74 So. 965 | Ala. | 1917
This is a proceeding for the condemnation and destruction of contraband liquors held in violation of the act approved September 25, 1915 (Sess. Acts 1915, p. 558), known as the Bonner Bill. The undisputed evidence shows that the liquors in question were prohibited liquors, and were held in quantities immensely in excess of the legal allowance, and were stored on premises not the-dwelling house of the claimant.
It is contended by the appellant that the judgment appealed from is erroneous for the following reasons:
(1) The justice who issued the warrant was officially resident in beat 10 of Russell county, while the liquors seized under the warrant were in beat 1 in the city of Girard, not an adjoining beat, there being a qualified justice of the peace in beat 1, and hence this justice was without jurisdiction in the premises.
(2) The constable who executed the warrant and seized the liquors was officially resident in beat 10, there being a regular constable and sheriff in beat 1, where the liquors were seized.
(3) The liquors seized were of greater value than $100, and were therefore constitutionally beyond the jurisdiction of a justice of the peace.
(4) The warrant under which the liquors were seized was issued solely upon the affidavit of one Dedge, without any examination on oath of the affiant or the witness, or any taking of depositions showing the facts and circumstances tending to establish the complaint, as required by subdivision 3 of section 22 of the temperance act approved January 23, 1915 (Sess. Acts 1915, p. 18.)
(5) The said affidavit did not show any ground for issuing a search and seizure warrant as prescribed by paragraphs (a), (b), and (c) of subdivision 6, § 22, of the temperance act.
(6) The warrant directed a search for and seizure of liquors on certain described premises, and,- search there being unsuccessful, the officer entered upon and seized these liquors on other premises not described in the affidavit or warrant.
(7) In so far as the temperance acts are applicable to liquors lawfully acquired in good faith before their enactment, confiscation thelreunder would be uncqnstitutional as depriving the claimant of his property without due process of law. '
These questions were raised by appropriate motions to quash, • by pleas in abatement and by requested instructions. Their predicates are all supported by the facts adduced in evidence, and the questions raised are questions of law on the evidence. All of these were ruled adversely to the claimant, and on request
We now consider the claimant’s contention seriatim.
For the purpose of venu'e and jurisdiction, this proceeding is unquestionably to be regarded as criminal.—Com. v. Intox. Liq., 13 Allen (Mass.) 561. And in criminal matters a justice’s process reaches everywhere within the county.—Ex parte Davis, 95 Ala. 9, 13, 11 South. 308; Code, § 6733. But, if it were not a criminal proceeding, it was long ago settled that the venue statute referred to is confined to suits commenced by summons, and has no reference to a proceeding in rem.—Atkinson v. Wiggins, 69 Ala. 190. The search and seizure act itself provides (Acts 1915, p. 18) that “the warrant may be issued by justices of the peace,” without restriction as to venue. The warrant in question was properly issued by the justice of beat 10.
“The ascertainment of probable cause for the issue of the writ involved the exercise of the judicial function. Having acquired and exercised jurisdiction in the premises by taking the affidavit of a person, and having issued the warrant substantially as required by the statute, the weight of the evidence to establish probable cause could not be made the subject of inquiry, nor could the judgment in that regard of the issuing magistrate be made the subject of review on the trial of the cause.”—Toole v. State, 170 Ala. 41, 52, 54 South. 195, 198; Cheek v. State, 3 Ala. App. 646, 57 South. 108; Salley v. State, 9 Ala. App. 82, 64 South. 185.
The act of January 23, 1915 (section 22), provides the entire system for' search, seizure, and trial for the condemnation of contraband liquors. The grounds for the issuance of the warrant are there specified, in accordance, of course, with the definitions of contraband liquors as then already fixed. The later act of September 25, 1915, notably such as are “received, possessed, or stored at any forbidden place, or anywhere in a quantity forbidden by law.” It further provides that: “In all such cases the liquors are forfeited to the state of Alabama and may be searched for and seized, and ordered to be destroyed under the rules now prescribed by law concerning contraband liquors, or by order of the judge of court after a Conviction when such liquors have been seized for use as evidence.”
We have here an expréss adoption of the procedure prescribed by section 22 of the older act for cases arising under the later act. The practical result obviously is that in any proceeding under section 22 the grounds therein specified for the issuance of the warrant are widened by the addition of all of the conditions under which liquors are declared contraband and forfeited under the later act. The affidavit and warrant in this case unquestionably exhibit a valid and authorized ground for the issuance of the warrant. The case of Coleman v. State, 7 Ala. App. 424, 61 South. 20, relied upon by the claimant, was based on a deficiency of the affidavit under the specifications of the Act of January 23, 1915, and is not pertinent here.
It was long ago settled in this state, and the rule has been sustained by a long line of decisions, that on appeal from a justice’s court to the circuit court, where the cause must be tried de novo, all objections to the proceedings, including the jurisdiction of the court, must be made before the justice, and cannot be made for the first time in the court to which appeal is made.—Slaton v. Apperson, 15 Ala. 721; City of Selma v. Stewart, 67 Ala. 209; Reynolds v. Simpkins, 67 Ala. 378; W. Ry. Co. v. Lazarus, 88 Ala. 453, 6 South. 877; L. & N. R. R. Co. v. Barker, 96 Ala. 435, 11 South. 453; Blair v. Williams, 159 Ala. 655, 49 South. 71; McKinstry v. City of Tuscaloosa, 172 Ala. 344, 54 South. 629; Turner v. Lineville, 2 Ala. App. 454, 56 South. 603.
By the terms of the Act (section 22, subd. 10) appeals thereunder to the circuit court are triable de novo, “as in cases appealed from a justice of the peace or county court.” The doctrine of waiver above stated must be applied in its full vigor to this case, and the 'result is that the circuit court properly overruled the motion to quash and the plea to jurisdiction based on the objection above considered.
In this connection, it is proper to observe that the application of the rule is not altered by the fact that objection was made to the proceedings and to the jurisdiction in the justice’s court on other specified grounds which did not include this ground. The waiver as to this ground was none the less effective and complete.
Affirmed.