Lindsley v. Werner

• Decision Date: 23 December 1929
• Docket Number: 12199.
• Citation: 283 P. 534,86 Colo. 545
• Parties: LINDSLEY v. WERNER, Constable.
• Court: Colorado Supreme Court

283 P. 534

86 Colo. 545

LINDSLEY v. WERNER, Constable.

No. 12199.

Supreme Court of Colorado, En Banc.

December 23, 1929

Error to District Court, Saguache County; J. C. Wiley, Judge.

Action by Ray R. Lindsley against W. J. Werner, as Constable. Judgment for defendant, and plaintiff brings error.

Affirmed.

John I Palmer and Palmer & Tarbell, all of Saguache, for plaintiff in error.

Charles H. Woodard, of Alamosa, for defendant in error.

Robert E. Winbourn, Atty. Gen., Charles Roach, Deputy Atty. Gen and Fred A. Harrison, Asst. Atty. Gen., amici curiae.

CAMPBELL J.

The plaintiff, Lindsley, an automobile dealer in Alamosa, Colo sold a Chrysler touring car to J. Paul Walling. The purchaser did not pay the entire purchase price, and for the balance thereof, amounting to $874, he gave to plaintiff his promissory note in that sum, and to secure its payment executed and delivered to the plaintiff a chattel mortgage upon the car. The mortgage contained a covenant against the use of the car by the mortgagor in the violation of the federal or state intoxicating liquor laws. Thereafter acting upon an appropriate affidavit, the sheriff of the county, proceeding under section 3711, C. L. 1921, secured a search warrant from a justice of the peace of the county for the search and seizure of this automobile. The result thereof disclosed that about 30 gallons of intoxicating liquor were found in the car. The driver of the car, Barton, pleaded guilty to the charge of illegal possession, and use of the car in violation of our intoxicating liquor statute, whereupon the justice of the peace, under provision of section 3712, C. L. 1921, ordered the car turned over to the constable for sale. Walling, the mortgagor, has not appeared or made any claim to the car, but the mortgagee, Lindsley, as plaintiff in this action, sues the constable for its possession. The district attorney, representing the constable, in his answer justifies the seizure and forfeiture of the car upon the ground that our intoxicating liquor statute, in the circumstances of this case, works an absolute forfeiture of the car to the state because the same was being used in unlawfully transporting liquor in violation of its provisions. The contention of the plaintiff mortgagee is that, as he had no knowledge whatever of the unlawful use that was being made of the car by his mortgagor, the statute, if interpreted as including an innocent mortgagee or lienor, is unconstitutional and void as against the due process clause of the Constitution of the United States.

In Hoover v. People, 68 Colo. 249, 187 P. 531, we had occasion to pass upon the meaning and effect of some features of sections 3711, 3712, 3713, and 3720, C. L. 1921, of our intoxicating liquor act, but the question for decision here was there expressly excluded from consideration or determination. We there held that, inasmuch as no search warrant had been issued in that case, or was in the hands of the sheriff at the time of the seizure, the proceeding could not have been under section 11 or 12 (which are, respectively, sections 3711 and 3712), as claimed by the state, because section 12 applies only to something that has been seized under a search warrant issued under section 11. And we further held that neither section 3713 (section 13) nor section 20(3720) of the act contains a provision for forfeiture. The writer of the opinion in that case specifically said that whether the lawful property of an innocent person might be forfeited under sections 3711 and 3712 was not decided, and therefore limited the ruling there by the statement that these sections did not apply to the case then in hand, and that there was no provision for forfeiture either under section 3713(13) or section 3720(20). In considering this case, we are not governed or restricted by the decision in the Hoover, or any other, case that has been before us.

The specific question for decision, therefore, is whether the interest of an innocent mortgagee of an automobile, who voluntarily delivered possession of the same to a third person who used it in unlawfully transporting liquor, is subject to absolute forfeiture under sections 3711 and 3712 and 3720 of our intoxicating liquor act? Section 3711, which is the search and seizure provision of the act, authorizes any justice of the peace, or the judge of any county or district court, if any person makes an affidavit before him that he has reason to and does believe that intoxicating liquors are being carried in violation of the act, to issue to a designated public officer a command to search the automobile described in the affidavit. If, as the result of such search by the officer, any intoxicating liquor is found in such automobile, section 3712 requires the officer to seize the same and safely keep it, and make immediate return of his warrant, and such property shall not be taken from his custody by writ of replevin or other process while the proceedings are pending. Final judgment of conviction in such proceedings shall be a bar to any and all suits for the recovery of such property so seized, or for the value of the same, or for damages alleged to arise by reason of such seizure and detention. The judgment of the judicial officer shall find such liquor to be unlawful, and shall direct its destruction forthwith, and the wagon, automobile, or other vehicle so seized shall likewise be ordered to be disposed of, as personal property is sold under execution, and the proceeds thereof applied, first, in the payment of the cost of prosecution and of any fine imposed, the balance, if any, paid into the general school fund of the county in which such conviction is had. Section 3720, reads: 'There shall be no property rights of any kind whatsoever in any liquors, vessels, appliances, fixtures, bars, furniture, implements, wagons, automobiles, vehicles, contrivances, or any other things or devices used in or kept for the purpose of violating any of the provisions of this act.'

The language of these provisions of our statute is clear and unambiguous. If an automobile is used or kept, as was the automobile in this case, for the purpose of violating the provisions of our intoxicating liquor act, section 3712 declares that it is forfeited to the state. Section 3720 expressly says that there shall be no property rights of any kind whatsoever in an automobile so used or kept.

There are many cases in the federal and state courts construing statutes similar to ours relating to the forfeiture of conveyances, such as an automobile, used in transporting intoxicating liquors in violation of their provisions. Were it not for recent decisions of the Supreme Court of the United States, at least one of which, controlling with us, is on the precise question here presented, it might be interesting, and, perhaps, not altogether without profit, to collect and comment upon them. Those interested in the adoption and enforcement of such legislation may find in 47 A.L.R. p. 1025, an elaborate annotation to the case of United States of America v. One Ford Coupé Automobile, 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279, 47 A.L.R. 1025, in which the author reviews and comments on many of these cases, a long list of which is there collected. And at page 1044 of the same volume is reproduced the opinion in Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 134, 71 L.Ed. 354, 47 A.L.R. 1044, where another list of adjudications will be found.

The defendant Lindsley, innocent mortgagee, does not assert in his brief that the language of our statute does not plainly and without qualification, declare that an automobile used in illegal transportation of intoxicating liquors may be absolutely forfeited. His contention is that it was not the intention of our General Assembly to subject it to forfeiture as against an innocent lienor or mortgagee. Before the decision of the Supreme Court of the United States in the One Ford Coupé Case, supra, the annotator correctly says that there was much contrariety of opinion as to whether section 3450 of the Federal Revised Statutes (26 USCA §§ 1181, 1182) was repealed expressly or by implication by section 26, Title 2, of the National Prohibition Act (27 USCA § 40), in so far as the illegal transportation of intoxicating liquor is concerned, and the annotator adds (47 A.L.R. 1055): 'The question has recently been authoritatively settled by the decision in the Ford Coupé Case in which it was held that an automobile used for the purpose of depositing or concealing tax-unpaid illicit liquors, with intent to defraud the United...