This action has been submitted upon the pleadings and an agreed statement of facts. It appears therefrom that the Anglo-California Trust Company is the owner of a certain Haynes automobile; that this machine was in the possession of one Richard Frank; that one Harry Indorsky hired Frank to drive him in the machine as a passenger through the streets of San Francisco; that Indorsky, without Frank’s knowledge or consent, had in his possession in the automobile certain narcotics upon which the tax had not been paid, and sold such narcotics to one Halstead; that Indorsky and Frank were both indicted for violation of the Harrison Act (Comp. St. §§ 6287g-6287q); that Indorsky pleaded guilty, and Frank upon trial was acquitted.

The government then filed this libel to forfeit the automobile under section 3450, Revised Statutes (Comp. St. § 6352), which provides for the forfeiture of any vehicle used to remove any commodity with intent to defraud the United States of any tax due thereon, and also provides for forfeiture of anything used as a place of deposit or concealment of any commodity with like intent. It is averred in the libel that Indorsky and Frank used the automobile to remove the narcotics, and to conceal them, with intent to defraud the government. It is denied that Frank did so, but it is not denied that Indorsky did so.

It has long been held that the innocence of any fraud on the part of the owner will not relieve him from a forfeiture, if he has consented to the use of the vehicle by the party violating the law. The latest ex *400 position of the law is to be found in Grant Co. v. U. S., 254 U. S. 505 , 41 Sup. Ct. 189, 65 L. Ed. 376 , where the court says:

The Grant Co. Case and the long line of cases that preceded it, however, dealt with situations where the property was with the consent of the owner in the possession and control of the offender. The present case has to do with a passenger. The difficulties arising in such a case are suggested, but not disposed of, by the Supreme Court in the Grant Co. Case as follows:

The question is therefore:

Strict as is this law, I do not believe it should be so strictly construed as to require an affirmative answer to this question. It is true that circumstances ipay be such as to put the driver or other person in charge of the vehicle upon inquiry, and failure to prosecute such inquiry might conceivably be held to be equivalent to knowledge on his part of the presence of the forbidden commodity. But nothing of this sort appears in the present case, and the libel will therefore be dismissed.