State v. 1920 Studebaker Touring Car

• Decision Date: 14 December 1926
• Citation: 120 Or. 254,251 P. 701
• Parties: STATE v. 1920 STUDEBAKER TOURING CAR (HEFFLING, CLAIMANT).
• Court: Oregon Supreme Court

251 P. 701

120 Or. 254

STATE v. 1920 STUDEBAKER TOURING CAR (HEFFLING, CLAIMANT).

Supreme Court of Oregon

December 14, 1926

In Bank.

Appeal from Circuit Court, Jackson County; C. M. Thomas, Judge.

Proceeding by the State of Oregon to forfeit one 1920 Studebaker Touring Car 1923, license No. 57426, motor No. 21510, in which Nona B. Heffling was claimant. Decree of forfeiture, and claimant appeals. Reversed and remanded, with directions.

Coshow and Brown, JJ., dissenting.

George M. Roberts, of Medford, for appellant.

Newton C. Chaney, of Medford (N.W. Borden, of Medford, on the brief), for the State.

RAND J.

This is an appeal by Nona B. Heffling, from a decree rendered by the circuit court for Jackson county, pursuant to the provisions of chapter 29, Laws 1923, by the terms of which a Studebaker car belonging to her was forfeited to the state because of an alleged act of her husband in transporting, on his person therein, a bottle of intoxicating liquor.

There was evidence tending to show that prior to the seizure of the car, the husband of appellant, while engaged in driving the car, but not in her presence, had carried on his person a bottle of intoxicating liquor, for which he had been arrested and bound over to await the action of the grand jury; that the grand jury had refused to indict him for said offense, and had returned a not true bill, and that appellant had no knowledge of the alleged unlawful act of her husband.

Under the act in question, no previous conviction of the offending person is required as a basis for the entry of a decree forfeiting an automobile because of an alleged use of the automobile in violation of the prohibition law. Whether there has been such violation or not is left by this act to the determination of a judge of the circuit court, without the aid or presence of a jury. The proceedings provided for by this act are to be determined exclusively by the circuit judges of the state. The act provides for an appeal from their decrees, but there is no provision of law by which upon appeal, a trial by jury can be obtained. The act therefore, operates to deny to the owner or claimant of the property sought to be forfeited the right of trial by jury and because of this it is contended that the act is unconstitutional and void, in that it violates article 1, § 17, of the state Constitution, which guarantees that "in all civil cases, the right of trial by jury shall remain inviolate."

So far as deemed material to this controversy, the act provides (sections 1 and 15) that any boat, vehicle or other conveyance, except a "railroad car" or "ocean-going vessel," which is or has been--

"used by or with the knowledge of the owner or the person operating or in charge thereof, in any unlawful bringing of intoxicating liquor into this state, or in the unlawful transportation of the same within this state, or in or on which intoxicating liquor unlawfully possessed is kept or concealed by or with the knowledge of such owner or person operating or in charge thereof, shall be forfeited to the state."

Section 2 provides:

"Whenever, in connection with the pursuit or search of any boat, vehicle or other conveyance or otherwise, any peace officer shall find intoxicating liquor upon or in the same or which has recently been removed therefrom, which he has probable cause to believe is then being or has recently been unlawfully carried, transported, kept or possessed by the owner or person in charge of, or operating such boat, vehicle or other conveyance, said officer shall, in addition to seizing the intoxicating liquor so found and arresting the person, if any, then in charge of or operating such boat vehicle or other conveyance as heretofore provided by law, also seize such boat, vehicle or other conveyance and make return of such seizure to the circuit court of the state of Oregon for the county within which such seizure has been made, and if said seizure has been made by any other officer than a sheriff, the seized conveyance shall be delivered to the sheriff."

Section 5 provides:

"Any circuit court of this state to which a return of seizure under this act shall be made shall have jurisdiction to try, without a jury, the question whether such boat, vehicle or other conveyance so seized is subject to forfeiture under the first section of this act, and to determine the same as in civil cases; and the attendance of witnesses may be compelled and testimony may be taken and appeals shall be allowed as in civil cases in equity. The proceedings shall be in the name of the state of Oregon, as plaintiff, and the seized property and all persons claiming any interest therein shall be deemed defendants, but such persons need not be named as defendants until they have filed in the proceedings their written claims and caused their names to be entered as such defendants. The proceedings shall be in rem against the property and the jurisdiction of the court over the property and the cause and all parties in interest shall be complete by virtue of the fact of seizure and the filing of the return thereof. No pleading shall be necessary on the part of the state except the officer's return of seizure, nor on the part of any claimant except a brief statement of the interest or lien claimed by him and of his ground of defense, verified under oath, and which shall be deemed denied."

The procedure provided for in this act is not by way of an action in personam against some offending person, but is a special proceeding in rem against specific property, which may be brought to have the question determined of whether such property shall be forfeited because of some unlawful use having been made of it in violation of the state prohibition law. This act prescribes no penalty, except forfeiture, and contains no provision making a prior conviction essential to the working of such forfeiture. The criminal acts upon which the forfeiture is made to depend are made criminal by other statutes, which themselves contain no provision for the forfeiture of property. There is, therefore, no relation or connection between proceedings brought under this act and any prosecution or conviction of the offense which is made the basis of the right to forfeit such property. Under this act, persons who, it is claimed, have violated other statutes, may not be prosecuted at all for such offense, or, if prosecuted, may be acquitted, and yet the owner of property used by them may be divested of his property without a trial by jury because of some alleged act of theirs, for which no conviction has been had. The question of whether such forfeiture shall be enforced is left, by this act, entirely to the determination of a circuit judge, who passes upon the question without the aid or presence of a jury. The question, therefore, is not whether the act itself would have been constitutional, had it provided for a jury trial, but whether it is constitutional, having provided, as it does, that the party whose property may be forfeited, shall not be entitled, at any stage of the proceedings, to a trial by jury. Nor is the question one which would arise, had this statute, like the National Prohibition Act, provided that, upon conviction of the offending person, forfeiture of the property used in the commission of the offense would follow as a matter of law, reserving only to the owner or claimant of the property so used the right to be heard upon the question of whether as against him, because of his negligence or other wrongful act, or otherwise, good cause does or does not exist for enforcing the forfeiture.

The right of trial by jury, guaranteed by the Constitution of this state, embraces every case where it existed before the adoption of the Constitution, and it is not within the power of the Legislature to enact any law which deprives any litigant of that right. Hence if, as contended for here, this appellant, before the adoption of the Constitution of this state, in having the question determined of whether her property should be forfeited, would have been entitled to a jury trial as a matter of right, then this act, since it deprives her of such right, is unconstitutional and void. Tribou v. Strowbridge, 7 Or. 156; Wong v. City of Astoria, 13 Or. 538, 11 P. 295; Wilkes v. Cornelius, 21 Or. 341, 23 P. 473; Deane v. Willamette Bridge Co., 22 Or. 167, 29 P. 440, 15 L. R. A. 614; Fleischner v. Citizens', etc., Investment Co., 25 Or. 119, 35 P. 174; Raymond v. Flavel, 27 Or. 219, 40 P. 158; Hoag v. Washington-Oregon Corp., 75 Or. 588, 144 P. 574, 147 P. 756; Puffer v. Am. Ins. Co., 48 Or. 475, 87 P. 523; Schnitzer v. Stein, 96 Or. 343, 189 P. 984.

"It cannot be doubted that a forfeiture of property for a prohibited act is a penalty for committing the act. It is so denominated by lexicographers, and is so treated in judicial decisions. Lawton v. Steele, 152 U.S. 138 [14 S.Ct. 499, 38 L.Ed. 385]. It was said by Judge Strong, in Wood v. City of Brooklyn (14 Barb. [ N. Y.] 432): 'It is a matter of public notoriety that suits for penalties * * * have generally been tried before a jury. If there have been exceptions they have not been sufficiently numerous to affect the general usage. The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions, unless there is something peculiar calling for their application. To allow the Legislature to except from the operation of a constitutional provision, by direct enactment, a matter clearly falling within its meaning, would sanction a fraud upon the organic law and might in the end destroy its obligation.' " Colon v. Lisk, 13 A.D. 195, 13 N.Y.S. 364.

There can be no doubt that at the time of the adoption of our state Constitution, in cases where the seizure was made...