THOMPSON v. SCHWAEBE, Collector of Customs, 22 F.2d 518

RUDKIN, Circuit Judge. This is an appeal from a decree dismissing the bill of complaint and denying injunctive relief in a suit against the collector of customs.

The Tariff Act of 1922 provides that all vehicles seized under the provisions of the eustom laws shall be placed and remain in the custody of the collector for the district in which the seizure was made, to await dis■position according to law; that the collect- or shall require the appraiser to determine the domestic value, at the time and place of appraisement, of any vehicle so seized; that if such value, i*etumed by the appraiser, does not exceed the sum of $1,000, the collector shall cause a notice of the seizure of such vehicle and the intention to forfeit and sell the same to be published for at least three successive weeks in such manner as the Secretary of the Treasury may direct; that any person claiming such vehicle may at any time within 20 days from tho date of the first publication of the notice.of seizure file with the collector a claim, stating his interest therein; that upon the filing of such claim, and the giving of a bond in the si.m of $250, conditioned that in case of condemnation of the vehicle so claimed the obligor shall pay all costs and expenses of the proceedings, the collector shall transmit such claim and bond to the United States attorney for the district in which the seizure was made, who shall proceed to a condemnation of the vehicle in the manner prescribed by law; that, if no such claim is filed or bond given within the 20 days specified, the collector shall declare the vehicle forfeited and shall sell the same at public auction in the same manner as merchandise abandoned to the United States is sold, and shall deposit the proceeds, after deducting the actual expenses of seizure, publication, and sale, in the Treasury of tho United Stafes; and that, if the value returned by the appraiser of any vehicle so seized is greater than $1,000, fhe collector shall transmit a report of the ease, with the names of available witnesses, to the United States attorney for the district in which the seizure was made for the institution of the proper proceedings for the condemnation of such property. 42 Stat. 985, §§ 605-610 (19 USCA §§ 512-517).

The complaint alleged that on October 18, 1926, one George Burke was arrested by federal officers for a violation of

section 26 of the National Prohibition Act (27 USCA § 40), while driving a Reo automobile truck; that on January 10, 1927, Burke was convicted in the court below of that offense; that the truck is now and since tho date of seizure has been in the possession of the defendant, as collector of customs for the Twenty-Seventh district of California, at Los Angeles, and that such collector has attempted to confiscate the truck under and by virtue of sections 3061, 3062 (19 USCA §§ 482, 483), and 3450 (28 USCA § 1181; Comp.

St. § 6352) of the United States Revised Statutes on the ground that the same was being used for the purpose of depositing and concealing merchandise alleged to have been imported into the United States contrary to law; that at the time of such seizure, and for some time prior thereto, the plaintiff was the owner and holder of a lien against the truck so seized in the sum of $1,383.84, no part of which has been paid, and that such lien was and is unsatisfied and is protected by

section 26 of the National Prohibition Act; that upon the conviction of Burke for the violation of said section, the forfeiture of the truck thereunder became mandatory for the protection of the interest of bona fide lienholders; that the plaintiff has no plain, speedy, or adequate remedy at law, and will suffer irreparable loss and injury if the collector is permitted to sell the truck as threatened; that the plaintiff had no knowledge that the truck was being used in an illegal manner, and particularly for any violation of the National Prohibition Act, and had no knowledge that would lead him to believe that the truck was being so used.

Tho prayer of the complaint was for a permanent injunction restraining the defendant from selling or disposing of the truck and requiring him to deliver the same into the custody of the court to be disposed of pursuant to

section 26 of the National Prohibition Act. The answer of the defendant denied that the plaintiff had no plain, speedy, or adequate remedy at law, averred that he had such a remedy by filing a claim with the collect- or and posting a bond as provided by law, and then set forth affirmatively the steps taken by the collector to enforce a forfeiture. The court below in its opinion seems to discuss the merits of the ease in a measure, hut its ultimate conclusion was based upon the ground that an equitable suit for an injunction will not lie. In this latter conclusion we concur. The law provides for a

summary forfeiture and sale by the collector when the appraised value of the property is less than $1,000, but any person claiming the property may stay all further proceedings before the collector by filing a claim and executing a bond as provided by tho statute. When this is done, the authority of the collector is at an end, and the whole matter is automatically transferred to a court of law, where aE the parties in interest are given their day in court and a full opportunity to be heard. This remedy would seem to be full, complete, and adequate.

True, the claimant is not given a right of action in his own name; but this in nowise detracts from the adequacy of the legal remedy. He is given the right to compel the government to institute proceedings in which his rights may be fully heard and determined, and it is entirely immaterial whether he appears in court as a plaintiff in an action at law, or as a claimant in a proceeding at law to declare a forfeiture.

The very object of the statute would seem to be to give parties claiming the seized property a right to have their claims determined in a court of law, instead of compelling them to resort to some other proceeding, or to invoke some other remedy. The decree of the court below went too far, however, in disposing of the case upon its merits. The dismissal should have been without prejudice to any legal remedy that may be available to the appellant, and the decree will be so modified. As thus modified, the decree is affirmed.