[281 U.S. 528, 529] Messrs. Joseph G. Myerson, of New York City, and R. R. Williams, of Asheville, N. C., for petitioner Richbourg Motor Co.
Mr. Duane R. Dills, of New York City, for petitioner Davies Motors, Inc.
The Attorney General and Mr. Seth W. Richardson, Asst. Atty. Gen., for the United States.
Mr. Justice STONE delivered the opinion of the Court.
In these cases certiorari was granted, 280 U.S. 549 , 50 S. Ct. 85, 74 L. Ed. -, and 281 U.S. 707 , 50 S. Ct. 237, 74 L. Ed. -, respectively to pass on the question, whether proceedings for the forfeiture of a vehicle seized under section 26 of the National Prohibition Act1, as one used for [281 U.S. 528, 530] unlawful transportation of intoxicating liquor, but, where there has been no prosecution for that offense, must be had under that section, or whether they may be prosecuted under the provisions of Rev. St. 3450.2 The latter authorizes the forfeiture of vehicles used in the removal or concealment of any commodity with intent to deprive the United States of any tax upon it, which is made a criminal offense. The section does not, as does title 2, section 26 (27 USCA 40) protect the interests of innocent lienors. Goldsmith Jr.-Grant Co. v. United States, 254 U.S. 505 , 41 S. Ct. 189; cf. Van Oster v. Kansas, 272 U.S. 465 , 47 S. Ct. 133, 47 A. L. R. 1044
In each case the Court of Appeals answered the question by affirming a judgment of a District Court, forfeiting, under section 3450, automobiles in which the petitioners [281 U.S. 528, 531] respectively, asserted an interest as innocent lienors. Richbourg Motor Co. v. United States (C. C. A. 4th Circuit) 34 F.(2d) 38; Davies Motors v. United States (C. C. A. 9th Circuit) 35 F.(2d) 928. In each a person operating an automobile belonging to another was arrested and arraigned before a United States commissioner on a charge of illegal transportation of intoxicating liquor. The liquor and the car used for its transportation were seized by the officer making the arrest. The United States attorney did not proceed with the prosecution of the charge, but procured the indictment and conviction of the prisoners, under section 3450, for removing and concealing spirits with intent to defraud the government of the tax.
The proceedings presently involved for the forfeiture of the vehicles were also had under that section. In each the respective petitioners intervened, setting up that they were lienors under conditional contracts of sale, to persons other than those arrested, and that petitioners and the conditional vendees were innocent of any participation in the unlawful acts charged. In No. 452 the court refused a request of petitioner to submit to the jury the question whether the seized automobile was used in the unlawful transportation of liquor and whether the [281 U.S. 528, 532] persons in the car were arrested at the time of its seizure, and refused a motion to dismiss the libel on the ground that by such arrest and seizure the government was bound to proceed for the forfeiture of the vehicle under title 2, section 26 (27 USCA 40), and barred from proceeding under section 3450 (26 USCA 1181). In No. 569 trial was by the court without a jury, which found the facts as already stated, and decreed forfeiture of the vehicle under section 3450.
By section 5 of the Willis-Campbell Act of November 23, 1921, c. 134, 42 Stat. 222, 223 (27 USCA 3), all laws relating to the manufacture, taxation, and traffic in intoxicating liquors and penalties for their violation, in force when the National Prohibition Act was adopted, were continued in force, except such provisions as are 'directly in conflict with any provision of the National Prohibition Act.'
In United States v. One Ford Coupe, 272 U.S. 321 , 47 S. Ct. 154, 47 A. L. R. 1025, it was held that there was no such direct conflict between section 26 and section 3450 as to preclude the forfeiture of the interest of an innocent lienor under the latter, where the intoxicating liquor was concealed in the seized vehicle with intent to defraud the government of the tax, and where it did not appear that there was transportation of the liquor. In Port Gardner Investment Co. v. United States, 272 U.S. 564 , 47 S. Ct. 165, and in Commercial Credit Co. v. United States, 276 U.S. 226 , 48 S. Ct. 232, it was held that prosecution and conviction of the offender for the transportation of intoxicating liquor under the Prohibition Act barred forfeiture of the seized vehicle under section 3450 (26 USCA 1181), since the disposition of the vehicle after the conviction, prescribed by title 2, section 26 (27 USCA 40), is mandatory. These cases left undetermined the question now presented, whether, under title 2, 26, the mere arrest of the person discovered in the act of transportation, and the seizure of the transporting vehicle, bar the forfeiture under section 3450 ( 26 USCA 1181).
The language of title 2, 26 (27 USCA 40) is in form mandatory throughout. It is made the 'duty' of the officer discovering any per- [281 U.S. 528, 533] son in the act of transporting liquor to seize the liquor, when 'he shall take possession of the vehicle' and 'shall arrest any person in charge' of it. He 'shall at once proceed against the person arrested under the provisions of this chapter.' The vehicle 'shall be returned to the owner' upon his giving bond. 'The court upon conviction of the person so arrested ... shall order a sale by public auction of the property seized,' and the officer making the sale 'shall pay all liens ... which are established ... as being bona fide and as having been created without the lienor having any notice that the carrying vehicle was being used or was to be used for illegal transportation of liquor. ...' It is plain that, whenever the vehicle seized by the arresting officers is discovered in use in the prohibited transportation, literal compliance with these requirements would compel the forfeiture under title 2, 26, with the consequent protection of the interests of innocent lienors. To that extent, title 2, 26, if interpreted to exact such compliance, is in direct conflict with the forfeiture provisions of section 3450 and supersedes them whenever any person within the provisions of title 2, 26, is discovered 'in the act of transporting ... intoxicating liquors in any ... vehicle,' which liquor is 'removed ... deposited or concealed ... with intent to defraud the United States' of the tax.
But the government contends that title 2, 26, is not to be read thus literally; that it was not intended by its mandatory phrases to do more than state generally the duty resting on all law enforcement officers to enforce the law, but which leaves them free, when the same act or transaction constitutes an offense under different statutes, to proceed under either one. It is argued that title 2, 26, could not have been intended to preclude district attorneys from prosecuting violations of section 3450 merely because they involve transportation, and it can no less be taken to de- [281 U.S. 528, 534] prive them of their election to forfeit the offending vehicle under either section.
Undoubtedly, 'shall' is sometimes the equivalent of 'may' when used in a statute prospectively affecting government action. See Cairo & F. R. Co. v. Hecht, 95 U.S. 168 ; West Wisconsin Ry. Co. v. Foley, 94 U.S. 100 , 103. The usual provisions of criminal statutes that the offender 'shall' be punished as the statute prescribes is not necessarily to be taken, as against the government, to direct prosecution under that rather than some other applicable statute.
But the prescription in detail, by title 2, 26 (27 USCA 40), whenever transportation is involved, of successive steps to be taken, which, if followed, lead unavoidably to forfeiture under that section and no other, with the important consequence of protecting the interests of innocent third persons, suggests a definite purpose to make the protection effective by bringing all forefeitures in such cases under its controlling provisions. If the purpose were the more general one of imposing on government officers the general duty to procure the forfeiture at their election, either under title 2, 26, or any other applicable statute, most of the requirements of title 2, 26, might have been omitted. The end sought could have been attained more easily by the simple enactment, in the language of section 3450 (26 USCA 1181), that the offending vehicle 'shall be forfeited,' saving the rights of innocent lienors if the proceeding were had under title 2, 26.
It is to be observed that title 2, 26, neither prohibits transportation of intoxicating liquors nor prescribes the punishment of the offender. That is provided for in title 2, section 3 (27 USCA 12) and 29 (27 USCA 46), as amended by the Jones Act (45 Stat. 1446 (27 USCA 91, 92)). The general duty of investigating and reporting violations of title 2, section 3, as well as other sections of the National Prohibition Act to United States Attorneys, is imposed on all prohibition officers by title 2, 2 and 29. That duty is mandatory. Donnelley v. United States, 276 U.S. 505 , 48 S. Ct. 400. The general [281 U.S. 528, 535] duty to prosecute all criminal offenses is imposed on district attorneys by Rev. St. 771 (28 USCA 485). The objective of title 2, 26, is not the prosecution of the offender, elsewhere provided for, but the confiscation of the seized liquor and the forfeiture of vehicles used in its transportation, to the limited extent specified in the section. Every act which it enjoins on public officials is directed to that end.
In providing for forfeitures under this section Congress was not unaware that the enactment of the National Prohibition Act would enormously increase seizures of vehicles, beyond those made under section 3450 (26 USCA 1181), and that their forfeiture would place an increased and heavy burden on many innocent persons, unless afforded some protection by the new legislation. By title 2, 26 (27 USCA 40), it gave such protection in all cases where the prosecution of the person guilty of the transportation is had under the National Prohibition Act. This would have been but an idle gesture, and the congressional purpose would have been defeated if, in practically every case where the transporting vehicle is seized, the prosecuting officers could compel forfeiture of the interests of innocent third persons under section 3450 (26 USCA 1181). Yet that is the effect of the construction of title 2, 26, contended for by the government, since, with the enactment of national prohibition, there can be few cases of illegal transportation which do not involve the concealment of nontax-paid liquor. See United States v. One Ford Coupe , supra, page 326 of 272 U. S., 47 S. Ct. 154, 47 A. L. R. 1025.
We think that Congress did not take the precaution to enact the carefully chosen language of section 26 merely to impose general duties on prosecuting officers already placed on them by other sections of the act, but that its purpose was to preclude the nullification of the protection which section 26 had extended to innocent third persons.
This Court has already held that the provision in section 26 that 'the court upon conviction of the person so [281 U.S. 528, 536] arrested shall ... order a sale by public auction of the property seized' is mandatory and requires the forfeiture to proceed under that section. Port Gardner Investment Co. v. United States, supra; Commercial Credit Co. v. United States, supra. No tenable ground of distinction it suggested which would enable us to say, where forfeiture is involved, that the preceding requirement of the section, that the proceedings against the person arrested 'shall be under the provisions of this title,' is any less so.
The conclusion we reach is not without support in the legislative history of title 2, 26. The clause protecting the interests of innocent lienors was added by amendment in the House of Representatives to H. R. 6810, which became the National Prohibition Act. The sponsor for the amendment pointed out that the procedure prescribed by the section as originally drawn protected the interests of the innocent owner, and stated that the amendment was designed to save from forfeiture the interests of innocent lienors and innocent owners alike. Congressional Record, 66th Cong., 1st Sess., vol. 58, pt. 3, p. 2902, July 19, 1919.
Report No. 151 of the Senate Judiciary Committee on this bill, August 18, 1919, 66th Cong., 1st Sess., stated that the 'Seizure of any vehicle in which liquor is being transported in violation of law, together with liquor being transported, is authorized, as well as the arrest of the person engaged in such illegal transaction, the property seized to be disposed of under the direction of the court, as provided in 26.'
We are of opinion that under title 2, 26 (27 USCA 40), it is the duty of prohibition officers to arrest any person discovered in the act of transportation and to seize the transporting vehicle; that such arrest and seizure require the government to proceed for forfeiture of the vehicle under title 2, 26. It is unnecessary to say whether, if for any reason the seizure [281 U.S. 528, 537] cannot be made or the forfeiture proceeded with, prosecution for any offense committed must be had under the National Prohibition Act rather than other statutory provisions.
[ Footnote 1 ] Section 26, Title 2, of the National Prohibition Act, c. 85, 41 Stat. 305, 315 (U. S. Code, Title 27, 40 (27 USCA 40)):
[ Footnote 2 ] Section 3450, Revised Statutes (U. S. Code, Title 26, Sec. 1181 (26 USCA 1181)):