34 Iowa 128 | Iowa | 1871
Section 1995 of the Code of 1851 modified this rule of the common law, and authorized the maintenance of the action of replevin for personal property seized by legal process, when the petition states under oath that it was exempt from seizure by such process. The same provision
Under this decision intoxicating liquors would be governed by the principles of the common law, and when seized by virtue of legal process, could not be replevied.
Nor can property seized under an unconstitutional law any more be said to be seized under legal process, than if the process issued without law. A law which infringes the provisions of the constitution is void. 1 Kent (8th ed.) * 449.
The petition alleges that the wine and beer in question were seized by virtue of a search-warrant, issued by a justice of the peace, under a pretended law of the said county prohibiting the sale of wine and beer therein. The law referred to, chapter 82, acts of the thirteenth general assembly, has, by this court, been held unconstitutional. See State v. Weir, 33 Iowa, 134, and State v. Metcalf, id. 610.
The search-warrant, therefore, furnished no authority for the retention of the property, and the demurrer should have been overruled.
Reversed.