In Maples v. State, 203 Ala. 153, 82 So. 183, and State v. Hughes, 203 Ala. 90, 82 So. 104, it was decided that the statute does not contemplate the condemnation of property of those who do not aid or assist in the unlawful transportation, etc., of liquors, or of those who are not chargeable with actual notice of facts amounting to a knowledge that their property is to be used for such unlawful purpose.Summary of this case from Parker v. State
6 Div. 921.
May 22, 1919.
Appeal from Circuit Court, Cullman County; Robert C. Brickell, Judge.
William E. James, of Cullman, for appellants.
J. Q. Smith, Atty. Gen., and Horace C. Wilkinson, Asst. Atty. Gen., for the State.
By this proceeding the state seeks to have forfeited and condemned for sale a certain automobile which was seized by the sheriff of Cullman county while in possession of the owner, or owners, thereof, and being used in the transportation of prohibited liquors.
It is not questioned that the proceedings in this cause were had in strict compliance with the provisions of section 13 of the act of January 25, 1919, entitled "An act to further suppress the evils of intemperance; to restrict the receipt, possession and delivery of spirituous, vinous, malted, fermented or other intoxicating or prohibited liquors and beverages and fixing punishment and penalties" (Acts 1919, p. 6); but the respondents attack the provisions of said section as unconstitutional upon several grounds.
It is first insisted the provisions of said section as to seizure are violative of section 5 of our Constitution as to unreasonable seizure. The act provides that the sheriff or arresting officer "who becomes cognizant of the facts or who finds liquor in such conveyances or vehicle being illegally transported as aforesaid" shall seize the same; and, clearly, this is not in violation of such constitutional provision. The case of Ex parte Rhodes, 79 So. 462, 1 A.L.R. 568, cited by counsel for appellant, is not at all at variance with this conclusion.
It seems to be also insisted that the provision as to seizure was not sufficiently set forth in the title; but we are of the opinion that the quotation of the title itself, above set out, when considered in connection with the well-known rule in regard to this provision of the Constitution, is sufficient answer to this contention without further discussion.
It is further urged that said section 13 is unconstitutional, in that no detinue writ may be employed to retake possession of such seized property pending the forfeiture suit, and that this is violative of that provision of the Constitution which guarantees that the courts shall always be open, and that every person, for injury done him in his goods, etc., shall have a remedy by due process of law. The act provides that any person claiming a superior right may intervene by petition in said suit, and have his claim adjudicated; that the presiding judge may make all proper orders, including orders of publication of notice to be published for all parties claiming the said vehicles to come in and assert their right thereto; and the said court shall have the authority to frame all orders of procedure so as to regulate the proceedings that persons may have opportunity to come in and propound their claim to the vehicles and conveyances sought to be condemned. This, without more, should suffice as an answer to this contention. But the question has recently been very satisfactorily dealt with by the Supreme Court of Georgia, contrary to the contention here made by appellants, in the cases of Nesmith v. Martin, 98 S.E. 551, and Gunn v. Atwell, 96 S.E. 2, and we deem a reference to these decisions sufficient.
The Georgia Supreme Court also in a very recent case (Mack v. Westbrook, 98 S.E. 339) gave much consideration, to objections upon constitutional grounds, to that portion of the prohibition laws of that state providing for the forfeiture of property used in transporting such prohibited liquors, similar in many respects to those provisions here under consideration, the court saying:
"Inanimate property may, without violence to the due process clauses of the state or federal Constitutions, be forfeited to the state when used as an instrument, and a necessary instrument, in the accomplishment of a purpose declared by the state, within the exercise of its undoubted power, to be unlawful."
The opinion also points out that the forfeiture and condemnation sale under the police power of the state, of property so used for unlawful purposes, is not violative of any constitutional inhibition against taking private property for a public use without compensation.
We are of the opinion the above authority of Mack v. Westbrook, wherein many decisions of the Supreme Court of the United States are cited and quoted, sufficiently demonstrates that the provisions of section 13, here under consideration, are free from constitutional objection, and we therefore consider a further discussion here unnecessary.
Appellant's counsel argue the case upon the assumption that an innocent bona fide mortgagee is here attempting to assert a superior right either to the property or so much of the proceeds as will be sufficient to pay his mortgage debt. The holding of this court in the case of State of Alabama v. Arthur J. Hughes et al., 82 So. 104, this day decided, will accord protection to a bona fide mortgagee who was innocent of, or without fault as to, any illegal use of the property. The reasoning in the Hughes Case is directly applicable to such a situation, and therefore such bona fide mortgagee, innocent of, or without fault as to, any illegal use of the property, will be protected in the establishment of such superior right. From our view of the evidence, however, as presented by this record, we are not persuaded that the petitioner comes within that class of bona fide innocent mortgagees.
Ante, p. 90.
The testimony has been very carefully considered in consultation, and a brief outline thereof appears in the statement of the case. We intend no discussion of it here. Suffice it to say that after a careful review of the whole evidence we find it so unsatisfactory as to fail to reasonably satisfy the judicial mind that the petitioner at the time of the seizure of this car was an innocent bona fide holder of a mortgage; but, on the contrary, we are rather inclined to the view that if it be conceded that the mortgage was executed, it was done as an afterthought, as an effort to save the car from the forfeiture proceedings.
We therefore conclude that, upon the facts presented, the court below was justified in dismissing the petition and ordering the car forfeited and condemned for sale as provided by the above-cited act. It results that the decree of the court below will be here affirmed.
ANDERSON, C. J., and McCLELLAN and SAYRE, JJ., concur.