Hemenway & Moser Co. v. Funk

• Decision Date: 01 November 1940
• Docket Number: 6174
• Citation: 106 P.2d 779,100 Utah 72
• Parties: HEMENWAY & MOSER CO. et al. v. FUNK et al
• Court: Utah Supreme Court

106 P.2d 779

100 Utah 72

HEMENWAY & MOSER CO. et al. v. FUNK et al

No. 6174

Supreme Court of Utah

November 1, 1940

Rehearing Denied April 18, 1941.

Appeal from District Court, Third District, Salt Lake County; P. C Evans, Judge.

Declaratory judgment action by the Hemenway & Moser Company and others against James W. Funk and others, as the Liquor Control Commission of Utah, for construction of the Liquor Control Act, Laws 1935, c. 43, as amended. From an adverse judgment plaintiffs appeal.

Judgment modified, and affirmed as modified.

H. L. Mulliner and H. H. Halliday, both of Salt Lake City, and Cline, Wilson & Cline, of Milford, for appellants.

Parnell Black, D. Howe Moffat, and George H. Lunt, all of Salt Lake City, for respondents.

MOFFAT, Chief Justice. WOLFE, LARSON, McDONOUGH, and PRATT, JJ., concur.

OPINION

MOFFAT, Chief Justice.

This action was brought in the District Court of the Third Judicial District of the State of Utah, in and for Salt Lake County, by appellants against respondents under the declaratory judgment statute, R. S. U. 1933, Title 104, Chapter 64, Sections 1 to 13.

The purpose of the action is to have determined, as between the parties hereto, the construction of certain parts of the Liquor Control Act. Laws of Utah 1935, Chap. 43, as amended by Laws of Utah 1937, Chap. 49, as further amended by Laws of Utah 1939, Chap. 60. The trial court found in accordance with the contention of the respondents. The assignments of error go only to the conclusions of law and the correctness of the decree or judgment entered.

Before we state what those issues are, two matters not discussed or mentioned in assignments or briefs merit attention:

1. The record discloses a "petition for Governor's consent to sue Liquor Control Commission of Utah." The named defendants, however, are: "James W. Funk, Herbert Taylor, and Henry C. Jorgensen, as the Liquor Control Commission of Utah, defendants." All the pleadings and orders found in the record refer to the respondents as defendants." The order, signed by the Governor, states:

"Now, Therefore, the above petition is allowed and written consent to the bringing of the above entitled action is hereby given in accordance with the provisions of Section 30 of Article 2, Chapter 43, Laws of Utah, 1935." (Italics added.)

Section 30, referred to, reads:

"The commission may with the written consent of the governor be sued and may institute or defend proceedings in any court of law or otherwise in the name of 'Liquor Control Commission of Utah' as fully and effectually to all intents and purposes as though such commission were incorporated under such name or title and no such proceedings shall be taken against or in the names of the members of the commission, and no such proceedings shall abate by reason of any change in the membership of the commission by death, resignation or otherwise, but such proceedings may be continued as though such changes had not been made."

The Governor gave consent for the plaintiffs to sue "Liquor Control Commission of Utah" and not the members thereof pursuant to Sec. 30, supra, and not under Sec. 28, which provides:

"Except with the written consent of the governor no action or proceeding shall be taken against any member or members or against any official or vendor of the commission for anything done or omitted to be done in or arising out of the performance of his or their duties under this act."

We call attention to the statute to indicate that a suit against the Liquor Control Commission of Utah is by the procedure prescribed by Sec. 30. In the instant case we treat the names and references to the individual members of the commission as surplusage and regard the action as one against the "Liquor Control Commission of Utah."

Sec. 104-64-11, R. S. U. 1933, provides, among other things, if a statute or state franchise or permit is alleged to be invalid the attorney-general shall be served with a copy of the proceeding and be entitled to be heard." The record does not disclose any service on the Attorney General. Under the statute, he has the right to be and should have been served.

The arguments raise no questions as to facts.

Appellants submit the following issues:

(a) "The issue as to the scope of the power under the 'Liquor Control Act' to seize and forfeit tangible personal property, used in connection with the violations of the act."

(b) "The rights of third party claimants."

(c) "The constitutionality of the statutory provision involved."

In their complaint appellants make certain allegations of fact relating to the use of certain enumerated personal property.

Respondents, by answer, admit some allegations and deny others. The matter must, therefore, be treated as an application for construction of a statute and it is assumed the conclusions of law and decree are supported by the pleaded facts as construed by the trial court. No errors are assigned as to the findings.

Appellants, following a classification of property made in the case of one Hudson Super-Six Automobile, etc., et al. v. State, 77 Okla. 130, 187 P. 806, divided tangible personal property into three classes, as follows:

1. Property in which there can be no recognized property right, because such property in a place of business can be used for no lawful purpose--such as whiskey glasses, syphons for dispensing whiskey, mixers and the like.

2. Property capable of and generally used for legitimate and lawful purposes, in which there exists a property right, but capable of being used for illegitimate and unlawful purposes--such as an automobile used for the transportation of liquor not bearing a state stamp, a beer vending counter, beer glasses and the like.

3. Property capable of being used only for legitimate purposes and not capable of being used for illegitimate or unlawful purposes--such as stoves for heating a building, weighing scales, pianos, and vending machines and the like.

Appellants lean heavily upon the aforementioned Hudson Automobile case, the case of Doc & Bill Furniture Co. et al. v. State ex rel. Selby, 83 Okla. 128, 200 P. 868 and State v. Davis et al., 55 Utah 54, 184 P. 161.

The classification made or the cases referred to are not helpful. In the Hudson Automobile case, supra, the statutes were different from the statute here involved. After quoting the statute the court in the Hudson Automobile case said [77 Okla. 130, 187 P. 806, 810]:

"If this statute, notwithstanding the expression in section 3 thereof, which contains this language, 'appeals may be allowed as in civil cases, but the possession of property being so unlawfully used shall be prima facie evidence that it is the property of the person so using it,' is directed solely at the property, without respect to ownership or freedom from fault or guilty knowledge of its unlawful use, such as the intent of the Legislature in the United States Statutes (section 6352, Compiled Statutes 1916 [26 U.S.C. A. Int. Rev. Code, §§ 2807, 3321] dealing with forfeitures growing out of violations of the revenue laws, Act of Congress of March 2, 1917, c. 146, § 1, 39 Stat. 970 (U.S. Comp. St. 1918, Comp. St. Ann. Supp. 1919, § 4141a [25 U.S.C. A. § 247]), dealing with forfeitures growing out of the introduction of liquor into 'Indian Country,' and the Arkansas Statutes (section 6, Act 13, of Laws of Ark. 1917), forfeiting property used in the illegal transportation of liquor, then in that event the judgment in the case is correct and should be affirmed." (Italics added.)

After discussing "absolute statutes", "Statutes in Terms Making Exceptions, or Which the Courts Have Interpreted as Containing Such", "Cases Construing Revenue Statutes", and "Decisions Construing Statutes of a Provisory Nature", the Oklahoma Supreme Court said:

"Our statute does not contain a positive provision like the 1917 Arkansas statute and the 1917 federal statute, but, instead, contains either a provision indicating an intent to expressly except from the operation thereof the property of innocent persons, or (such expression about unlawful use being prima facie evidence of ownership) indicates an intent negative in nature."

Our statute contains positive provisions. There are neither exceptions nor conditions attached to the forfeiture when the prescribed procedure has been followed and the proof shows the property was kept or used in violation of the act as hereinafter defined. The procedure relating to the arrest of an offender without a warrant and the seizure of "all tangible personal property" in the premises when the "arresting officer has reason to believe that one of the businesses conducted in the premises where the violation occurred" in his presence was discussed in the recent case of Utah Liquor Control Commission v. Wooras, 97 Utah 351, 93 P.2d 455, 461. Sec. 165, c. 49, Laws of Utah 1937, was therein construed.

In that case, forfeiture was denied, not because the statute did not authorize forfeiture but because the violation did not occur in the presence of the officer making the seizure, or by the officer in whose presence the violation occurred. Upon the search under the warrant no liquor was found and no violation appeared. It was held the court did not acquire jurisdiction of the property. It was there said:

"In libel actions for confiscation, where the proceeding is essentially against the property as such, the res itself must be brought before the court by and through such process as the law has decreed to place it within the power and control of the court."

Had the arresting officer, in that case reason to believe because of the sale or sales of intoxicating liquor in his presence in violation of the law that such sale or sales were connected with "one...