On Petition to Rehear.
This Court held that the State Commissioner of Finance and Taxation was without .authority to withhold possession of the automobile in question from the conditional vendor or mortgagee because there had been a failure by State officials to comply with the requirements of the confiscation statute under which the Commissioner was proceeding. In so deciding1, this Court assumed that the persons holding such liens had not made inquiry of the proper State or Federal officials with reference to the bootleg reputation of Ayers at the time the car was sold to him. That is the requirement of Code Section 6648.25 of the Code Supplement as to such conditional vendors or mortgagees as a condition precedent to relief when the State has confiscated such automobile for transporting therein unstamped liquor. Accordingly, the State Commissioner has filed a petition to rehear and therein makes this statement:
“Failure to require the Plaintiffs in Error to comply with the statute, simply defeats the entire purpose of said statute. It certainly seems that this Court has traversed a far field to overlook such .a necessary requirement, and permit the Plaintiffs in Error to take advantage of some technicality when they themselves have not complied with the *235law. Definitely, this should not he considered as an equity matter. ’ ’
This Court did not consider equities. Its decision was rested solely upon the absence of authority in the Commissioner under the facts of this case.
The Commissioner’s authority to withhold possession of this car from those otherwise entitled to such possession depends upon his authority to confiscate this automobile. If he is without such authority under the facts of the instant case, then he has no legal right to withhold its possession from this conditional vendor or mortgagee. This is clearly true.
This Court is definitely committed to the proposition that the Commissioner is without authority to confiscate automobiles transporting unstamped liquor except under the conditions laid down by the confiscation statute. If there is a “failure to observe the conditions under which confiscation might be accomplished, the confiscation has not occurred * * Wells v. McCanless, 184 Tenn. 293, 298, 198 S. W. (2d) 641, 643. It may be added that the great weight of authority seems to support this proposition.
The conditions required by this statute were not observed. That statute, Section 6648.25, Code Supplement provides:
“In all cases of seizure of any alcoholic beverages or other property subject to forfeiture under the provisions hereof, the officer or other person making the seizure shall proceed as follows:
“First: He shall deliver to the person, if any, found in possession of such property, a receipt, showing a general description of the seized goods. A copy of said receipt shall be filed in the office of the *236department of finance and taxation ,and shall be open to the public for inspection.
‘ ‘ Second: The commissioner or any representative of the department shall, within five days, advertise the said alcoholic beverages and other property so seized for sale for cash to the highest bidder * * V’
When the sheriff seized the automobile involved in this case he did not deliver a receipt to the person found in possession and, of course, therefore, no copy thereof to the department of finance and taxation. Nor did the Commissioner of Finance and Taxation, or any representative of his Department, proceed, within five days after such seizure, to advertise said property for sale as confiscated property. To the contrary, the Sheriff, for some reason not disclosed, elected to turn this automobile over to the Federal Government where it was held for sixty-four days in an effort to procure an indictment in Federal Court. Failing in this, the Federal Government turned it over to the State Commissioner.
It has to follow from that immediately herein-above stated that (1) in the seizure of this automobile the sheriff was not acting as an agent of the Commissioner of Finance and Taxation, and (2) there was no compliance with the requirements of Code Section 6648.25 above quoted. Under these conditions, the decision of Wells v. McCanless, as well as principle, absolutely required the conclusion which this Court reached.
Dolen v. State, 181 Tenn. 31, 178 S. W. (2d) 387, and McQueen v. McCanless, Commissioner, 182 Tenn. 453, 187 S. W. (2d) 630, are referred to as decisions supporting the position of the Commissioner. In each of those cases there had been a compliance by the Commissioner with the conditions required by this confiscation statute.
*237The petition to reliear refers to United States v. National Discount Corp., 7 Cir., 104 F. (2d) 611, 613, 124 A. L. R 283, 286-287, which contains the following statement :
“We think it is clear that under this section of the statute the court has no discretionary power to omit or mitigate the forfeiture in such cases, until it is proved that the claimant made such inquiry as to the owner’s record and reputation, of some one or more of the officers named in clause (3)
The Court was referring to situations wherein there was a compliance by the officials with the requirements of the confiscation statute; hence, a power to confiscate. Such power being present there was an absence of authority in the Court “to omit or mitigate the forfeiture” in favor of claimants who had not inquired as to the reputation, etc., of the purchaser of the automobile.
Obviously, the above stated situation does not exist in the instant case where the officials have not complied with the requirements of the confiscation statute. Hence, the power to confiscate is absent. Such power being absent, the withholding of possession from the conditional vendor or mortgagee is unlawful.
By separate motions, plaintiffs in error have moved that (1) the judgment entered on the Court’s opinion be corrected by revoking the judgment’s direction that the cause be remanded, and (2) the storage expense of the automobile incurred pending this litigation be taxed to the State. We see no necessity for either order.
It was quite proper for the minutes of this Court to supply the obvious inadvertent omission of a direction in the opinion that the cause be remanded for the entry of judgment and further appropriate proceedings in the Circuit Court in keeping with the opinion.
*238The question made by the second motion would arise only if the Commissioner failed to comply with the order awarding possession. There is no justification for presupposing that such a situation will arise. The supposition is to the contrary.
The motions filed by the plaintiffs in error and the petition to rehear will be denied.