Monty v. Arneson , 25 Iowa 383 ( 1868 )

Beck, J.

i. intoxicarepTevSof”' The only point in this case necessary to be determined, is the one arising upon the construction of section 1571 of the Revision, or rather a 'clause of that section, which is in the following words : “ Nor shall any action be maintained for the recovery or possession of any intoxicating liquors, or the value thereof, except in cases where persons owning or possessing such liquor, with lawful intent, may have been illegally deprived of the same.” The defendant contends, that, inasmuch as the liquor was kept by plaintiff with the intent of selling the same in violation of law, yet, although his title thereto was perfect and without fraud, he cannot support an action to recover it against the sheriff who took and holds it wrongfully.

In other words, the plaintiff has no right in the liquor that the law will recognize and enforce. The language of the statute just quoted, considered without reference to principles of interpretation, would seem to warrant this view.

The object of the act, of which the section above referred to is a part, is to suppress the manufacture, use of, and traffic in, intoxicating liquor, except for mechanical, medicinal, sacramental and culinary purposes.

The traffic in such liquor, as an article of beverage, is prohibited; but for other purposes it is recognized as an article of commerce, as other property, though its sale in small quantities is guarded with certain very stringent restrictions. In addition to making such traffic penal, the statute, in order more completely to suppress its use directs the seizure and destruction of liquor, upon legal process, when kept for sale contrary to law. And, in order the more effectually to accomplish the object of the act,- the section above referred to takes away all remedies upon contracts made' for its sale, prevents recovery for money and property paid therefor, and, in a word, renders null and void all such contracts, and provides that they shall in no manner be recognized in the courts of the State.

The obvious reason of these stringent provisions is the great difficulty of suppressing the baneful use of intoxicating liquor as a- beverage, which all experience has demonstrated to be a sure poison of the body, mind and soul of man. The appetite of its victims and the love of gain of the vendors of this poison, rivaling each other in insatiate thirst, successfully unite to evade and hrealc down the usual barriers provided by the law, to protect the morals, health and lives of the people.

Hence the act withdraws from it the protection usually extended to property, and declares commerce in it unlawful.

But the act must not receive a construction that will render its provisions absurd in effect, or cause it to work manifest injustice and absolute dishonesty and crime. However commendable the object of the act may be, and however desirable it is that it be construed to the end that its object may be attained, yet we can give it no in-, terpretation whereby we recognize the jesuitical principle,. “ evil may be done that good may come,” or stimulate its. execution by a premium upon motives as base and unworthy as those which prompt its violation. Yet such would in fact be the effect of the construction we are asked to give the law. We are asked to hold that an officer under an execution may enter a dram shop, seize the liquor and vessels containing it, which he may find there, as the property of the defendant in execution, though there is no pretense that he owns them.

If the property is replevied, judgment is taken against the owner of the liquor for the amount of the execution, and costs, of which, in truth, he does not owe one cent'

We cannot believe that a legislature in this enlightened age and Christian land ever intended any such result to-come of the enactment.

But, it is urged, the intoxicating liquor, being held with intent to violate the law, is not property. If that be so, w'hat light had the sheriff to seize it on the execution, or the court to render a judgment for its value ?

These very acts recognize the fact that it is property, for, if it were not, the sheriff could not take it, and the court could not assess its value, and render judgment therefor. But this court has held, that it is property, and .an indictment will lie for larceny in feloniously taking it. State v. May, 20 Iowa, 308.

If it is property, on what principle can it be made liable to pay the debts of one not its owner? If one who feloniously takes it is guilty of larceny, ought not one who takes it as a trespasser be liable for such trespass ? If not, all the thief must do, in order to escape the penitentiary for taking such property of another, will-be to change his tactics, and, instead of going in the night and breaking doors and windows, to make his. visit boldly in the day-time, and, with force, if necessary, carry away the property. No action can be brought against him for the trespass, and, if the fruits of his crime are taken from him on a writ of replevin, he will recover the value thereof in a judgment against his victim.

The doctrine contended for is most absurd and wicked in its result, and thus refutes itself. There might be some plausibility in the theory, that, inasmuch as the law seems to- withdraw all protection from the owner of this kind of property, therefore, to accomplish its object and carry out its spirit, all men may have a right to destroy intoxicating liquor wherever it may be found as a public nuisance, and that such is the officer’s duty when seizing it upon a writ; this view would have, at least, the merit of greater consistency. But when we, in a breath, declare, that it is not property, and entitled to none of the protections of property, yet maybe levied upon by an officer of the law, and replevied as other property, all to result in a judgment against its owner for the debt of another man, it amounts not only to inconsistency, but reaches the climax of absurdity.

On the other hand, should it be admitted that intoxicating liquor is tlie subject of property, but regarded by the law as of such destructive character to the lives, health and happiness of the people, that all protection is withdrawn from its owner when held for an unlawful purpose, and that it is contraband of society, to be seized as such by any citizen or officer, yet, on what principle can the one seizing it convert it into money, and appropriate the proceeds to himself or the use of another ? Surely this would be quite as reasonable and less objectionable in principle than the recovery of its value, as in the case before us, by judgment against the owner.

We do not understand that the points made by the appellee are sustained by the cases adjudged in this court arising under the act for the suppression of intemperance. Nor do we find it necessary to doubt any doctrine con tained in them. We are certainly not inclined by construction to take from the provisions of that act aught that will diminish its efficiency in suppressing the terrible social evils of intemperance, and in staying the flood of wretchedness which continually flows therefrom over the land. The law, if faithfully enforced, will heal all these woes and dry up .this bitter stream. To-the people, who choose the ministers of the law and the guardians of their rights and safety, is committed the duty to see that it be faithfully executed. While approving the spirit of the act, and sincerely hoping the approach of the day when its philanthropic object — the perfect suppression of in temperance — will be attained, we are unwilling to give it a construction which would make it the instrument of dishonesty and an object of odium.

Intoxicating liquor is the subject of property; the commerce in it as an article of beverage is unlawful, but its character as property is not thereby destroyed. State v. May, 20 Iowa, 305; Brown v. Perkins, 12 Gray, 89; Preston v. Drew, 33 Maine, 558. In Ingalls v. Baker, 13 Allen, 449, it is held that the owner of intoxicating liquor can maintain an action for its value against an officer seizing it upon an' execution as the property of another. The facts of this case are quite similar to the one before us. In Nichols v. Valentine, 36 Maine, 322, it is ruled that such liquor cannot be taken upon execution. These cases were decided under statutes containing provisions similar to our own.

The keeping of such liquor for an unlawful purpose is an offense punishable under the statute, which also subjects the liquor to destruction, and points out the manner of enforcing its stringent provisions. Let the law be faithfully enforced in the manner it directs; its object then will soon be accomplished, far sooner than by regarding intoxicating liquors free booty to all who have consciences that will allow them to collect the debts due them from the property of those who are not their debtors.

Reversed.