The forfeitures authorized by these statutes are absolute, and include the interest of an owner who was not a participant in the illegal acts which effected the forfeiture, and had no knowledge of them.

United States v. Two Horses, 9 Ben. 529, Fed. Cas. No. 16,578; United States v. Two Bay Mules, 36 Fed. 84; Dobbin's Distillery v. United States, 96 U. S. 395, 24 L. ed. 637; United States v. One Black Horse, 129 Fed. 167; United States v. Stowell, 133 U. S. 1, 33 L. ed. 555, 10 Sup. Ct. Rep. 244; United States v. Mincey, 5 A.L.R. 211, 165 C. C. A. 575, 254 Fed. 287; Logan v. United States, 171 C. C. A. 484, 260 Fed. 746; United States v. One Saxon Automobile, 168 C. C. A. 335, 257 Fed. 251.

29 L. ed. 746, 6 Sup. Ct. Rep. 524; Cof-argued the cause and filed a brief for fey v. United States, 116 U. S. 427, 29 defendant in error: L. ed. 681, 6 Sup. Ct. Rep. 432; Maryland use of Washington County v. Baltimore & O. R. Co. 3 How. 534, 552, 11 L. ed. 714, 722; Bartemeyer v. Iowa, 18 Wall. 129, 21 L. ed. 929; Holden v. Hardy, 169 U. S. 366, 42 L. ed. 780, 18 Sup. Ct. Rep. 383; The City of Norwich Place v. Norwich & N. Y. Transp. Co. 118 U. S. 468, 30 L. ed. 134, 6 Sup. Ct. Rep. 1150; Standard Oil Co. v. United States, 221 U. S. 1, 55 L. ed. 619, 34 L.R.A.(N.S.) 834, 31 Sup. Ct. Rep. 502, Ann. Cas. 1912D, 734; Wilson v. United States, 221 U. S. 361, 55 L. ed. 771, 31 Sup. Ct. Rep. 538, Ann. Cas. 1912D, 558; Re Debs, 158 U. S. 564, 39 L. ed. 1092, 15 Sup. Ct. Rep. 900; Monongahela Nav. Co. v. United States, 148 U. S. 312, 37 L. ed. 463, 13 Sup. Ct. Rep. 622; Fong Yue Ting v. United States, 149 U. S. 698, 37 L. ed. 905, 13 Sup. Ct. Rep. 1016; Counselman v. Hitchcock, 142 Ū. S. 547, 35 L. ed. 1110, 3 Inters. Com. Rep. 816, 12 Sup. Ct. Rep. 195; Interstate Commerce Commission v. Brimson, 154 U. S. 447, 38 L. ed. 1047, 4 Inters. Com. Rep. 545, 14 Sup. Ct. Rep. 1125; Fairbank v. United States, 181 U. S. 283, 45 L. ed. 862, 21 Sup. Ct. Rep. 648, 15 Am. Crim. Rep. 135; Maxwell v. Dow, 176 U. S. 581, 44 L. ed. 597, 20 Sup. Ct. Rep. 448, 494; Gulf, C. & S. F. R. Co. v. Ellis, 165 U. S. 150, 41 L. ed. 666, 17 Sup. Ct. Rep. 255; Bram v. United States, 168 U. S. 532, 42 L. ed. 568, 18 Sup. Ct. Rep. 183, 10 Am. Crim. Rep. 547.

Congress having no general police power, and the Act of 1866, of which U. S. Rev. Stat. § 3450, Comp. Stat. § 6352, 4 Fed. Stat. Anno. 2d ed. p. 311, is a part, being a revenue act, Congress had no power to put into it any penalty which was not a reasonable and necessary aid to the collection of the revenue. The forfeiture provision of § 3450 is not such an aid. It is neither reasonable nor necessary. If the objectionable features of § 3450 were inserted in an attempt to exercise the police power, they are void.

Camp v. Rogers, 44 Conn. 291; Mugler v. Kansas, 123 U. S. 623, 661, 31 L. ed. 205, 210, 8 Sup. Ct. Rep. 273; United States v. Jin Fuey Moy, 241 U. S. 394, 60 L. ed. 1061, 36 Sup. Ct. Rep. 658, Ann. Cas. 1917D, 854; United States v. Dewitt, 9 Wall. 41, 19 L. ed. 593.

Assistant Attorney General Adams

Similar forfeitures have been sustained under other revenue acts.

United States v. 246 Pounds of Tobacco, 103 Fed. 791; United States v. 220 Patented Machines, 99 Fed. 559; United States v. The Little Charles, 1 Brock. 347, Fed. Cas. No. 15,612; United States v. The Malek Adhel, 2 How. 209, 11 L. ed. 239; The Hampton, 5 Wall. 372, 18 L. ed. 659; The Frolic, 148 Fed. 921.

The statute, as above construed, is constitutional.

United States v. The Malek Adhel, 2 How. 209, 11 L. ed. 239; Dobbin's Distillery v. United States, 96 U. S. 395, 24 L. ed. 637; People ex rel. Bradford v. Barbiere, 33 Cal. App. 770, 166 Pac. 812; Henderson's Distilled Spirits (United States v. Henderson) 14 Wall. 44, 20 L. ed. 815; United States v. 1,960 Bags of Coffee, 8 Cranch, 398, 3 L. ed. 602.

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[508] Mr. Justice McKenna delivered the opinion of the court:

By an Act of Congress passed July 13, 1866, 14 Stat. at L. 151, chap. 184, § 14 (now $ 3450, Revised Statutes, Comp. Stat. § 6352, 4 Fed. Stat. Anno. 2d ed. p. 311, and we shall so refer to it), it was enacted that "whenever any goods or commodities for or in respect whereof any tax is or shall be imposed, cealed in any place, with intent to deare removed, or are deposited or confraud the United States of such tax, or any part thereof, all such goods or commodities shall be forfeited; and in every such case all the casks, vessels, or other packages whatsoever, respectively, and every vessel.


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boat, cart, carriage, or other conveyance whatsoever, and all horses or other animals, and all things used in the removal or for the deposit or concealment thereof, respectively, shall be forfeited."

In pursuance of this enactment a libel was filed against a Hudson automobile of the appraised value of $800, and it charged that the automobile before its seizure was used by three persons who were named, in the removal and for the deposit and concealment of 58 gallons of distilled spirits upon which a tax was imposed by the United States, and had not been paid.

Plaintiff in error, herein referred to as the Grant Company, was, on its petition. permitted to intervene and to give bond and replevy the automobile.

that only the interest of Thompson and Lamb could be condemned.

The jury found the car guilty, and, in pursuance of the verdict, a judgment of condemnation and forfeiture was entered; but as a bond with security had been given for the car, it was adjudged that the United States recover from the Grant Company as principal and J. W. Goldsmith, Jr., as security, the principal sum of $800 and costs. Execution was awarded accordingly.

Motion for a new trial was denied, and this writ of error was then prosecuted.

This statement indicates the questions in the case, and, as we have seen, involves the construction of § 3450, and [510] its unconstitutionality, if it be not construed as contended by the Grant Company.

If the case were the first of its kind, it and its apparent paradoxes might compel a lengthy discussion to harmonize the section with the accepted tests of human conduct. Its words, taken literally, forfeit property illicitly used, though the owner of it did not participate in or have knowledge of the illicit

The company subsequently answered, alleging the facts hereinafter mentioned, and, in addition, pleaded against a condemnation and forfeiture of the car, the Constitution of the United States, especially article 5 of Amendments, which prohibits the deprivation of life, liberty, or property without due process of law. The case was tried to a jury upon an agreed statement of facts, which recited that: The Grant Company was a use. There is strength, therefore, in the [509] seller of automobiles and was the owner in fee simple of the automobile used in this case, and sold it, retaining the title for unpaid purchase money, to J. G. Thompson [he was named in the libel], who was a taxicab operator, and W. M. Lamb, who was in the newspaper business: that the car was used by Thompson in violation of § 3450, Rev. Stat., but that such use was without the knowledge of the company or of any of its officers, nor did it or they have any notice or reason to suspect that it would be illegally used.

The court charged the jury to render a verdict finding the car guilty, overruling a motion of the Grant Company to direct a verdict for it on the grounds: (1) That § 3450, U. S. Rev. Stat., was in violation of article 5 of Amendments of the Constitution of the United States, in that it deprived the Grant Company of its property without due process of law. (2) That the section was not to be construed to forfeit the title of a third party entirely innocent of wrongdoing, and that the proper construction of the seetion was that it contemplated forfeiting only the interest or title of the wrong doer. (3) That the title reserved by the company for the balance of the purchase money had never been devested, and therefore could not be condemned, and

contention that, if such be the inevitable meaning of the section, it seems to violate that justice which should be the foundation of the due process of law required by the Constitution. It is, hence, plausibly urged that such could not have been the intention of Congress; that Congress necessarily had in mind the facts and practices of the world, and that, in the conveniences of business and of life, property is often and sometimes necessarily put into the possession of another than its owner. And it follows, is the contention, that Congress only intended to condemn the interest the possessor of the property might have to punish his guilt, and not to forfeit the title of the owner, who was without guilt.

Regarded in this abstraction the argument is formidable; but there are other and militating considerations. Congress must have taken into account the necessities of the government, its revenues and policies, and was faced with the necessity of making provision against their violation or evasion, and the ways and means of violation or evasion. In breaches of revenue provisions, some forms of property are facilities, and therefore it may be said that Congress interposes the care and responsibility of their owners in aid of the prohibitions of the law and its punitive provisions, by ascribing to the property a certain personality, a power

of complicity and guilt in the wrong., tude a court must feel and exercise, and In such case there is some analogy to which, it is said, it has often expressed, the law of deodand, by which a per- and by which it has been impelled to sonal chattel that was the immedi- declare laws unconstitutional that ofate cause of the death of any rea- fend against reason and justice. sonable creature was forfeited. [511] The changes are rung on the contenTo the superstitious reason to which tion, and illustrations are given of what the rule was ascribed, Blackstone adds is possible under the law if the contenthat "that such misfortunes are in tion be rejected. It is said that a Pullpart owing to the negligence of the man sleeper can be forfeited if a bottle owner, and therefore he is properly of illicit liquor be taken upon it by a punishable by such forfeiture." And he passenger, and that an ocean steamer observed: "A like punishment is in like cases inflicted by the Mosaical law: 'If an ox gore a man that he die, the ox shall be stoned, and his flesh shall not be eaten.' And, among the Athenians, whatever was the cause of a man's death, by falling upon him, was exterminated or cast out of the dominions of the republic." See also The Blackheath (United States v. Evans) 195 U. S. 361, 366, 367, 49 L. ed. 236-238, 25 Sup. Ct. Rep. 46; Liverpool, B. & R. P. Steam Nav. Co. v. Brooklyn Eastern Dist. Terminal, 251 U. S. 48, 53, 64 L. ed. 130, 132, 40 Sup. Ct. Rep. 66.

can be condemned to confiscation if a package of like liquor be innocently received and transported by it. Whether the indicated possibilities under the law are justified we are not called upon to consider. It has been in existence since 1866, and has not yet received such amplitude of application. When such application shall be made, it will be time enough to pronounce upon it. And we also reserve opinion as to whether the section can be extended to property stolen from the owner, or otherwise taken from him without his privity or consent.

Counsel further urge that § 3450 should be read in connection with §§ 3460 and 3461, and other sections of the Revised Statutes (Comp. Stat. §§ 6362, 6363, 4 Fed. Stat. Anno. 2d ed. pp. 321, 322), and should be construed to provide

which those sections offer protection. We are, however, unable to concur with counsel that they modify the requirement or effect of § 3450. They have no relation to the latter section, nor is their remedy applicable to cases under that section.

There is an intimation that, in the prior cases, there was something in the relation of the parties to the property or its uses from which it was possible to infer its destination to an illegal purpose,

But whether the reason for § 3450 be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced. Dobbins Distillery v. United States, 96 U. S. 395, 24 L. ed. 637, is an example for the forfeiture of no interest for of the rulings we have before made. It cites and reviews prior cases, applying their doctrine, and sustaining the constitutionality of such laws. It militates, therefore, against the view that § 3450 is not applicable to a property whose owner is without guilt. In other words, it is the ruling of that case, based on prior cases, that the thing is primarily consid ered the offender. And the principle and practice have examples in admiralty. The Palmyra, 12 Wheat. 1, 6 L. ed. 531. The same principle was declared in United States v. Stowell, 133 U. S. 1, 33 L. ed. 555, 10 Sup. Ct. Rep. 244. The following cases at circuit may also be re- We are unable to accept the intimaferred to: United States v. Mincey, 5 tion. There may, indeed, be greater risk A.L.R. 211, 165 C. C. A. 575, 254 Fed. to the owner of property in one [513] 287 (1918); Logan v. United States, 171 form or purpose of its bailment than C. C. A. 484, 260 Fed. 746 (1919); in another, but wrong cannot be imUnited States v. One Saxon Automobile, puted to him by reason of the form 168 C. C. A. 335, 257 Fed. 251; United or purpose. It is the illegal use that States v. 246 Pounds of Tobacco, 103 is the material consideration,-it Fed. 791; United States v. 220 Patented Machines, 99 Fed. 559.

Counsel resists the reasoning and precedent of these cases in an argument of considerable length, erected on the contention of the injustice of making an innocent man [512] suffer for the acts of a guilty one, and the anxious solici

at any rate, the risk of such purpose, -and that such relation had influence in the decision of the cases.


that which works the forfeiture, the guilt or innocence of its owner being accidental. If we should regard simply the adaptability of a particular form of property to an illegal purpose, we should have to ascribe facility to an automobile as an aid to the violation of the law. It is a "thing" that can be used

in the removal of "goods and commodi- tract, those who have put their money into ties," and the law is explicit in its con- a railroad are not bound to go on with it demnation of such things. Judgment affirmed.

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statute forbids the decree that was made.
Carriers right to cease operation.
3. Apart from statute or express con-
Note. On certiorari to state courts
-see notes to Bruce v. Tobin, 62 L. ed
U. S. 123, and Andrews v. Virginia R.
Co. 63 L. ed. U. S. 236.

at a loss if there is no reasonable prospect
of profitable operation in the future, and
no implied contract that they will do so
can be elicited from the mere fact that they
have accepted a charter from the state,
and have been allowed to exercise the power
of eminent domain.

[For other cases, see Carriers, III. in Digest
Sup. Ct. 1908.]


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rights of

4. A purchaser at a sale of a railroad on foreclosure acquires all the right which the mortgagor had to stop operations when unprofitable, whatever words were used in words, would get no more. Hence, a writ the foreclosure decree, and, whatever such of prohibition excluding from the foreclosure decree words which purported to authorize dismantling the road did not cut down the future purchaser's rights, any more than did the presence of those words [For other cases, see Mortgage, VII. g, 4, in enlarge them.

Digest Sup. Ct. 1908.]

Constitutional law due process of remedies and procedure rights of purchaser on foreclosure.



5. The purchaser of a railroad under decree of foreclosure is not deprived of property without due process of law by a writ of prohibition which excludes from such decree words which purport to authorize the purchaser to dismantle the road, since the purchaser, whatever the words of the decree, acquires all the rights that the mortgagor had to stop operations when unprofitable, and the prohibition, not compelling further operation at a loss, did not cut down the purchaser's rights any more than did the presence of the excluded words enlarge them.

[For other cases, see Constitutional Law, IV.

b, 8, a, in Digest Sup. Ct. 1908.] Certiorari -to state court non-Federal question.

6. The ruling of the highest court of state is not bound by a decree of foreclosure a state in a revisory proceeding, that the of a railroad mortgage in a suit to which the state voluntarily makes itself a party, is upon a local question with which the Federal Supreme Court has no concern.

[No. 262.]

On right of carrier to discontinue its entire service-see note to Lyon & Hoag v. Railroad Commission, 11 A.L.R. 252. As to effect of fact that return as a Argued December 6 and 7, 1920. Decided whole is reasonable on right to require railroad to transport commodity for less than reasonable compensation-see note to Northern P. R. Co. v. North Dakota, L.R.A.1917F, 1158.

On returns to which public service corporations are entitled-see note to Bellamy v. Missouri & N. A. R. Co. L.R.A.1915A, 5.

January 17, 1921.

N ERROR, and ON PETITION for Certiorari, to the Supreme Court of the State of Florida, to review a judgment granting a writ of prohibition forbidding the Circuit Judge of Marion County, in that state, to confirm the sale of a railroad, with the privilege to And see note to this case in the Flor-the purchaser of dismantling the road, ida supreme court, as reported in 8 as authorized by a foreclosure decree. A.L.R. 238. Writ of error dismissed; writ of

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United States.

Leeper v. Texas, 139 U. S. 462, 35 L. ed. 225, 11 Sup. Ct. Rep. 577; Morley v. Lake Shore & M. S. R. Co. 146 U. S. 162, 36 L. ed. 925, 13 Sup. Ct. Rep. 54; Missouri P. R. Co. v. Fitzgerald, 160 U. S. 556, 40 L. ed. 536, 16 Sup. Ct. Rep. 389; Walker v. Sauvinet, 92 U. S. 90, 23 L. ed. 678; Jenkins v. Lowenthal, 110 U. S. 222, 28 L. ed. 129, 3 Sup. Ct. Rep. 638; New Orleans v. New Orleans Waterworks Co. 142 U. S. 79, 35 L. ed. 943, 12 Sup. Ct. Rep. 142; McManus v. O'Sullivan, 91 U. S. 578, 23 L. ed. 390; Jacks V. Helena, 115 U. S. 288, 29 L. ed. 392, 6 Sup. Ct. Rep. 39; Moran v. Horsky, 178 U. S. 205, 44 L. ed. 1038, 20 Sup. Ct. Rep. 856; United States v. Thompson, 93 U. S. 586, 23 L. ed. 982; Wood


Brady, 150 U. S. 18, 37 L. ed. 981, 14 149 U. S. 580, 37 L. ed. 856, 13 Sup. Ct. Sup. Ct. Rep. 6; Loeber v. Schroeder, Rep. 934; St. Paul, M. & M. R. Co. v. Todd County, 142 U. S. 282, 35 L. ed. 1014, 12 Sup. Ct. Rep. 281; Northern R. Co. v. New York, 12 Wall. 384, 20 L. ed. 412; Kennard v. Louisiana, 92 U. S. 480,

23 L. ed. 478.

Should this court find that this case presents a question for its consideration, then the judgment of the supreme court of Florida should be affirmed.

Brooks-Scanlon Co. v. Railroad Commission, 251 U. S. 396, 399, 64 L. ed. 323, 326, P.U.R.1920C, 579, 40 Sup. Ct. Rep. 183; Munn v. Illinois, 94 U. S. 113, 24 L. ed. 77; Mississippi R. Commission v. Mobile & O. R. Co. 244 U. S. 388, 61 L. ed. 1216, 37 Sup. Ct. Rep. 602; Northern P. R. Co. v. North Dakota, 236 U. S. 585, 595, 59 L. ed. 735, 741, L.R.A. 1917F, 1148, P.U.R.1915C, 277, 35 Sup. Ct. Rep. 429, Ann. Cas. 1916A, 1; Norfolk & W. R. Co. v. Conley, 236 U. S. 605, 609, 614, 59 L. ed. 745, 747, 749, P.U.R.1915C, 293, 35 Sup. Ct. Rep. 437; Anderson v. Dent, Fla. -, 85 So. 151; New York Trust Co. v. Portsmouth Gates v. Boston & N. Y. Air Line R. & E. Street R. Co. 192 Fed. 728; Iowa Co. 53 Conn. 333, 5 Atl. 695; Thomas v. v. Old Colony Trust Co. L.R.A.1915A, West Jersey R. Co. 101 U. S. 71, 25 549, 131 C. C. A. 581, 215 Fed. 307; L. ed. 950; Central Transp. Co. v. PullCentral Bank & T. Corp. v. Cleveland, man's Palace Car Co. 139 U. S. 24, 35 146 C. C. A. 446, 252 Fed. 530; Jack v. L. ed. 55, 11 Sup. Ct. Rep. 478; Thomas Williams, 113 Fed. 823; South Carolina v. West Jersey R. Co. 101 U. S. 71, 25 ex rel. Cunningham v. Jack, 76 C. C. A. L. ed. 950; Talcott v. Pine Grove Twp. 165, 145 Fed. 281; Butz v. Muscatine, 8,1 Flipp. 120, Fed. Cas. No. 13,735; Rex Wall. 515, 19 L. ed. 490; The J. E. Rum. v. Severn & W. R. Co. 2 Barn. & Ald. bell, 148 U. S. 1, 11, 37 L. ed. 345, 347, 646, 106 Eng. Reprint, 501, 7 Eng. Rul. 13 Sup. Ct. Rep. 498; Green v. Biddle, Cas. 445; State v. Hartford & N. H. R. 8 Wheat. 76, 84, 5 L. ed. 566, 568; Hood Co. 29 Conn. 538; Railroad Comrs. v. v. Ocklawaha Valley R. Co. 78 Fla. 659, Portland & O. C. R. Co. 63 Me. 269, 18 84 So. 97; Bronson v. Kinzie, 1 How. Am. Rep. 208; Farmers' Loan & T. Co. 311, 11 L. ed. 143; Gantly v. Ewing, 3 v. Heinning, Fed. Cas. No. 4,666; PeoHow. 707, 11 L. ed. 794; Barnitz v. Bev-ple v. Albany & V. R. Co. 24 N. Y. 261, erly, 163 U. S. 118, 41 L. ed. 93, 16 Sup. Ct. Rep. 1042; Bradley v. Lighteap, 195 U. S. 1, 49 L. ed. 65, 24 Sup. Ct. Rep. 748; Ochoa v. Hernandez y Morales, 230 U. S. 140, 161, 57 L. ed. 1427, 1437, 33 Sup. Ct. Rep. 1033; Smyth v. Ames, 169 U. S. 466, 42 L. ed. 819, 18 Sup. Ct. Rep. 418.

Mr. Dozier A. De Vane argued the cause and filed a brief for defendants in


This case presents no question reviewable by this court.

Iowa C. R. Co. v. Iowa, 160 U. S. 389, 40 L. ed. 467, 16 Sup. Ct. Rep. 344;

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82 Am. Dec. 295; Potwin Place v. Topeka R. Co. 51 Kan. 699, 37 Am. St. Rep. 312, 33 Pac. 309; San Antonio Street R. Co. v. State, Tex. Civ. App. 38 S. W. 55; Haugen v. Albina Light & Water Co. 21 Or. 411, 14 L.R.A. 424, 28 Pac. 244; Spokane Street R. Co. v. Spokane Falls, 6 Wash. 524, 33 Pac. 1072; Ohio & M. R. Co. v. People, 121 Ill. 483, 13 N. E. 236; Riggs v. Johnson County, 6 Wall. 188, 18 L. ed. 774; Atlantic Coast Line R. Co. v. North Carolina Corp. Commission, 206 U. S. 1, 51 L. ed. 933, 27 Sup. Ct. Rep. 585, 11 Ann. Cas. 398; Missouri P. R. Co. v. Kansas,

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