The opinion of the court was delivered by: FORMAN
In this case the United States has sued the above-named defendants by filing a complaint against them, in which it alleges the arrest of one Edward Moore on June 7, 1931, while transporting intoxicating liquor in a Brockway truck; the release of the vehicle to Arthur E. Biegert, the owner, on a bond which was made by him as principal and the American Surety Company as surety; the said bond having been given July 7, 1931, for the release of a vehicle seized under section 26, title 2 of the National Prohibition Act (27 USCA § 40), and containing the following conditions:
"Now, therefore, the condition of this obligation or bond is such, that if the said principal shall return the aforesaid conveyance or vehicle to the custody of the officer approving this bond on the day of trial to abide the judgment of the court; and, in case the said property shall be forfeited to the United States, or the court shall order a sale of said conveyance or vehicle, that if the said principal shall pay the difference between the value of said vehicle or conveyance at the time of the execution hereof, which is hereby stipulated to be one-half of the penal sum of this bond, and its value on the date of its return as aforesaid, less depreciation due to reasonable wear and tear or ordinary use, and the said principal shall pay off any liens or encumbrances thereon except the following liens heretofore existing, namely;
"I owe Brockway Motor Truck, 205 Frelinghuysen Ave., Newark, $3,000 dollars, then this obligation to be void, otherwise to remain in full force and effect.
"Witness our hands and seals this 2 day of July, 1931.
"American Surety Co. of N.Y.
The complaint further alleges the indictment and conviction of Edward Moore, the driver of the said vehicle for transporting intoxicating liquor, the breach of the condition of the bond by failure to return the truck on the day of trial, namely, November 13, 1931, to the custody of the officer who approved the bond and claims damages in the sum of $4,000, the value of the vehicle as stipulated in the bond at the time of its release, besides interest from date of such default and costs of suit.
The matter comes before me on a motion made by the defendant American Surety Company of New York to strike the said complaint. Argument has been had and briefs have been submitted on both sides.
Although not alleged in the complaint, the docket of this court shows that a motion was granted forfeiting the truck in question on November 18, 1932.
It is argued in support of the motion that this suit is instituted to collect a penalty or forfeiture; that by reason of the repeal of the Eighteenth Amendment to the Constitution this court was automatically divested of all power to enforce penalties provided for by statutes enacted pursuant to that amendment and, therefore, lacks the power to render a judgment for the plaintiff in respect to the item demanded in the present suit. Reliance is placed upon the case of U.S. v. Chambers & Gibson, 291 U.S. 217, 54 S. Ct. 434, 78 L. Ed. 763, 89 A.L.R. 1510, for this theory.
The recovery sought on the bond is not a penalty. U.S. v. Randall (C.C.A. 2) 58 F.2d 193. In that case the court held that a bond delivered under section 26 of title 2 of the National Prohibition Act was not to fix a liquidated sum as damages or penalties for a nonappearance of the vessel, but to compensate the United States for the loss it would sustain if unable to ...