Rehearing
Denied July 15, 1921
Appeal
from Circuit Court, Calhoun County; J.P. Agee, Judge.
Bill by
the State of Alabama, on the relation of J.B. Sanford
against W.E. Clements and one Ford automobile, to condemn
said automobile because used in illegally transporting
prohibited liquors. From a decree for condemnation
defendants appeal. Affirmed.
THOMAS
J.
It is
conceded by counsel for appellant that if the decision in
State v. Merrill, 203 Ala. 686, 85 So. 28, is a
correct definition of an illegal conveying of prohibited
liquors, the judgment of the circuit court must be affirmed
otherwise stated, since the statute does not define an
unlawful carrying of prohibited liquors, such words of the
statute have no meaning and can be given no effect.
The
statute defines what is an unlawful receipt or keeping for
sale (Gen.Acts 1915, § 4, p. 9; Maisel v. State, 17
Ala.App. 12, 81 So. 348), unlawful possession (State v.
Crosswhite, 203 Ala. 586, 84 So. 813; Jones v.
State, 17 Ala.App. 444, 85 So. 839; Gen.Acts 1915, § 16,
p. 13), or unlawful delivery of prohibited liquors (Gen.Acts
1915, § 5, p. 9). The expression of illegal or unlawful
carrying or transportation of such prohibited liquors must be
defined in connection with the scope and purpose of the
prohibition laws of which it is a part (Gen.Acts 1919, pp. 6,
7, 13) or supplemental thereto (Gen.Acts 1915, pp. 8, 27).
In
Re One Ford Automobile, 87 So. 842-843, the court said
of the right of seizure under the statute (without a
violation of the provisions of section 5 of the Constitution)
of a vehicle used in transporting prohibited liquors from one
point within the state to another point in the state:
"A similar constitutional question was raised in
Maples v. State, 203 Ala. 153, 82 So. 183, and there
the court, quoting the act in so far as it provides that the
sheriff or arresting officer 'who becomes cognizant of
the facts or who finds liquor in such conveyance or vehicle
being illegally transported as aforesaid' shall seize the
vehicle, said: 'Clearly, this is not a violation of such
constitutional provision.' But in that case the
automobile, when seized, was being used for the
transportation of prohibited liquors. No doubt, prohibited
liquors, the receipt or possession of which in any quantity,
with exceptions not material in this connection, is denounced
as a misdemeanor, may be seized without a warrant, for such
liquors are per se contraband. But whether property not per
se contraband, and not found in such use as to make it
contraband, may be seized without a warrant, or, if the order
of the court in this cause may be deemed a warrant, whether
such warrant may be issued by any court without probable
cause, supported by oath or affirmation, are questions we
need not decide, for the reason that this case may be
determined on the other point."
In
Maples v. State, supra, Mr. Justice Gardner states:
"The automobile was seized in Cullman county by the
sheriff of said county, while the same was in the actual
possession of respondents--the property of one or both of
them--and that when so seized it was being used for the
transportation of prohibited liquors or beverages from one
point to another within the state, contrary to law."
The
judgment of condemnation was affirmed.
The
"unlawful" act of any person carrying prohibited
liquors or beverages within the state, or from a point
without the state to a point within the state, is within the
reasonable purview of section 2 of the Act of January 25
1919, when read in connection with the other provisions of
the prohibition laws, and especially in connection with the
provisions for condemnation. Section 13 places the
interdiction and condemnation by the statute upon intrastate
carriage of prohibited liquors as well as against and upon an
interstate carriage of the same. It is provided that--
"All conveyances and vehicles of transportation of any
kind, whether on the waters of the state, under the water, on
land or in the air, which have been or are used for the
illegal conveying of any prohibited liquors or beverages,
into this state, or from one point in the state to another
point within the state, including any animals that may be
hitched to any vehicle so illegally used, together with all
harness and other accessories employed in such illegal
transportation, shall be contraband and be forfeited to the
state of Alabama, and shall be seized by any sheriff or other
arresting officer or any other person acting under authority
of law in the enforcement of the prohibition laws of the
state, who becomes cognizant of the facts or
who finds liquor in such conveyance or vehicle being
illegally transported as aforesaid. *** That any contraband
vehicles, including automobiles, heretofore seized under
existing laws, as having been used in the unlawful
transportation of any prohibitive liquor, may be condemned
and sold, or may be otherwise disposed of under the procedure
prescribed by this act as the case
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