Moore v. Ewbanks

• Decision Date: 18 June 1903
• Citation: 44 S.E. 971,66 S.C. 374
• Parties: MOORE v. EWBANKS.
• Court: South Carolina Supreme Court

44 S.E. 971

66 S.C. 374

MOORE v. EWBANKS.

Supreme Court of South Carolina

June 18, 1903

Appeal from Common Pleas Circuit Court of Spartanburg County Buchanan, Judge.

Action by Mattie Moore against Ben W. Ewbanks. From decree sustaining judgment of magistrate, plaintiff appeals. Reversed.

C. P Sims, for appellant. Barber Hoke, for respondent.

WOODS J.

The defendant, Ben W. Ewbanks, a dispensary constable, seized as contraband a small quantity of lager beer in the possession of the plaintiff, Mattie Moore, who instituted claim and delivery proceedings for the recovery of the property or its value. The plaintiff alleged the beer was bought from the dispensary, and kept for her own personal use, but admitted in her reply that the constable, before making said seizure "was informed that said beer was being stored and kept in the possession of the plaintiff for unlawful use; that acting on such information, and in the faithful discharge of his duties as such ministerial officer, he made said seizure for and on behalf of the state, and had disposed of the same, according to the directions of the dispensary law in such cases, before the commencement of this action." Upon appeal from judgment of the magistrate in favor of the plaintiff, the circuit court dismissed the proceedings, holding that, where liquor is seized in good faith by a constable in the enforcement of the dispensary law, section 587 of the Criminal Code provides a remedy exclusive of all others, and therefore in such a case the action of claim and delivery could not be maintained. No question of the right to recover damages for tort is raised, and the sole inquiry involved in the appeal is, can an action of claim and delivery be maintained to recover liquor seized by a state constable in endeavoring in good faith to discharge the duties of his office?

The general rule is that, where there is a remedy already existing, and the statute provides another in the affirmative without a negative, express or implied, the latter remedy is regarded cumulative, and not exclusive of that already known to the law. Gibbes v. Beaufort, 20 S.C. 216. And the rule is the same whether the existing remedy was based on the common law or statute law. Cyclopedia of Law and Procedure, 709.

To this rule there is, however, a very important exception. Where a statute authorizes the taking or damaging of property for public purposes, and provides a remedy by which compensation may be obtained, such remedy is not cumulative, but exclusive. Calking v. Baldwin, 4 Wend. 667, 21 Am. Dec. 168; Sams v. R. R. Co., 15 S.C. 487; Fuller v. Eddings, 11 Rich. Law, 245. The seizure of liquor in the enforcement of the dispensary law being for a very important public purpose, if the act providing for the seizure also provides a remedy to the person claiming the property which he may set in motion for the assertion of his rights, the remedy so provided should be regarded exclusive of all other remedies. This appeal is, therefore, narrowed to the inquiry whether the dispensary act, in providing for the seizure, has given a remedy which takes the place of claim and delivery. If such a remedy has been provided, it is exclusive, and this action could not be maintained.

The portion of section 587 of the Criminal Code considered by the circuit judge to furnish an exclusive remedy in such a case is as follows: "Second. If the said goods are believed by the officer making the seizure to be of less value than fifty dollars, no appraisement shall be made. The said officer or person shall proceed to publish a notice for three weeks, in writing, at three places in the county where the seizure was made, describing the articles, and stating the time and place and cause of their seizure, and requiring any person claiming them to appear and make such claim within thirty days from the date of the first publication of such notice. Third. Any person claiming the liquors or other property so seized as contraband, within the time specified in the notice, may file with the board of state...