TUTTLE, Circuit Judge.
This is a proceeding under 49 U.S.C.A. § 782 to forfeit a 1953 Oldsmobile automobile owned by one Clarence Coleman, on the ground that it was used unlawfully in concealment and possession and in facilitating concealment and possession of contraband, namely, two partially smoked marihuana cigarettes, which had been acquired without there having been paid the special taxes thereon. The Associates Investment Company intervened as assignee of a chattel mortgage on the automobile, denying that it had been used unlawfully in concealment, etc., of marihuana, and alleging that neither Clarence Coleman nor the Associates Investment Company knew that the contraband would be placed in the automobile, that if it was placed there it was without permission of the owner or the intervenor, and that the intervenor was entirely innocent in the premises.
The uncontradicted evidence showed the following facts: At 4:30 a. m. on August 4, 1953, two city police officers, Libe and Ross, entered a cafe at 4219 Oakland Street, Dallas, Texas, on a routine investigation. They saw two men later identified as Herman Coleman
The District Court found as a fact that marihuana cigarettes had been smoked in the car and transported in the car and entered a judgment of forfeiture. The intervenor assigns two points of error on this appeal:
Point 1 is without merit. It is true that the Government did not show that the car was being used with the owner's permission, but this it was not required to do. Under this statute, once probable cause for the institution of the libel has been shown, as it has in this case, a claimant other than a common carrier may have the forfeiture remitted as of right only if he shows by a preponderance of evidence that the violation was committed while the car "was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws * * *." The car is forfeited under the statute if the claimant does not sustain this burden of proof. Colonial Finance Co. v. United States, 6 Cir., 210 F.2d 531; General Motors Acceptance Corp. v. United States, 6 Cir., 63 F.2d 209; United States v. One 1949 Pontiac, 7 Cir., 194 F.2d 756; United States v. Andrade, 9 Cir., 181 F.2d 42. We think it would have been difficult to sustain this burden even if the intervenor had tried, for though the record is silent as to any relationship, the briefs of both parties describe Coleman, the driver of the car, as the owner's son.
Likewise as to point 2, the court below did not err. The statute by its terms subjects the vehicle to forfeiture if contraband is concealed or possessed in the vehicle. Transportation does not have to be shown, nor does concealment or possession on more than one occasion.
The cases cited by the intervenor are not in point. United States v. One Reo Speed Wagon, D.C.D.Mass., 5 F.2d 372, arose under a different statute which excluded vehicles used without the consent or privity of an innocent owner, and the claimant showed facts bringing the case within that exclusion. In Platt v. United States, 10 Cir., 163 F.2d 165; United States v. One 1949 Ford, D.C.W.D.N.C., 96 F.Supp. 341; and United States v. One 1952 Ford Victoria, D.C.N.D.Cal., 114 F.Supp. 458, it was not proved that there ever were narcotics in the cars in question. As for United States v. One Oldsmobile Sedan, D.C. 3d D.N.J., 104 F.Supp. 159, the narcotics there were stolen drugs bearing tax stamps, which were not contraband under the terms of a former version of the statute.
The intervenor's actual grievance is that this forfeiture deprives it of its valuable security interest even though, for all that the record shows, it acted at all times innocently and in good faith. However, it is well settled that such deprivation is not a denial of due process of law, or a taking of private property for public use without fair compensation. Van Oster v. State of Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354, 47 A.L.R. 1044; Goldsmith, Jr. — Grant Co. v. United States, 254 U.S. 505, 41 S.Ct. 189, 65 L.Ed. 376; Dobbins' Distillery v. United States, 96 U.S. 395, 24 L.Ed. 637. Remission of the forfeiture on the ground of innocence and good faith may be made in the discretion of the Secretary of the Treasury, 19 U.S.C.A. § 1618; 26 U.S.C.A. § 3726, but his power is exclusive and the courts have no jurisdiction to grant any relief to such a claimant. United States v. Heckinger, 2 Cir., 163 F.2d 472; United States v. One 1941 Plymouth, 10 Cir., 153 F.2d 19. In
The appellant has not been deprived of any constitutional right and did not establish a right to remission under 49 U.S.C.A. § 782, the applicable statute. On the other hand, the Government established by sufficient evidence its right to forfeiture of the vehicle. Consequently, the trial court did not err.
The judgment is therefore
"Any vessel, vehicle, or aircraft which has been or is being used in violation of any provision of section 781 of this title, or in, upon, or by means of which any violation of section 781 of this title has taken or is taking place, shall be seized and forfeited: Provided, That no vessel, vehicle, or aircraft used by any person as a common carrier in the transaction of business as such common carrier shall be forfeited under the provisions of this chapter unless it shall appear that (1) in the case of a railway car or engine, the owner, or (2) in the case of any other such vessel, vehicle, or aircraft, the owner or the master of such vessel or the owner or conductor, driver, pilot, or other person in charge of such vehicle or aircraft was at the time of the alleged illegal act a consenting party or privy thereto: Provided further, That no vessel, vehicle, or aircraft shall be forfeited under the provisions of this chapter by reason of any act or omission established by the owner thereof to have been committed or omitted by any person other than such owner while such vessel, vehicle, or aircraft was unlawfully in the possession of a person who acquired possession thereof in violation of the criminal laws of the United States, or of any State."
49 U.S.C.A. § 781. "Unlawful use of vessels, vehicles, and aircrafts; contraband article defined
"(a) It shall be unlawful (1) to transport, carry, or convey any contraband article in, upon, or by means of any vessel, vehicle, or aircraft; (2) to conceal or possess any contraband article in or upon any vessel, vehicle, or aircraft, or upon the person of anyone in or upon any vessel, vehicle, or aircraft; or (3) to use any vessel, vehicle, or aircraft to facilitate the transportation, carriage, conveyance, concealment, receipt, possession, purchase, sale, barter, exchange, or giving away of any contraband article.
"(b) As used in this section, the term `contraband article' means —
"(1) Any narcotic drug which has been or is possessed with intent to sell or offer for sale in violation of any laws or regulations of the United States dealing therewith; or which has been acquired or is possessed, sold, transferred, or offered for sale, in violation of any laws of the United States dealing therewith; or which has been acquired by theft, robbery, or burglary and carried or transported within any Territory, possession, or the District of Columbia, or from any State, Territory, possession, the District of Columbia, or the Canal Zone, to another State, Territory, possession, the District of Columbia, or the Canal Zone; or which does not bear appropriate tax-paid internal-revenue stamps as required by law or regulations; * * *."