205 P. 241 | Mont. | 1922
prepared the opinion for the court.
This appeal is from a judgment of the district court of Missoula county, adjudging a certain automobile forfeited and ordering it sold, under the provisions of Chapter 143 of
On May 14, 1919, T. J. Green, sheriff of Missoula county, made and filed in the district court of his county a verified “complaint for a search-warrant,” praying for process authorizing him to search two certain automobiles. The judge thereupon issued a warrant as prayed for, directing the search and seizure of said automobiles. It was delivered to the'complainant sheriff for execution, and that he executed it is manifest by his return thereon, made the next day, which return, so far as it affects this appeal, is as follows: “I, J. T. Green, sheriff of Missoula county, state of Montana, do hereby certify that by virtue of the within and foregoing warrant on the 15th day of August, 1919, I thoroughly searched the automobiles described in said warrant. And I further certify that on said 15th day of August, 1919, I seized and took into my possession by virtue of said warrant the said above-described automobiles, to-wit, one Hudson seven-passenger Super-Six, 1919 model, car No. 5829, engine No. 69163, # * # and that I now hold the same in my possession thereunder, subject to the further order of the court. And I further certify that on said 15th day of August, 1919, when I searched said automobiles and seized the same, they were in my possession, being held as evidence in the ease of the State of Montana v. Roy Bird et al., *' * * having been turned over to me as sheriff of Missoula county by the sheriff of Sanders county, Montana.”
Subsequent to the return of the warrant, an order was made fixing a day for hearing the same and to determine whether said automobile should be forfeited according to law. This order provided that any person claiming an interest in either or both of said automobiles might then appear and show cause why the' same should not be forfeited. In obedience thereto the John Doran Company, appellant here, filed its verified claim alleging its corporate existence, its principal place of business at Spokane, Washington, and the ownership of one
The hearing of the return on the search-warrant and of the claim of appellant was held by the court as provided by law (section 8, Chap. 143, Laws 1917), and thereafter the court made its order directing that said automobile be forfeited and sold, for the reason that it was “kept and possessed by the defendants for the -purpose of unlawfully disposing of intoxicating liquors, and that said automobile was actually used by the defendants in that connection.”
Two important questions are here involved: Does the law
The authority to forfeit appellant’s property, if it exists, is conferred by Chapter 143 of the Laws of 1917, and section 8 thereof provides: “Upon the return of the warrant * * the judge shall fix a time * * * for the hearing of said return. * * * At such hearing any person claiming any interest in any of the implements, furniture, fixtures or other articles seized, may appear and be heard upon filing a verified claim setting forth particularly the character and extent of his interest, but upon each hearing the sworn complaint or affidavit upon which the search-warrant was issued and the possession of such intoxicating liquor shall be prima facie evidence of the contraband character of the liquor and implements, furniture, fixtures and other articles seized, and the burden shall rest upon the claimant to show by competent evidence, his property right or interest therein and that the same were not used in violation of, and were not in any manner kept or possessed with the intention of violating any of the provisions of the laws of this state relating to intoxicating liquors. If, upon such hearing, the evidence warrants, or if no person shall appear as claimant, the court shall thereupon enter a judgment of forfeiture,” etc.
Forfeitures are not favored in law, and statutes must not be construed to forfeit owners’ property, unless from the statute itself, in the light of the object and existing conditions, it is manifest that the legislature so intended, and certainly-we must approach forfeitures with caution when we have to deal with property of innocent persons. (Farmers’ & M. Nat. Bk. v. Bearing, 91 U. S. 29, 23 L. Ed. 196 [see, also, Rose’s U. S. Notes]; Skinner v. Thomas, 171 N. C. 98, L. R. A. 1916E, 338, 87 S. E. 976; State v. Jones-Hansen Cadillac Co., 103 Neb. 353, 172 N. W. 36.) By the statute
The federal decisions afford'no guide nor rule of construc
In considering the question of jurisdiction, we find that the
Applying the language of section 7 to the facts here, there is nothing in the record to show any jurisdiction over the ear. The attempt at jurisdiction rests in the complaint for a search-
Our attention is next directed to the sufficiency of the complaint. • It alleges that the complainant has probable cause to believe and does believe that on the thirty-first day of July, 1919, intoxicating liquors were kept and possessed by the defendants in two certain automobiles, particularly describing them, one of which is the subject of this appeal, and that said liquors were then and there intended by the defendants to be sold, exchanged, given away, bartered, or otherwise disposed of in violation of law. Suffice to say, on that subject, that this court on May 6, 1921, in an opinion by Chief Justice Brantly, passed upon every phase of a complaint like the one in the case at bar, and held it insufficient. It would be a useless waste of time and words to try to elaborate on that opinion. Content the commission is to cite it. (State ex rel. Samlin v. District Court, 59 Mont. 600, 198 Pac. 362.)
We recommend that the judgment appealed from be reversed, and that the district court order the delivery of the automobile to appellant.
Per Curiam : For the reasons given in the foregoing opinion, the judgment appealed from is reversed, and the district court is ordered to direct the delivery of the automobile to the appellant.
Reversed.