this letter did not constitute a disposal of its petition by the Secretary of the Treasury, and asks the Court to make any forfeiture decree conditional upon receipt by the chattel mortgagee from the Secretary of Treasury 'of an answer to its petition for remission or mitigation of forfeiture which conforms to law'.
We must refuse this request since it seems clear that the letter from the office of the Attorney General of the United States constituted an answer disposing of the petition. The chattel mortgagee argues that this letter does not constitute action by the Secretary of the Treasury since it merely indicates action by the Attorney General. However, by Executive Order 6166, dated June 10, 1933, the discretionary power under Section 1618 of Title 19 U.S.C.A., was delegated to and vested in the Attorney General in cases referred to the Department for prosecution or where action had been commenced. The petition to the Secretary of the Treasury was filed on the same date as that of the filing of the libel in this case so that the above executive order is clearly applicable here. Consequently, the chattel mortgagee's first point lacks merit.
The remaining contentions are based on a consideration of the merits of the petition, and, in effect, ask this Court to review the action of the Attorney General in denying the petition for remission or mitigation. This Court has no jurisdiction to review the action of the Secretary of the Treasury or his delegated representative, even if the refusal to grant remission be arbitrary. United States v. Gramling, supra; United States v. One 1946 Plymouth Sedan, supra. In this last cited case, Judge Kennedy stated, 73 F.Supp. 88, 90:
'My conclusion is that when seizure of a contraband-carrying vehicle is made under the Act of 1939, 49 U.S.C.A. § 781 et seq., the remedy, and the only remedy, of the innocent owner or lienor is through an act of grace on the part of the Cabinet officer in whose jurisdiction the seizure lies.'
This decision was cited with approval by the Court of Appeals for the Second Circuit in United States v. Heckinger, supra. Therefore, we must deny the request of the chattel mortgagee in this respect also.
We make one final observation regarding this case. The evidence would have sustained a finding that the motor vehicle involved was being used to transport 192 grains of marihuana as well as the 220 grains of heroin. However, since, the evidence did not so clearly establish that the marihuana constituted contraband within the meaning of Section 781 of Title 49 U.S.C.A., and since such a finding was not necessary to the decision, we have not discussed this aspect of the case. We mention this now for the reason that we do not desire to create a decisional inference to the effect that the marihuana in this case did not constitute contraband
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