The opinion of the court was delivered by: DUSEN
This case comes before the court on a motion by defendant under Rule 12, Fed.R.Civ.P., 28 U.S.C. to dismiss a petition (filed October 13, 1955) for the return of petitioner's 1955 Ford automobile which has been seized by the defendant because of its use in transporting a narcotic drug, under the terms of Sections 1 and 2 of the Act of August 9, 1939, c. 618, 53 Stat. 1291, as amended, 49 U.S.C.A. §§ 781, 782.
The petition and affidavits filed disclose that petitioner's son was driving the above-mentioned car in Philadelphia on September 26, 1955, with her consent but without her knowledge that he had in his possession in the car at that time 1 7/10 grain of heroin in powdered form, wrapped in a piece of tin foil, which heroin he had purchased earlier the same day.
While petitioner's son was making a delivery of a dress for petitioner in her car on the above date, in the normal conduct of her business of operating a dress shop, the Philadelphia police arrested him and seized the above-mentioned automobile. This seizure was adopted by the Federal Bureau of Narcotics on September 27, 1955, when the automobile was delivered into its custody, and, on September 28, 1955, that Bureau appraised the car at a value of $ 2,000. The seizure of the vehicle was advertised on October 21, 1955, October 28, 1955, and November 4, 1955, in accordance with the terms of Section 607 of the Act of June 17, 1930, c. 497, Title IV, 46 Stat. 754, 19 U.S.C.A. § 1607.
Petitioner filed, on October 25, 1955,
a Petition for Remission of the Forfeiture of this automobile in accordance with the provisions of Section 618 of the Act of June 17, 1930, c. 497, Title IV, 46 Stat. 757, 19 U.S.C.A. § 1618,
and the petition is 'presently under consideration' by the Treasury Department.
Although petitioner had no knowledge or reason to believe that her son had narcotics in his possession at the time he was operating this automobile on September 26, 1955, or that he had ever had narcotics in his possession since December 1953, she did know that he had been arrested in California in September 1953 as a user of narcotics.
Petitioner needs this automobile in her business, is suffering great hardship by being deprived of its use, and is required to pay $ 67.61 per month to liquidate a loan secured by the automobile, while the car is daily depreciating in value.
The Federal Courts have regularly held that a claimant of seized property in petitioner's position must follow those procedures established by Sections 602 to 624 of the Act of June 17, 1930, c. 497, Title IV, 46 Stat. 754-759, 19 U.S.C.A. §§ 1602-1624,
in order to secure the return of her car. United States v. Kemp, 10 Cir., 1951, 186 F.2d 808; United States v. Heckinger, 2 Cir., 1947, 163 F.2d 472; United States v. One 1946 Plymouth Sedan, D.C.E.D.N.Y.1946, 73 F.Supp. 88.
The last two cases state that a Federal District Court may not release the seized vehicle even though petitioner posts a bond in the amount of the appraised value of the car.
Even assuming that this court could consider in this proceeding the merits of the seizure in this case, the record new before the court would support a finding that this package of heroin, being transported in this automobile on September 26, 1955, was a contraband article under the statutory language now under consideration.
It admittedly did not bear any tax-paid Internal Revenue stamps, which are required by Section 4701 and 4771 of the Internal Revenue Code of 1954, 26 U.S.C. §§ 4701 and 4771, and the record contains no evidence whatsoever that the heroin was purchased or distributed from an original stamped package.
The absence of such stamps also indicates that the package was acquired in violation of the law under Section 4704 of the Internal Revenue Code of 1954, 26 U.S.C. § 4704, which makes the absence of tax-paid revenue stamps prima facie evidence of a violation of that Section and states that it is unlawful to purchase narcotic drugs 'except in the original stamped package or from the original stamped package'.
Furthermore, it would have been a violation of the laws of the United States for the petitioner's son to acquire this heroin without use of the order form contemplated by Section 4705 of the Internal Revenue Code of 1954, 26 U.S.C. § 4705, since there is no indication in the record that the heroin was acquired on a physician's prescription or under any other of the exceptions described in that Section.
Petitioner also contends that even if this package was a contraband article, making her car subject to seizure under the terms of 49 U.S.C.A. § 781 et seq., the procedures outlined in 49 U.S.C.A. §§ 781-784, and, 19 U.S.C.A. §§ 1602-1624, involve the taking of her car for such a long period that she is deprived of her property, needed in her business, without due process of law in violation of the Fifth Amendment to the Constitution of the United States. In this connection, she emphasizes that she had no means of anticipating that her son would transport narcotics in her car.
The United States Supreme Court has considered at great length the necessity of strict provisions in order to enforce the stamp taxes on narcotics in view of the small size of the article taxed. See Nigro v. United States, 1927, 276 U.S. 332, 48 S. Ct. 388, 72 L. Ed. 600,
and cases there cited. See also United States v. Hymowitz, 2 Cir., 1952, 196 F.2d 819, 820, 821. In view of these authorities and the fact that petitioner knew her son had been a user of narcotics approximately two years ago, I find that she has not been deprived of her rights under the due process clause of the Fifth Amendment at this time and, further, that the Federal Bureau of Narcotics has not exceeded its powers.
Since no time limit is provided for action to be taken by the United States Attorney under 19 U.S.C.A. § 1608 and by the Secretary of the Treasury under 19 U.S.C.A. § 1618