Adams v. W. H. Johnson & Co.

Whitfield, J., delivered the opinion of the court. We think it clear that a new ground of attachment — the ‘ ‘ selling or giving away by any person at his place of business, unlawfully, of liquors,’’ or the “ allowing ” this to be done — was created by $ 1590, code 1892, for the particular purposes of that section. The grounds<of attachment in chapter nine of the code are not applicable to the cause of action dealt with by said section. A consideration, historically, of our legislation on this subject puts it beyond doubt. See § 1109, Code 1880; Laws 1890, ch. 2, §2; Ib. ch. 8, §2; Code 1892, §§ 4191, 4255, 125, 1590, 1591, 93, 562; Laws 1894, ch. 34, § 2. It is to be noted that under § 1591, code 1892, the district attorney may sue the regularly licensed dealer on his bond; and, under § 125, by attachment. But this means attachment on some of the usual grounds in chapter 9, since it is against one who, like other persons, is conducting a lawful business, and has given bond to which resort can be had upon failure to comply with its conditions. Section 1590 provides a further remedy, by summary seizure of the property in an unlawful business, by attachment sued out on the single ground therein specified. , The words “ without bond " in § 1590 confer no new right upon [902] the municipality, any more than upon the county and state. It is true § 4255 provides that no bond is to be required of the state or county in any case, and does not include municipalities; but the same clause in § 1590 which provides that such civil suit may be commenced by attachment without bond, refers as well to state and county as to municipality. Section 3872 is not in pari materia with § 1590. The subject-matter is wholly distinct. Sections 3870-3872 relate to ‘' transient auctioneers or vendors, ’ ’ who, from the very nature of their business, are not located as are liquor dealers, or (§ 1590) “persons ” having ' ‘ places of business, ’ ’ but are persons who are constantly moving from place to place, and may at any time remove themselves or their property out of the state, have no ' ‘ place of business, ’ ’ and are not nearly so conveniently dealt with or accessible for the purposes of the taxation provided for in §§ 3870— 3872. There is no just analogy between the class of cases provided for in §1590 and those provided for by §'§ 3870-3872. If it be true that § 1590 merely provides that the state, county, or municipality might attach ‘‘ without bond, ’ ’ but must look to chapter 9, code 1892, for the grounds for the attachment, it conferred an empty right, for no one of the eleven ordinary grounds of attachment is, as well put by counsel for appellant, “of the essence of an illegal sale of liquor;” and such construction; as forcibly said by counsel, would result in this: “That in almost no case could an attachment suit be brought; and in other cases, where a personal suit was begun, the beginning of the action and service of the writ would act simply as a warning to the defendant, enabling him to place his property beyond the reach of execution, and to defy any judgment subsequently rendered.' ’ The purpose of the legislature to suppress illicit traffic in liquors has been most emphatically declared. Section 1590 is a signal instance of this purpose. The state revenue agent is clothed now with the fullest authority in the premises (Laws 1894, p. 29); and the laws relating to his duties — duties of the [903] highest importance to the public revenues — must receive a.practically sensible construction, in aid of the collection of such public revenues. The judgment quashing the affidavit and writ of attachment, and vacating the j udgment on the attachment issue, and withdrawing the venditioni exponas, is reversed, and said affidavit, writ and judgment on attachment issue are reinstated,, and a venditioni exponas ordered to be issued. Reversed-