State v. Johnson

Sxaot, J.

Section 3403 of the Consolidated Statutes, under which it is contended the intervener’s automobile should be forfeited, in part provides: “If any person . . . shall have or keep in possession any spirituous, vinous, or malt liquors in violation of law, the sheriff or other officer . . . who shall seize such liquors ... is hereby authorized and required to seize and take into Ms custody any . . . automobile . . . used in conveying . . . such . . . liquors and safely keep tbe same until tbe guilt or innocence of tbe defendant bas been determined upon bis trial for tbe violation of any sucb law making it unlawful to so keep in possession any spirituous, vinous, or malt liquors, and upon conviction of a violation of tbe law, tbe defendant shall forfeit and lose all right, title, and interest in and to tbe property so seized.”

It will be observed that, under tbe provisions of this statute, tbe automobile or property itself is not condemned and forfeited, but only tbe right, title, and interest of the defendant in and to tbe property so seized. The defendant, TI. B. Johnson, bad no right, title, or interest in tbe automobile, and tbe intervener, J. H. Creasman, was not a defendant or party to tbe proceeding. Hence, we think tbe owner’s petition for a release of tbe property should have been granted.

Tbe Federal law upon this subject, with respect to tbe question of forfeitures, is different from our State law in that under tbe National legislation tbe property itself, tbe res, and not merely tbe defendant’s right, title, and interest therein is condemned and forfeited when tbe. same is used by any one in tbe forbidden way. Bush v. United States, 24 Fed., 917; United States v. Mincy, 254 Fed., 287. Hence tbe Federal decisions, based upon statutes which authorize a seizure and condemnation of tbe property without regard to its ownership or management, afford no guide or rule of construction in interpreting our own laws. Indeed, we are well assured that no court of competent jurisdiction would be disposed to extend a penal statute, by implication or otherwise, to include a forfeiture beyond tbe clear import of its provisions. Tbe case of Daniels v. Homer, in our own reports, 139 N. C., 219, fully recognizes this principle, and is in keeping with tbe authorities where tbe statute provides that tbe property, so used in offending, shall be seized and sold. This distinguishes it from tbe case at bar. “Forfeitures are not favored in tbe law. Courts always incline against them.” Farmers Bank v. Dearing, 91 U. S., 29. In Southerland’s Statutory Construction, 547, tbe rule.is stated as follows: “If a statute creates a liability where otherwise none would exist, or increases a common-law liability, it will be strictly construed,” citing numerous authorities in support of tbe text. To tbe same effect are our own decisions: McGloughan v. Mitchell, 126 N. C., 683; Coble v. Shoffner, 75 N. C., 43; Smithwick v. Williams, 30 N. C., 268.

In answer'to tbe contention of tbe State that tbe intervener should be held liable to tbe acts of bis agent under tbe doctrine of qui facit per alium facit per se, or respondeat superior, it is sufficient to say, at least for tbe purposes of this appeal, that be bas not been indicted or made a party defendant; and we have found no provision in the statute by wbicb a master may be punished for the acts of bis servant without giving him an opportunity to be heard. The law provides that “the defendant shall forfeit and lose all right, title, and interest in and to the property so seized,” and this is as far as the Legislature has gone. We can go no further. As said by Gray, G. J., in Ex parte Robinson, 131 Mass, 376: “It is hardly necessary to add that our duty is limited to declare the law as it is; and whether any change in that law would be wise or expedient is a question for the Legislature, and not for the judicial department of the Government.” See, also, In re Applicants for Incense, 143 N. C., 1; S. v. Lewis, 342 N. C., 626; and concurring opinion in Wilson v. Jordan, 124 N. C., 683.

Thé particular statute now under consideration was before the Court in Skinner v. Thomas, 171 N. C., 98, and we content ourselves by referring to that case as a controlling authority. Let judgment be entered directing the sheriff to return the property in question to the intervener.

Error.