National Bond & Investment Co. v. Gibson

• Decision Date: 28 February 1925
• Docket Number: No. 2701.,2701.
• Citation: 6 F.2d 288
• Parties: NATIONAL BOND & INVESTMENT CO. v. GIBSON, Sheriff.
• Court: U.S. District Court — Panama Canal Zone

6 F.2d 288 (1925)

NATIONAL BOND & INVESTMENT CO. v. GIBSON, Sheriff.

No. 2701.

District Court, D. Kansas, First Division.

February, 1925.

Mosman, Rogers & Buzard, of Kansas City, Mo., for plaintiff.

Charles B. Griffith, Atty. Gen., J. G. Egan, Asst. Atty. Gen., and Roland Boynton, Co. Atty., of Emporia, Kan., for defendant.

POLLOCK, District Judge.

This is an action in replevin of an automobile, brought by plaintiff, a chattel mortgagee, against defendant, sheriff of Lyon county. The facts are stipulated by the parties, and briefly stated, in so far as material to decision here, are as follows:

One Grace Miller purchased this car in question from the agency of the Studebaker people in the city of Topeka, the agents of the motor company taking back a valid chattel mortgage to secure a series of installment notes given as evidencing a part of the purchase price of the car. These notes were duly indorsed, sold, and delivered to plaintiff, an Illinois corporation. The chattel mortgage was also duly assigned to plaintiff, which assignment was timely recorded. Unknown to plaintiff, in some manner not shown by the record, the car came into the hands of one Switzer, who employed it in the transportation of some intoxicating liquors within the state and Lyon county. For this violation of the state laws he was arrested, the car was seized under a warrant, and was about to be sold by the sheriff of the county under the provisions of chapter 217, Laws of Kansas 1919. However, before the car had been seized by defendant, default in payment of a portion of the installment notes secured by the chattel mortgage had occurred, and plaintiff had been endeavoring to find the car in order to enforce its mortgage lien thereon. That plaintiff was in entire ignorance of the fact that Switzer had the car, or was using or intending to use the same for the purpose of violating any law of the state or nation, is admitted; and it is freely conceded plaintiff, its agents, servants, and employés are entirely blameless of any violation of a law of the state, either directly or indirectly, and are also innocent of the fact the laws of the state had been, were, or would be in any manner violated by the use of the car.

In this condition of the record, plaintiff contends the confiscation and sale of the car under the terms of chapter 217, Laws of Kansas 1919, is unwarranted, unlawful, and void, because violative of its right secured by the national Constitution and laws of the United States. He therefore contends it has the right to recover its car, title to which was transferred to it by virtue of the chattel mortgage. This contention is based on two propositions, as follows: (1) That the provisions of chapter 217, Laws of Kansas 1919, under the terms of which the property of a citizen entirely guiltless of any wrongdoing may be confiscated by the state, is not a reasonable exercise of the police power of the state, but is violative of the Constitution of the United States; (2) because said act in providing for the seizure and confiscation of a car in which intoxicating liquors are being transported is opposed to the National Prohibition Act (Comp. St. Ann. Supp. 1923, § 10138¼ et seq.) as to the power of the state and nation, acting under the Eighteenth Amendment to the National Constitution, and, being in conflict with the national law, that law, and not the state law, must control.

Of these questions in their order. The act of the state involved reads (Rev. St. 1923) as follows:

"Sec. 21 — 2162. All automobiles, vehicles and other property used in the transportation or carrying of intoxicating liquors into this state or in carrying and transporting intoxicating liquors from one place to another within this state are hereby declared to be common nuisances.

"Sec. 21 — 2163. Upon the filing of a complaint or information charging a common nuisance as above defined, a warrant shall be issued, authorizing and directing the officer to whom it is directed to arrest the person or persons described in said complaint or information or the person or persons using the automobiles, vehicles and other property for the transportation of intoxicating liquors into this state, or for the transportation or carrying of intoxicating liquors from one place to another within this state, and to seize and take into his custody all such automobiles, vehicles and other property so used which he may find, and safely keep the same subject to the order of the court. In said complaint or information it shall not be necessary to accurately describe the automobile, vehicle or other property so used, but only such description shall be necessary as will enable the officer executing the warrant to identify it properly."

Section 21 — 2165, following, provides for the destruction of all intoxicating liquors seized, but any property used in their transportation and defined to be a common nuisance under section 21 — 2162 above quoted, it shall adjudge forfeited so much thereof as the court shall find was such common nuisance, and shall order the officer in whose custody it is to sell the same publicly, and shall pay the proceeds into court to await the further order of the court; and the proceeds, after the paying of expenses of the action shall be turned over to the school fund of the state.

There can be no question, but that this statute in express terms, as construed by the Supreme Court of the state, does authorize the doing of the precise thing of which plaintiff complains in this case. The Supreme Court of the state has directly upheld the same. State v. Peterson, 107 Kan. 641, 193 P. 342; State v. Stephens, 109 Kan. 254, 198 P. 1087. That these decisions are conclusive, in so far as any claimed violation of the Constitution of the state is concerned, there can be no question. The only question that may be considered is: Does the act, as construed by the Supreme Court of the state, render it obnoxious to any provision of the federal Constitution? If so, the decision of the Supreme Court of the state is merely persuasive, but not conclusive, of this question.

Of course, the reliance of counsel for the defendant is in the exercise of the police power of the state, a power properly reserved to the states in the beginning, but in these latter years a reservation which the government appears to have but little reluctance in trespassing upon. If there are limitations upon the exercise of the reserved police power of the states of this nation, and of necessity there should be some limitation some place, such limits are declared by the authorities only in the most general terms, and the difficulty, if not the utter impossibility, of establishing any specific and fixed boundary to the exercise of this most uncertain of all governmental powers has given rise to unending litigation, and ever will so long as our present form of government lives?

It is true, as contended by defendant, the national government, in the enforcement of its revenue laws, has been sustained by the courts in the exercise of a confiscatory statutory provision similar to that of the state involved in this case. See Goldsmith-Grant Co. v. United States, 254 U. S. 505, 41 S. Ct. 189, 65 L. Ed. 376. However, Mr. Justice McKenna, delivering the opinion in that case, at least intimates, if the question were one of first impression, untrammeled by precedent, the view of the case taken by the court might be to the contrary. "If the case were the first of its kind, it and its apparent paradoxes might compel a lengthy discussion to harmonize the section with the accepted tests of human conduct. Its words, taken literally, forfeit property illicitly used, though the owner of it did not participate in or have knowledge of the illicit use. There is strength, therefore, in the contention that, if such be the inevitable meaning of the section, it seems to violate that justice which should be the foundation of the due process of law required by the Constitution. It is, hence, plausibly urged that such could not have been the intention of Congress, that Congress necessarily had in mind the facts and practices of the world, and that, in the conveniences of business and of life, property is often and sometimes necessarily put into the possession of another than its owner; and it follows, is the contention, that Congress only intended to condemn the interest the possessor of the property might have to punish his guilt, and not to forfeit the title of the owner who was without guilt."

What, if any, difference in principle lies between the government proceeding under its broad, general, and absolutely essential powers to levy and collect its revenues, upon which its very continued national existence depends, and the power of the state to so enact, proceeding under its reserve police powers, is a question of much concern. In this respect, it may be noted, the statute of the state relied upon to justify the seizure and forfeiture of the car in question, inclusive of the interest of plaintiff as an innocent mortgagee, is a part of the criminal laws of the state, and the seizure and forfeiture of the car is employed as a means of prohibiting the commission of the crime. That being true, it is the punishment and prevention of crime against which the police power of the state is directed. In all such cases defendant is looked upon as the wrongdoer, the party to be punished, and all such actions are actions in personam, whereas, under the revenue laws of the country, or under the libel laws of the government, and admiralty and other cases, the proceeding is regarded as one in rem; that is, the impersonal thing itself is regarded as the offender. Thus, in Goldsmith-Grant Co. v. United States, supra, Mr. Justice McKenna says:

"But whether the reason for section 3450 be artificial or real, it is too firmly fixed in the punitive and remedial jurisprudence of the country to be now displaced. Dobbins' Distillery v. United...