Summary
holding invalid statutes providing for confiscation of alcoholic liquors lawfully acquired and owned by but found on premises of one whose permit to sell had been revoked or cancelled
Summary of this case from Benjamin v. ColumbusOpinion
No. 31846
Decided February 23, 1950.
Intoxicating liquors — Not nuisance per se, when — Lawful owner may not be deprived of property without compensation — Constitutional law — Department of Liquor Control may not summarily seize alcoholic beverages — After liquor license of permitee revoked or cancelled — Sections 6064-28 and 6064-40, General Code, unconstitutional — Sections 16 and 19, Article I, Constitution — Section 1, Article XIV, Amendments, U.S. Constitution.
1. Intoxicating liquors and alcoholic beverages, which have been legally manufactured and are lawfully possessed, are not a nuisance per se; they are property protected by the laws relating to property generally, and the owner or possessor thereof may not be deprived of the same without judicial inquiry and determination.
2. Section 6064-28, General Code, which authorizes the Department of Liquor Control summarily to seize alcoholic beverages which are found on the premises of one whose permit to sell them has been revoked or cancelled, and that part of Section 6064-40, General Code, which provides for the destruction or disposition of lawfully held alcoholic liquors, without compensation to the owner, are unconstitutional and of no effect, being violative of Sections 16 and 19, Article I of the Constitution of Ohio and Section 1 of the Fourteenth Amendment to the Constitution of the United States, relating to the taking of property without due process of law and without compensation.
APPEAL from the Court of Appeals for Franklin county.
Louis W. Grieb operated an establishment in the city of Springfield in which he sold beer, wine and spirituous liquors to the public at retail and by the drink under a permit issued by the Department of Liquor Control of the state of Ohio.
On March 1, 1946, the state Board of Liquor Control issued an order revoking Grieb's permit. Prior to the receipt of the notice of such revocation, agents of the Department of Liquor Control entered Grieb's establishment and seized quantities of wine, whiskey, gin and rum, of the approximate value of $5,000, and retained the same as directed and authorized by Sections 6064-28 and 6064-40, General Code.
Thereafter, Grieb brought an action for a declaratory judgment in the Court of Common Pleas of Franklin county against the Department of Liquor Control, the Board of Liquor Control and the then Director of Liquor Control. In his petition Grieb alleged the facts narrated above and asked for a determination as to the constitutionality of:
"* * * (1) that part of Section 6064-40 of the General Code of Ohio which provides for the deduction of 25% of the gross proceeds of the sale of seized intoxicating beverages, legally manufactured and legally acquired by the permit holder, having an alcoholic content of 3.2% by weight to 21% by volume plus the deduction of other costs and expenses as set forth in said section, before refunding the proceeds of said sale to the former permit holder, and (2) that part of Section 6064-40 of the General Code of Ohio which provides for the payment of no amount to the former permit holder for spirituous liquors legally manufactured and legally acquired by the permit holder, seized pursuant to the Liquor Control Act."
The petition was met by a denial of certain allegations thereof.
Findings of fact and conclusions of law were made by the Court of Common Pleas. The conclusions of law are as follows:
"1. Section 6064-40, General Code, provides for the confiscation of private property which is legally acquired and which is not declared a public nuisance therein, without compensation to the owner thereof and with no provision for hearing or judicial process or judicial determination, in violation of Sections 16 and 19 of Article I of the Constitution of Ohio and the Fourteenth Amendment of the Constitution of the United States.
"2. Section 6064-40, General Code, provides for the taking of spirituous liquor legally acquired and not declared a public nuisance therein for the use of public institutions without compensation in violation of Sections 16 and 19 of Article I of the Constitution of Ohio, and the Fourteenth Amendment of the Constitution of the United States.
"3. Sections 6064-28 and 6064-40, General Code, are unconstitutional in that they authorize the taking of and confiscation of private property without due process of law and without compensation in violation of Sections 16 and 19 of Article I of the Constitution of Ohio and the Fourteenth Amendment of the Constitution of the United States.
"4. The seizure of said liquor and the confiscation thereof by the defendants were illegal.
"5. The plaintiff is entitled to have said liquor described in the petition returned to him by defendants or recover the fair value thereof from the defendants.
"It is therefore declared, adjudged and decreed that the seizure and confiscation of plaintiff's liquor described in the petition was illegal and the plaintiff is entitled to have said liquor returned to him by the defendants or recover the fair value thereof from the defendants, at defendants' costs, to all of which findings, conclusions of law and judgment the defendants except."
An appeal on questions of law was perfected by the defendants, the appellants herein, to the Court of Appeals, where the judgment below was affirmed.
The cause is now before this court for disposal upon an appeal as of right and upon the allowance of the motion for certification.
Mr. Wilby S. Cowan, Mr. Harold F. Adams and Mr. R. Stanley Lucas, for appellee.
Mr. Herbert S. Duffy, attorney general, and Mr. Charles T. Kaps, for appellants.
In our opinion, the lower courts decided the instant controversy correctly.
Although Grieb's license to sell and dispense alcoholic beverages was revoked because he was found to have violated certain provisions of the General Code, this does not alter the fact that the spirituous liquors he owned at the time of the revocation of his permit were legally manufactured and acquired, and were not a nuisance per se. He had a property right therein which could not be taken away without judicial inquiry and determination.
In other words, intoxicating liquors which have been lawfully obtained and are lawfully possessed are not a nuisance in themselves; they are property entitled to treatment as such and the possessor thereof may not be deprived of them without due process of law.
The authorities sustaining the above propositions are many; a few of them are as follows:
8 Ohio Jurisprudence, 715, 716, Sections 597, 598 and 599; 48 Corpus Juris Secundum, 740, "Intoxicating Liquors," Section 488; Corneli v. Moore, Collector, 267 F., 456, affirmed 257 U.S. 491, 66 L. Ed., 332, 42 S. Ct., 176; McKown v. City of Atlanta, 184 Ga. 221, 190 S.E. 571; People v. Marquis, 291 Ill. 121, 125 N.E. 757, 8 A.L.R., 874; Preston v. Drew, 33 Maine, 558; State v. Friedman, 98 N.J.L. 577, 120 A. 8, affirmed 98 N.J.L. 577, 120 A. 9.
It is to be remembered that there is a clear cut distinction between that class of articles which have been declared unlawful and a public nuisance by statute and may be seized and disposed of forthwith and the class of property which is lawful in its ordinary and proper use and becomes contraband only when used in an unlawful manner and where there is a determination to that effect in a court of competent jurisdiction. See Wagner v. Upshur, 95 Md. 519, 52 A. 509, 93 Am. St. Rep., 412.
The above distinction is illustrated in the so-called "fish net" cases — Edson v. Crangle, 62 Ohio St. 49, 56 N.E. 647 and State v. French, 71 Ohio St. 186, 202, 73 N.E. 216, 217, 104 Am. St. Rep., 770. Compare In re Estate of Weisenberg, 147 Ohio St. 152, 70 N.E.2d 269.
Due process of law as guaranteed by the federal and state constitutions requires "some legal procedure in which the person proceeded against if he is to be concluded thereby, shall have an opportunity to defend himself." State, ex rel. Hoel, Pros. Atty., v. Brown, 105 Ohio St. 479, 486, 138 N.E. 230, 232.
In the last cited case, it is stated in the third paragraph of the syllabus:
"What the constitution grants, no statute may take away."
Notwithstanding the police power of the state is extensive, it cannot be exercised arbitrarily and unreasonably to affect or unduly interfere with personal rights or private property. See Mirick v. Gims, Treas., 79 Ohio St. 174, 178, 179, 86 N.E. 880, 881, 20 L.R.A. (N.S.), 42; City of Cincinnati v. Correll, 141 Ohio St. 535, 49 N.E.2d 412.
We conclude therefore that Section 6064-28, General Code, which authorizes the Department of Liquor Control to summarily seize alcoholic beverages which are found on the premises covered by a revoked or cancelled permit, and that part of Section 6064-40, General Code, which provides for the destruction or disposition of lawfully held alcoholic liquors, without compensation to the owner, are unconstitutional and of no effect, for the reason that they permit and sanction the taking and disposal of private property without due process of law, and without compensation, in violation of Sections 16 and 19, Article I of the Constitution of Ohio and Section 1 of the Fourteenth Amendment to the Constitution of the United States.
The judgment of the Court of Appeals is affirmed.
Judgment affirmed.
WEYGANDT, C.J., MATTHIAS, HART, STEWART, TURNER and TAFT, JJ., concur.