182 P. 227 | Okla. | 1919
On September 7, 1918, the county attorney of Logan county, in the name of the state, filed a petition against one Cadillac automobile, 1918 model, wherein he alleged that one Hargrove and another had unlawfully, willfully, knowingly, and intentionally transported intoxicating liquors in said automobile in said county, contrary to and in violation of the laws of this state, and praying that said automobile be forfeited to the state in pursuance of the provisions of chapter 188, Sess. Laws 1917. Thereafter Hargrove made special appearance and pleaded to the jurisdiction of the court, among other reasons because chapter 188, Sess. Laws 1917, is unconstitutional and void and repugnant to the Constitution of the United States and the state of Oklahoma, in that it specifically denied the right to a trial by jury of the issue as to whether the property seized was being used for unlawful purposes. Trial resulted in a judgment in favor of the state, and Hargrove appeals.
It is now well settled that the Seventh amendment to the federal Constitution was not intended to guarantee a trial by jury to a litigant in a civil action in the courts of the several states, and the right to such trial in proceedings pending in state courts must be found in some provision of the state Constitution or statute preserving or granting such right. St. L. S. F. R. Co. v. Brown,
The right to trial by jury, secured to the people of this state by section 19, art. 2, of the Constitution, is a trial according to the course of the common law as it existed and the same in substance as that which was in use when the Constitution was adopted, except as specifically modified by other provisions of the Constitution. Baker v. Newton,
In State ex rel. Caldwell v. Hooker, County Judge,
Section 2 of chapter 188, Sess. Laws 1917, provides:
"Sec. 2. The court having jurisdiction of the property so seized shall without a jury order an immediate hearing as to whether the property so seized was being used for unlawful purposes, and take such legal evidence as are offered on each behalf and determine the same as in civil cases. * * *"
Is this act invalid because it provides for a trial without a jury? The rule in the courts of the United States is that in all cases of seizure on land or upon water, not navigable, the issues of fact therein must be determined by a jury; but, where the seizure is made upon navigable waters, the cause is determined without the intervention of a jury. The Sarah, 8 Wheat, 391, 5 L.Ed. 644; Morris's Cotton, 8 Wall. 507, 19 L. Ed. 481; Confiscation Cases, 20 Wall. 92, 22 L.Ed. 320; Henderson's Distilled Spirits, 14 Wall. 44, 20 L.Ed. 815; Shawnee National Bank v. United States, 249 Fed. 583, 61 C. C. A. 509.
At common law, in case of a forfeiture of real estate, it was necessary that a jury should try the question as to whether a forfeiture should be decreed. 2 Blackstone's Commentaries, c. 18, p. 271. There were numerous instances, however, where summary proceedings were disposed of without the aid *136
of a jury. 4 Blackstone's Commentaries, c. 20, p. 280; Lawton v. Steele,
This proceeding is not an action for the recovery of specific real or personal property, but is a proceeding in rem, and is not one of that class of cases where a jury trial may be claimed by virtue of section 19, art. 2, of the Constitution.
In Shawnee National Bank v. United States, 249 Fed. 583, 61 C. C. A. 509, the Circuit Court of Appeals for the Eighth Circuit held, in a proceeding to forfeit an automobile seized on land under Revised Stat. sec. 2140 (Comp. Stat. sec. 4141), on the ground that it had been used in conveying intoxicating liquors into the Indian country, that the parties were entitled to the usual rights and remedies incident to such an action, including the right to a trial by jury. That cause originated in the District Court of the United States for the Western District of Oklahoma, and the right of the parties to a jury trial was governed by the rule prevailing in the federal courts, and the case is not conclusive of the question in the case at bar. Where the property involved is of minor value, such as dice, cards, gambling tables, bar fixtures, or fish nets, numerous decisions could be cited where similar property was involved. At the time most of these statutes were enacted and decisions construing them were rendered, the automobile and truck had not come into general use, and, while an automobile is a valuable of property, the manufacture of which is perfectly lawful and while it is ordinarily used for lawful purposes, this does not prevent the Legislature from prohibiting the use thereof in aid of the illegal traffic in intoxicating liquors and authorizing its summary destruction where such illegal use has been established, Lawton v. Steele, supra; State v. O'Neil,
Other question, not being briefed or urged in the oral argument, will not be considered. The fact that the automobile was being illegally used was established in this proceeding in the manner provided by law, and the decree declaring it forfeited to the state and ordering a sale thereof is affirmed.