State v. Davis

• Decision Date: 30 August 1919
• Docket Number: 3356
• Citation: 184 P. 161,55 Utah 54
• Court: Utah Supreme Court
• Parties: STATE v. DAVIS et al

184 P. 161

55 Utah 54

STATE v. DAVIS et al

No. 3356

Supreme Court of Utah

August 30, 1919

Appeal from District Court, Second District, Morgan County; A. W Agee, Judge.

Search and forfeiture proceedings by the state of Utah against A. F Davis, seven hundred and forty-four pints of whisky, two cases of gin, one Paige automobile, and certain other property unlawfully used, Mrs. F. B. Ferrand, and Charles McSwine. From judgment of forfeiture, defendants Ferrand and McSwine appeal.

JUDGMENT REVERSED and cause remanded with directions to vacate judgment and to grant appellants new trial.

P. P Jenson of Salt Lake City, and George Halverson of Ogden, for appellants.

Dan B. Shields, Atty. Gen., and O. C. Dalby, H. Van Dam, Jr., and James H. Wolfe, Asst. Attys. Gen., for the State.

WEBER J. THURMAN, J., CORFMAN, C. J., GIDEON, J., concurring. FRICK, J., dissenting.

OPINION

WEBER, J.

On December 12, 1918, the sheriff of Weber county, Utah, arrested defendant A. F. Davis, who was then in charge of an automobile containing 744 pints of whisky and two cases of gin. The arrest was made in Morgan county. Thereafter proceedings were instituted to forfeit the liquor and the automobile. The automobile was claimed by Mrs. F. B. Ferrand by virtue of a contract of purchase between her and the Paige Sales Company, she having purchased the machine on the partial payment plan. Charles McSwine also claimed an interest in the automobile by virtue of a title retaining note which had been transferred from the Paige Sales Company to one N.W. Miller, and by Miller to McSwine, who was the owner of the note at the time of the seizure.

Mrs. Ferrand maintained that if the automobile was used for transporting liquor it was without her knowledge or consent. She testified that the machine had been taken from her garage in Salt Lake City during the nighttime without her knowledge or consent. McSwine also asserted that he had no knowledge or information of the use to which the automobile was being put.

The case was tried in the district court to a jury who returned the following verdict:

"* * * That on the twelfth day of December, 1918, H. C. Peterson, sheriff of Weber county, state of Utah, seized the seven hundred and forty-four pints of whisky and the bottles containing the same, and twenty-four quarts of gin in two cases, with the bottles in which the same was contained, and the Paige automobile described in the return of the said H. C. Peterson, in the county of Morgan and state of Utah, and that at the time of said seizure the said whisky and gin were being unlawfully used and transported in said county and state in violation of the law of this state prohibiting the transportation, use, and possession of intoxicating liquors.

"We, the jury, further find that at the time of the seizure of said liquors they were being transported in the Paige automobile described in the return of the sheriff herein, and that said automobile was at said time kept and used in violation of the law of this state prohibiting the transportation, use, and possession of intoxicating liquors."

On this verdict a judgment of forfeiture was entered by the court. Defendants F. B. Ferrand and Charles McSwine appeal.

While not controlling, the principal and most important question in this case is whether the district court had power to forfeit the automobile which had been seized by the sheriff.

The purpose of the Prohibition Law is not only to prevent the traffic in intoxicating liquors, but also to prevent transportation and to make the state what is termed "bone dry." Comp. Laws Utah 1917, section 3343, says:

"Except as hereinafter provided, the manufacture, sale, keeping, or storing for sale in this state, or offering or exposing for sale, or importing, carrying, transporting, advertising, distributing, giving away, exchanging, dispensing or serving of liquors, are forever prohibited in this state. It shall be unlawful for any person within this state knowingly to have in his or its possession any intoxicating liquors, except as in this title provided."

How can the objects of the law be attained and how shall the law be construed? The statutes of Utah contain the answer. Comp. Laws of Utah 1917, section 5839, says:

"The Revised Statutes establish the law of this state respecting the subjects to which they relate, and their provisions and all proceedings under them are to be liberally construed with a view to effect the objects of the statutes and to promote justice."

Not satisfied with this mandate as to the construction of statutes, the Legislature, in the first section of the Prohibition Law, emphasized the subject by adopting this imperative provision:

"This entire title shall be deemed an exercise of the police powers of the state for the protection of the public health, peace, and morals, and all of its provisions shall be liberally construed for the attainment of that purpose."

The case of Kolb v. Peterson, 50 Utah 450, 168 P. 97, involved the construction of the following section of the Prohibition Act:

"Any person who shall in any street or alley, public place, store, restaurant, hotel lobby or parlor, or in or upon any passenger coach, street car, or upon any other vehicle commonly used for the transportation of passengers, or in or about any depot, platform, waiting station or room, or at any public gathering, drink any intoxicating liquors of any kind, or shall be drunk or intoxicated shall be deemed guilty of misdemeanor." Comp. Laws, Utah, 1917, section 3361.

The court, speaking through Mr. Justice Thurman, said:

"It is also contended by the petitioner that there is no statute at all making drunkenness a crime except in the places specifically enumerated. It is admitted by respondent that there is no statute making drunkenness a crime outside of such places, unless respondent's construction of the statute in question is adopted. This contention on the one side and admission on the other presents a question of more than ordinary importance to the people of Utah.

"The history of the prohibition propaganda in this state leading up to the passage of the law in question is so recent and fresh in the minds of the people as to be a matter of common knowledge. Every political party in the state, in the political campaign of 1916, declared unequivocally in its convention in favor of absolute state-wide prohibition. The Governor and every member of the Legislature, before the election, was solemnly pledged to give force and effect to these platform declarations as soon as practicable after the Legislature convened. The purpose and object of the legislation which the people demanded was the suppression of drunkenness and intoxication in the state of Utah. The prohibition of the sale and traffic in intoxicating liquors, except under the strictest and most rigid regulation, was but means to the end that drunkenness and intoxication should cease to exist in every part of the state. The Legislature, by the law in question, even went so far as to make it unlawful for any person within the state to knowingly have in his possession any intoxicating liquors, except as provided in the law itself. In view of these conditions and circumstances, it seems strange and unreal, and almost unbelievable, that the Legislature could have purposely omitted to make drunkenness a crime in every part of the state, wherever it might occur, whether in the streets or other public places named in the section of the statute in question or otherwise. The suppression of drunkenness and intoxication, as above stated, was the ultimate end to be accomplished and the primary purpose for which the law was enacted. It would, indeed, be a severe impeachment of the intelligence of every member of the Legislature, the Governor and his legal advisers, if it should develop that, after all, the law fails to make drunkenness a crime except in the places specifically mentioned. * * *

"We are unanimous in our opinion that the statute in question makes drunkenness and intoxication by the use of intoxicating liquors a crime, wherever and whenever it may occur at any place in the state."

No precedent is cited in that opinion, but one is made. The rules of statutory construction are not resorted to, none of them except the one cardinal rule that statutes should be so construed as to carry out the will of the people as declared by the Legislature, and in accord with the object, purpose, and spirit of the law. In the Kolb Case technicalities were brushed aside, and the court refused to emasculate the statute by resorting to technical rules of strict construction. Guided by the same spirit--with the determination not to depart from the plainly declared intention of the Legislature--we should consider the question now before us. No rule of construction should be invoked except as it may be necessary to ascertain the legislative intent, and no rule should be applied so as to devitalize a statute enacted for the public good. Our Prohibition Law is copied to a large extent from that of Oklahoma. At the time the present law was being discussed and enacted section 3617, Revised Laws Oklahoma 1910, provided:

"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 warrant, 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...