Opinion
No. 36734.
February 23, 1948.
1. INTOXICATING LIQUORS.
Under the statute providing for condemnation and sale of automobiles used in transportation of intoxicating liquor in violation of law and that proceeds be turned into county treasury, the sheriff, district attorney and county prosecuting attorney are required to appear to protect the county's interest (Code 1942, secs. 2618, 2619).
2. PROHIBITION.
Where owner of automobile, seized without writ by sheriff for alleged illegal use in transportation of intoxicating liquors, sought to prevent further proceedings under the statute permitting condemnation, and annexed to his petition the sheriff's affidavit alleging the unlawful use, owner at the hearing on his petition had a full, adequate and complete remedy afforded him by way of answer to the affidavit thus obtaining a full hearing on the merits of the seizure with recovery of possession of the automobile if so entitled, precluding relief by way of writ of prohibition (Code 1942, secs. 2618, 2619).
3. PROHIBITION.
The writ of prohibition is extraordinary or remedial and may issue only from a court of original jurisdiction and lies only to control an inferior court or tribunal in the attempted exercise of judicial powers in excess of its jurisdiction.
4. PROHIBITION.
A writ of prohibition to prevent proceedings pending in Circuit Court for condemnation of automobile following seizure by sheriff without writ of seizure pursuant to statute while vehicle was allegedly being used in illegal transportation of intoxicating liquors, the writ being returnable five months after seizure without showing that owner could not have regained possession by answering on the merits, was properly denied as attempting to prevent a court of original jurisdiction with full jurisdiction of both parties and subject matter from proceeding and preventing officers thereof from performing official duties (Code 1942, secs. 2618, 2619).
APPEAL from the Circuit Court of Itawamba County.
Brown Elledge, of Fulton, for appellant.
Our contention is that that part of Section 2618, Code of 1942, the so-called outlaw provision of the intoxicating liquor laws of Mississippi, which authorizes an officer, in the first instance and without a precedent writ of seizure, to seize and retain an automobile, allegedly used in transporting intoxicating liquor in violation of specified provisions of law, does not contemplate or authorize bonding the automobile or its return to the owner in any circumstances other than the final judgment of the court rendered at the end of the litigation, and that, in the case made by the petition filed by appellant, the failure so to provide is an unreasonable exercise of the police power and thus constitutes a deprivation of the use of appellant's property without due process of law, and is unconstitutional and void. We also contend that the remedy by prohibition is appropriate in this case. Moreover, we believe it is the only remedy available to this appellant for prevention of irreparable injury and damage.
Code of 1942, Secs. 2618, 2619.
The statute denies any remedy respecting interim possession.
Vance et al. v. State, 130 Miss. 251, 93 So. 881; Code of 1942, Title 11, Ch. 3, Sec. 2619; Laws of 1918, Ch. 189, Sec. 5, as redrafted and brought forward as Section 1979, Code 1930, and as appears now as Sec. 2618, Code of 1942.
The impounding of a private citizen's automobile for an indeterminate period of time as authorized by this statute and as practiced upon this appellant on the face of this record, is an unreasonable exercise of the police power and to that limited extent Section 2618, Code of 1942, is unconstitutional and void.
Tatum et al. v. Wheeless et al., 180 Miss. 800, 178 So. 95; Moss et al. v. Mississippi Livestock Sanitary Board, 154 Miss. 765, 122 So. 776; State v. Armstead, 103 Miss. 790, 60 So. 778; State v. J.J. Newman Lumber Co., 102 Miss. 802, 59 So. 923; Noble State Bank v. Haskell, 219 U.S. 104, 31 S.Ct. 186, 55 L.Ed. 112; 11 Am. Jur. 991, Sec. 259, Notes 13, 14, p. 1073, Sec. 302, p. 1075, Sec. 303.
The writ of prohibition, on this record, is not only appropriate, but is the only remedy available to appellant.
Planters' Ins. Co. v. Cramer, 47 Miss. 200; Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518; Holmes et al. v. Board of Sup'rs of Forrest County, 199 Miss. 363, 24 So.2d 867; Glover v. City of Council of Columbus, 132 Miss. 776, 96 So. 521; Adams v. State, 202 Miss. 68, 30 So.2d 593-596; Fanning v. Town of Hickory Flat, 201 Miss. 620, 30 So.2d 65; State ex rel. Atty. Gen. v. Board of Sup'rs of Coahoma County (Miss.), 3 So. 143; Hamilton v. Long, 181 Miss. 627, 180 So. 615; Code of 1942, Secs. 1110, 1111, 1112, 1115, 1117, 1119, 2618, 2619, 3920; 42 Am. Jur. 153, Sec. 14, p. 234, Sec. 2, note 14.
Greek L. Rice, Attorney General, by Geo. H. Ethridge, Assistant Attorney General, for appellee.
The court properly sustained the demurrer to the petition for the writ of prohibition and upon the appellant declining to plead further there was nothing for the court to do but dismiss the petition.
Reynolds v. City of New Albany, 166 Miss. 282, 146 So. 459; Wynne v. Illinois Central R. Co., 105 Miss. 786, 66 So. 410; Crittenden v. Town of Booneville, 92 Miss. 277, 45 So. 723, 131 Am. St. Rep. 518; Barnes v. McLeod, 165 Miss. 437, 140 So. 740; Code of 1942, Sec. 2618.
This appeal is from a final judgment of the circuit court in Itawamba County, which dismissed the petition of the appellant, Carmi Owens, for a writ of prohibition after a demurrer thereto had been sustained and the petitioner had declined to amend.
The writ of prohibition was sought from the circuit court, as aforesaid, against the appellee, N.L. Reese, sheriff of the county, the district attorney, and the county prosecuting attorney, to prevent any of them from taking any additional step in the said court under a proceeding instituted by the sheriff therein for the condemnation and sale of the petitioner's automobile, which the sheriff had alleged in an affidavit was seized by him while in the possession and under the control of the appellant, and being used by him for the transportation of 23 1/2 pints of whiskey for the purpose of sale in violation of the laws of this State.
The affidavit of the sheriff was filed in the circuit court on April 14, 1947, alleging the seizure of the said automobile on April 12, 1947; and that the same was of the value of $800. A notice or summons was thereupon served on the appellant, as owner, to appear at the next regular term of the circuit court on the first Monday of September, 1947, to answer the complaint made by the affiant on behalf of the State of Mississippi for the condemnation and sale of the said automobile.
The process against the appellees on the petition of the appellant for the writ of prohibition was likewise made returnable on the first Monday of September, 1947.
The precise contention of the appellant on this appeal is that the trial court erred in sustaining the demurrer to his petition for a writ of prohibition and dismissing the same, since that part of Section 2618, Code of 1942, which authorizes an officer, in the first instance, and without a precedent writ of seizure, to seize and retain an automobile allegedly used in transporting intoxicating liquor in violation of the law, does not contemplate or authorize the owner to make bond and regain possession of the automobile pending litigation and final judgment for the condemnation and sale thereof, and that the failure of the lawmakers to afford such remedy to the owner has the effect of denying to him the right to obtain the possession of his property pending litigation, and amounts to a denial of due process of law.
There was filed as an exhibit to the petition herein the said affidavit of the sheriff which set out in detail the alleged facts and circumstances under which the sheriff had seized the automobile in question. The petition alleged in general terms that the automobile was seized "wrongfully and without authority of law," and that the affidavit had stated "matters and things as facts which are not facts and designedly failed to state the true facts," but the petitioner fails to allege in the pleading what he contends are the real facts as to the circumstances under which the automobile was seized, if such facts were otherwise than alleged in the affidavit.
Section 2618, Code of 1942, authorizes the seizure of an automobile when being used in the transportation of intoxicating liquor in violation of the law, without the officer having precedently obtained a writ of seizure, and it is true, as contended by the appellant, that in such instance there is no statutory provision which authorizes the owner to regain possession of his automobile pending the outcome of a proceeding for the condemnation and sale thereof, as provided for in Section 2619, Code of 1942. It is merely provided by Section 2618, Code of 1942, that upon such a seizure being made, and the filing of the affidavit by the officer in the proper court, depending upon the value of the automobile, as a commencement of the proceeding to condemn and sell the automobile, the officer or the court shall give notice to or summon the interested parties to answer the complainant in the court where the cause is pending. And, the statute as above mentioned further provides for the issuance of a writ of seizure if the automobile is not in the possession of said officer, and that he may seize the same under such writ and summon "the interested parties into court, as in proceedings for the enforcement of purchase price liens against property."
It was held in Vance v. State, 130 Miss. 251, 93 So. 881, that a proceeding for the enforcement of a lien for purchase money, under our statute in that behalf, now Section 341, Code 1942, which in terms directs the issuance of a writ of summons and seizure, and commands the officer to seize the property and deal with it as in the attachment for debt, the defendant may replevy the property thus seized, and in such case he would be entitled to forthwith make bond for its possession by alleging that the same has been unlawfully taken from him within the thirty days immediately prior to the making of an affidavit in replevin. See also Section 349, Code 1942.
In the instant case, the appellant filed a motion contemporaneously with the filing of his petition for the writ of prohibition, on May 21, 1947, for a temporary order in vacation, directing the appellee, N.L. Reese, as sheriff, to deliver said automobile to the petitioner under such terms and conditions as the court might direct. This motion was heard before the circuit judge in vacation on June 4, 1947, and was overruled. A similar motion was again filed on September 1, 1947, at the beginning of the regular term of the court, and was likewise overruled. However, no claim is made here by the appellant that the trial court was in error in overruling either of these motions. On the contrary, he contends that when a sheriff or other officer seizes an automobile under the statute in question without precedently obtaining a writ of seizure, there is no authority for allowing the owner to make bond and obtain possession of the property pending litigation; and that the statute which permits the sheriff or other officer to determine for himself whether he will seize an automobile in the first instance and deny the owner the right to make bond for the possession thereof, or whether he will first obtain a writ of seizure therefor and allow the owner to make such a bond, as in a proceeding to enforce a purchase money lien, constitutes the officer a judicial or quasijudicial tribunal against whom a writ of prohibition may be granted within the meaning of the decision in the case of Glover v. City Council of Columbus, 132 Miss. 776, 96 So. 521, and other cases, if no other adequate remedy is available.
However, in the instant case, the writ of prohibition is sought not for the purpose of preventing the sheriff from seizing the automobile in the first instance, without obtaining in advance a writ of seizure, but it is sought to prevent him, and the other appellees, from taking any further steps in a case pending in the circuit court for the condemnation and sale of the said automobile. The writ here, the issuance of which is sought from the circuit court, would have the effect of preventing that court from proceeding with the disposition of the case, and also preventing the officers thereof from performing their official duties in the matter of presenting the case to such court for determination, after the court has acquired full jurisdiction of both the parties and the subject matter in the premises. Moreover, the sheriff, the district attorney, and the county prosecuting attorney, are required by law, as expressly alleged in the petition, to appear in cases where the county is interested. Section 2619, Code of 1942, provides that if the automobile should be condemned and ordered sold, the proceeds of such sale, after the payment of the costs, would be turned into the county treasury.
Moreover, when this petition came on to be heard at the regular term of the circuit court to which the same was returnable in September 1947, the petitioner had a full, adequate, and complete remedy afforded him of answering the affidavit of the sheriff, a copy of which he had made an exhibit to his petition, as to the unlawful use of the automobile at the time the same was seized; and for aught that appears from the petition he could have then and there obtained a full hearing on the merits so as to recover possession of the automobile, if entitled to such relief.
Finally, it should be observed that in the case of Holmes et al. v. Board of Supervisors, 199 Miss. 363, 24 So.2d 867, it was held that: "The writ of prohibition is extraordinary and remedial and may issue only from a court of original jurisdiction and lies only to control an inferior court or tribunal in the attempted exercise of judicial powers in excess of its jurisdiction." And, it does not appear that either the circuit court, or its officers who are the appellees herein, would be exercising judicial powers in excess of their jurisdiction by the presentation of the condemnation proceedings to the circuit court, and the determination of said cause by the court on its merits.
It is unnecessary that we pass upon the constitutional question raised in the instant case as to the right of the sheriff to seize an automobile under the circumstances alleged in his affidavit, and retain the same without having first obtained a writ of seizure therefor, and so as to deny to the owner the right to regain the possession of his property pending the litigation, since we do not think that the petition before us states a proper case for the issuance of a writ of prohibition, because the circuit court has original jurisdiction to proceed with the hearing of the condemnation proceeding under the facts and circumstances hereinbefore set forth. The period of five months complained of during which the appellant had been denied an opportunity to regain possession of his automobile had passed when the circuit court term convened, to which his petition was returnable, and it was not shown by an amendment to the petition, or otherwise, that he could not have then regained possession by answering the affidavit in the condemnation proceeding and showing that he was entitled to have the automobile restored to him.
We are of the opinion, therefore, that the judgment of the trial court in sustaining the demurrer and dismissing the petition for the writ of prohibition was correct under the circumstances, and that its action in that behalf should be affirmed.
Affirmed.