This is an appeal by Nona B. Heffling, from a decree rendered by the Circuit Court for Jackson County, pursuant to the provisions of Chapter 29, Laws of 1923, by the terms of which a Studebaker car belonging to her was forfeited to the state because of an alleged act of her husband in transporting on his person therein a bottle of intoxicating liquor.
There was evidence tending to show, that prior to the seizure of the car, the husband of appellant, while engaged in driving the car, but not in her presence, had carried on his person a bottle of intoxicating liquor, for which he had been arrested and bound over to await the action of the grand jury; that the grand jury had refused to indict him for said offense, and had returned a not true bill, and that appellant *Page 256 had no knowledge of the alleged unlawful act of her husband.
Under the act in question, no previous conviction of the offending person is required as a basis for the entry of a decree forfeiting an automobile because of an alleged use of the automobile in violation of the prohibition law. Whether there has been such violation or not is left by this act to the determination of a judge of the Circuit Court, without the aid or presence of a jury. The proceedings provided for by this act are to be determined exclusively by the circuit judges of the state. The act provides for an appeal from their decrees, but there is no provision of law by which upon appeal a trial by jury can be obtained. The act, therefore, operates to deny to the owner or claimant of the property sought to be forfeited, the right of trial by jury, and because of this, it is contended that the act is unconstitutional and void in that it violates Article I, Section 17 of the state Constitution, which guarantees that "in all civil cases, the right of trial by jury shall remain inviolate."
So far as deemed material to this controversy, the act provides (Sections 1 and 15), that any boat, vehicle or other conveyance, except a "railroad car" or "ocean going vessel," which is or has been "used by or with the knowledge of the owner or the person operating or in charge thereof, in any unlawful bringing of intoxicating liquor into this state, or in the unlawful transportation of the same within this state, or in or on which intoxicating liquor unlawfully possessed is kept or concealed by or with the knowledge of such owner or person operating or in charge thereof, shall be forfeited to the state." *Page 257
Section 2 provides:
"Whenever, in connection with the pursuit or search of any boat, vehicle or other conveyance or otherwise, any peace officer shall find intoxicating liquor upon or in the same or which has recently been removed therefrom, which he has probable cause to believe is then being or has recently been unlawfully carried, transported, kept or possessed by the owner or person in charge of, or operating such boat, vehicle or other conveyance, said officer shall, in addition to seizing the intoxicating liquor so found and arresting the person, if any, then in charge of or operating such boat, vehicle or other conveyance as heretofore provided by law, also seize such boat, vehicle or other conveyance and make return of such seizure to the circuit court of the state of Oregon for the county within which such seizure has been made, and if said seizure has been made by any other officer than a sheriff, the seized conveyance shall be delivered to the sheriff."
Section 5 provides:
"Any circuit court of this state to which a return of seizure under this act shall be made shall have jurisdiction to try, without a jury, the question whether such boat, vehicle or other conveyance so seized is subject to forfeiture under the first section of this act, and to determine the same as in civil cases; and the attendance of witnesses may be compelled and testimony may be taken and appeals shall be allowed as in civil cases in equity. The proceedings shall be in the name of the state of Oregon, as plaintiff, and the seized property and all persons claiming any interest therein shall be deemed defendants, but such persons need not be named as defendants until they have filed in the proceedings their written claims and caused their names to be entered as such defendants. The proceedings shall bein rem against the property and the jurisdiction of the court over the property and the cause and all parties in *Page 258 interest shall be complete by virtue of the fact of seizure and the filing of the return thereof. No pleading shall be necessary on the part of the state except the officer's return of seizure, nor on the part of any claimant except a brief statement of the interest or lien claimed by him and of his ground of defense, verified under oath, and which shall be deemed denied."
The procedure provided for in this act is not by way of an action in personam against some offending person, but is a special proceeding in rem against specific property, which may be brought to have the question determined of whether such property shall be forfeited because of some unlawful use having been made of it in violation of the state prohibition law. This act prescribes no penalty, except forfeiture and contains no provision making a prior conviction essential to the working of such forfeiture. The criminal acts upon which the forfeiture is made to depend are made criminal by other statutes, which themselves contain no provision for the forfeiture of property. There is, therefore, no relation or connection between proceedings brought under this act and any prosecution or conviction of the offense which is made the basis of the right to forfeit such property. Under this act, persons who it is claimed, have violated other statutes may not be prosecuted at all for such offense, or if prosecuted, may be acquitted, and yet the owner of property used by them may be divested of his property without a trial by jury because of some alleged act of theirs, for which no conviction has been had. The question of whether such forfeiture shall be enforced is left by this act entirely to the determination of a circuit judge, who passes upon the question without the aid or presence of a jury. The question, therefore, is not whether *Page 259 the act itself would have been constitutional had it provided for a jury trial, but whether it is constitutional, having provided as it does that the party whose property may be forfeited shall not be entitled at any stage of the proceedings to a trial by jury. Nor is the question one which would arise had this statute, like the national Prohibition Act, provided that upon conviction of the offending person forfeiture of the property used in the commission of the offense would follow as a matter of law, reserving only to the owner or claimant of the property so used, the right to be heard upon the question of whether as against him, because of his negligence or other wrongful act, or otherwise, good cause does or does not exist for enforcing the forfeiture.
The right of trial by jury guaranteed by the Constitution of this state, embraces every case where it existed before the adoption of the Constitution, and it is not within the power of the legislature to enact any law which deprives any litigant of that right. Hence if as contended for here, this appellant before the adoption of the Constitution of this state, in having the question determined of whether her property should be forfeited, would have been entitled to a jury trial as a matter of right, then this act, since it deprives her of such right, is unconstitutional and void: Tribou v. Stroubridge, 7 Or. 156;Wong v. City of Astoria, 13 Or. 538 (11 P. 295); Wilkes v. Cornelius, 21 Or. 341 (23 P. 473); Deane v. WillametteBridge Co., 22 Or. 167 (29 P. 440, 15 L.R.A. 614);Fleischner v. Citizens' Investment Co., 25 Or. 119 (35 P. 174); Raymond v. Flavel, 27 Or. 219 (40 P. 158); Hoag v.Washington-Oregon Corp., 75 Or. 588 (144 P. 574, 147 P. 756); Puffer *Page 260 v. American Ins. Co., 48 Or. 475 (87 P. 523); Schnitzer v.Stein, 96 Or. 343 (189 P. 984).
"It cannot be doubted that a forfeiture of property for a prohibited act is a penalty for committing the act. It is so denominated by lexicographers, and is so treated in judicial decisions. (Lawton v. Steele, 152 U.S. 138 [38 L.Ed. 385,14 Sup. Ct. Rep. 499].) It was said by Judge Strong, in Wood v.City of Brooklyn (14 Barb. [N.Y.] 432): `It is a matter of public notoriety that suits for penalties * * have generally been tried before a jury. If there have been exceptions they have not been sufficiently numerous to affect the general usage. The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions, unless there is something peculiar calling for their application. To allow the Legislature to except from the operation of a constitutional provision, by direct enactment, a matter clearly falling within its meaning, would sanction a fraud upon the organic law and might in the end destroy its obligation.'" Colon v. Lisk,13 App. Div. 195 (43 N.Y. Supp. 364).
There can be no doubt that at the time of the adoption of our state Constitution, in cases where the seizure was made on land, property such as a "boat, vehicle or other conveyance," could not be forfeited by way of penalty or punishment for the violation of law, except in actions triable by jury. "Where a proceeding is authorized which may result in a judgment that operates upon the property of the individual, either by way of forfeiture, or by means of execution, the uniform rule of law has always been, that before such judgment can pass, the individual is entitled to a jury trial, unless he waives the same." Colon v. Lisk,13 App. Div. 195, 204 (43 N.Y. Supp. 364, 370). "We regard it equally clear, that suits to enforce forfeitures or penalties have been generally *Page 261 tried by a jury." S.C., 153 N.Y. 188-194 (47 N.E. 302, 60 Am. St. Rep. 609). "Felony," says Sir William Blackstone, "in the general acceptation of our English law, comprises every species of crime which occasioned at common law the forfeiture of lands and goods. * * And all these felonies were to be determined `perlaudamentum sive judicium parium suorum' (by the verdict or judgment of his peers) in the lord's court." 4 Bl. Com., Chap. VII, [*]94-97.
"If an act of parliament inflict a certain penalty for the particular act, an action of debt will lie for the penalty, if no other remedy be specified in the statute; for the law implies that by the fundamental contract of society, the offending party is bound and hath virtually agreed to obey the directions of the legislature, and pay the forfeiture incurred to such persons as the law requires. But where a statute prohibits an act injurious to an individual, and does not assign any certain penalty for it, the remedy for the party grieved is by action on the case." Archibold's Civil Plead., § IV, [*]18.
At the time when our state Constitution was adopted, courts were classified according to the nature and extent of their jurisdiction, their forms of proceeding, or the principles upon which they administered justice, either as courts of admiralty, courts of equity, or courts of law. Controversies concerning forfeitures of rights or property could be adjudicated only in some one or more of these courts, since in this country there were no other courts in which controversies of that nature could be adjudicated.
Courts of admiralty had jurisdiction to enforce forfeitures, without the aid or presence of a jury, but its jurisdiction was limited to cases arising under the *Page 262 admiralty or maritime law, and it never had jurisdiction to enforce a forfeiture where the seizure was made on land.
Courts of equity have always refused to lend their aid to the enforcement of a forfeiture, "It is a well-settled and familiar doctrine," says Professor Pomeroy, "that a court of equity will not interfere on behalf of the party entitled thereto, and enforce a forfeiture, but will leave him to his legal remedies, if any, even though the case might be one in which no equitable relief would be given to the defaulting party against the forfeiture. The few apparent exceptions to this doctrine are not real exceptions, since they all depend upon other rules and principles. * * There are, in fact, no exceptions to this doctrine; those which appear to be exceptions are not so in realty." 1 Pom. Eq. Juris (3 ed.), §§ 459, 460.
Courts of law administer justice according to the rules of the common law, and are held for the trial of civil causes with the presence and aid of a jury, and where there are issues of fact to be determined, the trial ordinarily must be by jury. The jurisdiction exercised by such courts is of two kinds, summary and formal. Courts have always possessed summary power to prevent hardships, irregularities and abuses, which would otherwise take place in the course of proceedings. There were also many petty offenses against statutes or municipal ordinances which were not triable by jury at the time the Constitution was adopted. As to them, the right to a trial by jury has never existed, and since they were so triable when the Constitution was adopted, they are now triable without a jury. In all such cases, the punishment was trivial. As said in Colon v. Lisk, supra, illustrations are found in the punishment attached *Page 263 to petit offenses in violation of health laws, and in some instances to the violations of municipal regulations, and perhaps others. Other illustrations are given in 4 Black., Chapter 20, [*]280, of summary proceedings directed by Parliament, to which the common law was a stranger, but in none of the illustrations given was the power upheld to enforce in a summary proceeding, the forfeiture of property such as that involved here. We find no case, and none has been cited, in which the common-law courts, prior to the adoption of our state Constitution, through the exercise of summary powers, have sanctioned or upheld the forfeiture of property which may be and ordinarily is used for lawful purposes.
It is argued that these proceedings concern matters in respect to prohibitory laws enacted since the adoption of the Constitution, and for that reason are not within the guarantee of the Constitution, and that controversies concerning violations of them may be disposed of by the courts in any manner the legislature sees fit to adopt. The answer to this contention is, that the constitutional right of trial by jury is not to be narrowly construed, and is not limited strictly to those cases in which it had existed before the adoption of the Constitution, but is to be extended to cases of like nature as they may hereafter arise. Upon this question, the court in Colon v. Lisk,13 App. Div. 202 (43 N.Y. Supp. 369), said:
"The question of constitutional right to a trial by jury, in the exercise of power which we are now considering, was much considered in the case of Wynehamer v. People (13 N.Y. 426). It was there said that the provision of the Constitution, preserving the right to a jury trial, where it had previously existed did not `limit the right to the mere instances in which it had been used, but extends it to such new and like *Page 264 cases as might afterwards arise.' In Pelp People ex rel.Comaford v. Dutcher (83 N.Y. 240) it was held that the offense of petty larceny was within the constitutional provision requiring a jury trial, were it not for the fact that by amendment of section 23 of article 6 of the constitution, jurisdiction of offenses of the grade of misdemeanor was conferred upon Courts of Special Sessions. These cases are authority, therefore, for the proposition that where the right to trial by jury existed at the time of the adoption of any of the Constitutions, such right continues to exist unless taken away by the fundamental law, and that this right is not limited to cases where such right had previously been actually used, but embraces cases of the same class thereafter arising. So that if, prior to the adoption of the Constitution, the right to enforce a penalty by a forfeiture of property could only be exercised through the medium of an action, and if the party against whom the forfeiture was sought to be enforced was entitled to trial by jury, then such right exists now, and this principle of law is applicable to the present case."
See, also, 16 R.C.L., p. 195.
It is contended, however, that because the procedure authorized by this act is a special statutory proceeding in rem against certain specific offending property, it is a proceeding unknown to the common law, and therefore does not entitle the claimant or owner of the property sought to be forfeited to a jury trial.
Where, as in this case, the seizure was made on land, and a libel or information was filed to condemn the seized property, which as in this case was purely a proceeding in rem, the rule before the adoption of the Constitution was and still is, that the suit is at common law, and that the claimants or owners of the property are entitled to a jury trial before a judgment can be passed forfeiting the seized property. *Page 265
In Garnhart v. United States, 83 U.S. (16 Wall.) 162 (21 L.Ed. 275), the United States was seeking to enforce a forfeiture of certain distilled spirits for an alleged breach of the act of July 20, 1868, 15 Stats. at Large, 140, which provided that distilled spirits found elsewhere than in a distillery or distillery warehouse, not having been removed therefrom according to law, shall be forfeited to the United States. The spirits were seized on land and not in a distillery or distillery warehouse. The case arose on an information against the distilled spirits, and was a proceeding in rem. The claimants answered, denying the facts charged in the information, and alleging a compliance with the provisions of the act. The answer was stricken from the files in the lower court, and a decree was there entered, condemning the property. Upon writ of error, this decree was reversed, and the cause was remanded with directions to award a venire. In reversing a decree, the Supreme Court of the United States said:
"Where the seizure is made on land, the claimant is entitled to a trial by jury, if he appears and files an answer denying the facts set forth in the information. * * Repeated decisions of this court have established the rule that where the seizure is made on navigable waters, the case belongs to the instance side of the subordinate court, but where the seizure is made on land, the suit is one at common law, and the claimants are entitled to a trial by jury. Beyond all question, the claimants were entitled to a trial by jury."
In 12 R.C.L., page 133, in stating the law applicable to forfeitures, the authors say:
"In the trial of all cases of seizure, on land or on waters not navigable, the court sits as a court of common law, and as in all cases at common law where *Page 266 there are issues of fact to be determined, the trial must be by jury. In cases however of seizure made on navigable waters the court sits as a court of admiralty, and, as in cases of admiralty and maritime jurisdiction generally, it is settled that the trial is to be by the court. Although the two jurisdictions are vested in the same tribunal, they are as distinct from each other as if they were vested in different tribunals, and can no more be blended than a court of chancery with a court of common law."
Reference was made on the argument to the case of Dobbins'Distillery v. United States, 96 U.S. 395 (24 L.Ed. 637), where a distillery and property connected therewith was forfeited to the United States, and this it is contended is an illustration of the power possessed by legislative bodies to enact this kind of legislation authorizing the condemnation of property by a proceeding in rem. An examination of that case will show that while it was a proceeding in rem to enforce a forfeiture, it was tried as a law action and by a jury; that the United States had verdict, and that the judgment of condemnation of the property was entered on the verdict of the jury, and not upon an adjudication made by the court without the intervention of a jury.
In The J.W. French (D.C.), 5 Hughes, 429 (13 Fed. 916), a leading case upon this question, the court said:
"This was a proceeding at common law; and while it is true that in actions in rem in admiralty property in the nature of ships may be divested from an owner without the verdict of a jury, yet I think it can be laid down with perfect truth that in any proceeding at common law, even proceedings in rem, a citizen of the United States cannot be divested of his property except by verdict of a jury, under due process of law, in a proceeding in which he is in some manner *Page 267 a party, having opportunity to be heard, and having a day in court. Condemnations and forfeitures are unknown in the practice of the United States courts, except upon specific proceedings against the property, and after the verdict of a jury."
Like other property which may be and ordinarily is used for lawful purposes, an automobile is not a nuisance per se. This act, unlike the National Prohibition Act, does not declare that an automobile or any other vehicle in which intoxicating liquor is being unlawfully transported is a public nuisance, nor is there any other statute in this state making an automobile or other vehicle so used a public nuisance. Also, unlike the National Prohibition Act, this statute does not make the conviction of the offending person a condition precedent to the forfeiture of property. Under the National Prohibition Act, before there can be a forfeiture of property, there must first be a conviction of the offending person, and before there can be a conviction in the absence of a plea of guilty, a trial by jury must first be had. Under this act, no prior conviction being necessary, property may be forfeited without any opportunity for a jury trial. If it should be assumed, in the absence of a statute declaring it to be such, that an automobile in which intoxicating liquor has at some time been carried, is a public nuisance, and subject to forfeiture, equity has jurisdiction to restrain a public nuisance on behalf of the public, but not to enforce a forfeiture. Injunctions have been granted to restrain violations of prohibition laws, the maintenance of gambling-houses, and other acts which constitute a public nuisance. 1 Pom. Eq. Rem., § 479.
Concerning this jurisdiction, Mr. Justice STORY says: "In case of public nuisances properly so called, an indictment lies to abate them, and to punish the *Page 268 offenders, but an information also lies in equity to redress the grievance by way of injunction." 2 Story's Eq., §§ 921 and 922.
In accordance with this principle, it was held in Mugler v.Kansas, 123 U.S. 623 (31 L.Ed. 205, 8 Sup. Ct. Rep. 373), that in the exercise of the police powers of the state, the state may prohibit the manufacture and sale of intoxicating liquors, and prohibit the use of property in the future for the illegal manufacture thereof. There the court said: "They (courts of equity) cannot only prevent nuisances that are threatened, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury."
Under these and other authorities, a court of equity has power to abate a public nuisance by restraining its continuance, and in some instances to order the destruction of the particular property which constitutes the nuisance, if the nuisance cannot be abated in any other manner. But we know of no authority authorizing a court of equity to decree the forfeiture or destruction of property which is not a nuisance per se, or which is not made contraband by statute, or which is of the kind and character described in this statute. It seems, therefore, that where the seizure is made on land, forfeitures of lawful property can be adjudged only in common-law *Page 269 actions, where the right to a trial by jury exists, and that such was the law at the time when our Constitution was adopted.
The fact that because the proceedings authorized under this act are in rem and not in personam does not change the character of the suit from that of a common-law action into a suit in equity, nor does it affect the question of the right of the owner to a trial by jury in this case. The property involved here is not intoxicating liquor, nor any other article which under the law is deemed contraband. Automobiles are property in the highest sense, and cannot be destroyed because some unlawful use may have been made of them. When used for unlawful purposes, they may become subject to forfeiture, but the proceedings under which the forfeiture is to be worked must be proceedings in which the party who is to be deprived of his property, is accorded all of his constitutional rights.
These questions were ably considered in Keeter v. State,82 Okla. 89 (198 P. 866, 17 A.L.R. 557), which overruled several former decisions of that court, and held that an act similar to this was unconstitutional because denying to the party to be affected by forfeiture proceedings the right of trial by jury. That case has been followed in that court in Hoskins v.State, 82 Okla. 200 (200 P. 168), and One Paige Touring Car v. State, 83 Okla. 40 (200 P. 852). The cases of Colon v.Lisk, supra, also contain a discussion of many of the principles which we have considered above, and we think that these three cases correctly state the principles of law applicable to this controversy.
In Fisher v. McGirr, 67 Mass. 1-35 (61 Am. Dec. 381), Mr. Chief Justice SHAW said: *Page 270
"The theory, upon which a judgment in rem is regarded as a judgment binding upon all the world, is that all the world have constructive notice of the seizure, with the cause and purpose of the taking, and the time and place at which any person may appear before a competent tribunal and have a trial, before the condemnation of his property.
"Supposing 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, having the full benefit of the maxim, that every person shall be presumed innocent until his guilt be established by proof. He should have notice of the charge of guilty purpose, upon which his property is declared to be unlawfully held, and in danger of being forfeited, a time and opportunity to prepare his defense, an opportunity to meet the witness against him face to face, and the benefit of the legal presumption of innocence. * * Now we can perceive no provision for the trial and proof of this offense of keeping liquors with illegal intent, in any sense in which a judicial trial is understood, in which a party charged with an offense, for which his property may be taken from him and confiscated, may stand on his defense, and have the presumption of innocence, until proofs are adduced against him to establish the crime or misdemeanor with which he is charged. Such a trial alone can satisfy the express provisions in the Declaration of Rights, art. 12, which declares that no subject shall be arrested, or deprived of his property, immunities or privileges, or of his life, liberty or estate, but by *Page 271 the judgment of his peers, or the law of the land. These expressions have been understood, from Magna Charta to the present time, to mean a trial by jury, in a regular course of legal and judicial proceedings."
If, under the provisions of this act, the property which was made the subject of forfeiture had consisted of intoxicating liquor, gambling devices, or anything which in its nature is injurious to the public welfare, or if the act had required, as a condition of the forfeiture, the conviction of the offending person, the question would be different, but where as here, the lawful property of an innocent person may be forfeited to the state without the previous conviction of anyone, and without the opportunity of a jury trial at any stage of the proceedings, we think the act in so far as it provides that the forfeiture shall be tried by the court without the intervention of a jury is unconstitutional and void, because denying a trial by jury as guaranteed by the state Constitution. A majority of the court are of the opinion that in so far as the statute directs that a forfeiture may be had without a trial by jury, the direction is merely surplusage, and beyond the power of the legislature to enact, but that the remainder of the act should stand. For these reasons, the decree appealed from is reversed and the cause remanded, with directions to award a venire, and let a jury pass upon the question of whether the automobile should be forfeited.
REVERSED AND REMANDED, WITH DIRECTIONS.
BROWN and COSHOW JJ., dissent.
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