Cornman v. Conway
| Decision Date | 27 November 1933 |
| Docket Number | 32518 |
| Citation | 151 So. 620,178 La. 357 |
| Court | Louisiana Supreme Court |
| Parties | CORNMAN v. CONWAY, Supervisor of Public Accounts |
Appeal from Civil District Court, Parish of Orleans; Michel Provosty, Judge.
Suit by Israel Cornman against E. A. Conway, Supervisor of Public Accounts. From an adverse judgment, the Supervisor of Public Accounts appeals.
Affirmed.
Charles J. Rivet, Sp. Asst. to Atty. Gen., for appellant.
Albert B. Koorie, of New Orleans, for appellee.
OPINION
O'NIELL, Chief Justice.
The supervisor of public accounts has appealed from a judgment enjoining the agents of the supervisor from confiscating and selling the plaintiff's automobile, which was seized under authority of the second paragraph of section 6 of Act No. 34 of 1930, pp. 78, 85.
The object of the statute, as declared in its title, is to provide revenue for public education, by levying a tax on malt extract and derivatives or combinations thereof. The tax is 3 cents on every pound, or fraction of a pound, of malt extract, and derivatives or combinations thereof, handled, sold, or distributed for domestic consumption, except that which is sold to commercial bakers for making bread, pastries, etc. The second paragraph of the sixth section of the statute gives the supervisor of public accounts and his assistants the power and authority to search and examine any warehouse, store, storeroom, automobile truck, boat, or other conveyance or means of transportation when there is probable cause to believe that the terms of the statute are being, or have been, violated; and the same paragraph of the sixth section of the statute provides that any automobile, truck, boat, or other vehicle or means of transportation, except a common carrier, caught or detected transporting malt extract, or derivatives or combinations thereof, without the tax thereon being paid or a bond given to guarantee the payment, as provided in the statute, shall be subject to seizure and confiscation by the supervisor of public accounts, or his assistants; and that, after ten days' notice by advertisement at least twice in the official journal of the parish in which the confiscation is made, the supervisor or his assistants shall proceed to sell the confiscated property, through the sheriff, at public auction, to the highest bidder, for cash, and without appraisal. The funds so realized, less the expenses, are to be paid into the state treasury and credited to the account of the state board of education, the same as the malt tax itself is paid and credited.
It is admitted that the plaintiff, Cornman, was transporting malt extract in his automobile at the time of the seizure, and that the malt extract was subject to the tax, which had not been paid. He pleaded, in his petition for an injunction, that the second paragraph of the sixth section of the statute was unconstitutional, in that it violated the provision in the Fourteenth Amendment of the Constitution of the United States, and in section 2 of article 1 of the Constitution of Louisiana, that no person shall be deprived of his property without due process of law. He pleaded also, in his petition, that the second paragraph of the sixth section of the statute violated the provision in the eleventh section of article 10 of the Constitution of Louisiana, that "there shall be no forfeiture of property for the nonpayment of taxes."
The judge who heard the case decided that the second paragraph of the sixth section of Act No. 34 of 1930 was violative of the due process clause in the Fourteenth Amendment of the Constitution of the United States, and in the second section of article 1 of the Constitution of Louisiana. The decision was based upon the ruling of this court in Finance Security Company v. Conway, Supervisor of Public Accounts, 176 La. 456, 146 So. 22, 23, where it was held that the second paragraph of the sixth section of Act No. 34 of 1930 was violative of the Fourteenth Amendment of the Constitution of the United States, and of the second section of article 1 of the Constitution of Louisiana, in that the statute failed to provide for a judicial proceeding for the forfeiture or confiscation, which the statute undertook to authorize, and failed to provide for previous notice to be given to the owner of the property to be forfeited or confiscated.
The attorney for the supervisor argues that the plea of unconstitutionality of the statute should not have been considered in this case, because the plaintiff did not specify, in his petition, how the statute violated the due process clause. We consider the specification in the petition sufficient. The allegation is that the second paragraph of the sixth section of the statute is unconstitutional, in that it violates the provision in the Fourteenth Amendment to the Constitution of the United States and the second section of article 1 of the Constitution of Louisiana, "which amendment and section aforesaid provide that no person shall be deprived of his property without due process of law." That was the same as to say that the second paragraph of the sixth section of the statute undertook to deprive a person of his property without due process of law. To say more would be bordering upon argument of the proposition. In the light of the decision in Finance Security Co. v. Conway, Supervisor of Public Accounts, which was rendered on the 3d day of last January -- less than a month before this suit was filed -- the supervisor could not have had any doubt as to what the plaintiff in this case meant by this plea that the second paragraph of the sixth section of the statute undertook to deprive a person of his property without due process of law.
The attorney for the supervisor contends that the decision rendered in the Finance Security Company Case is not applicable to this case, because in the Finance Security Company Case a third person was transporting the malt or malt extract, without the consent or knowledge...
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State v. Spooner, 87-KK-0892
...proceeding is to penalize. Manuel, 426 So.2d at 143. They were State v. Billiot, 254 La. 988, 229 So.2d 72 (1969) and Cornman v. Conway, 178 La. 357, 151 So. 620 (1933). The facts of these two cases are entirely consistent with the premise that all penalizations are not entirely criminal in......
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State v. Manuel
...Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1885); State v. Billiot, 254 La. 988, 229 So.2d 72 (1969); Cornman v. Conway, 178 La. 357, 151 So. 620 (1933). The defendant's motion for release of the vehicles is similar to a motion to quash in that he contends the forfeiture proceed......
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State v. Edwards
...Boyd v. U.S., 116 U.S. 616, 6 S.Ct. 524, 29 L.Ed. 746 (1886); State v. Billiot, 254 La. 988, 229 So.2d 72 (1969); Cornman v. Conway, 178 La. 357, 151 So. 620 (1933). Thus, in many respects, criminal forfeiture is broader in scope than civil forfeiture because law enforcement can reach prope......
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...civil proceeding, is designed as a penalty for violation of a law. State v. Billiot, 254 La. 988, 229 So.2d 72 (1969); Cornman v. Conway, 178 La. 357, 151 So. 620 (1933); Finance Sec. Co. v. Conway, 176 La. 456, 146 So. 22 (1933); Perry v. Butler, 8 So.2d 95 (La.App.1942); Armbruster v. Beh......