State v. One Pontiac Coach Automobile
| Decision Date | 02 March 1929 |
| Docket Number | 6626. |
| Parties | STATE v. ONE PONTIAC COACH AUTOMOBILE (GENERAL MOTORS ACCEPTANCE CORPORATION, Intervener). |
| Court | South Dakota Supreme Court |
Appeal from Clark County Court; Oliver H. Ames, Judge.
Proceeding by the State to forfeit one Pontiac coach automobile, in which the General Motors Acceptance Corporation intervened. Judgment for plaintiff, and intervener appeals. Affirmed.
Kirby Kirby & Kirby, of Sioux Falls, for appellant.
Hans Hanson, State's Atty., of Clark, Buell F. Jones, Atty Gen., and H. A. Linstrom, Asst. Atty. Gen., for the State.
On July 22, 1927, the automobile here involved was sold by Williams-Bergh Company of Sioux Falls, to one Warnes upon a conditional sales contract, dated on that day and duly executed, which contract was filed in the office of the register of deeds of Hutchinson county, S. D., where Warnes resided, on August 6, 1927. Thereafter, for value, the Williams-Bergh Company assigned to the intervener herein, by written assignment, all its right, title, and interest in and to said conditional sales contract, and the property thereby covered, which assignment was likewise filed in the office of the register of deeds of Hutchinson county, S. D., on August 6, 1927.
Warnes failed to make the payments required by the contract coming due August 22, 1927, and September 22, 1927, and on or about September 22, 1927, used the automobile to transport intoxicating liquors in Clark county, S.D. Warnes was arrested and entered his plea of guilty, and the automobile in question was seized and proceedings instituted to forfeit the same by virtue of chapter 204, Laws 1925, and the assignee of the conditional sale contract has intervened. It was stipulated that the illegal use of the automobile was without the knowledge, consent, or approval of intervener or its assignor, and neither intervener nor its assignor had any knowledge or notice or reason to suspect that Warnes would use or was likely to use the automobile for such purposes.
The conditional sale contract provided for the payment of $308 cash at the time of execution, leaving a deferred balance of $660, payable in twelve installments of $55 each, due respectively, August 22, 1927, and the 22d of each month thereafter until completed. It provided that title should not pass until full payment was made in cash. It further provided that no loss, injury, or destruction of the property would release the purchaser from his obligation; that the purchaser should not use the property illegally; and that, if the seller deemed the property in danger of misuse or confiscation, it might elect to declare the entire amount of all deferred payments immediately due and payable, and proceed accordingly.
The trial court adjudged that Warnes was the owner of the automobile; that no good cause had been shown why the same should not be forfeited and sold as provided by law, and ordered the sale; and the intervener has appealed.
Appellant in this case stands in the same position as the original vendor. The rights of the innocent vendor of an automobile under a conditional sales contract when the possession of the automobile has been intrusted to the vendee, who has transported liquor therein, and it is sought to forfeit the car, under statutes similar to our own, are not entirely clear or free from doubt upon the decisions. The cases will be found collected, analyzed, and discussed in a careful case note in 47 A. L. R. pp. 1055-1084. See, also, Blakemore on Prohibition (2d Ed.) p. 531 et seq. See, also, 34 Harv. Law Rev. page 200.
Section 26, tit. 2, National Prohibition Act (41 Stat. at Large p. 315 [27 USCA § 40]) provides for the forfeiture and sale of the offending automobile in such case "unless good cause to the contrary is shown by the owner," and also provides that out of the proceeds of sale the officer making the sale "*** shall pay all liens, according to their priorities, which are established, by intervention or otherwise at said hearing or in other proceeding brought for said purpose, as being bona fide and as having been created without the lienor having any notice that the carrying vehicle was being used or was to be used for illegal transportation of liquor. ***"
It seems within the purview of the National Prohibition Act to protect both innocent owners and innocent lienors. See U. S. v. One Ford Coupé Automobile, 272 U.S. 321, 47 S.Ct. 154, 71 L.Ed. 279, 47 A. L. R. 1025. It is the apparent intention of this statute that an innocent owner, upon showing good cause, may entirely prevent the forfeiture and sale; an innocent lienor, on the other hand, cannot prevent the sale, but will be entitled to payment of his lien out of the proceeds according to its priority.
Our own statute (section 10303, R. C. 1919, chapter 204, Laws 1925) is distinguishable from the National Prohibition Act. It provides for the protection of innocent owners in substantially the same language as does the National Prohibition Act; that is, by reciting that the forfeiture and sale shall take place "unless good cause is shown to the contrary by the owner." But our statute entirely omits the provision contained in the National Prohibition Act (27 USCA) for the protection of innocent lienors by payment of their liens according to priority out of the proceeds of sale. A provision for the protection of innocent lienors is found, not only in the National Prohibition Act, but in many of the analogous state statutes, and we think the omission thereof from our own statute is significant, and that our statute is not designed or intended to protect lienors, however innocent, either by allowing them to prevent the sale or by allowing payment of their liens out of the proceeds thereof. State v. One Studebaker Automobile, 50 S.D. 408, 210 N.W. 194. A statute providing for the forfeiture of property used in violation of law by the possessor is not rendered unconstitutional because of a failure to provide for protection of the interests of innocent owners or lienors. Van Oster v. Kansas, 272 U.S. 465, 47 S.Ct. 133, 71 L.Ed. 354, 47 A. L. R. 1044. And appellant expressly so concedes in its brief in this case.
We are of the opinion, as was substantially held in State v. One Studebaker Automobile...
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