Chambless v. Cannon

• Decision Date: 17 January 1949
• Docket Number: Civ. No. 312.
• Citation: 81 F. Supp. 885
• Parties: CHAMBLESS et al. v. CANNON, Sheriff, et al.
• Court: U.S. District Court — Western District of Arkansas

81 F. Supp. 885

CHAMBLESS et al. v. CANNON, Sheriff, et al.

Civ. No. 312.

United States District Court W. D. Arkansas, Texarkana Division.

January 17, 1949.

Anglin & Jones, of Longview, Tex., Bartlett & Ferrell, of Linden, Tex., and Shaver, Stewart & Jones, of Texarkana, Ark., for plaintiffs.

Bruce T. Bullion, of Little Rock, Ark., E. K. Edwards, of De Queen, Ark., and George E. Steel, of Nashville, Ark., for defendants.

LEMLEY, Chief Judge.

This cause comes on for hearing and is submitted to the Court upon an agreed statement of facts and written briefs.

The plaintiffs, Orville L. Chambless, Grady H. King, and J. C. Anable, residents of the State of Oklahoma, filed their bill in equity herein, against V. W. Cannon, Sheriff of Sevier County, Arkansas, Tom Holcomb, an officer of the Arkansas State Highway Patrol, and Otho A. Cook, Commissioner of Revenues of the State of Arkansas, to recover possession of 86 cases of whiskey of the value of more than $3,000, which said liquor was seized by the defendant Holcomb on June 15, 1948, in Sevier County, Arkansas, and which is now held by the defendant Cook as Commissioner of Revenues of the State of Arkansas, under the provisions of Act 423 of the General Assembly of the State of Arkansas for the year 1947, 4 Ark.Stats.1947, §§ 48-925, 926 and 929, and for an injunction to restrain the defendants from disposing of such liquors.

The pertinent facts, as stipulated, are as follows:

On June 15, 1948, the plaintiff, Anable, was transporting by a privately owned motor vehicle from Shreveport, Louisiana, to Oklahoma City, Oklahoma, through the State of Arkansas, 86 cases of whiskey, the property of Anable and the other plaintiffs. The liquor had been purchased in Louisiana and all federal and Louisiana state taxes thereon had been paid. As Anable reached the vicinity of Lockesburg, Sevier County, Arkansas, he was stopped by the defendant Holcomb, who searched his vehicle, seized the 86 cases of whiskey contained therein, and placed him under arrest, all on account of the fact that he held no permit to transport liquor from another state into or through the State of Arkansas, as required by Act 109 of 1935, as amended by Act 356 of 1941, 4 Ark.Stats. 1947, § 48-404. After Holcomb had seized the liquor, he turned it over to the Sheriff of Sevier County, Arkansas, who in turn delivered it to the Commissioner of Revenues at his office in the City of Little Rock, Arkansas. This delivery was made in two lots, 47 cases on June 30, 1948, and the remaining 39 cases on July 12, 1948. On July 2, 1948, this suit was filed by the plaintiffs, and summons was served on the Commissioner of Revenues on July 3, 1948. On July 2, 1948, the Commissioner, as required by said Act 423 of 1947, caused a notice of the seizure of the first lot of liquor to be published in a Little Rock paper having a state-wide circulation. The notice described the property seized, and warned any person having any interest in the same to file his claim with the Commissioner within 30 days, or be forever barred. A similar notice was likewise published by the Commissioner when the second lot of liquor was received. The second notices required by said Act (as will hereinafter be noted) were likewise published.

The plaintiffs were not personally served with notice of the seizure and intended confiscation of their liquor, and the only notice they have had, other than the seizure itself, was through the publications of the aforesaid notices. They have neither entered their appearances before the Commissioner, nor filed any claim with him for the return of the liquor. On July 28, 1948, it was agreed between counsel for the plaintiffs and for the defendants that no action would be taken by the Commissioner with respect to the seized liquor pending the outcome of this case, and the Commissioner still has it in his possession.

It has been stipulated that none of the plaintiffs has ever applied for, or been issued, a permit by the Revenue Department of the State of Arkansas, to transport alcoholic beverages into, through, or out of the State of Arkansas, nor did any of them have such a permit at the time the liquor was seized.

The facts, as stipulated with respect to the search and seizure, tend to indicate that no probable cause existed therefor. However, the conclusion we have reached renders it unnecessary for us to pass upon that question.

The Arkansas statute, 4 Ark.Stats.1947, § 48-404, requiring a permit to transport liquor into the state provides that "It shall be unlawful for any person to ship or transport or cause to be shipped or transported into the State of Arkansas, any spirituous liquors * * * from points without the State, without having first obtained a permit from the Commissioner of Revenues * * *." A violation of the act is declared to be a misdemeanor and is punishable by a fine of not less than $500 or more than $1,000.

In Duckworth v. State, 201 Ark. 1123, 148 S.W.2d 656, it was held that this statute covers a through shipment. Hence, since plaintiffs did not have a permit to transport the seized liquor into or through the state, the transportation thereof was illegal, and Anable, at least, was subject to prosecution in the state courts for such transportation.

The statute providing for seizure and forfeiture of liquors, Act 423 of 1947, 4 Ark.Stats.1947, § 48-925, declares that all spirituous liquors or beverages found in the possession of any person violating any alcoholic control law of the state are to be considered contraband, and shall be seized and forfeited.

This statute then sets up a detailed procedure for the forfeiture of seized liquors. Among other things, it provides that all such liquors shall be turned over to the Commissioner, who shall, within three days after receipt thereof, cause to be published in a newspaper having statewide circulation, a notice, which notice is required to appear in said newspaper twice within a 30 day period, 15 days apart, describing the seized liquor, setting forth the approximate retail value thereof, the name, if known, of the person from whom it was seized, and the place of seizure, and warning the owners that the seized liquor will be sold by the Commissioner at the expiration of 30 days from the first publication of the notice. The statute also provides that any person claiming any interest in the liquor may file a claim therefor with the Commissioner within the 30 day period of notice, which shall set forth the nature of his claim and contain a request for a hearing before the Commissioner to determine claimant's right or interest in the seized liquor. The Commissioner...