87 So. 842 | Ala. | 1921
Without a preliminary seizure, the state’s solicitor filed the petition in this cause on behalf of the state seeking the condemnation of one Ford automobile, adequately described, on the ground that it had been used in the transportation of prohibited liquors, whereupon the court, without more, issued an order commanding the sheriff to take possession of the automobile. In the petition it was alleged that the automobile was in the possession of one Andy Allred; but no person was made party defendant. The petition was not supported by oath or affirmation. Appellant Allred intervened, claiming the automobile as his property, demurring to the petition, and then moving that the petition be dismissed and the property in question restored to him, on the grounds, to state them generally, that there had been no seizure prior to the filing of the petition, and that the writ of seizure, issued after the filing of the petition without probable cause supported by oath or affirmation, violated section 5 of the Constitution, providing, among other, things, “that no warrants shall issue to search any place or seize any
“And such officer or person shall report the seizure and facts connected therewith to che solicitor or any prosecuting official in the county where seizure is made or’ in default thereof to the Attorney General of the state. And it shall be the duty of such officer in the county, or the Attorney General of the state to at once institute or cause to be instituted condemnation proceedings in the circuit court by the petition in equity in the name of the state against the property seized descilbing the same, or against the person or persons in possession of said vehicles of transportation, if known, to obtain a decree enforcing the forfeiture.”
The proceeding under this statute is a proceeding in rem. Toole v. State, 170 Ala. 41, 54 South. 195; Dowda v. State, 203 Ala. 441, 83 South. 324. As we have already noted, there is no personal defendant.
Conceding “the process in rem, when rightly conducted, to be a suitable and proper mode of enforcing obedience to a useful and salutary law, it does it by punishing the offender, who must be the ownex-, or some person intrusted with the possession by him, or some person for whose unlawful possession of it the owner is responsible; it does this by depriving such owner of his property, at the same time preventing the further noxious and unlawful use of it. Such being the character -of the prosecution, in a high degree penal in its operation and consequences, it should be surrounded with all the safeguards necessary to the security of the innocent.” Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381.
The statute must therefore be strictly followed.
“Judicial pi-oceedings in rem, to enforce a forfeiture, cannot in general be properly instituted until the property inculpated is previously seized by the executive authority, as it is the preliminary seizure of the property that brings the same within the reach of such legal process.” Dobbins’ Distillery v. U. S., 96 U. S. 395, 24 L. Ed. 637.
Said Judge Story in The Brig Ann, 9 Cranch, 289, 3 L. Ed. 734, an analogous case;
“Until. seizure it is impossible to ascertain what is the competent forum. And, if so, it must be a good subsisting seizure at the time when the libel or information is filed and allowed.”
Beversed and remanded.