*1 June Decided July George Weaver, Weaver, Weaver & W. Attorney, Fuller, Brownell, Jr.,

C. Andrew District William M. Attorney, Attorney General, Michael Assistant District J. Attorney Peggy Boleyn, General, Katz, Susan V. Senior R. Attorney, Staff

S93A0395.SWAILS STATE OF GEORGIA. Justice. Carley, 16-13-49, Pursuant to OCGA the State filed property appellant’s place Appel- feiture of lant seized of business. seeking property. Although answered, the return of the (p) proceeding § 16-13-49 that the “must be jury[,]” appellant held the court without a nevertheless de- constitutionality mand for trial and attacked the of those statu- tory provisions. hearing, Following a the trial court found no merit appellant’s dating challenge statutory provisions constitutional man- certify did, however, trial. bench The trial court its order for Appellant applied interlocutory appeal immediate review. we granted application determine whether a trial must be afforded demand in under OCGA 16- 13-49. involving This is a case construction of a forfeiture statute whether is a bench trial ór trial that is fails mandated. pressly Subsections of OCGA 16-13-49 ex-

mandate that the “must be held the court with- jury.” Accordingly, presented out a the issue for resolution is whether express the Federal or State Constitutions having debilitating mandate from force and effect. ‘Absent Act, flaw in this effectuate the common expressed purpose legislation.’ Bryan will in the v. Ga. Comm., Public Service 2. The Seventh Amendment to the Federal Constitution . . . common of trial shall be preserved. ...” phrase law,” clause, “common found used equity, admiralty, ju- and maritime risprudence. By law, [the Framers of the merely Amendment] meant. . not which the common among proceedings, its old and settled law to be ascertained and deter- legal rights were those, rights mined, equitable contradistinction recognized, adminis- alone were where, public law, tered; mixture of equity, was often found the same and of maritime *2 sense, may then well be just the amendment suit. equity all not to embrace construed admiralty jurisdiction, peculiar form may be the whatever rights. they may legal to settle assume Robeson, Bedford, v. Breedlove & supplied.) Parsons (Emphasis (1830). 433, 446-447 Pet. construction, must whereby a suit be deemed

Under this broad equity if it is in “common is otherwise be one which law” necessarily Amendment follows that the Seventh trial forfeiture jury Federal Constitution mandates a federal admiralty jurisdiction otherwise equity neither nor actions wherein v. One 1976 attaches. See 1980). (7th narrowly Amendment does not F2d 453 Cir. The Seventh is in a cause of action created jury required “that no trial such have been unknown to com- statute since action would Amend- beyond therefore the reach the Seventh mon law and ment.” Rogers Loether, v. F2d 1110, ^[4] In- stead, broadly enforcing applies “to actions the Seventh Amendment demand, if the statute statutory rights, requires remedies, rights enforceable an action dam- legal creates Loether, 189, of law.” Curtis S. ordinary 415 U. ages courts (1974). broadly construed SC 39 LE2d Under Amendment, language of Seventh statutory rights Congress provides

when for enforcement courts, where there ordinary civil action the district obviously justification is no functional if must action involves right, be available typically in an ac- rights and of the sort enforced tion at law. Loether,

Curtis v. clear, however, to the Federal It that the Seventh Amendment would not our General Van Oster Kansas, (1926). 71 LE That 272 U. S. SC Butler v. courts. apply State amendment “does Claxton, Our does not track language State Constitution the broad preserving

the Seventh Amendment Federal Constitution Instead, law. . ..” shall remain “[t]he Accordingly, purposes inviolate....” whether there action, given is a state to a trial in it is not admiralty jurisdiction sufficient eliminate and reach the must, therefore, conclusion that the action be a suit “at common law” which a trial is mandated. trial under our State Constitution is not as broad as that afforded under the Federal provision of Constitution. The our State regarding away, means that it shall not be taken as it existed in adopted, when instrument was there [first] erected, be a jury in all cases. New forums be provided, new remedies shifting accommodated to the ever society. state

(Emphasis supplied part.) Foster, Flint River Steamboat Co. v. See also Hill *3 110) (1989). Obviously, SE2d right the to in drug proceedings feiture did exist 1798. This is true because the authorizing drug statute remedy” forfeiture is a “new which did not law, exist at subsequent but which was enacted 1798 to so as to “shifting accommodate the society.” generally state of See Bowman Davis, (3) (1935) 51 479 SE (recognizing that the former statute private condemnation of vehi- transportation cles used liquors the of intoxicating the high- over ways derogation .”) “in was . common law. . is no “[T]here right state constitutional a respect to to of statutory origin unknown Georgia at the the time Constitution was adopted. (Emphasis supplied.) Co., Benton v. Ga. Marble (4) (365 SE2d provisions Since the of OCGA 16-13-49 a statutory proceeding create in 1798, which was unknown it follows that the Assembly General was authorized to for a that the trial court in the instant correctly case appellant’s overruled challenge to the constitutionality of OCGA 16-13-49 Judgment concur, the All Justices except Benham, affirmed. Hunstein, JJ.,

Sears-Collins and who dissent. Justice, dissenting.

Hunstein, Because majority opinion denies the right guar- a by anteed Georgia of Constitution of of 1983,1 majority dissent. The concludes General respectfully a was for trial without authorized did because 16-13-49 adoption Georgia Believing of the first Constitution. prior statutory proceedings of a similar right includes a Constitution, adoption of since the our nature that have arisen reverse the trial court. would notes, is well civil actions majority

As established law, only existed by jury “the to trial exists The Georgia 1798], adoption of the first [in [Cits.] 9-11-38 that this Georgia and OCGA assure Hill v. SE2d shall remain inviolate.” 110) (1989). short, in proceedings that have trials available is in cases where common law basis. This constitutional, statutory; of is not ‘right a trial ” (Cits.)’ . . constitutional. legislative restriction thereof would be (III) (195 Overstreet, Williams Georgia appellate predate no the 1798 Constitu- Although decisions tion, English practice prior of an exhaustive review American Appeals the Seventh Circuit Court was undertaken 1976 Mercedes Benz 618 F2d 453 One inescapable it reached was that trials conclusion “at common law as the established rem actions were on land for propriety mode forfeitures Thus, contrary statutory prohibitions.” Id. breach remedy result, specific we should examine whether the majority nature of the action existed existed at common but whether the time. at that party Georgia no have addressed whether authorities pro- in a civil condemnation

has a constitutional rem, jurisdictions ceeding majority it has been held exists which have addressed this issue that See, e.g., Commonwealth similar forfeiture (Pa. 1992); v. 1985 Coupe, Medlock 1984 Z-28 Camaro 610 A2d (SC 1992); Up, Abrams v. One 1987 Ford F-150 Pick Corvette, (1990); 555 NYS2d 503 *4 Forfeiture (Fla. 1986); Van, Chevrolet Commonwealth S2d 433 (Mass. 1982); Vergari Matter Van, 431 NE2d 209 (NY 1970). Marcus, 257 But cf. NE2d 652 Forfeiture (forfeiture (XII) (Mich. 1992) $1,159,420, App. 486 NW2d exists); State nature, thus no action is (N.C. Morris, App. 405 SE2d 351 contention, question of Contrary this is not a majority’s question is a the breadth of the State Constitution. Rather parallel proceedings known drawn between they today. of choice times, vary with no common sense distinction exists between the underlying nature of forfeitures before 1798 and the proceedings under OCGA 16-13-49. This conclusion is consistent treatment forfeiture in Georgia pursuant which trial jury was is required. (f) See OCGA 16-12-32 devices) in (gambling which proceedings in superior court “shall proceed as other civil court”; cases said former Ga. Code Ann. (alcoholic beverages) provided (Ga. repeal to its L. pp. that where a defense to the forfeiture of a convey vehicle used to alcohol superior county, was raised city court proceed “the case shall as other civil court”; cases said see State, also Grant v. (jury trial had in vehicle condemnation proceeding).

I would therefore conclude (o) (5), that OCGA 16-13-49 provides for a trial jury, without a violates trial. I recognize approach would add to the caseload of our state However, system. with United States v. One 1976 agree event, that “in any mere inconve- nience would be insufficient reason a traditional and sub- stantial right. [Cits.]”

I am authorized to state that Justice Benham and Justice Sears- join Collins in this dissent. Decided June July 15, Virgil L. Associates, Brown & Virgil Brown, L. Patricia A. But-

taro, Keller,

Robert E. District Attorney, Tracy Gladden, G. District Attorney, Michael J. Attorney General, Gary D. Bergman,

S93A0512. MURPHY v. MURPHY.

Clarke, Chief Justice. parties married In May appellant wife “petition separate maintenance,” Superior DeKalb Court. This styled action was No. petition 8-6235-8. her appellant sought custody parties’ children as well as child support. Para- graph 8 of states that “there is no pending action for divorce between parties in this parties state.” The entered into a