We do not mean that the Government may not separate the transaction into its criminal components, and prosecute or forfeit, according to its choice, for the one constituent or for the other. Cf. Callahan v. United States, supra. It may elect to seize under the prohibition act for wrongful transportation (ignoring the preliminary or later acts of importation or exportation), and in that event the prosecution must proceed on the same basis. Cf. Port Gardner Co. v. United States, 272 U.S. 564; Commercial Credit Co. v. United States, 276 U.S. 226, 231; Richbourg Motor Co. v. United States, 281 U.S. 528. If the seizure is for transportation only, the owner of the vehicle will have whatever protection comes from § 26, and may reclaim what has been taken if he has acted in good faith. Restitution in such circumstances will be granted as of right, and not by an act of grace as it is where the seizure has been for evasion of the customs.

Under the facts the National Prohibition Act governs as it does in transportation cases. Richbourg Motor Co. v. United States, 281 U.S. 528; Commercial Credit Co. v. United States, 276 U.S. 226. Distinguishing Various Items of Personal Property v. United States, 282 U.S. 577. See also United States v. One Ford Coupe, 272 U.S. 321; Herter v. United States, 33 F.2d 400-402. MR. JUSTICE STONE delivered the opinion of the Court.

We think that the decree of forfeiture was clearly correct. U.S. v. One Ford Coupé, 272 U.S. 321, 331, 47 S. Ct. 154, 71 L. Ed. 279, 47 A.L.R. 1025; U.S. v. Commercial Credit Co. (C.C.A. 4th) 20 F.2d 519; General Motors Acceptance Corporation v. U.S. (C.C.A. 4th) 23 F.2d 799. The case at bar differs from the cases of Port Gardner Investment Co. v. U.S., 272 U.S. 564, 47 S. Ct. 165, 71 L. Ed. 412, and Commercial Credit Co. v. U.S., 276 U.S. 226, 48 S. Ct. 232, 72 L. Ed. 541, in that in those cases the persons in the automobiles which were proceeded against were prosecuted and convicted under the National Prohibition Act, and it was held that this precluded the government from resorting to proceedings under section 3450 against the automobiles. Here the United States attorney has elected to proceed against the occupants of the car, as well as against the car itself, under the revenue statutes.

279, 47 A.L.R. 1025, scored a victory by overthrowing two contentions of the industry which had found some favor with some of the lower courts, that section 3450 was entirely superseded by title 2, § 26, National Prohibition Act (27 USCA § 40), and, if not, that proof of finding tax unpaid liquor in the vehicle was not sufficient proof, while in the same volume, Port Gardner Inv. Co. v. United States, 272 U.S. 564, 47 S. Ct. 165, 71 L. Ed. 412, the industry scored a temporary victory by obtaining a decision that prosecution with effect of the driver of the car under section 26 constituted an election by the government to proceed thereunder, making the disposition of the automobile prescribed in that section mandatory thereafter, and preventing the forfeiture of the car under section 3450; a concurring opinion in that case also suggested that, upon the discovery of one in the act of transportation in a vehicle, the government must proceed to forfeit it under section 26. Thereafter in Commercial Credit Co. v. United States, 276 U.S. 226, 48 S. Ct. 232, 72 L. Ed. 541, the facts showing a seizure of an automobile in the act of transporting liquor and prosecution under the National Prohibition Act on the charges of unlawful possession and transportation, and plea of guilty to the unlawful possession incident to and involved in the transportation and a dismissal of the transportation charge, the Supreme Court held that the prosecution for possession and transportation where the possession was involved in the transportation, though the transportation count was dismissed, constituted an election to proceed under section 26, barring procedure under section 3450. Since these decisions, the controversy between government and industry has gone on with unabated vigor, and out of the welter of decisions of the lower courts has emerged an authoritative line of decisions resting indeed upon a narrow and a literal base, but well and clearly defined, which is, that section 3450 may be invoked in cases where no element of transportation under the National Prohib

The Willis-Campbell Act did not re-enact R.S. §§ 3061 and 3062, because they are in direct conflict with the provisions of the National Prohibition Act relative to transportation in customs cases in that they provide for absolute forfeiture of the rights of the innocent, while the National Prohibition Act protects the innocent. United States v. One Packard Truck, 284 F. 394; United States v. One Studebaker, 45 F.2d 430; United States v. One Ford Coupe, 43 F.2d 212. Transportation is necessarily involved in importation, just as much as concealment was involved in the transportation in the Richbourg case. Cf. Port Gardner Investment Co. v. United States, 272 U.S. 564; Commercial Credit Co. v. United States, 276 U.S. 226; Richbourg Motor Co. v. United States, 281 U.S. 528; United States v. One Ford Coupe, 272 U.S. 321. None of the vehicles in the cases at bar was used in the "importation" of liquor.

In United States v. One Ford Coupe, 272 U.S. 321, it was held that there was no such direct conflict between § 26 and § 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, and in Commercial Credit Co. v. United States, 276 U.S. 226, 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 § 3450, since the disposition of the vehicle after the conviction, prescribed by § 26, is mandatory. These cases left undetermined the question now presented, whether, under § 26, the mere arrest of the person discovered in the act of transportation, and the seizure of the transporting vehicle, bar the forfeiture under § 3450.

Neither do we regard the fact that McKinney was originally charged before the Commissioner with transportation in both the Hudson automobile and the Whippet coupé as preventing forfeiture of the latter under section 3450 when the true situation became apparent, although the contrary decision might have resulted had the offense been so laid in the indictment. Port Gardner Investment Co. v. U.S., 272 U.S. 564, 47 S. Ct. 165, 71 L. Ed. 412; Commercial Credit Co. v. U.S., 276 U.S. 226, 48 S. Ct. 232, 72 L. Ed. 541; Richbourg Motor Co. v. U.S., 281 U.S. 528, 50 S. Ct. 385, 74 L. Ed. 1016, 73 A.L.R. 1081. This was but an obvious mistake in a preliminary proceeding which was subject to correction when it appeared that McKinney was not directly connected with the prior transportation. The judgment of the District Court is affirmed.

As the protection thus afforded to an innocent lienor is purely statutory, it follows that in order to avail himself of it he must submit to and comply with the requirements of the statute. The procedure outlined by the statute as to the disposition of property held for forfeiture is undoubtedly mandatory (Richbourg Motor Co. v. United States, 281 U.S. 528, 50 S. Ct. 385, 74 L. Ed. 1016, 73 A.L.R. 1081; Commercial Credit Co. v. United States, 276 U.S. 226, 48 S. Ct. 232, 72 L. Ed. 541; Port Gardner Inv. Co. v. United States, 272 U.S. 564, 47 S. Ct. 165, 71 L. Ed. 412), and the remedy therein provided for the owners and holders of bona fide liens acquired and held without knowledge on their part of the unlawful use of the seized vehicle is, therefore, exclusive. The authorities cited by appellant are not in point and do not sustain its contention.

" In Port Gardner Inv. Co. v. United States, 272 U.S. 565, 47 S. Ct. 165, 71 L. Ed. 412, and in Commercial Credit Co. v. United States, 276 U.S. 226, 48 S. Ct. 232, 72, L. Ed. 541, in which cases the owners of the intoxicating liquor had been convicted of transportation under the Prohibition Act, the Supreme Court held the government obliged to proceed under section 26 of the Prohibition Law, and consequently that a proceeding under 3450 was not permissible, and in Richbourg Motor Co. v. United States, supra, the Supreme Court held that where in similar circumstances the owner of the liquor is arrested in the act of transportation, the district attorney may not elect to prosecute under section 3450, Rev. St., but must proceed under section 26 of title 2 of the Prohibition Law. In all of these cases the decision turned upon the question whether there was conflict between the two sections.

The District Court so held, dismissing the complaint. That the seizure was not made by a prohibition officer would not preclude the government from proceeding under section 26. Dodge v. United States, 272 U.S. 530, 47 S. Ct. 191, 71 L. Ed. 392; Commercial Credit Co. v. United States, 276 U.S. 226, 48 S. Ct. 232, 72 L. Ed. 541. That section preserves the rights of innocent owners or lienors; while forfeiture under the Tariff Act proceeds without regard to innocent interests. It is true that executive clemency may remit the forfeiture in favor of innocent persons (Tariff Act 1922, §§ 613, 618 [19 USCA §§ 520, 532]), but mitigation by grace is not the equivalent of statutory immunity from forfeiture.