Alcorn v. Alexandrovicz

• Decision Date: 03 March 1931
• Parties: ALCORN, State's Atty., v. ALEXANDROVICZ et al.
• Court: Connecticut Supreme Court

153 A. 786

112 Conn. 618

ALCORN, State's Atty., v. ALEXANDROVICZ et al.

Supreme Court of Errors of Connecticut.

March 3, 1931

Case Reserved from Superior Court, Hartford County; Earnest C Simpson, Judge.

Application by Hugh M. Alcorn, the State's Attorney of Hartford County, after the conviction of Alexander J. Alexandrovicz opposed by the Commercial Credit Corporation, claimant, for an order for the sale of an automobile alleged to have been used in the transportation of intoxicating liquors in violation of the law, brought to the superior court in Hartford county, and reserved by that court for the advice of the Supreme Court of Errors.

Decree according to opinion.

Donald Gaffney, Asst. State's Atty., of New Britain, and Harold E. Mitchell, of Hartford, for plaintiff.

Arthur B. Weiss and Bernard P. Saltman, both of Bridgeport, and Duane R. Dills and Berthold Muecke. Jr., both of New York City, for defendants.

Argued before MALTBIE, C.J., and HAINES, HINMAN, BANKS, and AVERY JJ.

BANKS J.

Michael K. Krugelis purchased an automobile of a dealer under a conditional bill of sale by the terms of which the title remained in the seller until the full purchase price was paid. The dealer assigned its interest in the car as conditional vendor to the Commercial Credit Corporation. Alexandrovicz took the car with the knowledge and consent of Krugelis, but without his knowledge that it would be used to transport liquor, and without the knowledge and consent of the Commercial Credit Corporation, and used it in the illegal transportation of intoxicating liquors, for which offense he was arrested and convicted and the car seized by the prosecuting authorities. The state's attorney gave notice to Krugelis and the Commercial Credit Corporation that he would proceed under the statute to dispose of the car as a vehicle used with intent to violate the law. The Commercial Credit Corporation opposed the sale on the ground that the illegal use of the car was without its knowledge or consent. The facts are stipulated, and we are asked to decide whether upon such a state of facts the court should order the sale of the car.

This application is brought under the provisions of chapter 211 of the Public Acts of 1929 (now sections 2719 to 2723, Revision of 1930), which deal with the disposition to be made of intoxicating liquors and of property used in connection with their sale or transportation, which have been seized in a prosecution for violation of the laws relating to such liquors. It provides that the prosecuting authority shall make application to the court having jurisdiction for an order for the disposition of the property; that reasonable notice of the pendency of the application shall be given to any person claiming an interest in such property; that, if the court shall find that it belongs to him and has not been sold or used with intent to violate the law, it shall order the property returned to the claimant, but, if it shall find that it does not belong to the claimant, or that it has been sold or used with intent to violate the law, it shall order the property disposed of as therein provided. Section 2722 and 2723, Revision of 1930, the construction of which is herein involved, are set forth in the footnote.^[1]

The constitutionality of this statute was attacked in Pickett. Prosecuting Attorney, v. Antonio Marcucei's Liquors, 112 Conn. 169, 151 A. 526, and there upheld. The power of the State to condemn an instrumentality used in the violation of its laws is not questioned, but it is contended that the purpose of this statute is to impose an additional penalty upon the person found guilty of a violation of law, and that the Legislature did not intend to provide for an absolute forfeiture of the property of an innocent owner. Many jurisdictions have enacted legislation providing for the forfeiture of instrumentalities used in the commission of crime. These statutes fall into two general classifications. Many of them expressly provide, either that an innocent owner or lien or shall not forfeit his interest in his property which is used in violation of law, or that the state must show that it was being so used with his knowledge and consent. Of this type is the National Prohibition Act, title 2, § 26 (27 USCA § 40), of which provides that all liens on said property shall be paid if they are bona fide and created without the lien or having any notice that the carrying vehicle was being used or was to be used for the illegal transportation of liquor. Statutes of the second type provide for the forfeiture of the property without any express provision for the protection of the rights of an innocent owner or lienor. Our own statute is of this type. It does not expressly exempt from forfeiture property which is being used in violation of law without the knowledge or consent of its owner. In unequivocal terms it provides for the forfeiture of any vehicle or other article which has been used or kept with intent to be used in violation of law. If any exception is to be made in favor of an innocent owner and lienor, it must be read into the statute. This cannot justifiably be done unless such construction is required in order to effectuate the apparent purpose and intention of the Legislature. In endeavoring to ascertain the legislative intent, the nature of the procedure adopted becomes of some importance. If, as contended by the claimant, the sole purpose of the statute is to inflict, in a criminal proceeding, an additional penalty upon a person found guilty of violation of law one would hesitate to impute to the Legislature an intent to penalize one who was not guilty of such violation. But such is not the character of this action. The criminal proceeding was that which resulted in the conviction of Alexandrovicz the driver of the car. This statute is not a criminal statute, but provides for a civil action in rem for the condemnation and forfeiture of the car which was used in violation of the law. Pickett, Prosecuting Attorney, v. Antonio Marcucci's Liquors, supra. In such an action the guilt or innocence of the owner of the vehicle is not in issue. The only issue is whether the vehicle was used in violation of law. This follows from the nature of the action, which is one against the res, an action in rem. If the vehicle has not been used in violation of the law, it is not subject to forfeiture, and the statute provides for its restoration to its rightful owner upon proof of that fact. If it has been used in violation of the law or with intent to violate the law, it is subject to forfeiture, and no question arises as to ownership or the rights of its owner. The effective enforcement of the law may require legislation making property used for illegal purposes subject to forfeiture. When the statute provides for such forfeiture in unequivocal language, making no exceptions in favor of the claims of innocent owners or lienors, it must be assumed that the Legislature deemed that such enactment was necessary effectively to curb violation of the law, and we cannot impute to it an intent to make the statute less drastic and effective by adopting a strained construction of the language used, and reading into it an exception which does not there appear. The forfeiture is the owner's misfortune much as if the property had been destroyed, and he is remitted to his remedy against the person to whom he intrusted the property.

As already noted, the statutes of many states provide for the forfeiture of property used in the commission of crime. Numerous cases in which these statutes have been construed with respect to the rights of those claiming ownership or a lien upon such property will be found collected in 47 A.L.R 1055, and 61 A.L.R. 551. The varying provisions of the different statutes have naturally been reflected in diverging decisions in the cases in which they have been construed. In the rather numerous cases where the statute expressly protects the rights of an innocent owner or lienor, the question here presented does not arise. In others the language of the statute is such that an intent to preserve such rights is apparent. In a few jurisdictions, where the statute does not directly or by necessary implication protect the rights of the owner, the courts have treated the forfeiture as a...