135 N.E. 200 | NY | 1922
The question in this case is as to the proper procedure as to notice under Code of Criminal Procedure, section 802-b, subdivision 6 (State Prohibition Enforcement Act, L. 1921, ch. 156) when liquor is seized without a warrant. On June 23, 1921, no question of illegal search being involved (cf. Gouled v.U.S.,
It thereupon granted the motion and ordered the return of the liquors on the ground that it was the duty of the officer, at the time of making the seizure, to serve the statutory notice to show cause why the liquor should not be forfeited and that by reason of the failure to serve such a notice the seizure was illegal and the owner is entitled to have his property returned to him. While this court reaches the same conclusion on the merits as that of the Appellate Division, it does so by a different construction of the statute.
Section 802-b, subdivision 1, Code of Criminal Procedure (added L. 1921, ch. 156), declares that intoxicating liquors kept, stored or deposited in any place in this state in violation of the provisions of article 113 of the Penal Law, and the vessels in which such liquor is contained, are a nuisance, to be forfeited to the state when seized by a peace officer of the state and forfeiture declared, in the manner provided in the section. Subdivision 2 deals with the seizure of liquors upon a warrant. So far as material to the consideration of this case, it provides: *134
"The warrant [issued upon a verified complaint by a judge] shall contain a notice directed generally to all persons claiming any right, title or interest in such liquor or the vessels containing the same * * * to appear before the judge or justice issuing such warrant, at a place and at a time therein specified, not more than twenty days after the issuance of said warrant and not less than ten days after the execution thereof, and show cause why such liquor and the vessels containing the same should not be forfeited * * *. A copy of such warrant shall be delivered to the person so keeping such liquor, if he be present at the time of such seizure, and if he be not present, then to the person, if any, apparently in possession of such liquor or of the premises wherein the same are found, and another copy of such warrant shall be posted in a conspicuous place upon said premises * * *. At the time and place specified in the notice contained in such warrant, any person claiming any right, title or interest in the liquors seized under such warrant or in the vessels containing the same * * * may interpose an answer controverting the allegations of the complaint upon which such warrant was issued. If such answer is interposed, the issue thus framed shall be deemed an action pending in the court of the judge or justice who issued the warrant, between the people of the State of NewYork and the liquors so seized and may be entitled in the name ofthe said state and against the liquors so seized, adding for identification the name of the person or persons interposing such answer and claiming or defending the liquors so seized, and shall be tried in said court as other issues of fact are tried therein, and shall be entitled to the preference prescribed by law for an action brought by the people of the State."
Seizure by a peace officer without a warrant is authorized by section 802-b, subdivision 6, which, so far as material to this case, provides:
"Whenever a peace officer shall find any person *135 * * * in the unlawful possession thereof" (of intoxicating liquor) "outside of his private dwelling, he may, without a warrant, seize any and all such intoxicating liquor and the vessels containing the same * * *. The officer shall make areturn of his proceedings to a judge who would be authorized to issue a warrant for such a seizure, setting forth the grounds on which the seizure was made, and such return shall be deemed tobe a complaint for the purposes of this section; and theprovisions of this section relating to proceedings for seizurepursuant to a warrant shall apply to such liquor, vessels andproperty." Upon seizure in either case, the act provides a remedy by orderly process of law for the disposition of the intoxicating liquor seized.
This action — which might be more properly styled a special proceeding in rem against the liquor (Goldsmith-Grant Co. v.United States
The State Prohibition Enforcement Act provides that every seizure, whether with or without a warrant, gives rise to a justiciable question, which must be determined in a judicial proceeding before forfeiture can be enforced. It is assumed that if the statute contemplated or authorized the forfeiture of the liquors without notice and an opportunity to be heard being given to those claiming the right of possession, it would conflict with the "due *136
process" clause of the Federal and state constitutions, but the question before us is one of construction not of constitutionality. (Cf. State v. McCann,
When the judge issues the warrant the statute provides that the notice to appear shall specify a place and a time "not more thantwenty days after the issuance of said warrant and not lessthan ten days after the execution thereof." When the liquor is seized without a warrant the regulation as to time after theissuance of the warrant is inapplicable. It will be presumed that the officer making a seizure without a warrant will make his return with due diligence; that the judge or justice will sign the notice within a reasonable time; that the time specified therein shall be not less than ten days after the seizure of the liquor which is the equivalent in time to the execution of the warrant; that notice shall be given in the statutory manner with reasonable diligence.
The seizure in the case before us having been made on June twenty-third and the return having been made on June twenty-ninth, the justice should not have waited until September sixth before signing the notice. The time fixed in the notice was September twenty-sixth, over three months from the date of seizure. Temporary seizure pending judicial action implies prompt judicial action. Unreasonable delay in taking such action amounts to a seizure without due process and a delay of justice. Due process implies not merely an opportunity to be heard but also prompt notice given as provided by the statute and opportunity to be heard with reasonable promptness. If the judge might delay action for ten weeks after the return is made, he might delay action indefinitely. Considering the accumulation of business in the courts, a requirement of immediate action by the judge or justice might defeat the purposes of the act. The person in possession is, on the other hand, entitled to a reasonable opportunity to prepare for the hearing which is fixed by the statute *138 at a period of not less than ten days after the seizure. Failure of the peace officer and the judge to act with reasonable diligence, when properly asserted in the proceeding, must result in the return of the liquors seized to the place from which or the person from whom they were taken, although the seizure was in the first instance properly made.
If these requirements are consistently followed, no unnecessary hardship will result to the owner. No notice need be served on him when the liquor is seized. The statute makes no provision for such notice. Knowledge on his part of the judge to whom the return is to be made would serve no essential purpose if the seizure without notice is temporary. It will be implied that officials will do their duty and that the legislature will remedy any detail of the statute which may cause undue hardship.
The order appealed from should be affirmed, without costs.
HISCOCK, Ch. J., HOGAN, CARDOZO, McLAUGHLIN and CRANE, JJ., concur; ANDREWS, J., concurs in result.
Order affirmed.