In these cases certiorari was granted, 280 U.S. 549, 50 S.C.t. 85, 74 L. Ed. -, and 281 U.S. 707, 50 S.C.t. 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 Act , as one used for 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. 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.C.t. 189, 65 L. Ed. 376; cf. Van Oster v. Kansas, 272 U.S. 465, 47 S.C.t. 133, 71 L. Ed. 354, 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 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 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.C.t. 154, 71 L. Ed. 279, 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.C.t. 165, 71 L. Ed. 412, and in Commercial Credit Co. v. United States, 276 U.S. 226, 48 S.C.t. 232, 72 L. Ed. 541, 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).