102 So. 540 | Miss. | 1925
delivered the opinion of the court.
This appeal is prosecuted from a judgment of the circuit court condemning a certain Cadillac car and a certain truck to be sold as being used in violation of chapter 189, Laws of 1918, section 5. The affidavit charges:
“That Anderson Colley, Lee Powell, M. G. Roberts, and Dewey Holland, in district No. 3 of Marshal 1 county, Miss., on the 7th day of August, 1921, did then and there possess, use, and control one certain Cadillac car of the model engine No. 57W8503, and one service truck, motor No. 84895, license No. 4255. The Cadillac automobile bearing Tennessee license No. 69556, Said Cadillac automobile and said service truck being used by the said Anderson Colley, Lee Powell, M. G. Roberts, and Dewey Holland with their knowledge for the purpose of transporting a still and other articles used in the illicit making of whiskey and other intoxicating liquors. The said automobile and truck being then and there vehicle and conveyance kept and used for the purpose of violating the laws of the state of Mississippi and the United States of America, and being an apparatus and appliance which were being used for the purpose of distilling and manufacturing intoxicating liquors, the making and distilling and sale and possession of which intoxicating liquors are prohibited by the laws of Mississippi and of the United States of America; said automobile and truck being used in an attempt to make the liquor in violation of the laws aforesaid. Whereupon he prays that a writ of seizure returnable,” etc.
The defendants appeared and filed a demurrer to the petition, alleging that the affidavit and petition did not present any legal grounds for which said Cadillac car and service truck might be legally seized and condemned for sale, and did not charge that the car and truck were used in transporting intoxicating liquors. The court below reached the conclusion that these vehicles should
Section 5, chapter 189, Laws of 1918, is as follows:
“That no property rights of any land shall exist in the liquors mentioned in section 1 of this act, or in any other liquors, liquids, bitters or drinks prohibited by the laws of this state to be manufactured, sold, bartered, or otherwise disposed of in this state, or in any fixtures, furniture or vehicles, conveyances, boats or vessels when said property is kept or used for the purpose of violating any law of .this state or of the United States, or in any apparatus or appliance used or which may be used for the purpose of distilling or manufacturing any intoxicating liquors, and in all such cases, the liquors, bitters or drinks, as aforesaid and the said property herein named, except vehicles, conveyances or boats, may be seized by the sheriff or any other lawful officer of the state, and destroyed and rendered useless by him without any formal order of any court, and may he searched for and seized under the laws of this state, but all vehicles, and conveyances of every kind and description, which are used on any of the public roads, streets, avenues or alleys, or private ways of this state, and all boats and vessels of every kind and description, which are used' in any of the waters of this state in conveying any of said intoxicating liquors, the sale or possession of which is prohibited by law, shall be seized by any sheriff or other lawful officer who shall immediately make an affidavit before the proper officer that such vehicle, conveyances, boats or vessels were being used with the knowledge of the owner, or the lessee, in violation of this act, and the law of this state.”
The balance of this section sets out in detail the procedure for the issuance of process bringing the
This Cadillac car and motor truck had been previously condemned in an affidavit filed before a justice of the peace, and Vance undertook to file a claimant’s affidavit and propound a claim as the owner of these cars. The justice of the peace refused to entertain the claim, and an appeal was prosecuted to the circuit court, and that court declined to permit Vance to propound his claim, and also overrule a plea to the jurisdiction of the court upon a showing that the cars were of more than two hundred dollars value, that the justice of the peace was without jurisdiction, and therefore the circuit court was without jurisdiction. Judgment was entered condemning the cars, and the case was appealed to this court, and is reported as Vance v. State, 130 Miss. 251, 93 So. 881.
Special counsel representing the state say in their briefs that the Vance case “is a judicial ascertainment of the fact that these identical motor vehicles are forfeited, unless some innocent party owns them, and has been able to show that he was not so negligent in the handling of his property as to be guilty of the wrong.“
It is sufficient to say that the supreme court at that time had before it only the two questions: First, could an innocent owner upon his affidavit that he was the owner of the car and without knowledge of its use for unlawful purposes propound his claim to property seized under this particular law? The lower court held that a claimant’s issue was improper; the supreme court held to the contrary. The second question was, Property in value of more than two hundred dollars being condemned by the justice of the peace upon appeal therefrom, did the circuit court have jurisdiction? The supreme court held that, the justice of the peace being without jurisdiction, the circuit court was without jurisdiction, and the cause was “dismissed without prejudice to the right of the state to proceed in a proper pro
This is a highly penal statute condemning certain property to be destroyed -or rendered useless without any kind of trial, and certain other property to be seized and upon a trial sold and the proceeds forfeited.
Judge Smith said, construing a similar statute in Stewart v. State, 95 Miss. 627, 49 So. 615:
“Penal statutes must be strictly construed, and the courts can neither add to nor take from them.”
The affidavit in this case, in substance, charges that this car and truck were being used in violation of the laws of the state and of the United States, and used in an attempt to make liquor in violation of the said laws. It will be noted that the captions show that the paramount purposes of the act were to suppress the transportation of liquors, and this section 5, if thken literally, as counsel representing the state insist, would mean that an automobile or other vehicle in which any law’ of the state or of the United States was violated would be subject to seizure and sale, because it says when any of the said property is kept or used for the purpose of violating any law of this state or of the United States, but the courts of the land could not for a moment approve the idea of the confiscation of a car or other vehicle under a statute like this because some violation of law had occurred therein. We take it that the statute meant to condemn the transportation of intoxicating liquors in any vehicle, and that was in our judgment the paramount idea of the legislature, so our construction is that the only thing denounced as to vehicles of the character mentioned in the petition herein is the transportation of intoxicating liquors and not' embracing any other violations of law.
The petition heré under review in our opinion- fails to charge that the cars in question were used in violation of section 5, chapter 189, of the Laws of 1918, and' the demurrer therefore should have been sustained.
Assuming from certain statements in the record and in the brief of counsel that, this cause having been before this court once before, parties representing the state cannot further amend so as to conform to this opinion, the judgment of the lower court will be reversed and the cars described in the petition will be released.
Reversed, and judgment here for appellant.
Reversed.
