SAMUELS v. McCURDY, SHERIFF OF DEKALB COUNTY, GEORGIA.
No. 225
Supreme Court of the United States
Argued January 22, 1925.—Decided March 2, 1925.
267 U.S. 188
ERROR TO THE SUPREME COURT OF THE STATE OF GEORGIA.
A State law (Georgia Ls. 1917, Ex. Sess.) making it unlawful for a person to possess intoxicating liquors which, previously to its enactment, he had lawfully acquired for consumption as a beverage in his home, and subjecting them to seizure and destruction, is not an ex post facto law. P. 193. - The seizure and destruction, without compensation, of such liquors, pursuant to the State prohibition laws, does not deprive such possessor of property without due process of law. P. 194.
- When a State law denied property rights in intoxicating liquors, and made their possession unlawful, except for medicinal and other specified uses under special permit, and provided for seizure under search warrant, and for destruction by an order of court to be made without first hearing the person from whom they were taken; held, that the denial of such hearing did not render the law invalid under the due process clause of the Fourteenth Amendment, as applied to one who did not claim to be within the statutory exceptions and whose contention that the law violated his constitutional property rights in liquors seized under it was heard in a suit brought by himself to enjoin their destruction and regain possession. P. 199.
157 Ga. 488, affirmed.
ERROR to a judgment of the Supreme Court of Georgia which affirmed a judgment dismissing a suit brought by the plaintiff in error to enjoin the defendant in error, a sheriff, from destroying intoxicating liquors pursuant to an order of court, and for specific recovery of the liquors.
Mr. Hooper Alexander for plaintiff in error.1
It may well be doubted whether the prohibition against possession, as contained in the Act of 1917, was ever intended to apply to liquors already in possession.
Is the law ex post facto? When the substance of the
It may be said that in Tranbarger‘s Case also, the railroad was merely passive. But this is more apparent than real. The statute of Missouri commanded an affirmative act, viz., the opening of the drains, and penalized the refusal. The act we complain of does not do this. It penalizes mere passivity. The lawful purchase had resulted in a condition, to-wit, a physical possession that was lawful when acquired. The statute punishes that. When the State of Georgia makes it a misdemeanor merely to possess liquor, is this not punishing the citizen for having acquired the possession? See Duncan v. Missouri, 152 U. S. 382; Calder v. Bull, 3 Dall. 386; Cummings v. Missouri, 4 Wall. 277; Fletcher v. Peck, 6 Cranch 137.
The provision as to possession deprives plaintiff in error of his property without due process of law. Delaney v. Plunkett, 146 Ga. 547, distinguishing Barbour v. State, 146 Ga. 667, 249 U. S. 454. See Bartemeyer‘s Case, 18 Wall. 129; Boston Beer Co. v. Massachusetts, 97 U. S. 33; Barbour v. Georgia, 249 U. S. 454; Eberle v. Michigan, 232 U. S. 700.
In affirming the judgment of the court below, the Supreme Court of Georgia necessarily ruled that a sheriff may seize and destroy the property of a citizen without any accusation or pleading, without any hearing from him, and without a judgment. There is no law in Georgia conferring such summary power on the sheriff. There could not be. Section 20 of the Act of Nov. 17, 1915,
The hearing must be given, not as a matter of grace but as a matter of right. It is equally axiomatic that the hearing on a prayer for injunction is not a substitute for a hearing in the first instance. An application for injunction is aimed at an unauthorized destruction before a hearing had upon legal process instituted by the sheriff. Had such a process been taken the owner would have been thereby informed as to the grounds on which his property was to be condemned; would be entitled to be heard, and would have found it necessary only to disprove those allegations of wrong on which the seizure was made. It is no substitute for such a proceeding to hear him come in and set up, in the dark, that there was no ground at all, and negative every possible or conceivable ground. Such a thing puts upon him the unreasonable burden of disproving every possibility, even those that did not exist, or which it might never occur to him could be conjectured.
Mr. CHIEF JUSTICE TAFT delivered the opinion of the Court.
Sig Samuels, a resident of DeKalb County, Georgia, filed his petition in the Superior Court of that county against its sheriff, J. A. McCurdy, in which he prayed for the specific recovery of certain intoxicating liquors belonging to him which he averred had been seized on search warrant by the defendant. He asked an injunction to prevent their destruction. A rule to show cause issued and a restraining order. A general demurrer to the petition was sustained and the case dismissed. On error to the Supreme Court of the State, the judgment was affirmed. This is a writ of error to that judgment.
The session laws of Georgia for 1907, page 81, now embodied in Section 426 of the Georgia Penal Code, declare that:
“It shall not be lawful for any person within the limits of this State to sell or barter for valuable consideration, either directly or indirectly, or give away to induce trade at any place of business, or keep or furnish at any other places, or manufacture, or keep on hand at their place of business any alcoholic, spirituous, malt, or intoxicating liquors, or intoxicating bitters, or other drinks which, if drunk to excess, will produce intoxication; and any person so offending shall be guilty of a misdemeanor.”
By Act of November 17, 1915, Section 2, it is provided:
“It shall be unlawful for any person . . . to manufacture, sell, offer for sale, . . . keep on hand at a place
of business or at or in any social, fraternal or locker club, or otherwise dispose of any of the prohibited liquors and beverages described in Section 1 of this Act, or any of them, in any quantity; but this inhibition does not include, and nothing in this Act shall affect, the social serving of such liquors and beverages in private residences in ordinary social intercourse.”
Section 20 of same Act reads as follows:
“Sec. 20. Be it further enacted by the authority aforesaid, That no property rights of any kind shall exist in said prohibited liquors and beverages, or in the vessels kept or used for the purpose of violating any provision of this Act or any law for the promotion of temperance or for the suppression of the evils of intemperance; nor in any such liquors when received, possessed or stored at any forbidden place or anywhere in a quantity forbidden by law, or when kept, stored or deposited in any place in this State for the purpose of sale or unlawful disposition or unlawful furnishing or distribution; and in all such cases the liquors and beverages, and the vessels and receptacles in which such liquors are contained, and the property herein named, kept or used for the purpose of violating the law as aforesaid, are hereby declared to be contraband and are to be forfeited to the State when seized, and may be ordered and condemned to be destroyed after seizure by order of the court that has acquired jurisdiction over the same, or by order of the judge or court after conviction when such liquors and such property named have been seized for use as evidence.”
By Act of March 28, 1917, it is declared that:
“It shall be unlawful for any corporation, firm, person, or individual to receive from any common carrier, corporation, firm, person or individual or to have, control, or possess, in this State, any of said enumerated liquors or beverages whether intended for personal use or otherwise, save as is hereinafter excepted.”
Three grounds are urged for reversal. First, the 1917 law under which liquor lawfully acquired can be seized and destroyed is an ex post facto law. Second, the law in punishing the owner for possessing liquor he had lawfully acquired before its enactment, deprives him of his property without due process. Third, it violates the due process requirement by the seizure and destruction of the liquor without giving the possessor his day in court.
First. This law is not an ex post facto law. It does not provide a punishment for a past offense. It does not fix a penalty for the owner for having become possessed of the liquor. The penalty it imposes is for continuing to possess the liquor after the enactment of the law. It is quite the same question as that presented in Chicago & Alton R. R. Co. v. Tranbarger, 238 U. S. 67. There a Missouri statute required railroads to construct water-outlets across their rights of way. The railroad company had constructed a solid embankment twelve years before the passage of the Act. The railroad was penalized for non-compliance with the statute. This Court said:
“The argument that in respect of its penalty feature the statute is invalid as an ex post facto law is sufficiently answered by pointing out that plaintiff in error is subjected to a penalty not because of the manner in which it originally constructed its railroad embankment, nor for anything else done or omitted before the passage of the act in 1907, but because after that time it maintained the embankment in a manner prohibited by that act,”
In Crane v. Campbell, 245 U. S. 304, Crane was arrested for having in his possession a bottle of whiskey for his own use, and not for the purpose of giving away or selling the same to any person. This was under a provision of the statute of Idaho that it should be unlawful for any person to import, ship, sell, transport, deliver, receive or have in his possession any intoxicating liquors. It was held that the law was within the police power of the State. The Court said:
“It must now be regarded as settled that, on account of their well-known noxious qualities and the extraordinary evils shown by experience commonly to be consequent upon their use, a State has power absolutely to prohibit manufacture, gift, purchase, sale, or transportation of intoxicating liquors, within its borders without violating the guarantees of the Fourteenth Amendment.” Citing Bartemeyer v. Iowa, 18 Wall. 129; Beer Company v. Massachusetts, 97 U. S. 25, 33; Mugler v. Kansas, 123 U. S. 623, 662; Crowley v. Christensen, 137 U. S. 86, 91; Purity Extract Co. v. Lynch, 226 U. S. 192, 201; Clark Distilling Co. v. Western Maryland Ry. Co., 242 U. S. 311, 330, 331.
The Court pointed out that as the State had the power to prohibit, it might adopt such measures as were reasonably appropriate or needful to render exercise of that power effective; and that considering the notorious difficulties always attendant upon efforts to suppress traffic in liquors, the Court was unable to say that the challenged inhibition of their possession was arbitrary and unreasonable or without proper relation to the legitimate legislative purpose, that the right to hold intoxicating liquor for personal use was not one of those fundamental privi-
In Barbour v. Georgia, 249 U. S. 454, it was held that the Georgia prohibitory law, approved November 18, 1915, but which did not become effective until May 1, 1916, was not invalid under the
These cases it is said do not apply, because the liquor here was lawfully acquired by Samuels before the Act of 1917 making it unlawful for one to be possessed of liquor in his residence for use of his family and his guests.
In Mugler v. Kansas, 123 U. S. 623, it appeared that the breweries, the use of which as such was enjoined as a nuisance, and the beer, the sale of which was also enjoined, were owned by Mugler before the Prohibition Act, making both unlawful. In answering the argument that, even if the State might prohibit the use and sale, compensation should be made for them before putting it into effect, to accord with the
“As already stated, the present case must be governed by principles that do not involve the power of eminent domain, in the exercise of which property may not be taken for public use without compensation. A prohibition simply upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not
disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by the State that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the Fourteenth Amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulation, to deprive the owner of his liberty, and property, without due process of law. The power which the States have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not—and, consistently with the existence and safety of organized society, can not be—burdened with the condition that the State must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner. “It is true, that, when the defendants in these cases purchased or erected their breweries, the laws of the State did not forbid the manufacture of intoxicating liquors. But the State did not thereby give any assurance, or come under an obligation, that its legislation upon that subject would remain unchanged. Indeed, as was said in Stone v. Mississippi, above cited, the supervision of the public health and the public morals is a governmental power, ‘continuing in its nature,’ and ‘to be dealt with as the
special exigencies of the moment may require‘; and that, ‘for this purpose, the largest legislative discretion is allowed, and the discretion can not be parted with any more than the power itself.‘”
In view of this language and the agreed statement of facts, the decision necessarily was that the sale of beer made and owned before the prohibition law could be punished by that law as a nuisance and that no compensation was necessary, if the legislature deemed this to be necessary for the health and morals of the community.
It is true that a remark in the opinion in Eberle v. Michigan, 232 U. S. 700, 706, refers to the question as still an open one, and the same reference is made in Barbour v. Georgia, 249 U. S. 454, 459. In Hamilton v. Kentucky Distilleries Company, 251 U. S. 146, 157, there is a similar reference, though with a suggestive citation to Mugler v. Kansas. And in Jacob Ruppert v. Caffey, 251 U. S. 264, after calling attention to this reservation, this Court said:
“It should, however, be noted that, among the judgments affirmed in the Mugler Case, was one for violation of the act by selling beer acquired before its enactment (see pp. 625, 627); and that it was assumed without discussion that the same rule applied to the brewery and its product (see p. 669).”
But it was not found necessary to consider the question in the Jacob Ruppert Case, because there was no appropriation of property but merely a lessening of value due to permissible restriction imposed upon its use.
The ultimate legislative object of prohibition is to prevent the drinking of intoxicating liquor by any one because of the demoralizing effect of drunkenness upon society. The state has the power to subject those members of society who might indulge in the use of such liquor without injury to themselves to a deprivation of access to liquor in order to remove temptation from those whom
Finally, it is said that the petitioner here has no day in court provided by the law, and therefore that in this respect the liquors have been taken from him without due process. The Supreme Court of Georgia has held in Delaney v. Plunkett, 146 Ga. 547, 565, that, under the 20th Section of the Act of November 17, 1915 (Georgia Laws, Extra. Session 1915, p. 77,) quoted above, which declares that no property rights of any kind shall exist in prohibited liquors and beverages, no hearing need be given the possessor of unlawfully held liquors, but that they may be destroyed by order of the court. In the Plunkett Case the seizure was of liquor held in excess of an amount permitted by the law of 1915. By the amendment of 1917, as already pointed out, possession even for home use is now forbidden. As in the Plunkett Case, the petitioner does not deny that the liquor seized was within the condemnation of the law and that he has no defense to his possession of it except as he asserts a property right protected by the
The averment in the petition was that the sheriff intended to destroy the liquor. There is no averment in the petition that he did not intend to do this by order of Court upon his application. We must take it for granted on the demurrer, therefore, as against the pleader that the sheriff did not intend to depart from Section 20 of the Act of 1915, and that the question made here is on the validity of that section.
Judgment affirmed.
MR. JUSTICE BUTLER, dissenting.
I cannot agree with the opinion of the Court in this case. Plaintiff in error is a man of temperate habits, long accustomed to use alcoholic liquor as a beverage. He never sold or in any way illegally dealt with intoxicating liquors and has never been accused of so doing. His supply was lawfully acquired years before the passage of the
Plaintiff in error insists that the seizure deprived him of his property in violation of the due process clause of the
The seizure and destruction cannot be sustained on the ground that the act in question destroyed the value of the liquor. The question of compensation is not involved. That alcoholic liquors are capable of valuable uses is recognized by the whole mass of state and national regulatory and prohibitory laws, as well as by the state legislation in question. The liquors seized were valuable for such private use as was intended by plaintiff in error. The insistence is that the State is without power to seize and destroy a private supply of intoxicating liquor lawfully acquired before the prohibitory legislation and kept in one‘s house for his own use. Such seizure and destruction can be supported only on the ground that the private possession and use would injure the public. See Mugler v. Kansas, 123 U. S. 623, 663; Gardner v. Michigan, 199 U. S. 325, 333.
The enactment does not directly forbid the drinking of intoxicating liquors. The State Supreme Court has not construed it to prevent such private use of intoxicants.
Any suggestion that the destruction of such private supply lawfully acquired and held for the use of the owner in his own home is necessary for or has any relation to the suppression of sales or to the regulation of the liquor traffic or to the protection of the public from injury would be fanciful and without foundation. The facts in the case do not permit the application of the doctrine applied in Purity Extract Co. v. Lynch, 226 U. S. 192, 204.
To me it seems very plain that, as applied, the law is oppressive and arbitrary, and that the seizure deprived plaintiff in error of his property in violation of the due process clause of the