#### Grieb, Appellee, *v.*Department of Liquor Control et al., Appellants.

(No. 4255

— Decided May 9, 1949.)

*Messrs. Cowan & Adams,*for appellee.

*Mr. Herbert 8. Duffy,*attorney general, and *Mr. John J. Nolan,*for appellants.

*Mr. Isadore Topper, amicus curiae.*

By the Court.

This is an appeal on questions of law from the Common Pleas Court of Franklin County, which rendered judgment for the plaintiff in an action for a declaratory judgment. •

The case was submitted to the trial court on the pleadings and an agreed statement of facts. Prior to March 1, 1946, plaintiff was the holder of a D-5 permit and operated a cafe in Springfield, Ohio, under such *495permit. On March 1, 1946, the Board of Liquor Control revoked the permit. Immediately the Department of Liquor Control entered plaintiff’s premises and seized intoxicating liquor having an alcoholic content •of 3.2% by weight to 21% by volume and spirituous liquor having a higher alcoholic content, all of the approximate value of $5,000. Such liquor wras legally manufactured and was legally acquired by the plaintiff. The Department of Liquor Control proposes to sell and dispose of such liquor as provided in Section 6064-40, General Code. Plaintiff contends that Section 6064-28, General Code, which authorizes seizure of the liquor on the premises upon revocation or cancellation of a permit, and Section 6064-40, General Code, which provides for the disposition of the liquor without first making compensation to the owner, are unconstitutional in that they authorize the taking and confiscating of private property without due process of law and without compensation in violation of Sections 16 and 19 of Article I of the Constitution ■of Ohio and the “due process” clause of the Fourteenth Amendment of the Constitution of the United States. The trial court upheld this contention and declared and decreed that the plaintiff was entitled to have the liquor returned to him or to recover the fair value thereof. Defendants contend that such judgment is contrary to law.

We are in accord with the judgment of the trial court. In our judgment the contention of the defendants, that the seizure of the liquor and disposition thereof without compensation to the owner were valid exercises of the police power of the state, cannot be supported. It must be observed that the liquor was legally manufactured and acquired. Under the law legally acquired liquor does not become contraband or a nuisance per se upon the revocation or cancellation of such a permit. The plaintiff had a property *496right in this merchandise at the time it was seized of which he could not be deprived except according to law. 8 Ohio Jurisprudence, 482, Section 349; *McKown*v. *City of Atlanta,*184 Ga., 221, 190 S. E., 571; *Murphy*v. *St. Joseph Transfer Co.*(Mo.), 235 S. W., 138; *Huston*v. *Walton,*23 Colo. App., 282, 129 P., 263. See, also, *In re Estate of Weisenberg,*147 Ohio St., 152, 70 N. E. (2d), 269. The fundamental requirements of due process were not followed and are not provided for in the sections of the Code under consideration. 8 Ohio Jurisprudence, 715, Section 597. See, also, *Anderson National Bank*v. *Luckett, Commr.,*321 U. S., 233, 88 L. Ed., 692, 151 A. L. R., 824, 64 S. Ct., 599; *Truax*v. *Corrigan,*257 U. S., 312, 66 L. Ed., 254, 27 A. L. R., 375, 42 S. Ct., 124; *Rowland*v. *State, ex rel. Martin*(Fla.), 176 So., 545, 114 A. L. R., 443; *People*v. *Marquis,*291 Ill., 121, 125 N. E., 757, 8 A. L. R., 874. See, also, *Edson v. Crangle,*62 Ohio St., 49, 56 N. E., 647.

The seizure of the legally acquired liquor in which the plaintiff possessed a property right, and the attempt to dispose of such liquor, as provided by Section 6064-40, were clear violations of the “due process” clause of the Fourteenth Amendment to the Constitution of the United States. Section 6064-28, which authorizes the seizure of the liquor, and that part of Section 6064-40 which provides that the liquor so seized shall be distributed to the state welfare institutions are in violation of Section 19, Article I of the Constitution of Ohio, which provides that “where private property shall be taken for public use, a compensation therefor shall first be made in money.”

As we find no error in the record prejudicial to the rights of the defendants, the judgment is affirmed.

*Judgment affirmed.*

Miller, P. J., Hornbeck and Wiseman, JJ., concur.