food was filed by a claimant or owner, and it was forfeited to the government. Timely petition for restoration of the vehicle was filed by Morachis, and the court held that the Espionage Act does not authorize forfeiture of the vehicle, and accordingly ordered it restored to the owner. Execution of the order was stayed pending the result of this appeal.
The case was submitted to the trial court upon an agreed statement of facts.
The question here is: Did the court err in holding that Title VI of the Espionage Act of 1917 does not authorize forfeiture of a vessel or vehicle.
By the weight of authority the trial court erred. The point was inherent but not directly raised in the following cases: United States v. 251 Ladies Dresses, D.C.Tex.1943, 53 F.Supp. 772; United States v. One Ford Coupe Automobile, D.C.Tex.1944, 54 F.Supp. 852, 853; United States v. One Chevrolet Truck, D.C.Tex.1945, 62 F.Supp. 670. An early case arising shortly after the enactment of the Espionage Act, involving a libel of forfeiture was filed against the automobile carrying the illegal export, is United States v. Two Hundred and Sixty-Seven Twenty Dollar Gold Pieces, D.C.Wash. 1919, 255 F. 217, 218. The only allegation therein asserted against the automobile in support of its forfeiture was that by the use of it claimant did wilfully and feloniously attempt to export gold pieces. The court in The Cachalot III, D.C.Fla.1945, 60 F.Supp. 527, took an opposite view.
[920] Section 1 of the Act, in part, is as follows: “Whenever an attempt is made to export or ship from or take out of the United States any arms or munitions of war, or other articles, in violation of law, or whenever there shall be known or probable cause to believe that any such arms or munitions of war, or other articles, are being or are intended to be exported, or shipped from, or taken out of the United States, in violation of law, the several * ■ * * marshals * * * may seize and detain any articles or munitions of war about to be exported or shipped from, or taken out of the United States, in violation of law, and the vessels or vehicles containing the same, and retain possession thereof until released or disposed of as hereinafter directed. If upon due inquiry as hereinafter provided, the property seised shall appear to have been about to be so unlawfully exported, shipped from, or taken out of the United States, the same shall be forfeited to the United States. [Emphasis added.]”
The question arises whether the phrase “property seized,” as used in the last sentence of the section, refers only to “arms or munitions of war, or other articles,” or whether it is inclusive of the “vessels or vehicles” seized.
It is quite clear that the primary purpose of the law is to provide for the seizure and the forfeiture of the “load.” Secondarily, and for practical purposes, the seizure of the “vessels or vehicles” used is authorized. It remains to be determined whether or not the “property seized” inclusive of the “vessels or vehicles” may be forfeited as a deterrent from the act of smuggling.
Before we go further with the consideration of the meaning of the Act, we interject comment and citation of authority relating in general to remedial statutes.
It is said in United States v. 21 Pounds, 8 Ounces, of Platinum, 4 Cir., 1945, 147 F.2d 78, 83, 84: “* * * ‘Statutes to prevent frauds upon the revenue are considered as enacted for the public good, and to suppress a public wrong, and therefore, although they impose penalties or forfeitures, not to be construed, like penal laws generally, strictly in favor of the defendant; but they are to be fairly and reasonably construed, so as to carry out the intention of the legislature.’ United States v. Stowell, 133 U.S. 1, 12, 10 S.Ct. 244, 245, 33 L.Ed. 555. See also, Johnson v. Southern Pacific Co., 196 U.S. 1, 17, 25 S.Ct. 158, 49 L.Ed. 363; United States v. A. Graf Distilling Co., 208 U.S. 198, 199, 205, 206, 28 S.Ct. 264, 52 L.Ed. 452; United States v. Ryan, 284 U.S. 167, 172, 52 S.Ct. 65, 76 L.Ed. 224. For like reasons, the Espionage Act of June 15, 1917, which- was enacted for equally important public purposes, should be construed in a fair and reasonable manner.”
The answer to whether or not the vehicle, may be forfeited must be drawn from a. consideration of the whole Act. Section 2,. in part, is as follows: “It shall be the duty of the person making any seizure under this title to apply, with due diligence, to the-judge of the district court of the United States * * * having jurisdiction over the place within which the seizure is made,, for a warrant to justify.the further detention of the property so seized, which-warrant shall be granted only on oath or affirmation showing that there is known or probable cause to believe that the property seized is being or is intended to be exported or shipped from or taken out of the-United States in violation of law; and i-f the judge refuses to issue the warrant, or application therefor is not made by the-person making the seizure within a reasonable time, not exceeding ten days after the seizure, the property shall forthwith-be restored to the owner or person from whom seized. If the judge is satisfied! that the seizure was justified under the-provisions of this title, and issues his warrant accordingly, then the property shall: be detained by the person seizing it until; the President, who is hereby expressly-authorized so to do, orders it' to be restored to the owner or claimant, or until-it is discharged in due course of law on petition of the claimant, or on trial of condemnation proceedings, as hereinafter provided [emphasis added].”
Other parts of the Act relevant to the-case are set out in the margin.3
[921] If, as in this case, the vehicle is seized, it must be held and disposed of in accordance with law. The law covering the procedure to be followed after seizure is contained in Section 2 of the Act, hereinabove quoted, with the right of the owner to petition for its restitution provided by Section 3 of the Act. Briefly, according to Section 2, the seizure must be reported to a district judge, and a warrant for detention must issue if by oath or affirmation it is shown that “the property seized is being or is intended to be exported or shipped from or taken out of the United States in violation of law.” Restoration follows if this course is not taken within ten days from seizure; otherwise, “the property” shall be detained unless released by the President or until discharged under petition of claimant or condemned by court trial.
There is not in either Section 1 or Section 2 any clear cut language distinguishing between the vehicle and the load. The disposal of the “property seized,” which includes the vehicle under Section 1, is to be disposed of by the procedure prescribed in Section 2. It cannot be that authorization for the seizure of load and vehicle has been provided and that procedure for disposal of the load only by court order has been provided.
We take it that the oath or affirmation, which must be made by the seizing officer “that the property seized is being or is intended to he exported or shipped from or taken out of the United States in violation of law,” includes the load as being or intended to be exported and includes the vehicle as “being * * * taken out of the United States in violation of law.” Of course, any vessel or vehicle being used to convey conlraband out of the United States is literally “being * * * taken out of the United States in violation of law.” We think the only consistent interpretation of the Act is that the proceedings, which are outlined for the [922] disposal of “the property seized,” cover all of the property seized. If this is so, then it follows of necessity that the vehicle is subject to forfeiture along with the load.
The judgment is reversed insofar as it decrees that possession of the Plymouth truck foe restored to Miguel Morachis, and the case is remanded to the trial court with instructions to proceed with the case in conformity with the law as construed by this opinion.
Reversed and remanded.