In Re One Ford Automobile

Without a preliminary seizure, the state's solicitor filed the petition in this cause on behalf of the state seeking the condemnation of one Ford automobile, adequately described, on the ground that it had been used in the transportation of prohibited liquors, whereupon the court, without more, issued an order commanding the sheriff to take possession of the automobile. In the petition it was alleged that the automobile was in the possession of one Andy Allred; but no person was made party defendant. The petition was not supported by oath or affirmation. Appellant Allred intervened, claiming the automobile as his property, demurring to the petition, and then moving that the petition be dismissed and the property in question restored to him, on the grounds, to state them generally, that there had been no seizure prior to the filing of the petition, and that the writ of seizure, issued after the filing of the petition without probable cause supported by oath or affirmation, violated section 5 of the Constitution, providing, among other things, "that no warrants shall issue to search any place or seize any person or thing without probable cause, supported by oath or affirmation." This demurrer and motion were overruled by the trial court.

A similar constitutional question was raised in Maples v. State, 203 Ala. 153, 82 So. 183, and there the court, quoting the act in so far as it provides that the sheriff or arresting officer "who becomes cognizant of the facts or who finds liquor in such conveyance or vehicle being illegally transported as aforesaid" shall seize the vehicle, said: "Clearly, this is not a violation of such constitutional provision." But in that case the automobile, when seized, was being used for the transportation of prohibited liquors. No doubt, prohibited liquors, the receipt or possession of which in any quantity, with exceptions not material in this connection, is denounced as a misdemeanor, may be seized without a warrant, for such liquors are per se contraband. But whether property not per se contraband, and not found in such use as to make it contraband, may be seized without a warrant, or, if the order of the court in this cause may be deemed a warrant, whether such warrant may be issued by any court without probable cause, supported by oath or affirmation, are questions we need not decide, for the reason that this case may be determined on the other point.

Authority for the proceeding in this cause is found in the statute, the act "to further suppress the evils of intemperance," etc. (Acts 1919, p. 6 et seq.), which (section 13), after providing for seizure as quoted in Maples v. State, supra, proceeds:

"And such officer or person shall report the seizure and facts connected therewith to the solicitor or any prosecuting official in the county where seizure is made or in default thereof to the Attorney General of the state. And it shall be the duty of such officer in the county, or the Attorney General of the state to at once institute or cause to be instituted condemnation proceedings in the circuit court by the petition in equity in the name of the state against the property seized describing the same, or against the person or persons in possession of said vehicles of transportation, if known, to obtain a decree enforcing the forfeiture."

The proceeding under this statute is a proceeding in rem. Toole v. State, 170 Ala. 41, 54 So. 195; Dowda v. State,203 Ala. 441, 83 So. 324. As we have already noted, there is no personal defendant.

Conceding "the process in rem, when rightly conducted, to be a suitable and proper mode of enforcing obedience to a useful and salutary law, it does it by punishing the offender, who must be the owner, or some person intrusted with the possession by him, or some person for whose unlawful possession of it the owner is responsible; it does this by depriving such owner of his property, at the same time preventing the further noxious and unlawful use of it. Such being the character of the prosecution, in a high degree penal in its operation and consequences, it should be surrounded with all the safeguards necessary to the security of the innocent." Fisher v. McGirr, 1 Gray (Mass.) 1, 61 Am. Dec. 381.

The statute must therefore be strictly followed.

"Judicial proceedings in rem, to enforce a forfeiture, cannot in general be properly instituted until the property inculpated is previously seized by the executive authority, as it is the preliminary seizure of the property that brings the same within the reach of such legal process." Dobbins' Distillery v. U.S.,96 U.S. 395, 24 L.Ed. 637.

Said Judge Story in The Brig Ann, 9 Cranch, 289, 3 L.Ed. 734, an analogous case:

"Until seizure it is impossible to ascertain what is the competent forum. And, if so, it must be a good subsisting seizure at the time when the libel or information is filed and allowed."

Nor could the bill or petition be given equity by reason of a fact of a supplementary nature which did not exist at the time the bill or petition was filed, and this is true notwithstanding the fact that, the supplementary fact considered, petitioner would have been entitled to a decree. Scheerer v. Agee, 113 Ala. 383, 21 So. 81. The demurrer was well taken, and, failing that, the motion should have been granted.

Reversed and remanded.

ANDERSON, C. J., and GARDNER and BROWN, JJ., concur.