Milford chronicle., 1926-02-12
COURT DECLARES
PART OF LOOSE LAW
UNCONSTITUTIONAL
Continued from first page)

0O6S uOl Apply 10 COuf6yduC6S uSel
by individuals in transporting liq
uOr.
1T is not contended by the stat,
that either the defendant, Rose, o.
the owner of the automobile, was {
private carrier. and we are, there
fore, not called upon to consider
that question"
In speaking of the second question
raised by Wolfe the court remarks
that lit is contended that no pro-
vision being made for notice to the
owner of the forfeiture of a convey
ance used in the transportation OF
liquor, it deprives him of his prop
erty without due process of Jaw"
Federal Constitution
Article Five of the amendments to
the Constitution of the United States
is quoted in the opinion. The latter
part of the article reads as follows:
Nor shall any person be subject for
the same Offense to be twice put in
jeopardy of life or limb; nor shall be
compelled in any criminal case to
witness against himself, nor be de-
prived of life, liberty, or property
without due process of law; nor
shall private property be taken for
public use. without just compensa-
ton"
The federal law governing seizure
of vehicles used in the liquor traf-
fic provides for the giving of notice
of the forfeiture proceedings to the
owner or owners of the car or those
having an interest in them. The
state law, however, does not provide
for the giving of such notice.
The words due process of law"
when used in considering the prop
erty rights of individuals mean
summons or notice such as is ordi-
narily given upon the institution of
a suit, due appearance of the par
ties in interest, pleading of the facts
to issue and a determination there
of by jury, the opinion holds.
I'm the case before the court" it
is stated, "the only legal action
which has been instituted is the ar
rest of Ellis Rose, charged with the
unlawful transportation of liquor,
his indictment on said charge by the
grand jury and his plea of guilty
thereto upon which he was sentenc-
ed. The state contends that when
Rose pleaded guilty to the charge,
the automobile which he was using
was ipso facto forfeited to the state
and it, therefore, had a right to sell
it. 1t should not be forgotten, how
ever, that the automobile was the
property of Wolfe, the petitioner and
not Rose, and that Wolfe was in no
way connected with the offense COM !
mitted by him (Rose).
Position of the Owner
1--WE therefore cannot agree with 5
this contention. The statute makes
no provision for notice to any per-
son standing in the position of
Wolfe before any automobile be-
longing to him and used in the
transportation of liquor can be for
feited by the state; by reason Of that
fact he is given no opportunity I'M
der the statute to be heard in de-
fense of his rights.
These two things, notice and an
opportunity to be heard, are conced-
ed by the weight of authority to be
essential to the validity of statu-
tory provision of this character"
The court adds that "a distinction
must be made, however, of that class
of cases which prohibit the use of
property in a manner injurious to
the health, morals or safety of the
public, or authorize the destruction
of property when necessary in order
to protect the welfare of the COM
munity.
"An illustration of this is the tear
ing down of buildings in time of fire
in order to prevent the spread there
of, or the killing of cattle infected
with a contagious disease to prevent
them from becoming a menace to the
public health"
National Prohibition Law
Near the close of its opinion the
court points out that the national ,
prohibition law, generally known as I
the Volstead Act, makes the follow :
ing provision in dealing with the :
question of the disposition of liquor ,
seized while being transported: THE +
court upon the conviction of the per-
son so arrested shall order the liq- q
lor destroyed, and unless good
cause to the contrary is shown the :
owner, shall order a sale by public :
Of the property seized" +
ut clearly appears in this act,
he opinion adds, that the owner OF =
IN automobile or other conveyance .
seized while being used by someone, =
)ther than the owner in the trans I
Dortation of liquor would have an \
to establish his right to =
he possession of the property. :
1.-THE difference between the pro- +
1isions of this act and those of our
lct is Immediately seen, the latter n
for the arbitrary forfeiture >
ind sale of the conveyance used in y
transportation of liquor without Civ =
ng the owner thereof any Opportun- i
ty whatever to be heard. $
at is not contended that the pros s
,cution of Ellis Rose for the unlaw- q
ul transportation of liquor connect q
ID the petitioner, Wolfe, with that r
Iffense. h
1--WE fail to see how it can be sue +
essfully maintained that Wolfe has n
lad sufficient notice of the intention .
# the state to forfeit and sell his \
or sufficient opportunity v
o establish his title thereto, and a
INrefore, hold that to allow the n
tate to forfeit and sell his automo- g
ile under existing circumstances G
you'd amount to a taking Of prop +,
rty without the due process of law" I.
To Discharge Bonds Il
Since the constitutionality of the =,
ection Of the liquor law was Ques- q