120 N.Y.S. 1044 | N.Y. App. Div. | 1910
The proceeding resulting in the above-entitled action was begun under the provisions of section 31c of the Liquor Tax Law, which was added to that law (Gen. Laws, chap. 29; Laws of 1896, chap. 112, as amd.) by chapter 350 of the Laws of 1908, and became effective as a part thereof May 19, 1908. On July 28, 1908, the county judge of Steuben county issued a warrant, iii form and purpose that provided by said section, directing Leon Bliss, a special agent of the State Commissioner of Excise, to search the premises described in the warrant for “Liquors as defined by Section Two of the Liquor Tax Law.” This warrant was issued, upon the verified complaint of said special agent, together with the accompanying affidavits of two other citizens of the State, setting forth 'facts sufficient to establish that there was probable cause for believing that liquors were kept, stored and deposited on the premises described in the warrant “for the purpose of unlawful sale'or distribution therein within this State.” On the next day the officer executed the warrant, made the search of the premises and found and seized thereon certain liquors, which are now the subject of this action. The warrant contained the notice, prescribed by the section in question, and a
Appellant urges three principal grounds for reversal of the judgment, as follows : That the section of the statute under which these proceedings were brought is in violation of the State Constitution, and for that reason any act or proceeding under that section is illegal, and any judgment obtained thereunder is void; that the proceedings are in the nature of a criminal action, and, therefore, the court was without power to direct a verdict, aud the answering defendant was thereby deprived of a trial by jury, to which he was entitled, and that improper, incompetent and prejudicial evidence was admitted on the trial over his objection and exception.
Appellant asserts the unconstitutionality of section 31c, relying apparently upon a claim that the proceedings which it authorizes are in violation of that part of article 1, section 6, of the State Constitution which declares, in effect, that no person shall be deprived of his property without due process of law. If this section is
It does not seem tó be longer an open question that the enactment of statutes regulating the sale of intoxicating liquors is well within the legitimate powers of legislative action in the exercise of the police power of a State in protecting the peace and welfare of its citizens and'the public good. The Liquor Tax Law is, therefore, in its general scope and purpose not repugnant to nor forbidden by the Constitution either of the State or of the United States. The section of that law, the constitutionality of'which is now questioned, was added as a further means of enforcing and giving practical effect to the law. The constitutionality of similar provisions in the statutes of other States has been considered and upheld, not alone by the highest courts of those States, but by the Supreme Court of the United States. (Mugler v. Kansas, 123 U. S. 623; Beer Company v. Massachusetts, 97 id. 25.)
Subdivision 1 of section 31c declares liquors which are kept, stored or deposited in any place in this State.after July 1, 1908, for the purpose of sale or distribution therein in violation of the provisions of the Liquor Tax Law and the vessels in which such liquors are contained to be. a nuisance, and are forfeited to the State when seized and forfeiture thereof declared in the manner prescribed by the section. The effect of'the act is not, by virtue of the law itself, to declare the annihilation of the right-' of any one to own, possess and dispose of any particular property or property of any particular spbcies. It is the use for purposes of violating the statr ute to which, the property is to be put or for which it is kept that determines, as the section prescribes, its character as a nuisance. Liquors, notwithstanding the statute, still retain their character as property. The law does not. condemn the liquors owned or kept by appellant- as property; but it is his purpose in keeping them for an illegal and unlawful use that renders his liquors a nuisance, and, therefore, liable to forfeiture. This fact sufficiently distinguishes the present statutes from that considered in the case of Wynehamer v. People (13 N. Y. 378). As was said in the case of
It is not contended, and it could not be held, that the provision made by the statute for enforcing the law and giving the section in question practical effect does not secure to the party whose property is seized that judicial investigation and determination to which he is entitled under the Constitution before he can be deprived of
Ho question is raised as to the form of the warrant or the sufficiency of the description of the property to be searched for and seized, which the statute requires to be “specified” therein, and the fourth amendment to the Constitution of the United States declares shall be particularly described in the warrant. We think the description of the property contained in the warrant, which we have referred to above, met both requirements. (State v. Robinson, 33 Maine, 564; State v. Whiskey, 54 N. H. 164; Downing v. Porter, 74 Mass. 539.)
Whether the court was authorized to direct a verdict depends, as we conceive, upon whether the proceeding is to be regarded as a criminal or a civil one. It seems that the proceeding nearly resembles, in effect upon the property seized, that for the seizure and sale of animals permitted to run at large. Such a proceeding is one in rem. (Campbell v. Evans, 45 N. Y. 356, 359.) As already stated, the section under consideration provides that the issue framed by the answer shall be deemed an action pending in the court of the judge or justice who issued the warrant, to be tried in said court as-other issues of fact are tried therein. The proceeding on filing the answer culminates in the issue to be tried; but it yet remains one brought, not by the People, but by the State Commissioner of Excise, against specific property, and not against an individual. That the proceeding is civil, and not criminal in its nature, receives further support from the sections of the Code of Civil Procedure defining civil and criminal actions. (§§ 3335, 3336, 3337.) The proceeding being one in rem, and not a criminal proceeding against a person, the. issues are to be tried under the rules applied in the trial of civil cases. (State v. Barrels of Liquor, 47 N. H. 369.) Applying the rules applicable to the trial of issues in civil actions, no question of fact for the determination of the jury remained when the court directed a verdict.
The court having directed a verdict upon uncontradicted evidence ample to sustain it, the appellant cannot he deemed to have
All Concurred.
Judgment and order affirmed.