This is a proceeding for the forfeiture of a motor vehicle seized as a vessel containing intoxicating liquor or an implement “of sale actually used in trаnsporting” certain intoxicating liquors “contrary to law.” The claimant appealed from a judgment of condemnation to the Superior Court, where the judgе, after a hearing upon agreed facts, refused to rule that to deprive the claimant of the vehicle would constitute taking of property without due рrocess of law in violation of the Fourteenth Amendment to the Constitution of the United States, and that no order of forfeiture should be made, and an order of rеstoration should be made. The judge reported the questions of law raised by the rulings for the determination of this court. G. L. c. 231, §111.
The agreed facts show that one Steаrns was arrested without warrant on January 24, 1927, while driving the vehicle in question in which, in five separate cans, were about twenty-five gallons of alcohol. The liquor and the car were seized on January 25, and Stearns was charged with illegal transportation of and keeping for sale intoxicating liquor contrary to law. Due notice was given to show cause why
The car was purchased under a contract of conditional sale from the Stilphen Motor Company by оne Moran on January 11, 1927. Title was to remain in the seller until certain notes were paid. Custody was to be in the buyer, but with right of the seller to take immediate possessiоn in the event of the failure of the buyer to comply with certain conditions, and a duty of the buyer to return the car and yield up possession on demand of the sеller or its assigns. The contract and notes were properly assigned to The National Shawmut Bank of Boston and thence to the claimant on January 11, 1927. Neither the Stilphen. Motor Company, the bank, nor the claimant had knowledge or reason to believe that the car would be used for any purpose in violation of the law. The contract contained a provision by which the purchaser agreed for himself, his agents, employees and assigns, not to use the car in illеgal manufacture, sale, barter, storage or transportation of intoxicating liquor, or contrary to customs laws; and that upon any violation of the provision “his right of possession shall terminate at once.” In violation of the contract, Moran registered the car on January 11, in the name of Stearns as owner. The claimant learned of this breach of the contract on January 19. It immediately demanded that the car be turned over and sent out a searcher to find and repossess it; but, before he could find it and while the search was in progress, the car was seized. The cans containing the liquor were not attached tо or in any way “part of said automobile.” Moran was in default. The claimant was entitled to immediate possession against Moran and Stearns. There was no privity of contract and no consent between Stearns and the claimant. Stearns was in wrongful possession at the moment of seizure, and at that moment the intoxiсating liquors “were then and there trans
The case thus presents the question referred to in E. J. Fitzwilliam Co. Inc. v. Commonwealth,
The proceeding is primarily a process in rem to procure the condemnation and forfeiture of property illegally used. It is criminal in its nature, and, where the person so using the res is the owner or rightfully possesses it, the forfeiture is in the nаture of a punishment. Commonwealth v. Intoxicating Liquors,
We have held that intoxicating liquors kept for sale in this Commonwealth in violation of law could be forfeited, although so kept by a bailee in fraud of the owner who was innocent of the illegal intent of the bailee, Commonwealth v. Intoxicating Liquors,
In all the cases of forfeiture of the res for the fault of the one in immediate control and against an owner without wrongful intent which have been called to our attention or which we have found, there has been at sоme time an entrusting of the property by the owner to another. The owner, by his own act, has, at least for the moment, taken knowingly a claim against the one tо whom control was given in place of the thing itself. He is left with that claim when, through illegal action of the one in control, the return of the thing is prevented. It may be thаt the claim is of little or no value, but it is a contractual right at one time recognized by him as an adequate equivalent for the thing, or for the risk of losing it. There is no gross injustice in leaving him to this remedy if public welfare will be served by the forfeiture of the thing. Accordingly, the law does not go beyond constitutional power in depriving an оwner of property which be has himself-previously entrusted to the control of another because of the fault of that other or of any successive рerson in control before the owner has regained actual possession, although that owner is ignorant of the use made of his property, is oppоsed to such use, in no way has consented to it, at the moment of the illegal use is entitled, as against the offender, to the return of the property and is seeking to regain actual possession.
We do not pass upon the further question, which is not presented upon the facts of this case, whether the right to enforcе forfeiture extends to property, the actual control of
The considerations stated at length in the cases heretofore cited, and in similar cases dealing with forfeiture for illegal transactions with reference to drugs, to obscene literature, to property declared to be a nuisance, and to tax and customs laws, see Dobbins’s Distillery v. United States,
In the opinion of a majority of the court the rulings made were correct. The case is remanded to the Superior Court for further proceedings consistent herewith.
So ordered.