Rose v. State

• Decision Date: 05 February 1909
• Docket Number: No. 21,286.,21,286.
• Citation: 87 N.E. 103,171 Ind. 662
• Parties: ROSE et al. v. STATE.
• Court: Indiana Supreme Court

171 Ind. 662

87 N.E. 103

ROSE et al.

v.STATE.

No. 21,286.

Supreme Court of Indiana.

Feb. 5, 1909.

Appeal from Circuit Court, White County; Jas. P. Mason, Judge.

Proceeding by the State of Indiana against Samuel A. Rose and others to destroy intoxicating liquors. From the judgment, defendants appeal. Affirmed.Reynolds & Lills and J. F. McHugh, for appellants. James Bingham, A. G. Cavins, E. M. White, and W. H. Thompson, for the State.

MONKS, J.

This was a proceeding in the nature of a libel brought under sections 2 to 14 of an act approved February 13, 1907 (Acts 1907, pp. 29-33, c. 16), being section 8338 et seq., Burns' Ann. St. 1908, to procure the seizure and destruction of certain intoxicating liquors. Such proceedings were had that final judgment was rendered, ordering that the boxes, barrels, demijohns, jugs, and bottles and the intoxicating liquors contained therein, taken under the search warrant, be destroyed. From this judgment appellants appealed and assigned errors, calling in question the action of the court in overruling the motion to quash the affidavit on which the search warrant was issued, the motion to quash said search warrant and the sheriff's return thereon, the separate motion of each appellant for a new trial, and the separate motion of each appellant in arrest of judgment.

It is insisted that sections 2 to 14 of said act of 1907 (Acts 1907, pp. 29-33, c. 16; section 8338 et seq., Burns' Ann. St. 1908) are unconstitutional because in violation of section 19 of article 4 of the Constitution of this state, which provides that: “Every act shall embrace but one subject and matters properly connected therewith, which subject shall be expressed in the title. But if any subject shall be embraced in an act which shall not be expressed in the title, such an act shall be void only as to so much thereof as shall not be expressed in the title.” The only ground stated for this contention is “that the provisions of said act make certain facts, if shown, prima facie evidence of some of the facts necessary to be established in a proceeding under said sections.” The subject of said act of 1907 is that of the act of 1875 (Acts Sp. Sess. 1875, p. 55, c. 13), of which it is an amendment, and which is expressed in the title as follows: “An act to regulate and license the sale of spirituous, vinous and malt and other intoxicating liquors,” etc. The provisions in said act in regard to the search, seizure, and destruction of “intoxicating liquors unlawfully kept to be sold in violation of the laws of this state,” and in regard to what shall be prima facie evidence of certain facts in such cases, and what courts shall have jurisdiction, are clearly germane to, properly connected with, and embraced in the subject expressed in the title of said act of 1875. The title thereof is sufficient to include said provisions embraced in the amendatory act of 1907. Said provisions in said amendatory act of 1907 are mere details of the method by which the sale of intoxicating liquors is to be regulated and are appropriately and properly connected therewith.

The following cases fully support this conclusion: State v. Gerhardt, 145 Ind. 439, 458, 459, 44 N. E. 469, 33 L. R. A. 313, and cases cited; Lewis v. State, 148 Ind. 346, 349, 47 N. E. 675;Brandon v. State, 16 Ind. 197;Parks v. State, 159 Ind. 211, 229-231, 64 N. E. 862, 59 L. R. A. 190, and cases cited; State v. Board, etc., 166 Ind. 162, 189, 197, 198, 76 N. E. 986;Board, etc., v. Albright, 168 Ind. 564, 568-570, 81 N. E. 578, and cases cited; Western Union Tel. Co. v. Braxtan, 165 Ind. 165, 167-170, 74 N. E. 985;Bitters v. Board, 81 Ind. 125, 126;Bank v. City of New Albany, 11 Ind. 139, 142;State v. Adamson, 14 Ind. 296, 297;State ex rel. v. Board, 26 Ind. 522, 525;Bright v. McCullough, 27 Ind. 223, 226;Shoemaker, Aud., v. Smith, 37 Ind. 122;Peachee v. State, 63 Ind. 399, 401;State ex rel. v. Sullivan, 74 Ind. 121;Shipley v. Terre Haute, 74 Ind. 297;Kane v. State ex rel., 78 Ind. 103, 108;Jett v. City of Richmond, 78 Ind. 316, 317;Elder v. State, 96 Ind. 162;Hedderich v. State, 101 Ind. 564, 569, 1 N. E. 47, 51 Am. Rep. 768;Barnett v. Harshbarger, Adm'r, 105 Ind. 410, 5 N. E. 718;City of Indianapolis v. Huegele, 115 Ind. 581, 590, 18 N. E. 172. It is settled in this state that the Legislature has power to make certain acts or facts prima facie evidence of other facts necessary to be established in a legal proceeding. State v. Beach, 147 Ind. 74, 79-83, 43 N. E. 949, 46 N. E. 145, 36 L. R. A. 179, and authorities cited; State v. Gerhardt, 145 Ind. 439, 465, 466, 44 N. E. 469, 33 L. R. A. 313;Commonwealth v. Wallace, 73 Mass. 222;State v. Hurley, 54 Me. 562;State v. Thomas, 47 Conn. 546, 36 Am. Rep. 98.

Appellants contend that said act is unconstitutional as applied to intoxicating liquors, because it authorizes the taking of one's property without due process of law. This objection is too indefinite to present any question. As was said in Pittsburgh, etc., R. Co. v. Lightheiser, 168 Ind. 438, 460, 78 N. E. 1033, 1040: “While a discussion or elaboration of a point is not proper in the statement of points, mere general statements without specific and definite reasons specifically applied present no question for decision.” In answer to said general objection it may properly be said that said act provides for a judicial hearing, after due notice in which the owner has an opportunity to contest the ground upon which the forfeiture is claimed. Regadanz v. State (Ind.) 86 N. E. 449, 451.

It is next insisted by appellants that “section 11 of article 1 of the Constitution of this state requires that the facts upon which the belief of the affiant is based must be set out in the affidavit and that an affidavit on information and belief is not sufficient, and, as said act of 1907 authorizes the issuance of such a warrant on such an affidavit, it is in violation of said section of our Constitution.” Said section of the Constitution only requires that “no warrant shall issue, but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched and the person or thing to be seized.” In Lowery v. Gridley, 30 Conn. 450, under a constitutional provision substantially the same as ours, it was held that an act which authorized the issuance of a warrant to search and seize property upon the oath of the affiant that he “had reason to believe and did believe” the facts alleged in the affidavit to be true was valid, and not in violation of said provision of the Constitution, that such oath was sufficient, and that it was not necessary that the facts upon which the belief was founded should be set out in the affidavit. See, also, Black on Intoxicating Liquors, §§ 52, 53, 351; Oviatt v. Pond, 29 Conn. 479;Lincoln v. Smith, 27 Vt. 328;State v. Hobbs, 39 Me. 212;Gray v. Kimball, 42 Me. 299;State v. Nowlan, 64 Me. 531;State v. Plunkett, 64 Me. 534;State v. Welch, 79 Me. 99, 8 Atl. 348;Santo v. State, 2 Iowa, 165, 63 Am. Dec. 487;State v. Snow, 3 R. I. 64;State v. Fitzpatrick, 16 R. I. 54, 11 Atl. 767;In re Horgan's Liquors, 16 R. I. 542, 18 Atl. 279;Jones v. Root, 72 Mass. 435;Mason v. Lothrop, 73 Mass. 354, 358. It has been uniformly held by this court that even an affidavit charging one with a crime need not show that the statements contained in it are made upon the affiant's knowledge, but it is sufficient if made upon information and belief. Franklin v. State, 85 Ind. 99, and cases cited; State v. Buxton, 31 Ind. 67;Toops v. State, 92 Ind. 13, 14.

Appellants insist that the affidavit is insufficient because it “does not particularly describe the place to be searched,” as required by section 11 of article 1 of the Constitution of this state. The affidavit describes the place to be searched as the “room, house, outhouse, yard, garden, and appurtenances thereto belonging, occupied by said Samuel A. Rose and situated upon lot thirty, on Market street, in the original plat of New Bedford, now Monon in Monon township, county of White, in the state of Indiana.” It has been held that the description will be sufficiently certain if it is such as would be required in a deed to convey a specific parcel of real estate, or if it leaves no discretion to the officer as to what place he is to search, but fully directs him in that respect. Black on Intoxicating Liquors, § 430; Cooley's Const. Limitations (7th Ed.) 429, 430; 23 Cyc. 294, 295, 297; 29 Am. Digest (Cent. Ed.) § 374, cols. 1284-1287; Hornig v. Bailey, 50 Conn. 40;State v. Brennan, etc., 25 Conn. 278;State v. Thompson, 44 Iowa, 399;Lincoln v. Smith, 27 Vt. 328;State v. Intoxicating Liquors, 44 Vt. 208;State v. Twenty-Five Packages, etc., 38 Vt. 387;Commonwealth v. Certain Intoxicating Liquors, 146 Mass. 509, 16 N. E. 298;Commonwealth v. Intox. Liquors, 150 Mass. 164, 22 N. E. 628;State v. Burke, 66 Me. 127;In re Liquors, 16 R. I. 60, 11 Atl. 773.

In State v. Thompson, supra, the place was described as “Clark Thompson's Saloon building in Strawberry Point owned and kept by said Clark Thompson.” It was held sufficient. In Hornig v. Bailey the description held sufficient was: “In said Danbury, near the corner of Elm street, in the borough of Danbury, within said town of Danbury, in a wooden building occupied by Jean Hornig, of said Danbury consisting of a one story building, and a garden thereto attached and occupied as a saloon and place of public resort; also in another wooden building situated between Danbury News office and said one story building described above, and used by said Jean Hornig as a dwelling house; all of said buildings being within the town and borough of Danbury, and which said liquors are owned and kept at said place.” In the State v. Twenty-Five Packages of Liquor, supra, the description was “the American Hotel and the barn sheds and other out buildings adjacent thereto, in Burlington and forming a part of the premises of said hotel.” The court held that “this is...