Rose v. The State
| Decision Date | 05 February 1909 |
| Docket Number | 21,286 |
| Parties | Rose et al. v. The State of Indiana |
| Court | Indiana Supreme Court |
From White Circuit Court; James P. Wason, Judge.
Action by The State of Indiana against Samuel A. Rose and others. From a judgment for the plaintiff, defendant appeals.
Affirmed.
Reynolds & Sills and John F. McHugh, for appellants.
James Bingham, Attorney-General, Alexander G. Cavins, William H Thompson and Edward M. White, for the State.
This was a proceeding in the nature of a libel, brought under sections two to fourteen of an act approved February 13, 1907 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 two to fourteen of said act of 1907 are unconstitutional because in violation of article 4, § 19, of the Constitution of this State, which provides that 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 the act of 1907, supra, is that of the act of 1875 (Acts 1875 [s.s.], p. 55), 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 (1896), 145 Ind. 439, 458, 459, 44 N.E. 469, 33 L.R.A. 313, and cases cited; Lewis v. State (1897), 148 Ind. 346, 349, 47 N.E. 675; Brandon v. State (1861), 16 Ind. 197; Parks v. State (1902), 159 Ind. 211, 229-231, 64 N.E. 862, 59 L.R.A. 190, and cases cited; State, ex rel., v. Board, etc. (1906), 166 Ind. 162, 189, 197, 198, 76 N.E. 986; Board, etc., v. Albright (1907), 168 Ind. 564, 568-570, 81 N.E. 578, and cases cited; Western Union Tel. Co. v. Braxtan (1905), 165 Ind. 165, 167-170, 74 N.E. 985; Bitters v. Board, etc. (1881), 81 Ind. 125, 126; Bank of the State of Ind. v. City of New Albany (1858), 11 Ind. 139, 142; State v. Adamson (1860), 14 Ind. 296, 297; State, ex rel., v. Board, etc. (1866), 26 Ind. 522, 525; Bright v. McCullough (1866), 27 Ind. 223, 226; Shoemaker v. Smith (1871), 37 Ind. 122; Peachee v. State (1878), 63 Ind. 399, 401; State, ex rel., v. Sullivan (1881), 74 Ind. 121; Shipley v. City of Terre Haute (1881), 74 Ind. 297; Kane v. State, ex rel. (1881), 78 Ind. 103, 108; Jett v. City of Richmond (1881), 78 Ind. 316, 317; Elder v. State (1884), 96 Ind. 162; Hedderich v. State (1885), 101 Ind. 564, 569, 51 Am. Rep. 768; Barnett v. Harshbarger (1886), 105 Ind. 410, 5 N.E. 718; City of Indianapolis v. Huegele (1888), 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 (1897), 147 Ind. 74, 79-83, 46 N.E. 145, 36 L.R.A. 179, and authorities cited; State v. Gerhardt, supra; Commonwealth v. Wallace (1856), 73 Mass. 222; State v. Hurley (1867), 54 Me. 562; State v. Thomas (1880), 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 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 (1907), 168 Ind. 438, 460, 78 N.E. 1033. "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 (1908), ante, 387.
It is next insisted by appellants that "article 1, § 11, 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 the act of 1907, supra, 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 Lowrey v. Gridley (1862), 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, Intoxicating Liquors, §§ 52, 53, 351; Oviatt v. Pond (1861), 29 Conn. 479; Lincoln v. Smith (1855), 27 Vt. 328; State v. Hobbs (1855), 39 Me. 212; Gray v. Kimball (1856), 42 Me. 299; State v. Nowlan (1874), 64 Me. 531; State v. Plunkett (1874), 64 Me. 534; State v. Welch (1887), 79 Me. 99, 8 A. 348; Santo v. State (1855), 2 Iowa 165, 63 Am. Dec. 487; State v. Snow (1854), 3 R.I. 64; State v. Fitzpatrick (1888), 16 R.I. 54, 11 A. 767; In re Horgan's Liquors (1889), 16 R.I. 542, 18 A. 279; Jones v. Root (1856), 72 Mass. 435; Mason v. Lothrop (1856), 73 Mass. 354, 358.
It has uniformly been 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 (1882), 85 Ind. 99, and cases cited; State v. Buxton (1869), 31 Ind. 67; Toops v. State (1883), 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 article 1, § 11, 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, White county, 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, Intox. Liquors, § 357; Cooley, Const. Lim. (7th ed.), 429, 430; 23 Cyc., 294, 295, 297; 29 Century Digest, § 374, cols. 1284-1287; Hornig v. Bailey (1882), 50 Conn. 40; State v. Brennan's Liquors (1856), 25 Conn. 278; State v. Thompson (1876), 44 Iowa 399; Lincoln v. Smith, supra; State v. Intoxicating Liquors (1872), 44 Vt. 208; State v. Twenty-five Packages of Liquor (1866), 38 Vt. 387; Commonwealth v. Certain Intoxicating Liquors (1888), 146 Mass. 509, 16 N.E. 298; Commonwealth v. Intoxicating Liquors (1889), 150 Mass. 164, 22 N.E. 628; State v. Burke (1877), 66 Me. 127; In re Fitzpatrick's Liquors (1888), 16 R.I. 60, 11 A. 773.
In State v. Thompson, supra, the place was described as "Clarke Thompson's saloon building, in Strawberry Point, owned and kept by said Clarke Thompson." Held, sufficient.
In Hornig v. Bailey, supra, 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,...
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