151 Ark. 29 | Ark. | 1921
' This is a proceeding instituted by the prosecuting attorney on behalf of the State to confiscate and condemn for sale an automobile used in unlawful transportation of intoxicating liquor. The case was heard by the circuit court on agreed statement of facts, in which it is shown that the machine in question was used by one Wilson to unlawfully transport 20 gallons of alcoholic liquor from one point to another in Pulaski County. It also appears from the agreed statement of facts that Wilson borrowed the car from E. A. Johnson, who held the same under a contract of purchase from the Harnp Williams Hardware Company, of Hot Springs, the seller reserving the title until the purchase price was paid. The Harnp Williams Hardware Company and Johnson intervened to resist the confiscation, and it was agreed that neither of them had any information that Wilson was using the car for an unlawful purpose. The circuit court refused to confiscate the machine, and the State has prosecuted an appeal to this court.
A statute enacted by the General Assembly of 1917 (act No. 13, Session of 1917) provided for forfeiture and confiscation of “any vessel, fixture, furniture, implements or vehicle” unlawfully used in the transportation of intoxicating liquor, but that statute was repealed by act No. 87 of the session of 1919 (Crawford & Moses’ Dig. sec. 6170), which omitted the words “implements or vehicles,” and substituted the words “valises or other containers.” It is conceded that in the later statute, supra, there is no provision regarding the instrumentalities used in the transportation of liquor other than those things expressly mentioned.. In other words, it is conceded that the vehicle by which liquor is unlawfully transported is not subject to confiscation under this statute. It is, however, contended on behalf of the State that there is a right of confiscation in the present instance under another statute which reads as follows:
“The conducting, maintaining, carrying on or engaging in the sale of intoxicating liquors in violation of the laws of this State, in any building, structure or place within this State, and all means, appliances, fixtures, appurtenances, materials and supplies used for the purpose of conducting, maintaining or carrying on such unlawful business or occupation, are hereby declared to be public nuisances, and may be abated under the provisions of this act.” (Crawford & Moses’ Digest, § 6196).
This contention cannot be sustained, for it is obvious that the statute just quoted applies to cases where the unlawful business of selling intoxicating liquors is carried on “in any building, structure or place.” There is nothing in the agreed statement of facts in this case to show that 'Wilson was operating the unlawful business at any particular place and was using this automobile in connection with that business. The facts, as set forth in the stipulation, relate only to a single instance of unlawful transportation of liquor.
Lastly, it is contended that at common law there was forfeiture and confiscation under facts similar to the present case, and that such provision has not been repealed by our statute. .
The rule is that a statute should not be held to be in derogation of the common law unless there is an irreconcilable repugnance, or unless the statute itself shows that such was the intention and object of the lawmakers. Wilks v. Slaughter, 49 Ark 235; Powell v. State, 133 Ark. 477. And where the Legislature, by statute, carves out of the common law an offense, making it a statutory offense, there is no implied repeal of the common law with respect to other offenses of the same general character. Powell v. State, supra. We have an instance now, however, where the Legislature has taken up the subject of punishment for unlawful manufacture, sale or transportation of intoxicating liquors, prescribed a procedure and. imposed such penalties as the lawmakers deemed adequate. There is in this statute a provision for forfeiture and confiscation of certain things, and all reference to vehicles used in transporting liquor is omitted. Where the Legislature adopts a common-law offense as a statutory one and prescribes a different penalty, it is necessarily in derogation of the common law and must be treated as a repeal, by necessary implication, of the common-law provision concerning the penalty. It is unnecessary to enter into any discussion as to the extent and limits of the common law in regard to confiscation of property used unlawfully, for we have reached the conclusion that our statute, so far as concerns the use of property in the unlawful manufacture, sale or transportation of intoxicating liquors, has repealed the common law.
Judgment affirmed.