Campbell v. The State
| Decision Date | 24 February 1909 |
| Docket Number | 21,162 |
| Citation | 87 N.E. 212,171 Ind. 702 |
| Parties | Campbell v. The State of Indiana |
| Court | Indiana Supreme Court |
From Noble Circuit Court; Joseph W. Adair, Judge.
Proceeding by The State of Indiana for the destruction of certain intoxicating liquor claimed by Charles Campbell. From a judgment ordering the destruction thereof, claimant appeals.
Affirmed.
R. P Barr and L. W. Welker, for appellant.
Weir D Carver, Luke H. Wrigley, Robert W. McBride, James Bingham Attorney-General, A. G. Cavins, E. M. White and H. M. Dowling, for the State.
Action by the State under the act of February 13, 1907 for a search-warrant, instituted upon affidavit charging that appellant has in his possession, and at and in his outbuildings and dwelling-house situate on a described tract of land in Albion township, Noble county, Indiana, intoxicating liquors, which are being kept by him for the purpose of being sold and bartered away in less quantities than five gallons at a time to be used as a beverage, in violation of the laws of the State of Indiana, he having no license authorizing him to sell intoxicating liquors in less quantities than five gallons at a time to be used as a beverage at or in any place, and that such liquors are being kept in said place for the unlawful purposes set forth. Upon the filing of this affidavit before a justice of the peace, a warrant, accompanied by a copy of the affidavit, issued for the search of the premises, and taking into possession. The warrant was served on appellant, and search made, and seven boxes of bottled beer found on the premises, and taken possession of by the constable, and return made accordingly. This occurred in the early morning of September 12, 1907. At 1 o'clock p. m. of the same day appellant by his attorney appeared specially before the justice, and objected to the jurisdiction of the court "over him, as there had been no warrant or other writ issued or served on him in this cause to appear in this cause, and asked that said cause be therefore dismissed for want of jurisdiction." The motion to dismiss was overruled, and the defendant entered "his appearance to this action, and to the affidavit filed on behalf of the plaintiff herein." A trial was had, and judgment rendered for the destruction of the liquors so seized, and for costs. Appellant appealed to the circuit court and filed his bond, which was approved, and the cause was certified to the circuit court, where on October 8, 1907, appellant by his attorneys entered "their appearance herein for said defendant in this cause; and said defendant now moves to quash the affidavit against him in this cause, and to dismiss the proceedings." This motion was overruled October 9, and appellant excepted. The cause came on for trial October 23, 1907, and appellant moved "for a trial of this cause by a jury," which motion was overruled. Upon trial in the circuit court the court found for the plaintiff and entered a decree for the destruction of the liquors, and for costs, and a fee of $ 7 to the prosecuting attorney.
Appellant filed his motion and causes for a new trial, in which he assigns error of the court in assuming jurisdiction of the defendant and of the cause, in refusing to dismiss the proceedings, in refusing to quash the affidavit, and in refusing to grant appellant a jury trial. Said motion also alleges that the decision and judgment are contrary to the law and contrary to the evidence. Other assignments are made that the judgment and decision are not fairly supported by the evidence, and are against the weight of the evidence.
Appellant presents first the point that no person can be deprived of his property without a judicial hearing after due notice, and that no degree of wrong or misconduct can justify the forfeiture of property except in pursuance of some judicial procedure, in which the owner has the right to be heard, and that forfeitures of property cannot be adjudged by legislative acts without judicial hearing after notice. We agree with the learned counsel as to this general proposition. The difficulty is that no such question is here presented. This proceeding is in the nature of a libel, a proceeding strictly in rem, and is entirely distinct from the offense prescribed by §§ 8337, 8339, supra. Regadanz v. State (1908), ante, 387, and cases cited; Rose v. State (1909), ante, 662, and cases cited.
Section 8338, supra, and the succeeding sections provide a system of procedure in cases where, as here, the action is against the thing. It will be observed that by § 8338, supra, the procedure is the same as in case of search-warrants "as now provided by law." Former statutes respecting search-warrants were simply in aid of the criminal law, in which destruction could only follow conviction of a criminal offense; but this act provides for the condemnation of the thing itself, and its destruction, without any other punishment as to its owner or possessor, than the destruction of the property or thing. Section 8338, supra, and the succeeding sections provide a system of procedure for the subject. By § 8342, supra, it is provided that if no one is found in possession of the premises where such liquors are found, claiming ownership of said liquors and vessels, and if no one asserts or claims title to the same, the property shall be taken, and a copy of the warrant posted in a conspicuous place on the building or premises. A notice of the time for hearing shall also be posted. If at the time fixed no person or persons appear to claim such liquors, etc., they shall be ordered destroyed. One who enters his appearance as a claimant of the property cannot object to defects in or omission of notice. State v. Brennan's Liquors (1856), 25 Conn. 278; State v. Miller (1859), 48 Me. 576; State v. Learned (1859), 47 Me. 426; Commonwealth v. Certain Intoxicating Liquors (1866), 13 Allen (Mass.) 561; Commonwealth v. Certain Intoxicating Liquors (1863), 6 Allen (Mass.) 596.
This act is not very full as to the question of hearing, but it is not to be taken as standing alone and presenting a complete system, unconnected with other acknowledged methods of procedure, but other statutes may be looked to. It is a statutory proceeding, governed by the rules of civil actions so far as applicable. Rose v. State, supra; Humphries v. Davis (1885), 100 Ind. 274, 50 Am. Rep. 788; Crawfordsville, etc., Turnpike Co. v. Fletcher (1885), 104 Ind. 97, 2 N.E. 243; State Board, etc., v. Holliday (1898), 150 Ind. 216, 49 N.E. 14, 42 L.R.A. 826; Conn v. Board, etc. (1898), 151 Ind. 517, 51 N.E. 1062.
The notice by posting provided is constructive notice, and is notice to all persons claiming an interest in the property. The matter of notice in such cases is a legislative one, and constructive notice is sufficient. Regadanz v. State, supra; Murphy v. Beard (1894), 138 Ind. 560, 38 N.E. 33; Voris v. Pittsburg Plate Glass Co. (1904), 163 Ind. 599, 70 N.E. 249; Santo v. State (1855), 2 Iowa 165, 63 Am. Dec. 487.
Such proceeding is entirely distinct from a prosecution against the person. Regadanz v. State, supra; State v. Derry (1908), ante, 18; State v. McCann (1873), 61 Me. 116; State v. McManus (1902), 65 Kan. 720, 70 P. 700; State v. Miller, supra; State v. Learned, supra.
It appears from the record that appellant appeared specially before the justice, and objected to jurisdiction of his person, on the ground that no warrant or other writ had been issued or served on him, and asked to have the cause dismissed for want of jurisdiction. The motion was overruled, and then he entered a full appearance, and the cause was tried with him present. In the circuit court he did not renew that motion, but moved to quash the affidavit against him and to dismiss the proceedings. No warrant or other writ was necessary to be issued for or served upon him under the statute, as it was not sought to punish him personally, as for a crime or misdemeanor, the action being directed against the property. The court was given jurisdiction of the subject-matter by the filing of a proper complaint and seizure of the liquors themselves. Commonwealth v. Certain Intoxicating Liquors (1866), 13 Allen (Mass.) 561.
Appellant could not complain of want of notice to enable him to claim the property and contest the right of condemnation when he was present both in person and by able counsel, and participated in the trial before the justice. Upon...
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