Nanny v. Oregon Liquor Control Comm.

• Decision Date: 02 July 1946
• Citation: 179 Or. 274,171 P.2d 360
• Parties: NANNY <I>v.</I> OREGON LIQUOR CONTROL COMMISSION
• Court: Oregon Supreme Court

179 Or. 274

171 P.2d 360

NANNY

v. OREGON LIQUOR CONTROL COMMISSION

Supreme Court of Oregon.

Argued June 24, 1946.

Affirmed July 2, 1946.

Intoxicating liquors — Contraband

1. Thieves stealing whiskey in California and transporting whiskey to Oregon without owner's knowledge or consent were not owner's agents, and hence thieves' unlawful possession of whiskey in Oregon was not the unlawful possession of owner seeking recovery of whiskey from Oregon Liquor Control Commission which had confiscated whiskey as contraband.

Intoxicating liquors — Stolen whiskey — Contraband

2. Whiskey stolen in California and transported to Oregon without owner's knowledge or consent was in the unlawful possession of the thieves, and as to them, the whiskey was contraband and subject to forfeiture by Oregon Liquor Control Commission, but such forfeiture proceedings did not divest owner, who had no opportunity to be heard, of title to the whiskey.

Statutes — Construction

3. The policy of the law is not to punish the innocent, and courts must look beyond the strict or literal sense of words in a statute to avoid an absurd or unjust result, and all laws should receive a sensible construction.

Statutes — Construction

4. The rule of construction according to the spirit of the law is especially applicable where adherence to the letter would result in absurdity or injustice.

Intoxicating liquors — Liquor control

5. The primary purpose of the Oregon Liquor Control Act is to regulate and control the sale and use of intoxicating liquor.

Criminal law — Illegal possession

6. Actions cannot be maintained for the recovery of property the possession of which is illegal.

Intoxicating liquors — Statutes — Stolen liquor

7. The statute prohibiting possession of alcoholic liquor not procured from Oregon Liquor Control Commission would not be so narrowly construed as to make owner a violator of the law immediately upon delivery to owner by commission of whiskey which had been stolen in California and had been transported to Oregon by thieves without owner's knowledge or consent and had been forfeited by commission as contraband.

Intoxicating liquors — Stolen liquor

8. An owner's acceptance of delivery of alcoholic liquors stolen from owner outside Oregon and transported into Oregon without owner's knowledge or consent is not "unlawful possession of whiskey" under statute prohibiting possession of alcoholic liquor not procured from Oregon Liquor Control Commission.

Criminal law — Presumption of innocence

9. An owner from whom whiskey was stolen outside Oregon and transported into Oregon was entitled to benefit of presumption of innocence in determining whether owner's acceptance of delivery of whiskey would constitute unlawful possession under statute prohibiting possession of alcoholic liquor not procured from Oregon Liquor Control Commission.

Intoxicating liquors — Stolen liquor — Contraband

10. Whiskey stolen in California and transported to Oregon without owner's knowledge or consent and confiscated by Oregon Liquor Control Commission as contraband should be returned by commission to owner making demand for possession, and on failure to so return, owner had cause of action in replevin against commission for wrongful detention of owner's property, notwithstanding that original taking by commission was not unlawful.

                  See 46 Am. Jur. 33; 30 Am. Jur. 564
                  33 C.J., Intoxicating liquor, § 388
                

Appeal from Circuit Court, Clackamas County.

EARL C. LATOURETTE, Judge.

Wilber Henderson, of Portland, for appellant.

Glenn R. Jack, of Oregon City (with Butler & Jack on brief), for respondent.

Before BELT, Chief Justice, and KELLY, BAILEY, LUSK, BRAND and HAY, Justices.

AFFIRMED.

BELT, C.J.

This is a replevin action to recover possession of 332 cases of whiskey valued at $11,010.13 alleged to be wrongfully detained by the Oregon Liquor Control Commission. The cause was submitted to the court, without the intervention of a jury. From a judgment in favor of the plaintiff, the defendant Commission appeals.

There is no dispute as to the facts. It is conclusively established that plaintiff owned the whiskey in California; that it was stolen from him; and that without his knowledge or consent it was transported into the state of Oregon. The Commission introduced no evidence. The sole question is what legal deduction should be made from the evidence.

It appears from the uncontradicted evidence that the plaintiff J.V. Nanny, who is engaged in the wholesale liquor business in Los Angeles, under the tradename of Merchants Wholesale Company, purchased 332 cases of whiskey from the American Distillery Company for the sum of $11,010.13, as shown by his check introduced in evidence. The American Distillery Company turned the whiskey over to the Columbia Freight Lines at Sausalito, California, as evidenced by a bill of lading, dated September 7, 1945, directing delivery of the whiskey to the plaintiff at Los Angeles. While the whiskey was in transit, it was stolen and transported by truck into the state of Oregon. As soon as plaintiff learned of the theft, it was reported to the police, and the parties in possession thereof — Fred Vargas and R.J. Harrison — were, on September 17, 1945, arrested in Clackamas county, Oregon, charged with the unlawful possession and transportation of the whiskey. Two days later, Vargas and Harrison entered a plea of guilty to such charge. The state thereupon obtained an order from the court directing that the whiskey be confiscated and delivered to the Oregon Liquor Control Commission. When the plaintiff learned that the whiskey had been confiscated by the Commission, he immediately asserted ownership of the same and demanded possession thereof. Upon refusal of the Commission to surrender possession of the liquor, plaintiff commenced this action.

The defendant Commission contends that the whiskey is contraband in that it was in the possession of persons who did not procure it from the Commission, but was brought into the state in violation of the law. The Commission further contends that if it should deliver this whiskey to the plaintiff it would "ipso facto make him a law violator," and therefore this possessory action cannot be maintained.

Appellant relies upon § 24-137 O.C.L.A. which makes it unlawful:

"For any person to purchase, possess, transport or import, except for sacramental purposes, alcoholic liquor except such as shall have been procured from or through the commission and except as in this act otherwise provided;" (Italics ours)

The only exception above referred to that has any application herein is that part of § 24-114 O.C.L.A. which prohibits an individual entering the state from having in his possession in excess of one quart of alcoholic liquor.

Plaintiff stresses § 24-113 O.C.L.A. which provides:

"The exclusive right to purchase, sell, have in possession for sale, import or transport * * * * * * spiritous liquor, or any alcoholic liquor containing over 17 per cent of alcohol by weight, hereby is vested in the commission." (Italics ours)

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