State v. Rose

• Decision Date: 05 February 1929
• Citation: 132 A. 864,33 Del. 168
• Court: Supreme Court of Delaware
• Parties: STATE v. ELLIS ROSE

132 A. 864

33 Del. 168

STATE v. ELLIS ROSE

Supreme Court of Delaware

February 5, 1929

Argued before the Court in Banc.

Case heard on the petition of the Attorney-General to confiscate an automobile used by the defendant for the illegal transportation of liquor and on the cross petition of one David A. Wolfe, who claimed to be the owner of such automobile, and prayed for its return.

One Ellis Rose was arrested and charged with the transportation of liquor in violation of the provisions of Chapter 10 Volume 29, Laws of Delaware, known as the Loose Law; he subsequently pleaded "guilty" on this charge and was sentenced thereon by the Court of General Sessions for New Castle County. The liquor, which Rose was charged with transporting, was found at the time of his arrest in an automobile which he was then driving. Such automobile was thereupon seized by the State authorities and a petition asking for its confiscation, under Section 4, Chapter 10 Volume 29, of the Laws of Delaware, was subsequently presented to the said Court of General Sessions of New Castle County.

David A. Wolfe then filed a petition which, in substance, alleged that he purchased the automobile in question, April 1, 1925 under a conditional contract of sale, and that he subsequently lent it to Rose for an alleged bona fide purpose, and without any knowledge or even suspicion that it was to be used for an unlawful purpose.

He also, asked in his said petition that he be permitted to intervene as a party defendant in order that his rights to such automobile might be determined by the Court.

The case was then certified from the Court of General Sessions of New Castle County to the Court in Banc, composed of the five Law Judges of the State, and was argued in that Court on the petition of the Attorney-General, to confiscate said automobile, and on the cross petition of Wolfe, praying for its release and return to him.

Clarence A. Southerland, Attorney-General, and Leonard G. Hagner, Deputy Attorney-General, for the State.

P. Warren Green for petitioner.

PENNEWILL C. J., RICE, HARRINGTON, RICHARDS and RODNEY, J. J., sitting.

OPINION

RICHARDS, J., delivering the opinion of the Court:

The grounds upon which the petitioner claims that he is entitled to the return of his automobile are two:

First; that the portion of the statute providing for the forfeiture of a conveyance used in the transportation of liquor, upon the conviction of the user of said conveyance, applies to public and private carriers only and not to individuals;

Second; that said portion of the statute is in violation of the Constitution of the United States and the Constitution of the State of Delaware, in that, when invoked, it amounts to a taking of property without due process of law.

The argument advanced by the Attorney-General, to the effect that the object of all interpretations and constructions of statutes is to ascertain and carry out the intention of the law makers and that the whole statute must be considered together, cannot be denied.

Therefore, in order to determine the first reason assigned by the petitioner, it is necessary to examine and consider carefully all sections of the statute which in any way deal with the question raised.

Section 2 of the Act provides:

"It shall be unlawful for any person or persons, corporation, firm, partnership, association or collection of individuals living, residing or staying in those portions of the State of Delaware where the sale of liquors is prohibited by law, to receive directly or indirectly liquors. * * *"

Section 3 of the Act provides:

"The Attorney-General of the State of Delaware, or any of deputies, may grant a permit in writing to any person or persons, corporation, partnership, association or collection of individuals living, residing or transacting business in the territory of the State of Delaware wherein the manufacture and sale of liquors are prohibited by law to have transported by common carrier or otherwise, and to have and possess liquors. * * *"

Paragraph 1 of Section 4 of the Act provides:

"It shall be unlawful for any person or public or private carrier to transport or deliver to any person or at any place or to transfer to any place within the State of Delaware where the sale of liquors is prohibited by law, or to any person, carrier or agent any liquors."

Paragraph 3 of Section 4 provides:

"Any public or private carrier carrying, transporting, transferring or delivering liquors in violation of this section in automobile, motorcycle, carriage, wagon, boat, vessel or other conveyance shall be subject to the fines and penalties provided by this Act, and in addition thereto conviction of such violation shall work a forfeiture to the State both of the liquors and also of the conveyance by which the liquors were carried. * * *"

Section 6 of the Act provides:

"It shall be unlawful for any person within the State of Delaware wherein the sale of liquors is unlawful to advertise or give notice by signs, billboards for himself or another, of the sale or keeping for sale of liquors. * * *"

Section 7 provides:

"Every justice of the peace, upon information made under oath or examination that any person is manufacturing, selling, offering or exposing, keeping or storing for sale or barter, contrary to law, any liquors, or that the affiant has cause to believe and does believe that such liquors are being manufactured, sold, offered, kept or stored for sale or barter in any house, building or other place named therein, contrary to the provisions of this Act, shall issue his warrant requiring the persons suspected to be arrested, and the said house, building or other place to be searched, and the parties found therein to be arrested and brought before him as aforesaid, and in such warrant shall require the officer to whom it is directed to seize and hold all liquors, found in such house or building, and also vessels, bar fixtures, screens, glasses, bottles, jugs and other appurtenances apparently used in the sale, keeping or storing of such liquors contrary to law."

Section 8 provides:

"If, upon examination of such person, it shall appear to such justice, that there is probable cause to believe him guilty of the offense charged, the accused shall be required to enter into a recognizance, with sufficient securities, in the sum of not less than five hundred dollars ($ 500.00), to appear before the next term of the Court of General Sessions to answer an indictment if one be preferred against him. * * *"

Section 9 provides:

"Whenever liquors shall be seized in any room, building or place which has been searched under the provisions of this Act, the finding of liquors in excess of the quantity permitted by this Act in such room, or of a United States retail liquor dealer's tax receipt therein shall be prima facie evidence of the unlawful selling and keeping and storing for sale of the same by the person or persons occupying such premises, or by any person named in any such United States tax receipt posted in such room, or his associates, agents or employees thereunder, and the proprietor or other person in charge of the premises where such liquors were found, or who is so named in such United States tax receipt, and his associates shall be subject to trial by due process of law on the charge of selling or keeping or storing for sale unlawfully such liquors, and upon his conviction the liquors found upon said premises shall at once be publicly destroyed by some responsible person to be appointed by the Court."

Section 10 provides:

"The payment of the special tax required of liquor dealers by the United States by any person or persons other than druggists, within those portions of the State of Delaware wherein the sale of liquors is prohibited, shall be prima facie evidence that such person or persons are engaged in keeping, selling, offering and exposing for sale, liquors contrary to the laws of this state, and a certificate from the collector of internal revenue, his agents, clerks, or deputies showing the payment of such tax and the name or names of person or persons, if any, associated with the person to whom such tax receipt is issued, shall be sufficient evidence of the payment of such tax, and of the association of such persons for the selling, keeping, offering and exposing for sale of liquors contrary to the provisions of this Act in all trials or legal inquiries."

We have quoted from the above-mentioned sections of the Act to show the number of times the words person or persons appear and the connection in which they are used. Each section of the Act prohibiting some particular thing, or granting some particular privilege, sets forth plainly to whom it shall apply.

Section 4 of the Act, being the section which demands our most careful attention, in the first paragraph, prohibits the transportation of liquor by any person, or public or private carrier, providing for the punishment of those who do, and there can be no doubt that it applies to persons and public or private carriers alike.

The second paragraph of the section stipulates that the provisions of the section shall apply to all packages of liquor, whether broken or unbroken. Then comes the third paragraph which standing alone, with a paragraph intervening between it and the first paragraph making it unlawful to transport liquor, which provides for the forfeiture to the State of the conveyance by which the liquor was being transported.

The word person cannot be found in this paragraph, the words used being:

"Any public or private carrier carrying, transporting, transferring or delivering liquors in violation of this section in automobile, motorcycle, carriage, wagon, boat, vessel or other conveyance...