One Cadillac Automobile v. State
| Decision Date | 09 April 1918 |
| Docket Number | 9008. |
| Citation | 172 P. 62,68 Okla. 116,1918 OK 194 |
| Parties | ONE CADILLAC AUTOMOBILE v. STATE. |
| Court | Oklahoma Supreme Court |
Syllabus by the Court.
An automobile used January 3, 1917, in the unlawful conveyance of intoxicating liquor in the presence of an officer having power to serve criminal process, was not subject to seizure by such official and forfeiture to the state under the provision of section 3617, Rev. Laws 1910, and is not an "appurtenance" within the meaning of that section which provided: "When a violation of any provision of this chapter (chapter 39, Intoxicating Liquors) shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures vessels, and appurtenances thereunto belonging so unlawfully used" (citing Words and Phrases, Appurtenance).
Error from County Court, Cotton County; J. C. Norman, Judge.
Proceeding by the State against One Cadillac Automobile; State Exchange Bank of Oklahoma City, claimant. Judgment for the State confiscating the automobile, claimant's motion for new trial overruled, and it brings error. Judgment reversed, and cause remanded, with instructions to restore it to the person entitled to its possession.
A. E. Pearson and W. R. Withington, both of Oklahoma City, for plaintiff in error.
E. L. Richardson, of Walters, for the State.
On January 3, 1917, L. O. Watson, deputy sheriff of Cotton county, arrested without a warrant two persons who were unlawfully conveying certain intoxicating liquors in his presence and seized the liquors and the automobile in which the same were being conveyed. He made return to the county court setting forth a particular description of the liquor and automobile, whereupon a warrant issued commanding and directing him to hold the property so seized in his possession until discharged by due process of law. At the time fixed to hear and determine whether or not the property so seized or any part thereof was used, kept, or possessed with the intention of violating the law, the plaintiff in error, State Exchange Bank of Oklahoma City, appeared and by written plea of intervention claimed the automobile under a mortgage executed to it by the owner to secure the payment of a promissory note, and among other things alleged that the seizure was wrongful and without authority of law. On January 27, 1917, there was trial by jury resulting in a verdict against intervener and for the state, and judgment was rendered thereon that the automobile be confiscated to the state and ordered delivered to the commissioners of Cotton county to be disposed of according to law for the benefit of the court fund of the county. Motion of the bank for a new trial having been overruled, it brings the cause here and seeks the reversal of the judgment on several grounds, only one of which it will be necessary to consider.
Assuming that the liquor was being transported in the automobile in the presence of the officer in violation of law, the question is whether the automobile was subject to seizure and confiscation. It is conceded on the part of the state that such seizure and confiscation must have the warrant of some statute. There was no statute in force at the time specifically providing for the forfeiture of automobiles or other vehicles used in the unlawful transportation of liquor. Chapter 188, Session Laws 1917, p. 352, so providing, was enacted subsequently to the seizure and entry of judgment thereon here complained of. That law cannot, of course, retroact. The authority for the seizure and forfeiture is claimed by the state by virtue of section 3617, Rev. Laws 1910, in force at the time, which provided as follows:
"When a violation of any provision of this chapter shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without wararnt, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging so unlawfully used, and to take the same immediately before the court or judge having jurisdiction in the premises, and there make complaint, under oath, charging the offense so committed, and he shall also make return, setting forth a particular description of the liquor and property seized, and of the place where the same was so seized, whereupon the court or judge shall issue a warrant commanding and directing the officer to hold the property so seized in his possession until discharged by due process of law, and such property shall be held and a hearing and adjudication on said return had in like manner as if the seizure had been made under a warrant therefor."
One of the provisions of the chapter referred to in this section is that part of section 3605 providing that it shall be unlawful for any person to ship or in any way convey certain liquors from one place within the state to another place therein. On behalf of the state, it is argued that the officer had the right and that it was his duty under section 3617 to arrest without warrant any person violating the law in his presence by unlawfully conveying liquor and seize the liquor and the means by which it was being conveyed, in this case the automobile, as an appurtenance thereto. Whether section 3617 should be strictly or liberally construed is a question much discussed in the briefs. The plaintiff in error contends that the rule of strict construction applies, while counsel for the state contend for liberal construction. We are inclined to the view that the statutes designed to suppress traffic in intoxicating liquor should be construed according to the fair import of their terms, with a view to effecting their objects and of promoting justice, and so as not to disarm the officers charged with the arduous and difficult duty of enforcing the law of a power which has been confided to them to be used for the general good. Sections 2948, 4642, Rev. Laws 1910.
It is easy to perceive, especially since high-powered and expensive automobiles have been employed for the purpose, that to subject to forfeiture as contraband property, not only the liquor unlawfully conveyed, but also the means or vehicle by which it is transported, would be a great aid in the suppression of the evil aimed at, and, although the statutes in force at the time did not in express terms provide for the forfeiture of automobiles so unlawfully employed, yet if there were in the statutes any general words, the fair and reasonable import of which included such property, we would not be inclined to so strictly construe them as to exclude it. The language of the statute is "seize the liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging, so unlawfully used." While counsel for the state in this and other cases now pending in which the same question is involved have ably argued the same with commendable zeal, they do not contend that an automobile is included in the designation of "bars," "furniture," "fixtures," or "vessels"; nor is it possible to stretch the ordinary meaning of those words to that extent. But it is insisted that authority to seize the means or vehicle used in the unlawful transportation is found in the words following the designation of the specific articles; i. e., "and appurtenances thereunto belonging so unlawfully used."
It is contended on behalf of the state that these words should be construed as meaning "any chattels used in violation of the prohibitory law." But we are unable to do so without violating our understanding of the meaning of the word "appurtenance." The word is defined as:
"That which belongs to something else; an adjunct; an appendage; an accessory; something annexed to another thing...
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