State v. Mullen
| Decision Date | 05 April 1922 |
| Docket Number | 4939. |
| Citation | 207 P. 634,63 Mont. 50 |
| Parties | STATE EX REL. NEVILLE v. MULLEN ET AL. |
| Court | Montana Supreme Court |
Rehearing Denied June 12, 1922.
Appeal from District Court, Powell County; Geo. B. Winston, Judge.
Proceeding by the State, on relation of J. E. Neville, Sheriff, to confiscate certain intoxicating liquors seized by the Sheriff. From judgment confiscating the liquors and ordering them destroyed, Louis Mullen, claimant, appeals. Affirmed.
C. A Spaulding, of Helena, and W. E. Keeley, of Deer Lodge, for appellant.
W. D Rankin, Atty. Gen., and L. A. Foot, Asst. Atty. Gen., for respondent.
On the night of April 30, 1921, the sheriff of Powell county met the defendant Mullen in an alley in the city of Deer Lodge carrying a hand bag from which protruded the top of a demijohn, the demijohn containing two gallons of intoxicating liquor. The sheriff without a warrant seized the hand bag and the demijohn and its contents, and on May 2 filed a complaint charging the transportation of intoxicating liquor in violation of law and made return, setting forth a particular description of the liquor and property seized and of the place where seized. A warrant was thereupon issued and delivered to the sheriff, commanding him to retain possession of the seized property until discharged by process of law. At the same time the court entered an order fixing the time and place for hearing, and a citation directed to the defendant was issued and served. Prior to the hearing defendant filed his verified claim of ownership of the property and demanded a return, but at the hearing failed to offer any evidence in support of his claim. Upon the hearing the state offered its evidence, and thereafter a judgment was duly given and made confiscating the property, ordering the liquor destroyed and the hand bag and demijohn sold. From that judgment this appeal is prosecuted.
The defendant was not arrested or tried, and it is contended that the district court erred in entering judgment forfeiting the property before the defendant was convicted of violating the law.
Chapter 143, Laws of 1917, is known familiarly as the Prohibition Enforcement Act. Several sections of that act were repealed and other changes in the law effected by chapter 9, Laws of the Extraordinary Session of 1921. Speaking in general terms, chapter 143 provides two distinct methods of procedure, one applicable to cases in which the enforcement officer had probable cause for believing that the liquor laws are being violated, though not in his presence, and the other applicable to cases in which the law is being violated in the presence of the officer. Section 7 provides that in instances of the first class a complaint shall be made, a search warrant issued, a search made, and the warrant with the officer's return filed. Section 8 designates the procedure then to be followed. Section 9 provides for cases of the second class. It requires the officer, without a warrant, to arrest the offender and seize the liquor, vessels, fixtures, and appurtenances, to take the offender before the court or judge, make complaint charging the offense committed, and furnish a particular description of the liquor and property seized and of the place where the same were seized. Thereupon the court or judge shall cause a warrant to issue directing the officer to hold in his possession the seized property until it shall be discharged by process of law. The procedure shall then conform to the provisions of section 8.
The present proceeding was instituted and prosecuted upon the theory that there was presented a case of a violation of the law in the presence of the officer, and, though there was not a literal compliance with the terms of the statute, the defendant cannot complain that he was not arrested or taken before the court or judge. Aside from this dereliction of duty on the part of the officer, there was a substantial compliance with the provisions of sections 8 and 9 of chapter 143, above. Neither section 8 nor section 9 was repealed in terms by chapter 9, Laws of 1921; but it is the contention of the defendant that, by necessary implication, section 9 was superseded by section 26 of the later act. Section 26 provides:
etc.
The words "or possessed" in the second sentence of this section are apparently meaningless and were inserted inadvertently. The section deals exclusively with the unlawful transportation of intoxicating liquors by means of a wagon, buggy, automobile, water, or air craft or other vehicle, and, under the rule of statutory construction universally applied by courts, the general terms "or other vehicle" are to be limited in their meaning to designate vehicles of the same general character as those particularly enumerated (Helena Light & Ry. Co. v. City of Helena, 47 Mont. 18, 130 P. 446), and this was manifestly the intention of the Legislature, as the most cursory reading of the section will indicate.
Under this construction it is apparent at once that section 26 has no application to such a state of facts as here presented, and that it is not irreconcilable with the provisions of section 9 of chapter 143.
In other words, the Legislature declared that after the particularly enumerated changes in prior laws had been effected, chapter 9 should then be construed as supplemental to and a part of the remaining statutes dealing with this subject, and this declared purpose the courts are not at liberty to disregard.
"Supplemental statutes include every species of amendatory legislation which goes to complete a legislative scheme." First State Bank v. Bottineau, 56 Mont. 363, 185 P. 162, 8 A. L. R. 631.
Construed according to the manifest intention of the Legislature, chapter 9, Laws of 1921, is to be read with chapter 143, Laws of 1917, as constituting one general legislative plan; and, since there is not any irreconcilable conflict between the provisions of section 9 of the one act and section 26 of the other, each is to be given full force and effect.
Prior to the enactment of chapter 9, Laws of 1921, a statute substantially in the language of section 9 of chapter 143, Laws of 1917, had been held to be not sufficiently comprehensive in its terms to authorize the seizure of an automobile or other like vehicle used in the unlawful transportation of intoxicating liquors (One Cadillac Automobile v. State [Okl. Sup.] 172 P. 62), and apparently it was the purpose of our Legislative Assembly, in enacting section 26 of chapter 9 above, to broaden the scope of the laws and avoid the conclusion reached in the Oklahoma case.
This proceeding, warranted by section 9, c. 143, is in rem and altogether independent of any criminal prosecution for a violation of the liquor laws. State v. Kelly, 57 Mont. 123, 187 P. 637; State v. Nielsen, 57 Mont. 137, 187 P. 639. We need not determine the character of the proceeding authorized by section 26 of chapter 9.
Again it is contended that the trial court erred in refusing to order the liquor, container, and hand bag returned to the defendant upon his written demand therefor, seasonably made, and the decision of this court in State ex rel. Samlin v. District Court, 59 Mont. 600, 198 P. 362, is invoked in this behalf. In the Samlin Case we went no further than to hold: (1) That a search warrant issued upon a complaint or affidavit which does not set forth any facts showing, or tending to show, probable cause, is void; and (2) that articles seized by virtue of such warrant should be suppressed as evidence and returned to the owner whenever, in a direct proceeding instituted prior to the hearing to test the validity of the process, it is made to appear that the articles were seized unlawfully. That case has no application to the facts here presented. There is not a suggestion in the record that the articles in question were seized or held as evidence. In the Samlin Case the property was ordered returned to the possession of the owner only as an incident to his right to have it suppressed as evidence. We do not mean to intimate that one whose property is seized in a proceeding of this character cannot contest the officer's right to its possession, but only hold that the Samlin Case does not authorize the inquiry.
Prior to the hearing, defendant moved the court to quash the proceeding upon the ground, among others, that the complaint and sheriff's return of the articles seized disclosed that there was not any violation of law in the presence of the officer, and this notwithstanding that the complaint recites that the defendant was unlawfully transporting intoxicating liquors in...
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