Owens v. Way

• Decision Date: 11 June 1914
• Docket Number: 389.
• Citation: 82 S.E. 132,141 Ga. 796
• Parties: OWENS ET AL. v. WAY.
• Court: Georgia Supreme Court

82 S.E. 132

141 Ga. 796

OWENS ET AL. v. WAY.

No. 389.

Supreme Court of Georgia

June 11, 1914

Syllabus by the Court.

A municipal officer, who has arrested an alleged violator of a municipal ordinance, has no power, without other authority than the warrant against the accused, to take and carry away the property of a third person from the latter's premises, on the ground that the property of such third person so seized may contain evidence to be used against the defendant in the warrant. Such a seizure is a violation of the constitutional guaranty against unreasonable searches and seizures, as contained in Civil Code 1910, § 6372.

The person whose property is thus seized is entitled to the remedy of injunction to restrain the officers, who have taken into their possession his property, from forcibly or otherwise effecting a threatened injury to the same, or interfering with his possession.

Error from Superior Court, Glynn County; C. B. Conyers, Judge.

Action by Geo. S. Way against A. L. Owens and others. From a judgment granting an injunction, defendants bring error. Affirmed.

J. T Colson, of Brunswick, for plaintiffs in error.

A. D Gale, of Brunswick, for defendant in error.

EVANS P.J.

The facts necessary to be stated for a decision of the question made by the record are as follows: H. L. Edwards formerly conducted a saloon for the sale of "near beer" in the city of Brunswick. He was convicted of selling intoxicating liquors therein, and, under the statute and by virtue of his conviction, his license became forfeited and he was disqualified from engaging in the business. The city of Brunswick granted a license to sell "near beer" to George S. Way in the same premises previously occupied by Edwards. Way was the nephew of Edwards. Edwards was the agent of a lighterage company and a transportation company, and kept his books in a safe located in Way's place of business. A warrant was issued against Edwards, charging him with violating the ordinance against keeping on hand intoxicating liquor for purposes of sale. He was arrested under this warrant by the police officers of the city, who also carried away an iron safe to police headquarters, taken from the premises where Way was conducting his business. There was no warrant against Way.

Thereupon Way filed a petition to enjoin the police officers from opening the safe, forcibly or otherwise, as threatened, or from interfering with his possession of it. The police officers admitted that they had removed the safe from the place of business of Way to police headquarters, and justified their conduct on the ground that the safe, if opened, would show that it contained intoxicating liquor which they wished to use as evidence on the trial of Edwards. They submitted evidence to the effect that, not long before the arrest, a witness bought from a clerk of Way certain whisky, which was taken from the safe, and that the sale was made upon the express approval of Edwards, who was standing near by at the time the sale occurred. There was a conflict of evidence as to whether the safe belonged to Edwards or Way. The court granted the injunction as prayed, and the police officers excepted.

Inasmuch as the court granted an injunction, in the discussion of the case the facts will be taken as found by the court in consonance with the judgment rendered. Accordingly, we will regard the safe as the...