Chatham Motor Co. v. Griffith

157 Ga. 802 | Ga. | 1924

Hines, J.

(After stating the foregoing facts.)

This ease is in this court upon a constitutional question. The constitutionality of section 26 of title 2 of the national prohibition act is vigorously assailed, on the ground that it violates the fifth alnendment to the constitution of the United States, which declares, among other wholesome doctrines, that no person shall “be deprived of life, liberty, or property, without due process of law.” Civil Code (1910), § 6688. Properly construed, this section of this act does not deprive those who come within its purview of due process of law. This section contains these provisions: 1. The prohibition officer who discovers any person in the act of transporting, in violation of law, intoxicating liquors in any wagon, buggy, automobile, water or air craft, or other vehicle, shall seize such liquors. 2. After seizing the intoxicating liquors so illegally transported, the officer shall take possession of the vehicle and team, or automobile, boat, air or water craft, or any other conveyance, and shall arrest any person in charge thereof. 3. Then the “officer shall at once proceed against the person arrested, under the provisions of this title, in any court having competent jurisdiction ; but the said vehicle or conveyance shall be returned to the owner upon execution by him of a good and valid bond . . conditioned to return said property to the custody of said officer on the day of trial, to abide the judgment of the court.” 4. “The court, upon conviction of the person so arrested, shall order the liquor destroyed, and, unless good cause to the contrary is shown by the owner, shall order a sale by public auction of the property seized.” 5. “The officer making the sale, after deducting the expenses of keeping the property, the fee for the seizure, and the cost of 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.” 6. Finally, if no one claims “the team, vehicle, water or air craft, or automobile, the taking of the same, with a description thereof, shall be advertised in some newspaper published in the city or county where taken, or, if there be no newspaper published in such city or county, in a newspaper having circulation in the county, once a week for two weeks, and by handbills posted in three public places near the place of seizure; and if no claimant shall appear within ten days after the last publication of the advertisement, the property shall be sold and the proceeds, after deducting expenses and costs, shall be paid into the treasury of the United States.” Fed. Stat. Ann. (2d ed:) Supp. 1919, p. 214.

From the above analysis of this section it will be seen that there is ample provision made for due process of law. If the person operating the vehicle transporting intoxicating liquors is arrested, and the liquors and the vehicle are seized, it is made the duty of the arresting officer to proceed against the defendant in a court of competent jurisdiction. This clearly contemplates that the person arrested shall have a trial in accordance with the procedure provided by the laws of the United States for the trial of persons charged with crime. If he is acquitted, that is the end of the matter. If he is convicted, then the court orders the liquor destroyed and the vehicle sold. Thus the person arrested, who is treated by the statute as the owner of the vehicle, is given notice and an opportunity to be heard upon the question of his guilt and upon the question whether the liquor and the transporting vehicle shall be forfeited. If other persons have liens upon the transporting vehicle, then provision is made for the establishment of such liens by intervention or otherwise at such hearing or by other proceeding brought for such purpose. If such liens are bona fide and were created without the lienors having any notice that the carrying vehicle was to be used for the illegal transportation of liquor, then such liens will be ordered paid according to their respective priorities. Here due process of law is furnished to such lienors. If no claimant appears to assert title to the transporting vehicle, then the taking of the same with a description thereof shall be published as above provided; and if no claimant shall appear within ten days after such notice shall have been published once a week for two weeks, then the transporting vehicle shall be sold and the proceeds, after, deducting expenses and cost, shall be paid into the United States treasury. Here full due process of law is provided for claimants of the transporting vehicle. They are notified by publication of the seizure of the vehicle. This notice is clearly given for the purpose of permitting them to claim the transporting vehicle, by intervention or otherwise, in the proceeding under which the person arrested was tried and convicted. This gives to claimants ample notice and opportunity to claim the seized vehicle and to assert their title thereto. Thus this statute contemplates that notice and opportunity óf a hearing shall be given to the person operating the vehicle transporting intoxicating liquors, to persons who may have liens thereon, and to claimants who may wish to assert title thereto. Wadley Southern Ry. Co. v. State, 137 Ga. 497 (73 S. E. 741). Notice by personal service is not requisite to due process of law. Notice by publication is sufficient.

A proceeding in rem or one quasi in rem, dealing with a tangible res, may be instituted and carried to judgment without personal service upon claimants within the State, or notice by name to those outside the State, without violating the due-process clause of the State constitution. Leigh v. Green, 193 U. S. 79 (24 Sup. Ct. 390, 48 L. ed. 623). This principle applies to cases of undisclosed and unknown claimants. American Land Co. v. Zeiss, 219 U. S. 47, 61 (31 Sup. Ct. 200, 55 L. ed. 82). The arrest of the person operating the vehicle transporting intoxicating liquors, his subsequent prosecution and conviction, the seizure of the vehicle, the judgment of the court upon his conviction, ordering the liquor destroyed and the vehicle forfeited and sold, the subsequent published proclamation of the taking of the vehicle with the description thereof, and the manifest purpose of this section to permit claimants of the vehicle, after such* publication, to come in and assert their title to the vehicle so seized, furnished ample and full due process of law to all persons concerned in the transaction. The ease is analogous to that of the seizure of a vehicle used in the removal of goods or commodities to deprive the United States of a tax imposed thereon under Eevised Statutes, § 3450. In proceedings under this section of .the Eevised Statutes, it has been held, that the vehicle is the offender, and that the confiscation of the vehicle did not deprive the owner thereof in violation of the fifth amendment to the constitution of the United States. Logan v. United States, 260 Fed. 746; J. W. Goldsmith Jr. Grant Co. v. United States, 254 U. S. 505 (41 Sup. Ct. 189, 65 L. ed. 376); United States v. One Saxon Automobile, 257 Fed. 251. While the forfeiture of a vehicle used for the transportation of intoxicating liquors under section 26 of the national prohibition act is not absolute as was the forfeiture of conveyances used in the removal of such liquors under Eevised Statutes, § 3450 (United States v. Sylvester, 273 Fed. 253), the transporting vehicle and its .operator are treated as the offenders. This section treats the automobile, as well as its operator, as the offender; and so construed and applied, it does not deprive the owner of his property in violation of the fifth amendment to the constitution of the United States.-

But, for another reason, we think the judgment of the trial judge was contrary to law. The forfeiture of an automobile under the section of the national prohibition act, which we have under consideration, must be in strict pursuance of its terms.' United States v. Hydes (D. C.), 267 Fed. 471; The Goodhope, 268 Fed. 694. It has been held that “the following elements -are essential: (1) That an officer of the law discover some person in the act of illegally transporting liquor in the vehicle; (2) the seizure of the liquor so transported or possessed; (3) the seizure of the vehicle and arrest of the person; (4) that the officer proceed against the person and retain the vehicle, unless redelivered to the owner on giving bond; (5) conviction of the person and order of sale of the vehicle.” United States v. Slusser, 270 Fed. 818. It is not essential that an order of forfeiture or for the sale of the automobile should be made as a part of the judgment of conviction of the person arrested; but such order of sale may be made in an ancillary proceeding instituted by information or libel, alleging the fact of conviction, in which proceeding all liens or claims against the property may be adjudicated. United States v. One Stephens Automobile, 272 Fed. 188. An automobile cannot be sold because of being used in the illegal transportation of intoxicating liquors, before the driver transporting the liquors is convicted. United States v. One Cadillac Touring Oar, 274 Fed. 470. A prerequisite of forfeiture of a vehicle used in the illegal transportation of liquors is the conviction in a Federal court of the person operating the same. A conviction in a State court for the violation of State prohibition is not enough. United States v. One Buick Roadster, 276 Fed. 407. To authorize the forfeiture of a vehicle because used for illegal transportation of liquors under this section of the Volstead act, the person in charge of the vehicle must previously have been arrested and convicted. United States v. One Packard Motor Truck, 284 Fed. 394. Unless the person in charge of the vehicle is convicted, the court is without jurisdiction to order the liquor destroyed. Margie v. Potter, 291 Fed. 285; United States v. Certain Quantities of Intoxicating Liquors, 291 Fed. 717. Clearly if the court would be without jurisdiction to order the liquor destroyed, it would be without authority to declare a forfeiture of the vehicle in which it is being transported, and to order its sale.

It appears that the prohibition officer, without the arrest and conviction of the person in charge of the automobile in question, and without any order or judgment of the court declaring the vehicle forfeited or ordering it sold, advertised and sold the same, thinking he had authority to do so under this section of the national prohibition act. Under these circumstances the sale of the automobile was illegal and void, and the title of the seller thereto, under his contract retaining title until it was paid for, was not divested; and he was entitled to recover the same from the purchaser at such sale. Judgment reversed.

All the Justices concur.