Louis Brandeis

“ It is clearly possible to apply to a particular state of facts either one or the other remedy, and to give to the government the choice. To hold that where the tax-unpaid spirits were illegally distilled, there could be forfeiture of the vehicle only under section 26 while in case of tax-unpaid legally distilled liquor the vehicle could be forfeited under section 3450, would involve holding that where the crime of tax evasion is preceded by the offense of illegal distillation, a less severe forfeiture is inflicted than if tax evasion alone were involved. ”

“ The government does not here contend that he was not taken while violating that section; it does not attempt to avoid decision on the merits. On the other hand it urges that, where one is taken in the act of transporting whisky in the automobile of another, the vehicle may be forfeited, notwithstanding the owner appears and shows that he was innocent. It insists that, in case of conviction of the driver for transportation, the interest of the guilty may be forfeited, and, if the tax is not paid on the illicit beverage, the interest of the innocent owner may be confiscated. ”

“ When the commissioner, his assistants, inspectors, or any officer of the law shall discover any person in the act of transporting in violation of the law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, it shall be his duty to seize any and all intoxicating liquors found therein being transported contrary to law. ”

“ The basic tax of $2.20 a gallon on liquor illegally produced is not imposed because of illegality, but despite of it. It is a tax within the meaning of section 3450, and, being unpaid, makes that section applicable even if the additional amounts imposed by the acts be deemed penalties. Moreover, there is no constitutional objection to enforcing a penalty by forfeiture of an offending article. Lipke v. Lederer holds merely that the enforcement of a penalty by an administrative official, without giving notice and an opportunity to defend, is a denial of due process. ”

“ If the intent to defraud the United States of the tax is established by any competent evidence, a use of the vehicle for the purpose of concealment satisfies the requirement of section 3450, even if it appears that the offender obtained it, not from a distillery, bonded warehouse, or importer, but from a stranger. ”

“ If a forfeiture may be had under section 3450 for such use of a vehicle to evade a tax on illicitly distilled liquor, the interests of innocent persons in the vehicle are not saved. If section 26 is the only applicable provision for forfeiture of the car, the interests of those who are innocent are not forfeited. The claimant contends, on several grounds, that section 3450 was not applicable and that the libel was properly dismissed. ”

“ To establish an implied repeal there must, under the legislative mandate, be shown some necessary contradiction, so extreme as to justify this court in finding it impossible to permit the government the choice between the two remedies where the facts bring the offense within the provisions of both statutes. ”

“ Direct conflict is not established by showing merely differences in details of procedure. That some other mode of disposition must now take the place of the requirements in section 3450 for the sale of the seized liquor is not sufficient to establish a conflict of the provisions as applied to a seized vehicle. ”

“ Section 3450 forfeits the vehicle of an innocent owner or lienor. Section 26 expressly protects his property. The conflict as to the disposition of the automobile is direct, and that is the matter in controversy.
The great weight of judicial opinion is that illicit whisky is not subject to a tax, as distinguished from a penalty. This is held in the Second, Sixth, and Eighth Circuits, and in the Court of Appeals of the District of Columbia. No Circuit Court of Appeals has held directly that such a tax is imposed ”

“ The claimant challenges that position squarely.
The information filed by the United States on September 18, 1923, states that this is a 'case of seizure on land under the internal revenue laws of the United States; there is attached and made a part of the information an affidavit and sworn complaint by R. A. Smith, a federal prohibition agent, which charges that Killian, on or about August 11, 1923, unlawfully had in his possession 27 quarts of whisky for beverage purposes, otherwise than as authorized by the National Prohibition Act ”

“ No tax can be paid on such liquor, for issuance of stamps forbidden. Failure to pay tax mere incident of illegal possession and transportation, unlawful in any event. Unless two statutes distinguished, section 26 dead letter.
United States v. Deutsch (D. C. N. J.) 8 F. (2d) 54. Deutsch convicted of violation of National Prohibition Act. Owner of car in which he was transporting, and which he had rented, gave bond for its release and moves to discharge bond. Granted. Held, section 26, and
not section 3450, applies; owner of auto being innocent, there can be no forfeiture. ”

“ One under section 26, for transportation of whisky without permit; other under section 3450 charging removal and concealment to avoid tax. Truck stopped on Long Island carrying whisky. No conviction of driver; bona fide claimant. District Court dismissed both libels. Held, when vehicle is used in transporting, conviction of offender is essential to its forfeiture, at least when there is bona fide lienor. Under such circumstances, direct conflict between section 26 and section 3450, and latter does not apply at all. ”