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Government in the manufacture of munitions and other military and hospital supplies, or in so far as such redistillation would dispense with the necessity of utilizing products and materials suitable for foods and feeds in the future manufacture of distilled spirits for the purposes herein enumerated. The President shall determine and pay a just compensation for the distilled spirits so commandeered; and if the compensation so determined be not satisfactory to the person entitled to receive the same, such person shall be paid seventy-five per centum of the amount so determined by the President and shall be entitled to sue the United States to recover such further sum as, added to said seventy-five per centum, will make up such amount as will be just compensation for such spirits, in the manner provided by section twenty-four, paragraph twenty, and section one hundred and forty-five of the Judicial Code.

Under the authority of this act an Executive order was issued September 2, and proclamations September 16, 1918, and January 30, 1919, effectuating the purposes of the act.

WAR PROHIBITION ACT.

[Extract from Act of Nov. 21, 1918, 40 Stat. 1045.]

Unlawful to sell That after June thirtieth, nineteen hundred and nineteen, until after June 30, the conclusion of the present war and thereafter until the termi1919, for bevernation of demobilization, the date of which shall be determined age purposes any distilled spirits, and proclaimed by the President of the United States, for the or manufacture purpose of conserving the man power of the Nation, and to inany fermented liquors or wines crease efficiency in the production of arms, munitions, ships, food, after Apr. 30, and clothing for the Army and Navy, it shall be unlawful to sell

1919.

purposes.

for beverage purposes any distilled spirits, and during said time no distilled spirits held in bond shall be removed therefrom for beverage purposes except for export. After May first, nineteen hundred and nineteen, until the conclusion of the present war and thereafter until the termination of demobilization, the date of which shall be determined and proclaimed by the President of the United States, no grains, cereals, fruit, or other food product shall be used in the manufacture or production of beer, wine, or other intoxicating malt or vinous liquor for beverage purposes. Unlawful to sell After June thirtieth, nineteen hundred and nineteen, until the after June 30, conclusion of the present war and thereafter until the termination 1919, beer, wine, etc., for beverage of demobilization, the date of which shall be determined and proclaimed by the President of the United States, no beer, wine, or other intoxicating malt or vinous liquor shall be sold for beverage purposes except for export. The Commissioner of Internal Revenue is hereby authorized and directed to prescribe rules and regulations, subject to the approval of the Secretary of the Treasury, in regard to the manufacture and sale of distilled spirits and removal of distilled spirits held in bond after June thirtieth, nineteen hundred and nineteen, until this Act shall cease to operate, for other than beverage purposes; also in regard to the manufacture, sale, and distribution of wine for sacramental, medicinal, or other than beverage uses. After the approval of this Act no distilled, malt, vinous, or other intoxicating liquors shall be imported into the United States during the continuance of the present war and period of demobilization: Provided, That this provision against importation shall not apply to shipments en route to the United States at the time of the passage of this Act. Any person who violates any of the foregoing provisions shall Act Sept. 12, be punished by imprisonment not exceeding one year, or by fine not exceeding $1,000, or by both such imprisonment and fine: Provided, That the President of the United States be, and hereby is, authorized and empowered, at any time after the passage of this Act, to establish zones of such size as he may deem advisable about coal mines, munition factories, shipbuilding plants, and such other plants for war material as may seem to him to require such action whenever in his opinion the creation of such zones is necessary to, or advisable in, the proper prosecution of the war,

Penalty.

1918.

and that he is hereby authorized and empowered to prohibit the sale, manufacture, or distribution of intoxicating liquors in such zones, and that any violation of the President's regulations in this regard shall be punished by imprisonment for not more than one year, or by fine of not more than $1,000, or by both such fine and imprisonment: Provided further, That nothing in this Act shall be construed to interfere with the power conferred upon the President by section fifteen of the food-control Act, approved August tenth, nineteen hundred and seventeen (Public Numbered Forty-one, Sixty-fifth Congress).

* *

SEC. 2. That under such rules, regulations, and bonds as the Secretary of the Treasury may prescribe, distilled spirits or alcohol produced prior to October third, nineteen hundred and seventeen, from products the growth of the island of Porto Rico may be admitted from said island into the United States for industrial purposes in the arts and sciences. Such alcohol or distilled spirits shall not be used for beverage purposes nor in the production of any article used as a beverage.

Any person violating the provisions of this section shall be deemed guilty of a misdemeanor and, upon conviction, shall be fined not more than $1,000 or imprisoned not more than two years. He shall, in addition, be liable to double the tax evaded, together with the tax, to be collected by assessment or on any bond given.

SEARCHES, SEARCH WARRANTS, SEIZURES, AND

FORFEITURES.

Porto Rico.

United States.

of

and

ABT. IV. The right of the people to be secure in their persons, Amendments to houses, papers, and effects, against unreasonable searches and Constitution seizures, shall not be violated, and no warrants shall issue, but Searches upon probable cause, supported by oath or affirmation, and par- seizures. ticularly describing the place to be searched, and the persons or things to be seized.

264 Fed. 842, U. S. v. Murphy. 265 Fed. 839, U. S. v. Michalski.
266 Fed. 713, U. S. v. Maresca. 268 Fed. 221, U. S. v. Fenton.
272 Fed. 484, U. S. v. Kelih. 273 Fed. 600, U. S. v. O'Dowd. 277
Fed. 75, U. S. v. Falloco; 485, U. S. v. Kelly. 279 Fed. 706,
Woods v. U. S. 281 Fed. 146, Driskill v. U. S.; 396, O'Connor v.
U. S.; 809, McGrew v. U. S. 282 Fed. 413, Lambert v. U. S.; 461,
Kanellos v. U. S.; 942, Queck v. Hawker. 283 Fed. 685, U. S. v.
Remus. 65 U. S. (L. Ed.) 311, Felix Gouled v. U. S.; U. S. v.
Remus, Jan. 2, 1923, unreported,
U. S.
T. D. 3424. 284

Fed. 434, Chicco v. U. S.; 416 McBride v. U. S.

ART. V. No person shall be held to answer for a capital, or otherwise infamous crime, unless on a presentment or indictment of a grand jury, except in cases arising in the land or naval forces, or in the militia, when in actual service in time of war or public danger; nor shall any person be subject for the same offense to be twice put in jeopardy of life or limb; nor shall be compelled in any criminal case to be a witness against himself, nor be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use, without just compensation.

264 Fed. 186, Christian Feigenspan v. Bondine. 273 Fed. 535, U. S. v. Bostow. 281 Fed. 809, McGrew v. U. S.; Kirkley v. U. S., decided July 20, 1922, unreported to date. 282 Fed. 737, De Jiaune v. U. S.; 582, Violette v. Walsh. 284 Fed. 434, Chicco v. U. S.

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[Act of June 22, 1874 (18 Stat. 187).] SEC. 5. That in all suits Production and proceedings other than criminal arising under any of the books, papers, revenue laws of the United States, the attorney representing the etc., in suits other than criminal. Government, whenever in his belief, any business book, invoice, or paper, belonging to or under the control of the defendant or claimant, will tend to prove any allegation made by the United States, may make a written motion, particularly describing such book, invoice, or paper, and setting forth the allegation which he expects to prove; and thereupon the court in which suit or pro

104314-23- -8

tax.

ceeding is pending may, at its discretion, issue a notice to the defendant or claimant to produce such book, invoice, or paper in court, at a day and hour to be specified in said notice, which, together with a copy of said motion, shall be served formally on the defendant or claimant by the United States marshal by delivering to him a certified copy thereof, or otherwise serving the same as original notices of suit in the same court are served; and if the defendant or claimant shall fail or refuse to produce such book, invoice, or paper in obedience to such notice, the allegation stated in the said motion shall be taken as confessed unless his failure or refusal to produce the same shall be explained to the satisfaction of the court. And if produced, the said attorney shall be permitted, under the direction of the court, to make examination (at which examination the defendant or claimant, or his agent, may be present) of such entries in said book, invoice, or paper as relate to or tend to prove the allegation aforesaid, and may offer the same in evidence on behalf of the United States.

But the owner of said books and papers, his agent or attorney, shall have, subject to the order of the court, the custody of them, except pending their examination in court as aforesaid.

This section applies to proceedings under the internal-revenue laws as well as the customs-revenue laws. The act is constitutional. (United States v. Distillery No. 28 and Other Property, 21 Int. Rev. Rec. 366: Fed. Cas. No. 14966.)

A compulsory production of a person's private papers to be used as evidence against him in a proceeding to forfeit his property for alleged fraud against the revenue laws is an "unreasonable search or seizure" within the meaning of the fourth amendment to the Constitution. (Boyd v. United States, 116 U. S. 617; 32 Int. Rev. Rec. 62.)

The power to compel the production of books and papers covers such documents only as would be, "if produced, competent material evidence for the party applying therefor." It does not permit the inquisition into private records on the mere possibility that something may be found to refresh the recollection of a witness, such records not being in themselves relevant to the case. (United States v. Tilden, 25 Int. Rev. Rec. 352; Fed. Cas. No. 16522.)

Rectifiers, liq- SEC. 16. Act of February 8, 1875 (18 Stat. 307). That any uor dealers, etc., carrying on busi. person who shall carry on the business of a rectifier, wholesale ness without pay. liquor dealer, retail liquor dealer, wholesale dealer in malt liquors, ment of special retail dealer in malt liquors, or manufacturer of stills, without having paid the special tax as required by law. or who shall carry Distiller carrying on business on the business of a distiller without having given bond as rewithout giving quired by law, or who shall engage in or carry on the business of bond or with ina distiller with intent to defraud the United States of the tax on tent to defraud. Fine and im- the spirits distilled by him, or any part thereof, shall, for every prisonment. such offense, be fined not less than one hundred dollars nor more than five thousand dollars and imprisoned not less than thirty days nor more than two years.

Forfeiture.

And all distilled spirits or wines, and all stills or other apparatus, fit or intended to be used for the distillation or rectification of spirits, or for the compounding of liquors, owned by such person, wherever found, and all distilled spirits or wines and personal property found in the distillery or rectifying establishment, or in any building, room, yard, or inclosure connected therewith, and used with or constituting a part of the premises; and all the right, title, and interest of such person in the lot or tract of land on which such distillery is situated, and all right, title, and interest therein of every person who knowingly has suffered or permitted the business of a distiller to be there carried on, or has connived at the same; and all personal property owned by or in possession of any person who has permitted or suffered any building, yard, or inclosure, or any part thereof, to be used for purposes of ingress or egress to or from such distillery which shall be found in any such building, yard, or inclosure, and all the right, title, and interest of every person in any premises used for ingress or egress to or from such distillery, who has knowingly suffered or permitted such premises to be used for such ingress or egress, shall be forfeited to the United States.

See section 3242, p. 81; section 3257, p. 87; section 3453, p. 107. Penalty for omitting to do things required where no punishment is imposed by any other section. (Sec. 3456, p. 108.)

As to sales made to evade tax. (Sec. 3454, p. 108.)

Indictment for unlawfully carrying on business of distillers with intent to defraud the United States or having a still under their superintendence sustained by proof that distillery was owned by a corporation of which defendants were officers and managers. (Wood v. United States, 204 Fed. 55, 122.)

This section is applicable to a prohibition State. (United States v. Lazzaro, 255 Fed. 237.)

The provision declaring forfeiture of real estate not unconsti-
tutional. (United States v. Distillery in West Front Street, 11
Int. Rev. Rec. 174; Fed. Cas. No. 14965.)

Forfeiture dates back.-Forfeiture dates back to the time the
offense was committed, and operates at that time as a statutory
transfer of the right of property to the Government. (United
States v. Fifty-six Barrels of Whisky, 1 Abb., U. S. 93; 4 Int.
Rev. Rec. 106; Fed. Cas. No. 15095; United States v. One
Water Cask, etc., 10 Id. 93; Fed. Cas. No. 15966; Henderson's
Distilled Spirits, 14 Wall. 44; 15 Int. Rev. Rec. 119; United
States v. McCoy's Distillery, 21 Id. 165.)

The title of the Government to the property infected with fraud
vests from the time of its commission, and the taint of fraud
inheres in it even in the possession of an innocent purchaser.
(United States v. Eight Hundred Caddies of Tobacco, 2 Bond.
305; Fed. Cas. No. 15036.)

Where an act is committed by the owner of a distillery by
which a forfeiture thereof is incurred under the revenue laws,
and subsequently the owner conveys the property to an innocent
purchaser without notice of the commission of the act, the property
remains still subject to the forfeiture incurred. The conveyance,
'n such case, passes no title as against the United States.
Op. Atty. Gen. 41.)

(16

Nothing can be plainer in legal decision than the proposition that the offense therein defined is attached primarily to the distillery and the real and personal property used in connection with the same, without any regard whatsoever to the personal misconduct or responsibility of the owner, beyond what necessarily arises from the fact that he leased the property to the distiller and suffered it to be used and occupied by the lessee as a distillery. (Dobbin's Distillery v. United States, 96 U. S. 395; 24 Int. Rev. Rec. 21; United States v. Blair, 3 Int. Rev. Rec. 67; Fed. Cas. 14,607.)

A mortgage given by the distiller before the unlawful acts were committed is good as against the United States if the business was not carried on by the mortgagee's permission or connivance. (United States v. Stowell, 133 U. S. 1; 36 Int. Rev. Rec. 30.)

Distillery liable to forfeiture without regard to the culpability of the owner of the property. Mechanics' liens can not be enforced in State courts after seizure by the marshal in forfeiture proceedings. (Heidritter v. Elizabeth Oilcloth Co., 6 Fed. 138.) The principles of law upon this subject are clearly and fully announced in Distillery v. United States (96 U. S. 395), and cases cited. (United States v. Two Bay Mules, 36 Fed. 84.)

On a libel against a distillery for illegal operation the Government is only required to establish its case by a preponderance of evidence and not by proof beyond a reasonable doubt. (Pocahontas Distilling Co. v. United States, 218 Fed. 782.)

Preponderance of evidence only required. (Grain Distillery No.

8 v. United States, 204 Fed. 429; T. D. 1837.)

Principal liable for acts of agent.-The acts of the agent im-
puted to the principal so far as they work the forfeiture of prop-
erty used for unlawful purposes. (Bush v. United States, 31 Int.
Rev. Rec. 305; 24 Fed. 917.)

Liability of employer for acts of servant.
Buchanan, 28 Int. Rev. Rec. 51; 9 Fed. 689.)

(United States v.

Effect of acquittal.-If a person is tried for the same offense for which distillery is seized and acquitted, it is a bar to a suit in rem against the distillery. (Coffee v. United States, 116 U. S. 436; 32 Int. Rev. Rec. 38.)

Property liable to forfeiture notwithstanding conviction of distiller. (United States v. One Distillery and Fixtures, Foster, claimant, 193 Fed. 720: United States v. 71 Bbls. Whisky, Atkinson, claimant; T. D. 1786.)

Stockholders, innocent or guilty, suffer alike from the forfeiture of corporate property. (Wood v. United States, 204 Fed. 55; T. D. 1836.)

tained
pleviable.

is irre

R. S. 934. All property taken or detained by any officer or other Property deperson, under authority of any revenue law of the United States, shall be irrepleviable, and shall be deemed to be in the custody of the law, and subject only to the orders and decrees of the courts of the United States having jurisdiction thereof.

Brice et al. v. Elliott. (22 Int. Rev. Rec. 206; Fed. Cas. 1854.)
Conflict of State and United States officers. (14 Op. Atty.
Gen. 370; 19 Int. Rev. Rec. 73: Buck v. Colbath, 3 Wall. 334.)

Certificate of

Goods in the hands of the United States held for taxes can not be attached by State officers. (Harris v. Dennie, 3 Pet. 292; McCullough v. Large, 30 Int. Rev. Rec. 166.)

Jurisdiction of Federal court not affected by subsequent seizure on replevin by State court. (Ford v. U. S., 260 Fed. 657.) Standard Carpet Co. v. Bowers, 284 Fed. 284.

R. S. 970. When, in any prosecution commenced on account of probable cause. the seizure of any vessel, goods, wares, or merchandise, made by any collector or other officer, under any act of Congress authorizing such seizure, judgment is rendered for the claimant, but if it appears to the court that there was reasonable cause of seizure, the court shall cause a proper certificate thereof to be entered, and the claimant shall not, in such case, be entitled to costs, nor shall the person who made the seizure, nor the prosecutor, be liable to suit or judgment on account of such suit or prosecution: Provided, That the vessel, goods, wares, or merchandise be, after judgment, forthwith returned to such claimant or his agent.

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The decision of the court below refusing certificate of probable cause not reviewable by circuit or Supreme Court. (United States

v. Abattoir Place, 106 U. S. 160.)

R. S. 3066. If any collector, naval officer, surveyor, or other person specially appointed by either of them, or inspector, shall have cause to suspect a concealment of any merchandise in any particular dwelling house, store building, or other place, they, or either of them, upon proper application on oath to any justice of the peace, or district judge of cities, police justice, or any judge of the circuit or district court of the United States, or any Commissioner of the United States circuit court, shall be entitled to a warrant to enter such house, store, or other place, in the daytime only, and there to search for such merchandise; and if any shall be found, to seize and secure the same for trial; and all such merchandise, upon which the duties shall not have been paid or secured to be paid, shall be forfeited. 283 Fed. 305, U. S. v. Boasberg.

R. S. 3166. Any officer of internal revenue may be specially authorized by the Commissioner of Internal Revenue to seize any property which may by law be subject to seizure, and for that purpose such officer shall have all the power conferred by law upon collectors; and such special authority shall be limited in respect of time, place, and kind and class of property, as the Commissioner may specify: Provided, That no collector shall be detailed or authorized to discharge any duty imposed by law upon any other collector.

282 Fed. 628, Smith v. Gilliam.

at the peril of

Seizure may be made by any unofficial person, but
responsibility in damages in case the seizure is not adopted by the
Government and the property is not condemned. (13 Op. Atty.
Gen. 253.)

A seizure implies an actual caption of the thing seized. (17 Op.
Atty. Gen. 82.)

As to seizure of stocks see Miller v. United States. (11 Wall. 268.)

Where a lot of ale, within the brewery in which it was made, was seized under process emanating from a State court as a forfeiture to the State and is in the custody of the sheriff awaiting judgment of the court, possession of the sheriff can not be legally interfered with by internal revenue or other officers of the United States. (15 Op. Atty. Gen. 370.)

See also R. S. 3453, p. 107, and secs. 25, 26, and 28 of the National Prohibition Act.

Officers may en- R. S. 3177. Any collector, deputy collector, or inspector may ter premises enter, in the daytime, any building or place where any articles where taxable articles are kept. or objects subject to tax are made, produced, or kept, within his district, so far as it may be necessary for the purpose of examining said articles or objects. And any owner of such building or place, or person having the agency or superintendence of the same, who refuses to admit such officer, or to suffer him to examine such article or articles, shall, for every such refusal, forfeit five hundred dollars. And when such premises are open

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