State v. Ward

• Decision Date: 14 May 1951
• Docket Number: No. 42010,42010
• Citation: 239 S.W.2d 313,361 Mo. 1236
• Parties: STATE v. WARD et al.
• Court: Missouri Supreme Court

Page 313

239 S.W.2d 313

361 Mo. 1236

STATE v. WARD et al.

No. 42010.

Supreme Court of Missouri, En Banc.

May 14, 1951.

Robert N. Jones, St. Louis, for appellant.

J. E. Taylor, Atty. Gen., Aubrey R. Hammett, Jr., Asst. Atty. Gen., Hugh P. Williamson, Asst. Atty. Gen., for respondent.

HYDE, Judge.

Action by the State Supervisor of Liquor Control to declare contraband a motor truck and cargo of intoxicating alcoholic liquors, seized September 8, 1949, under Sec. 4932, R.S.1939, as amended Laws 1949, p. 325, Mo. R.S.A.1950 Pocket Part, and to sell the same at public sale. The Court found intervenor Jackson entitled to possession of the truck, as mortgagee, and ordered the liquor forfeited and sold. Defendant has appealed.

This statute and other amendments to the Liquor Control Act were enacted as emergency legislation in Senate Bill 110 by the Sixty-fifth General Assembly and became effective on May 26, 1949. Sec. 4932 provides: 'No person shall transport into, within, or through the State of Missouri any intoxicating liquors in quantities larger than five gallons who is not the holder of a license or permit from the Supervisor of Liquor Control of the State of Missouri so to do.' It also required a $1000.00 bond from the licensee. Licenses were for one year, from July 1 to June 30, and the fee was $10.00. Defendant procured Liquor Transportation License No. 4 issued July 1, 1949. Sec. 4932 requires that transported liquors 'shall be accompanied at all times during transportation by a bill of lading or other memorandum of shipment, showing an exact description of the alcoholic liquors being transported, the name and address of the consignor, the name and address of the consignee, the route to be travelled by such vehicle while in Missouri, and the vehicle transporting such liquors shall not vary from said route.' It further provides: 'The name of the consignee on such bill of lading or memorandum of shipment shall be the true consignee of the alcoholic beverages being transported and who has previously authorized in writing the shipment of the alcoholic beverages being transported and who has a legal right to receive such beverages at the point of destination shown on the bill of lading or other memorandum of shipment.' (Emphasis ours.)

Section 4932 also provides: 'Any intoxicating liquor being transported into, within, or through the State of Missouri in knowing and wilful violation of the provisions of this act and the conveyance in which it is being transported shall be deemed contraband and shall be forfeited to the State of Missouri, and the Supervisor of Liquor Control, or any of his agents and inspectors, and any peace officer of the State of Missouri shall seize any such liquor and the conveyance in which it is being transported as contraband.' The purpose of this action is to enforce such forfeiture. The trial court found that defendant did not in good faith believe that his consignees had a lawful right to receive the liquor in Oklahoma and declared the liquor to be contraband.

Defendant made from 15 to 20 trips between July 1 and September 8, 1949 with liquor loaded at Cairo, Illinois and delivered to individual consignees at Bartlesville and Tulsa, Oklahoma. Defendant said: 'The arrangement was that I would receive the order and the money at the consignee's place of business, or residence in Oklahoma, place or address that the liquor stamps (federal permit) were at, and proceed then to Cairo to the wholesaler and receive the whiskey there and then transport it.' These consignees would give defendant a written order (not addressed to anyone, but requestind that a designated number of cases of certain brands of liquor be given to him) and deliver to him the money to pay for it. They paid him for two and a half to three dollars a case for delivering it. At the time he unloaded one load, they would usually give him the next order and the money. On the September trip which ended in seizure, defendant received $14,000.00 from four consignees which he took with their orders to the Southern Wholesale Liquor Company at Cairo. Two of these orders were signed by defendant's father, E. W. Ward. Each of these said: 'Please send me the following merchandise by W. F. Ward;' and specified the liquor to be sent. The Liquor Company attached to each order a memorandum, dated September 7, 1949, the ones for defendant's father stating: 'Sold to E. W. Ward, Route 2, Box 3, Hwy. 77, S. Bartelsville, Okla.', and describing the liquor ordered. An invoice, with serial numbers, was attached with a blank affidavit to be signed by the purchaser, stating that he was the holder of a federal permit or stamp in Oklahoma; that all liquors were for consumption outside of Illinois and would not be returned there; and that they would not be sold in any state where Federal Law prohibited sale. Other similar papers showed sales to Brent Clark and L. K. Thresher of Tulsa and Paul Watkins of Bartlesville. Much of this liquor was 'lugged,' three fifths, six pints or eight half pints in brown paper bags, with crayon marks to indicate contents. The evidence showed: 'That is a practice among bootleggers * * * a licensed package store, they don't 'lug' whiskey;' they get it in cases.

Defendant contends that the Missouri law was not violated, claiming that the Oklahoma consignees had a legal right to receive defendant's shipment and that there was no showing of defendant's knowledge and wilfulness. Certainly there was substantial evidence to show that these consignees were bootleggers, selling the liquor in violation of the Constitution and laws of Oklahoma. State agents went to Oklahoma to investigate these persons and their addresses. All of these consignees had federal permits as liquor dealers; none of them had ever been issued a license as a registered pharmacist or druggist. Defendant's father's address was a motor court, with a night club, known as Marie's Court. Defendant himself said: 'We had a cabin there he used as a storeroom and I unloaded into this cabin.' He further testified: 'Q. Was your father living down in Bartlesville? A. His business was there. Q. What kind of business? A. Whatever it was I was hauling this load for him to do.' One of the Liquor Department agents said defendant stated to him that 'his father was interested in this Marie's Court operation there;' and said: 'If you boys are ever over at Marie's Court you can stop and get a good drink of whiskey there for fifty cents. * * * We always serve straight shots and you can always get a drink at Marie's.' Investigation of the other consignees showed that they were all operating from private residences. One of the agents testified without objection that Watkins said he was a bootlegger. During two months, defendant had brought five or six loads to Clark, two to Thresher, and five or six to Watkins. Apparently most of the rest went to his father, who owned a farm near Pineville, Missouri, where defendant lived with his mother. His father was frequently at the farm.

Defendant has briefed and argued this case as though this liquor belonged to him but the record conclusively shows that this was not true. Proceedings for forfeiture are provided by Sec. 4917, R.S.1939 as amended by Senate Bill 110, Laws 1949, p. 322, Mo. R.S.A., which provides the action shall be 'against the person from whom the property was seized as defendant, and there shall be a rebuttable presumption that said property is the property of the defendant from whom it was seized.' However, it further provides for publishing 'notice to all persons whom it may concern that said petition has been filed in said court, briefly describing the property seized, the time and circumstances of the seizure, the person from whom seized, and stating that any person claiming any interest in the property may, upon his own request be made a party to the action and assert any claim he may have thereto within thirty days after the publication of said notice'; and that 'Any person claiming any interest in said property may intervene in said action within thirty days after the publication of said notice, setting forth any claim he may have to said property.' Thus this is not an action against defendant only, but is in the nature of a proceeding in rem against the liquor and its owners. See 30 Am.Jur. 551, Sec. 570; 48 C.J.S. Intoxicating Liquors, Sec. 397, p. 655. It is clearly intended that the true owner shall appear and contest the forfeiture; and to prevent it he must prove his own proper conduct, showing that any illegal use of his property 'was without his connivance or consent, express or implied.' Therefore, more is involved herein than just what defendant believed or did. The required notice was given in this case and the consignees who were the actual owners of this liquor took no action to claim it but made default. Since it was conclusively shown by defendant's own evidence, that he did not own the liquor, the Court could not (on this record) have entered a judgment awarding it to him as owner.

While defendant, no doubt, had the right of possession as against anyone but the state (if it was entitled to condemn) and perhaps had a lien for his carrying charges, nevertheless his right as against the state depends upon the right of the actual owners to receive it in Oklahoma, and his knowledge of their situation. The Twenty-first Amendment to the United States Constitution provides: 'Sec. 2. The transportation or importation into any State, Territory, or possession of the United States for delivery or use therein of intoxicating liquors, in violation of the laws thereof, is hereby prohibited.' The Webb-Kenyon Act, 27 U.S.C.A. Sec. 122, provides: 'The shipment or transportation, in any manner or by any means whatsoever, of any spirituous, vinous, malted, fermented, or other intoxicating liquor of any kind, from one State, Territory, or District of the United States, * * * into any other State,...