State v. Jones-Hansen Cadillac Co. , 103 Neb. 353 ( 1919 )

Sedgwick, J.

The defendant company, a dealer in automobiles, sold an automobile to one Ford for $3,350. Ford paid $1,000 of this purchase price in cash, and gave the defendant a chattel mortgage on the automobile for the remaining $2,350, payable $250 per month. Soon afterwards Ford delivered the car to one Finsod, who used it in illegally transporting intoxicating liquors into this state. Within about two weeks after the automobile was sold by the defendant to Ford, Finsod was arrested for a violation of the prohibition laws, and the automobile was seized. Finsod pleaded guilty, and was fined by the county court of Cass county, and an order entered that the automobile “be sold at public sale on ten days’ notice and the proceeds thereof paid into the school fund, as provided by law.” The defendant had no notice that Ford intended to use or allow the automobile to be used unlawfully, or that it was being so used by Finsod, and claimed an interest in the automobile by virtue of the chattel mortgage. This action was then begun in the district court for Cass county by the county attorney in the name of the state, alleging that “said motor vehicle became a common nuisance when it was used for transportating (transporting) intoxicating liquor as above set forth and immediately became the absolute property of the plaintiff free and clear of all incumbrances of every nature and kind,” and asking that “defendant’s lien be canceled, and that plaintiff’s title to said motor vehicle be quieted against the claim of the defendant, and for such other relief as to the court may seem proper.” The defendant answered, alleging the lien, and that the mortgage was taken in good faith, and asked that “the court find that said notes and mortgages above stated constitute and are a first lien upon said property, and order and direct the plaintiff above named to sell the said car subject to the lien of this defendant.” The court found in favor of the plaintiff, canceled the defendant’s mortgage, and decreed that the automobile be sold and the proceeds paid over to the school fund of the county, and the defendant has appealed.

After the adoption of the prohibitory amendment of the Constitution, the legislature enacted a comprehensive statute of 60 sections (Laws 1917, ch. 187), the purpose of which is to prevent the manufacture and sale of intoxicating liquors in this state, and to discourage, and as far as practicable prevent, the use of intoxicating liquors as a beverage, or for any purpose other than those specifically named in the statute, and to that end to prevent the unlawful importation of intoxicating liquors into this state.

The able and exhaustive briefs of counsel, which have been of great assistance to the court, are principally devoted to a discussion of the intention of the legislature and the meaning of the statute as to the question herein involved.

The purpose of this important statute is not only to prevent intoxication, but also to do away with the manufacture and sale of liquors for beverage purposes, and to discourage, and, as far as practicable, to prevent its use for any other purposes than those expressly permitted by the statute. Such legislation must be liberally construed in furtherance of the high moral purposes aimed at. Indeed, the statute so expressly provides: “The legislature hereby declares this act to be for the immediate preservation of the .public peace, health and safety, and all its provisions shall be liberally construed for that purpose.” Section 58..

But, in ascertaining the legislative will, it must be borne in mind that forfeitures are not favored in the law, and even this statute must not be construed to. forfeit the property of innocent citizens, unless, from the statute itself in the light of its object and existing conditions, it is manifest that the legislature considered such forfeiture necessary for the “preservation of the public peace, health and safety.”

The • statute deals with three different phases of the evil aimed at: First, the buildings or places where liquors are kept for sale or for some unlawful purpose; second, the liquors themselves, “together with -the vessels containing it and any other personal property actually and directly used in connection therewith” (section 41); and, third, “the unlawful transportation of intoxicating liquors” (section 42). Sections 28-40 relate to “buildings, tenements, or places where intoxicating liquors are manufactured, sold, stored, kept for sale, or barter, or given away in violation of law, or where persons resort for purposes of drinking intoxicating liquor as a beverage, and all such intoxicating liquors, bottles, lockers, glasses, jugs, kegs, pumps, bars, containers, fixtures and other property used in maintaining such place, contrary to law or in violating any provisions of this act.” These are “declaréd to be common nuisances, and may be penalized, abated, and .enjoined as hereinafter provided.” Section 28.

Section 41 considers the liquors themselves, and provides for a search of suspicious places under a warrant, issued upon complaint of an officer or “credible resident freeholder;” and, if intoxicating liquor is found, it is to be seized, “together with the vessels containing it and any other personal property actually and directly used in connection therewith.” If a person is found in possession of the liquors, “final judgment of conviction in such proceedings shall be in all cases a bar to any suits for the recovery of the same, or other personal property actually and directly used in connection therewith, or the value of the same, or for damages alleged to arise by reason of the seizing and destruction 'thereof, and, on conviction, judgment shall be entered directing that containers or other receptacles hereinbefore mentioned, and other personal property actually and directly used in connection with the said violation, shall be ordered sold by the court at public sale on ten days’ notice and the proceeds.paid into the school fund as in case of fines and forfeitures.”

The first part of section 42 continues the same subject, and provides that, if no one is found in possession, the officer “shall post in a conspicuous place on the building or premises a copy of his warrant, and take possession of the liquors and the containers or vessels containing the same, and other personal property used in connection therewith.” If no one appears at the hearing, or if any one appears and is found guilty, the “liquors, containers and vessels mentioned herein-before shall be immediately destroyed.”

The remainder of section 42 deals with transportation of liquors: “Any car, automobile, vehicle or means of transportation which shall be engaged in, or used for, the unlawful transportation of intoxicating liquors is hereby declared a common nuisance and may be abated as in this act provided. Any peace officer having probable cause to believe that such vehicle is being used for the unlawful transportation of intoxicating liquors, shall make search thereof with or without a warrant, and in every case where a search is made without a warrant the officer shall take the vehicle and the persons in charge thereof into custody and forthwith shall file a complaint and a warrant shall issue and the case thereafter shall proceed in all respects as is provided in this and the preceding sections.”

The procedure in “this and the preceding sections” is.not in all respects the'same, and this presents one of the difficulties in ascertaining the meaning of the legislature.

The provision in regard to unlawful transportation of liquors is very brief. The intention of the legislature as to the liability to forfeiture, and manner of enforcing that liability, must be derived from its reference to “preceding sections.”

The fact that the provision as to the seizure of liquors and any other personal property actually and directly used in connection therewith and the provision as to transportation of liquors are found in the same section is an indication that the procedure is to be the same in both. But the force of this suggestion is weakened by the fact that there are inconsistent provisions for- the disposition of the articles seized in connection with the liquors kept unlawfully where no nuisance is declared. In one place they are required to be sold and the proceeds paid into the school fund, and in another place the provision is that such articles shall be “immediately destroyed.”

An automobile used in the unlawful transportation of liquors is declared to be “a common nuisance and may be abated as in this act provided.” That part of the act that provides specifically how a nuisance is to be abated is section 28 and the following sections relating to the buildings or places where liquors are kept for sale or for some unlawful purpose, etc. Section 29 provides: “Whenever a nuisance is kept, maintained or exists, as defined in this act,” proceedings shall be begun in equity, as was done in this case. And section 32 provides how a miisance shall be abated: “If the existence of a' nuisance be established in an action as provided in this act, or in a criminal proceeding, an order of abatement shall be entered as a part of the judgment in the case, * * * and shall direct that all intoxicating liquors and the receptacles in which said liquors are kept with unlawful intent shall be seized and held subject to the order of the court. * * *' For removing and selling movable property, the officer shall be entitled to charge and receive the same fees as he would for levying upon and selling property on execution.” The next section (section 33) provides: “The proceeds of the sale of the personal property, as provided in the preceding section, shall he applied in payment of the costs of the action and abatement, and the balance, if any, shall be paid to the defendant.”

These provisions for disposing of personal property found in buildings which are condemned because intoxicating liquors are unlawfully sold or disposed of therein, and the provisions in regard to the unlawful transportation of such liquors, are the only provisions declaring a nuisance and providing how it shall be abated. The bars, counters, furniture and like property are apparently considered of too much importance and value'to be forfeited to the state, as are the “containers or vessels containing the same, and other personal property used in connection” with the liquors unlawfully kept, when the building and more valuable articles are not condemned. That is, if no unlawful trade or business is carried on in the place where the liquors are kept, the containers and other articles in which the liquors are stored are of comparatively little value, and are at once forfeited; but in running a secret saloon, or trade in liquors, the building and furniture, being of more consequence, are declared to be a nuisance, and the abatement is more formal and the values differently disposed of. An automobile or car may (as in this case) be of more value than some buildings so used, and it is not unreasonable to treat such property accordingly. In such case, the owner, which would include a mortgagee, is not to have his property rights affected by the proceedings, except as stated in connection with the abatement of a nuisance under the act. “If the owner appears and pays all costs of the proceedings and files a bond with sureties to be approved by the clerk of the district court in an amount to be ascertained by the court, or, in vacation by the judge or clerk' of the court, conditioned that he will immediately abate said nuisance,” it may release the building, if a building is involved in the proceedings, but “the release of the property under the provisions of this section shall not release.it from any judgment, lien, penalty or liability to which it may be subject by law.” Section 34. When a nuisance is abated under the act, the penalty or liability to which personal property is subject is plainly specified in sections 32 and 33.

The statute provides for making chattel mortgages a matter of public record, and contemplates that, when properly executed and filed for record, subsequent interests acquired therein shall be subject to the mortgagee’s lien. If the forfeiture of the property extends under all circumstances to the mortgagee’s title, \hen this statute is so far a modification of the chattel mortgage statute. If it was intended to forfeit the interest of an innocent mortgagee, instead of declaring the automobile a nuisance and subjecting it only to the cost of abatement, as in other cases of property of such value, it seems probable that the chattel mortgage statute would have been mentioned and some further pro,vision made with reference thereto. Some provision might have been inserted requiring the mortgagee to take certain specified precautions against the use of the property in violation of the act, or providing a severe penalty for using mortgaged property for such purposes without the knowledge of the mortgagee, or some similar additional provision.

Construing the statute as a whole, we cannot find that the legislature considered that it was necessary to forfeit the property of an innocent party, in the amount of $2,350, for the “preservation of the public peace, health and safety.”

The judgment of the district court is reversed and the cause remánded for further proceedings.

Reversed.

Morrissey, C. J., and Letton,'J., not sitting.