CLARK, C. J., dissenting.
This is an action to recover an automobile or a part of the proceeds of its sale, tried on the following agreed statement of facts:
1. That on or about 23 April, 1915, one Richard C. Webb was the owner of a Ford touring car No. 566967, purchased of the Auto and Gas Engine Works of Elizabeth City, N.C.
2. That on 23 April, 1915, said Richard Webb executed a mortgage on said automobile to the Auto and Gas Engine Works of Elizabeth City, N.C. in the amount of $425.
3. That there is now due on account of said mortgage indebtedness $280 and interest in the amount of $8.10, which amount is due the plaintiff after all credits have been allowed.
4. That on or about 7 December, 1915, the said Richard Webb, together with one Ed. Burnett and one Will Woodhouse, while conveying in the town of Elizabeth City, N.C. in the said automobile 44 gallons of intoxicating liquors in half-pints, pints, and quarts, were arrested by defendant as chief of police of Elizabeth City, N.C. and the said automobile seized. On 27 December, 1915, the said Richard Webb, together with the said Ed. Burnett and Will Woodhouse, were duly tried and convicted before Ernest L. Sawyer, trial justice of Pasquotank County, N.C. for violation of the liquor laws under Public Acts 1913 and 1915, and were duly sentenced by said trial justice, and that the said Richard Webb and Ed. Burnett have not appealed from judgment of said court; that after the conviction of the defendants aforesaid and on said 27 December, 1915, the said automobile was ordered confiscated by the said Ernest L. Sawyer, trial justice, as provided in chapter 197, Public Laws 1915; that said automobile is now advertised (100) for sale at public auction 29 January, 1916, by defendant J. B. Thomas, chief of police of Elizabeth City, N.C. as provided in said chapter 197, Public Laws 1915.
5. That the said plaintiffs were innocent third parties respecting the contraband conveyed in said car by the said Richard Webb, and the said plaintiffs claim an interest in said automobile to the extent of the indebtedness alleged in the premises.
6. That the value of the automobile is in excess of $200.
Judgment was rendered in favor of the plaintiffs, and the defendant excepted and appealed.
The plaintiffs sold an automobile to Richard Webb on 23 April, 1915, for $425, and on the same day Webb executed a mortgage to the plaintiffs conveying the automobile to secure the purchase price. Webb has made payments on the mortgage debt, and the amount now due thereon, including interest, is $288.10.
On or about 7 December, 1915, the automobile was seized by officers of the law, while in the possession of Webb, and it was at the time being used illegally to transport intoxicating liquors. Webb has been convicted of a violation of law.
The plaintiffs had no knowledge of the illegal use of the automobile, and were not connected in any way with the intoxicating liquors or with their transportation.
It is not denied upon these facts that the interest of Webb is forfeited to the State, and the sole question presented by the appeal is whether the rights of property of the plaintiffs, as mortgagees who have done no wrong, can be confiscated on account of the illegal acts of Webb.
The principle involved is important to the public because the enforcement of the prohibition law of the State may be affected, and to the individual citizen, whose property rights should not be impaired or destroyed on account of the wrongful acts of others except upon the ground of public necessity, and when the legislative authority to do so is clear and unambiguous.
The authority to confiscate the property of the plaintiffs, if it exists, is under the police power of the State, conferred by chapter 199, Laws 1915.
The police power is an attribute of sovereignty, possessed by every sovereign State, and is a necessary attribute of every civilized government. 6 Rul. Case L., 183. "It is the power to protect the public health and the public safety, to preserve good order and the public (101) morals, to protect the lives and property of the citizens, the power to govern men and things by any legislation appropriate
to that end." 9 Ency. of U.S. Reports, 473. "Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly-populated community, the enjoyment of private and social life, and the beneficial use of property." Slaughterhouse cases, 16 Wall., 36, 21 L.Ed., 394.
The exercise of this power is left largely to the discretion of the lawmaking body, and the authority of the courts cannot be invoked unless there is an unnecessary interference with the rights of the citizen, or when there is no reasonable relation between the statute enacted and the end or purpose sought to be accomplished. 6 Rul. Case L., 236. Following this line of authority, it was held at the last term, in Glenn v. ExpressCo., 170 N.C. 286, that intoxicating liquors are within the scope of the police power, and a statute was sustained as a valid exercise of that power which forbids the delivery of more than one quart of intoxicating liquors each fifteen days, although intended for personal use.
Statutes providing for the forfeiture and destruction of intoxicating liquors illegally kept have been uniformly sustained (Kirkland v. State, 2 A. and E. Anno. Cases, 245), and the authorities go further, and hold that animals and conveyances used in the illegal traffic are the subject of forfeiture, 22 Cyc., 1681; U.S. v. Two Bay Mules, 36 Fed., 84; U.S. v.Two Horses, 28 Fed. Cases, No. 16578; U.S. v. One Black Horse, 129 Fed., 167; Mugler v. Kansas, 123 U.S. 623.
The names of the cases cited from the Federal Reporter (U.S. v. Two BayMules, etc.) are significant, and go far to illustrate the principle upon which the courts proceed, and upon which Daniels v. Homer, 139 N.C. 219, was decided, that the property being used for an illegal purpose is the offender.
Applying these principles to chapter 197, Public Laws 1915, and considering it in connection with the policy of the State in favor of prohibition, we have no doubt that it is a valid exercise of the police power.
We must, however, go further, and see whether the act purports to deal with the property rights of innocent parties, and to declare a forfeiture against one who has done no wrong.
The rule of construction controlling when a forfeiture is claimed is well established.
Lord Holt said in Calloday v. Pilkington, 12 Mod., 513: "Let a statute be ever so charitable, if it gives away the property of the subject it ought not to be countenanced"; and the Supreme Court of the United States inFarmers Bank v. Dearing, 91 U.S. 29: "Forfeitures are not favored in the law. Courts always incline against them."
(102) In Sutherland Statutory Construction, 547, the rule is stated to be that "Statutes are construed strictly against forfeiture. A statute which subjects one man's property to be affected by, charged, or forfeited for the acts of another, on grounds of public policy, should be strictly construed; it cannot be done by implication."
The authorities in our State are to the same effect.
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CLARK, C. J., dissenting.
This is an action to recover an automobile or a part of the proceeds of its sale, tried on the following agreed statement of facts:
1. That on or about 23 April, 1915, one Richard C. Webb was the owner of a Ford touring car No. 566967, purchased of the Auto and Gas Engine Works of Elizabeth City, N.C.
2. That on 23 April, 1915, said Richard Webb executed a mortgage on said automobile to the Auto and Gas Engine Works of Elizabeth City, N.C. in the amount of $425.
3. That there is now due on account of said mortgage indebtedness $280 and interest in the amount of $8.10, which amount is due the plaintiff after all credits have been allowed.
4. That on or about 7 December, 1915, the said Richard Webb, together with one Ed. Burnett and one Will Woodhouse, while conveying in the town of Elizabeth City, N.C. in the said automobile 44 gallons of intoxicating liquors in half-pints, pints, and quarts, were arrested by defendant as chief of police of Elizabeth City, N.C. and the said automobile seized. On 27 December, 1915, the said Richard Webb, together with the said Ed. Burnett and Will Woodhouse, were duly tried and convicted before Ernest L. Sawyer, trial justice of Pasquotank County, N.C. for violation of the liquor laws under Public Acts 1913 and 1915, and were duly sentenced by said trial justice, and that the said Richard Webb and Ed. Burnett have not appealed from judgment of said court; that after the conviction of the defendants aforesaid and on said 27 December, 1915, the said automobile was ordered confiscated by the said Ernest L. Sawyer, trial justice, as provided in chapter 197, Public Laws 1915; that said automobile is now advertised (100) for sale at public auction 29 January, 1916, by defendant J. B. Thomas, chief of police of Elizabeth City, N.C. as provided in said chapter 197, Public Laws 1915.
5. That the said plaintiffs were innocent third parties respecting the contraband conveyed in said car by the said Richard Webb, and the said plaintiffs claim an interest in said automobile to the extent of the indebtedness alleged in the premises.
6. That the value of the automobile is in excess of $200.
Judgment was rendered in favor of the plaintiffs, and the defendant excepted and appealed.
The plaintiffs sold an automobile to Richard Webb on 23 April, 1915, for $425, and on the same day Webb executed a mortgage to the plaintiffs conveying the automobile to secure the purchase price. Webb has made payments on the mortgage debt, and the amount now due thereon, including interest, is $288.10.
On or about 7 December, 1915, the automobile was seized by officers of the law, while in the possession of Webb, and it was at the time being used illegally to transport intoxicating liquors. Webb has been convicted of a violation of law.
The plaintiffs had no knowledge of the illegal use of the automobile, and were not connected in any way with the intoxicating liquors or with their transportation.
It is not denied upon these facts that the interest of Webb is forfeited to the State, and the sole question presented by the appeal is whether the rights of property of the plaintiffs, as mortgagees who have done no wrong, can be confiscated on account of the illegal acts of Webb.
The principle involved is important to the public because the enforcement of the prohibition law of the State may be affected, and to the individual citizen, whose property rights should not be impaired or destroyed on account of the wrongful acts of others except upon the ground of public necessity, and when the legislative authority to do so is clear and unambiguous.
The authority to confiscate the property of the plaintiffs, if it exists, is under the police power of the State, conferred by chapter 199, Laws 1915.
The police power is an attribute of sovereignty, possessed by every sovereign State, and is a necessary attribute of every civilized government. 6 Rul. Case L., 183. "It is the power to protect the public health and the public safety, to preserve good order and the public (101) morals, to protect the lives and property of the citizens, the power to govern men and things by any legislation appropriate
to that end." 9 Ency. of U.S. Reports, 473. "Upon it depends the security of social order, the life and health of the citizen, the comfort of an existence in a thickly-populated community, the enjoyment of private and social life, and the beneficial use of property." Slaughterhouse cases, 16 Wall., 36, 21 L.Ed., 394.
The exercise of this power is left largely to the discretion of the lawmaking body, and the authority of the courts cannot be invoked unless there is an unnecessary interference with the rights of the citizen, or when there is no reasonable relation between the statute enacted and the end or purpose sought to be accomplished. 6 Rul. Case L., 236. Following this line of authority, it was held at the last term, in Glenn v. ExpressCo., 170 N.C. 286, that intoxicating liquors are within the scope of the police power, and a statute was sustained as a valid exercise of that power which forbids the delivery of more than one quart of intoxicating liquors each fifteen days, although intended for personal use.
Statutes providing for the forfeiture and destruction of intoxicating liquors illegally kept have been uniformly sustained (Kirkland v. State, 2 A. and E. Anno. Cases, 245), and the authorities go further, and hold that animals and conveyances used in the illegal traffic are the subject of forfeiture, 22 Cyc., 1681; U.S. v. Two Bay Mules, 36 Fed., 84; U.S. v.Two Horses, 28 Fed. Cases, No. 16578; U.S. v. One Black Horse, 129 Fed., 167; Mugler v. Kansas, 123 U.S. 623.
The names of the cases cited from the Federal Reporter (U.S. v. Two BayMules, etc.) are significant, and go far to illustrate the principle upon which the courts proceed, and upon which Daniels v. Homer, 139 N.C. 219, was decided, that the property being used for an illegal purpose is the offender.
Applying these principles to chapter 197, Public Laws 1915, and considering it in connection with the policy of the State in favor of prohibition, we have no doubt that it is a valid exercise of the police power.
We must, however, go further, and see whether the act purports to deal with the property rights of innocent parties, and to declare a forfeiture against one who has done no wrong.
The rule of construction controlling when a forfeiture is claimed is well established.
Lord Holt said in Calloday v. Pilkington, 12 Mod., 513: "Let a statute be ever so charitable, if it gives away the property of the subject it ought not to be countenanced"; and the Supreme Court of the United States inFarmers Bank v. Dearing, 91 U.S. 29: "Forfeitures are not favored in the law. Courts always incline against them."
(102) In Sutherland Statutory Construction, 547, the rule is stated to be that "Statutes are construed strictly against forfeiture. A statute which subjects one man's property to be affected by, charged, or forfeited for the acts of another, on grounds of public policy, should be strictly construed; it cannot be done by implication."
The authorities in our State are to the same effect.
The Court said in Smithwick v. Williams, 30 N.C. 268: "Penal statutes cannot be extended by equitable construction beyond the plain import of their language"; in Coble v. Shoffner, 75 N.C. 43: "There is no question but that a statute prescribing a forfeiture of all interest is a penal statute, and is to be construed strictly. It cannot be construed by implication, or otherwise than by express letter. It cannot be extended, by even an equitable construction, beyond the plain import of its language"; and in McGloughan v. Mitchell, 126 N.C. 683: "It is a well settled rule that penal statutes must be strictly construed. They will receive no equitable construction beyond their plain language."
In the Freight Discrimination Cases, 95 N.C. 437, the Court also defined the term "strict construction" as follows: "It is an old but not very precisely defined rule of law that penal statutes must be construed strictly. By this is meant no more than that the Court in ascertaining the meaning of such a statute cannot go beyond the plain meaning of the words and phraseology employed in search for an intention not certainly implied by them. If there is no ambiguity in the words or phraseology, nothing is left to construction — their plain meaning must not be extended by inference, and when there is reasonable doubt as to their true meaning the Court will not give them such interpretation as to impose the penalty. Nor will the purpose of the statute be extended by implication so as to embrace cases not clearly within its meaning. If there be reasonable doubt arising as to whether the acts charged to have been done are within its meaning, the party of whom the penalty is demanded is entitled to the benefit of that doubt. The spirit of the rule is that of tenderness and care for the rights of individuals, and it must always be taken that penalties are imposed by the legislative authority only by clear and explicit enactments; that is, the purpose to impose the penalty must clearly appear. Such enactments, as to their words, clauses, several parts and the whole, must be construed strictly together, but as well, and as certainly in all respects, in the light of reason."
Let us, then, examine the statute, keeping before us the principle that, while the language used must receive a reasonable and not a strained construction, no case is within the statute that is not embraced by its terms.
The first section of the act requires the officer who seizes intoxicating liquors unlawfully held or possessed, "to seize and take into his custody any vessel, boat, cart, carriage, automobile, and all horses (103) and other animals or things used in conveying, concealing, or removing such spiritous, vinous, or malt liquors, and safely keep the same until the guilt or innocence of the defendant has been determined upon his said trial for the violation of any such law making it unlawful to so keep in his, their, or its possession any spiritous, vinous, or malt liquors; and upon conviction of a violation of said law said defendant shall forfeit and lose all right, title, and interest in and to the said property so seized."
The second section provides for the sale of property seized when no person is arrested, and the third for the distribution of the proceeds of sale. No forfeiture is declared and no property is subjected to confiscation when an arrest is made as in this case, except by the language quoted from the first section of the act, and this restricts and limits the forfeiture to the right, title, and interest in the property of the defendant who has been convicted.
The operative and material part of the statute is, "and upon conviction of a violation of said law said defendant shall lose all right, title, andinterest in and to the property so seized," and as this confines the forfeiture to the right, title, and interest of the defendant, we are without power to extend its terms and embrace the right, title, and interest of the plaintiffs, mortgages, who were not defendants and who have had no connection with the illegal conduct of the defendant. The language of the second and third sections of the act is somewhat broader than that used in the first section, but as we have seen, the second section only deals with the sale of property when no person is arrested, and the third with the distribution of the proceeds of sale, and cannot be held to extend the forfeiture in the first section beyond its terms.
The distinction between the case before us and the Federal cases cited by the defendant (U.S. v. Two Bay Mules, 36 Fed., 84; Distillery v. U.S.,96 U.S. 395; U.S. v. One Black Horse, 129 Fed., 167; U.S. v. Two Horses, Fed. Cases, No. 16578; U.S. v. Distillery, Fed. Cases, No. 14963) is clear, as the Federal cases are based on statutes which declare theproperty forfeited, while our statute only confiscates the right, title,and interest of the defendant in the property.
The decision in Daniels v. Homer, supra, is upon the same ground, the statute then before the Court declaring that the nets used illegally, and not the interest of the defendant in the nets, should be forfeited.
The case of Felia v. Belton, 170 N.C. 112, also relied on, has, we think, no bearing on the right of the plaintiffs to maintain this action. That action was brought to recover 40 gallons of wine received unlawfully
by the plaintiff, who was tried and convicted, and in the criminal action the wine was confiscated. It was also found as a fact in the civil action that it was the purpose of the plaintiff to use the wine, if (104) permitted to recover it, in violation of ch. 97, sec. 7, Laws 1915, regulating the serving of drinks with meals.
The court properly held that the plaintiff could not recover because the property — the wine — had been received illegally and was declared forfeited in the criminal action, to which he was a party, and further because of his purpose to use the property in violation of law; and all of these elements, weighing against the right of the plaintiff, are absent from this record.
The plaintiffs in this action have been convicted of no offense; they have had no intoxicating liquors in their possession; they have neither been engaged in nor encouraged dealing in liquors; they are innocent of any unlawful conduct or illegal intent, and if their property right can be destroyed on account of the acts of another under a statute which only forfeits the right, title, and interest of the defendant who has been convicted, upon the same principle the horse and buggy and wagon and team lent to a neighbor for a legitimate purpose may be lost to the innocent owner if the borrower uses it in the unlawful transportation of liquor without the knowledge or consent of the owner.
Upon the whole record we are of opinion there is no error.
Affirmed.