Blumardt v. McDonald

Christianson, J. This is an appeal from an order of the district court of Morton county overruling a demurrer to plaintiffs’ complaint. The plaintiffs, who are twenty-six in number, in their complaint — 519 — allege: “I. That the defendant is the duly elected, qualified, and acting sheriff of Morton county, North Dakota. “II. That the plaintiffs are the joint owners of twenty-six barrels of claret wine, and entitled to the immediate possession thereof. “III. That said wine was on the 4th day of December, 1914, at Hebron, North Dakota, seized and taken into possession by the defendant as said sheriff, or by his deputy, and said twenty-six barrels of wine are now in the possession of the defendant as such sheriff; that said wine was so seized by the defendant or his deputy upon the assumption that said wine had been shipped or imported into the state of North Dakota in violation of law, and was subject to be destroyed upon the order of a justice of the peace. “IV. That on the 21st day of December, 1914, in justice court, before H. L. Henke, justice of the peace of Morton county, North Dakota, in a proceeding entitled, “In the Matter of the Seizure of Twenty-six Darrels of Claret Wine. State of North Dakota, County of Morton, - — ss.: John Heinle, Jacob Shuter, Jr., and C. Meir,” — to determine whether or not said wine has been shipped into the state of North Dakota in violation of law, it was adjudged and determined by said justice of the peace that said wine had been shipped into said state in violation of law, and said justice of the peace at said time ordered that said wine be destroyed. “V. That said twenty-six barrels of wine are now in the custody of the defendant as sheriff of Morton county, North Dakota, and said defendant threatens to destroy said wine and the whole pursuant to the order of said justice of the peace, and will destroy all of said wine pursuant to the order of the said justice of the peace, unless restrained therefrom by the order of this Court.” The complaint further alleges that the twenty-six plaintiffs have an equal interest in said twenty-six barrels of wine, and that said wine was shipped into the state for lawful purposes for the use of the plaintiffs and their families in their respective homes, and that said liquor was not shipped or imported into the state for sale, barter, gift, or exchange as a beverage, but was shipped in a carload lot as a matter of convenience and to save freight charges; that the wine is of the value of twenty-five ($25) dollars per barrel, and that the twenty-six barrels are worth six hundred fifty ($650) dollars. — 520 — The complaint further alleges that § ■ 10,114 of the Compiled Laws-of 1913 violates § 112 of the Constitution of the state of North Dakota, in this that said § 10,114 attempts and purports to confer upon the justice court juiisdiction to determine the status of property exceeding-two hundred ($200) dollars in value, and authorizes a justice of the-peace to order destruction of such property, regardless of its value; and that consequently the order made by the justice of the peace and. the proceedings had before him under said statute are null and void. These plaintiffs therefore demand judgment that the defendant and his deputies be enjoined from destroying said twenty-six barrels of' wine, and that they have judgment for the possession thereof. The defendant demurred on the ground,- among others, that the complaint does not state facts sufficient to constitute a cause of action. Defendant contends that the complaint on its face shows that the wine in question is in his possession under and by virtue of proceedings-had under § 10,114, Comp. Laws 1913, and that the order entered by the justice cannot be attacked collaterally, but that the plaintiffs were required to appeal therefrom. The plaintiffs contend that § 10,114,. Comp. Laws 1913, is unconstitutional, and that consequently all proceedings had thereunder are null and void. In our opinion these contentions embody the pivotal points presented on this appeal. Logically, the first point to be considered is the constitutionality of § 10,114, Comp. Laws 1913. Plaintiffs contend that this section purports to confer upon the justice’s court jurisdiction to determine the status and order the destruction of property, regardless of its value; and consequently contravenes § 112 of the state Constitution, which limits the jurisdiction of the justice of the peace in civil actions to causes where the amount in controversy, exclusive of costs, does not exceed two hundred ($200) dollars. Plaintiffs’ argument is predicated on the assumption that a proceeding under § 10,114, Comp. Laws 1913, is a civil action. Civil actions within the purview of § 112 of the Constitution are such actions as-were formerly cognizable at law, and directly involving a sum of money or personal property not exceeding a stated amount or value-. Mead v. First Nat. Bank, 24 N. D. 12, 138 N. W. 365. The authorities are-in conflict with respect to the nature of the proceeding authorized by — 521 — § 10,114, supra. Some courts hold it to be a. civil proceeding, but the-weight of authority holds that it is a criminal proceeding. See Woollen & T. Intoxicating Liquors, § 600, and authorities cited therein. See-also Black, Intoxicating Liquors, § 352. We deem it unnecessary to enter into any extended discussion of the-nature of the proceeding. All that is necessary for us to determine is-whether it is a civil action, within the purview of § 112 of the state-Constitution, and we are all agreed that it is not a civil action as contemplated by that section of the Constitution. Section 10,114, Compiled Laws of 1913, is a part of the Benal Code-of this state, and the sole purpose of the proceeding is to enable the officers of the law to seize and cause to be destroyed intoxicating liquors, the subject of crime or the means of perpetrating it. Clearly the proceeding “would not, either in ordinary or technical language, be classed among civil actions.” State v. One Bottle of Brandy, 43 Vt. 297; Holberg Mercantile Co. v. State, 95 Miss. 21, 48 So. 622; State v. Arlen, 71 Iowa, 216, 32 N. W. 267. Neither can it be rightfully designated a criminal prosecution. Bather may it be-called a quasi criminal and civil proceeding, created by the statute for-the purpose of condemning intoxicating liquors within the state when such liquors are the subject of, and the means for committing crime. Under § 217 of the state Constitution, the manufacture or importa-tion of intoxicating liquors for sale or gift, or the keeping or selling or-offer thereof for sale or gift, barter or trade as a beverage, is prohibited, and the legislative assembly is directed to prescribe, by law, regulations-for the enforcement of such constitutional provision. While intoxicating liquors are personal property, and capable, under-our laws, of lawful use and sale by registered pharmacists for medicinal, mechanical, and scientific purposes (Comp. Laws 1913, §§ 10,093--10,100), the section of the Constitution to which we have referred is. a positive declaration to the effect that the manufacture, importation, sale, or keeping or offering for sale of intoxicants as a beverage is unlawful in this state. And the further direction in the constitutional provision under consideration “that the legislature assembly shall bylaw prescribe regulations for the enforcement of the provisions, of this article, and shall thereby provide suitable penalties for the violation thereof,” is a clear and unequivocal command to the legislature to enact, — 522 — Jaws to carry out the intent manifested by the provision, and to prescribe suitable penalties to be imposed upon whatever persons may violate the same. Under this provision the legislature is given express power to enact such laws as it may deem proper and necessary to enforce the constitutional provision, subject, of course, to whatever restriction has been placed upon such legislative power by other germane provisions of the ■state or Federal Constitution. In our opinion the constitutional provision which we have quoted ■conferred upon the legislature express authority to enact laws providing for the seizure and destruction of intoxicating liquors imported into the state, or kept therein, for unlawful purposes. In fact the power of the state to seize and destroy intoxicating liquors kept for sale •or distribution in violation of law is generally recognized. Woollen & T. Intoxicating Liquors, §§ 596 et seq.; Joyce, Intoxicating Liquors, § 498; Black, Intoxicating Liquors, § 351. See also J. B. Mullen & Co. v. Moseley, 13 Idaho, 457, 12 L.R.A.(N.S.) 394, 121 Am. St. Rep. 277, 90 Pac. 986, 13 Ann. Cas. 450; James Clark Distilling Co. v. Western Maryland R. Co. 242 U. S. 311, 61 L. ed. 326, L.R.A.1917B, 1218, 37 Sup. Ct. Rep. 180; Freund, Pol. Power, §§ 204 et seq.; Bierly, Pol. Power, p. 119; Tiedeman, Pol. Power, § 103, pp. 298 et seq.; Balch v. Glenn, 85 Kan. 735, 43 L.R.A.(N.S.) 1080, 119 Pac. 67, Ann. Cas. 1913A, 406; Los Angeles County v. Spencer, 126 Cal. 670, 77 Am. St. Rep. 217, 59 Pac. 202, 385. We are therefore of the opinion that § 10,114 does not violate § 112 of the Constitution, nor has it been .shown to us that any other constitutional provision is violated thereby. Section 10,114, supra, was enacted by the legislative assembly in 1907, and originally constituted a part of chap. 188, Sess. Laws 1907. This legislative enactment was apparently intended to obviate the differ•ences then existing between the laws of this state and other states as-pointed out in the decision, in State ex rel. Kelly v. McMaster, 13 N. D. 58, 99 N. W. 58, wherein this court held that no proceeding in rem against the liquor was authorized under the then-existing laws. The .section under consideration provides for notice and hearing before •the justice of the peace, and the rendition of a judgment by him. Anri while no provision is made therein giving an appeal to a party claiming to be aggrieved by his determination, we are inclined to agree with — 523 — the contention of the states attorney (now attorney general of this .state) that the legislature intended that the provisions in the justice’s Code relative to appeals should apply to judgments entered by the justice of the peace in proceedings instituted before him under § 10,114, supra. This is also the conclusion reached by the supreme court of the state of Iowa in a similar case. See Part of Lot 294 in Ottuma v. State, 1 Iowa, 507. We cannot believe that it was the legislative intent to make the justice’s determination final. This would be wholly contrary to, and at variance with, the uniform and well-settled policy prevailing in this state, relative to determinations of justices of the peace, as the right to appeal from a judgment of a justice of the peace in any civil or criminal action arising -under the laws of this state is, and has been, given in all cases. Comp. Laws 1913, §§ 9163, 9114. It would also be contrary to the prevailing policy with respect to the Prohibition Law itself, which allows to the defeated party the right of appeal in all cases where proceedings are had before the district court. It cannot be assumed that the legislature intended to confer upon a justice of the peace greater powers than those conferred upon the district court, or invest judgments rendered by a justice of the peace with greater force and effect than those rendered by a court of record. If the legislature had intended to malee the determination of a justice of the. peace final, and deny the aggrieved party the right of appeal therefrom (assuming, without deciding, that the legislature had power to so do), we should expect to find the legislative intent expressed in positive and -unequivocal terms. The remedy of the plaintiffs was therefore to appeal from the judgment entered by the justice of the peace. They cannot be permitted to attack it collaterally in this action. 23 Cyc. 1082; 24 Cyc. 608, 609. As the complaint in the instant case shows that the defendant sheriff liolds the wine involved herein, under and by virtue of an order entered by the justice of the peace in a proper proceeding instituted before him, and there is no allegation of facts showing such order to be void, it follows that the complaint fails to state facts sufficient to constitute a cause of action. See Woollen & T. Intoxicating Liquors, § 601; Joyce, Intoxicating Liquors, § 544. The order appealed from must therefore be reversed and the cause remanded for further proceedings in conformity with the views expressed in this opinion.