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(— Or. —, 251 Pac. 701.)

White Auto Co. v. Collins,. 136 Ark. 81, 2 A.L.R. 1594, 206 S. W. 748. Some of the authorities draw a distinction between a bona fide lien holder and an owner. A bona fide lien holder can recover the car or have his lien transferred to the proceeds of the sale of a car under circumstances that an owner or a seller on installments retaining title until the automobile has been fully paid for is not entitled to recover. Cornelius, Search & Seizure, 608611; McKay v. Com. 137 Va. 826, 120 S. E. 138.

It was not error for the Circuit Court to admit the evidence on rebuttal complained of by the appellant. Some of that evidence was properly direct evidence in chief, but it was also proper rebuttal. Such matters are largely in the discretion of the trial court and its ruling will not be disturbed on appeal, unless there is clearly an abuse of discretion. The complaint about the cross-examination is not well taken. The decree ought to be affirmed.

Brown, J., concurs in conclusion that the act is constitutional.

ANNOTATION.

Right to jury trial in case of seizure of property alleged to be illegally used. [Jury, § 12.]

I. Introductory, 97.

II. Federal revenue cases, 97.

III. Property used in aid of rebellion, 97.

[No later decisions herein.]

IV. Intoxicating liquors and property used therewith, 97.

V. Bawdyhouse furniture, etc., 98.

VI. Gaming devices, 98.

VII. Game laws; destruction of appliances, 98. [No later decisions herein.]

1. Introductory.

This annotation is supplemental to that in 17 A.L.R. 568.

11. Federal revenue cases.

(Supplementing annotation in 17 A.L.R. 568.)

In United States v. One Ford Sedan (1924; C. C. A. 5th) 297 Fed. 830, in a proceeding to forfeit an automobile used in the concealment of intoxicating liquor upon which internal revenue taxes had not been paid, it was held that the proceeding was at law, with the accompanying right of trial by jury, because the seizure was made on land.

III. Property used in aid of rebellion. No later decisions herein. For earlier cases, see annotation in 17 A.L.R. 568.

IV. Intoxicating liquors and property used therewith.

(Supplementing annotation in 17 A.L.R. 569.)

In State v. Lee (1923) 113 Kan. 462. 50 A.L.R.-7.

215 Pac. 299, it was held that the constitutional guaranty that the right of trial by jury should be inviolate had no application to a summary proceeding provided by statute to condemn and forfeit an automobile used in the illegal transportation of liquor and declared to be a common nuisance by statute. And see to the same effect, State v. Robinson (1925) 118 Kan. 775, 236 Pac. 647. And see Van Oster v. Kansas (1926) 272 U. S. 465, 71 L. ed. (Adv. 143), 47 A.L.R. 1044, 47 Sup. Ct. Rep. 133, affirming (1925) 119 Kan. 874, 241 Pac. 112, in which the constitutionality of the above statute was upheld.

And in State v. One 1921 Cadillac Touring Car (1923) 157 Minn. 138, 195 N. W. 778, it was held that a statute providing for the forfeiture of the property employed in transporting liquor did not violate the Constitution in providing that the proceeding against the property should be tried by the court without a jury.

And in Rickman v. Com. (1924) 204

Ky. 848, 265 S. W. 452, 509, it was held that a statute providing for the forfeiture of property, etc., used in the manufacture, sale, or transportation of intoxicating liquor, was not unconstitutional in that it deprived the defendant of the right of jury trial. The court said: "Such statutes are very common and have been universally sustained."

case

However, in the reported (STATE v. 1920 STUDEBAKER TOURING CAR, ante, 81), it was held that a statute denying to the owner or claimant of property sought to be forfeited (because of its use in violation of the local prohibition law) the right of trial by jury was unconstitutional and void, in that it violated a provision of the state Constitution guaranteeing that, "in all civil cases, the right of trial by jury shall remain inviolate." It will be observed that under this statute no prior conviction of the offending person was prerequisite to a forfeiture, and it will be also noticed, in distinguishing this case from the Kansas decisions, that the statute in the instant case did not declare vehicles used in the transportation of intoxicating liquor public nuisances, whereas the Kansas statute does so designate such vehicles.

And in National Surety Co. v. United States (1927; C. C. A. 9th) 17 F. (2d) 372, where proceedings were instituted under § 3450 of the Revised Statutes, U. S. C. title 26, §§ 1181, 1182, to condemn an automobile used in the removal and for the deposit and concealment of a quantity of distilled spirits, with intent to defraud the United States of the tax thereon, the court held that, where a seizure is made on

land, the claimant is entitled to a trial by jury, it he appears and files an answer denying the facts set forth in the libel.

V. Bawdyhouse furniture, etc. (Supplementing annotation in 17 A.L.R. 573.)

In State ex rel. Orr v. Kearns (1924) 304 Mo. 685, 264 S. W. 775, a case not strictly within the scope of the annotation, it was held that in a proceeding perpetually to restrain the operation of a bawdyhouse, declared to be a public nuisance by statute, no constitutional right of the operator of such a house was denied in failing to give to her a trial by jury. In the instant case, besides granting the injunction, the court below had directed the closing of the premises, and that they be kept closed from use for any purpose for a period of two months. The decision is grounded on the rule that in proceedings to abate a nuisance the right of trial by jury does not obtain.

VI. Gaming devices.

(Supplementing annotation in 17 A.L.R. 573.)

The seizure of property employed as a gambling device in violation of statute is a proceeding in rem, and, being contraband, the provisions of the Constitution relating to trial by jury and depriving one of his liberty or property without due process of law are inapplicable. Cambria v. Bachmann (1923) 93 W. Va. 463, 118 S. E. 336.

VII. Game laws; destruction of appli

ances.

No later decisions herein. For earlier cases, see annotation in 17 A.L.R. 574. R. P. D.

STATE OF NORTH CAROLINA

V.

L. E. REVIS, Appt.

North Carolina Supreme Court - January 26, 1927.

(193 N. C. 192, 136 S. E. 346.)

Convicts, § 11

power to authorize flogging.

1. In the absence of constitutional prohibition, the legislature may

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(193 N. C. 192, 136 S. E. 346.)

authorize the flogging of prisoners when necessary to preserve discipline in the management of unruly or refractory convicts.

[See annotation on this question beginning on page 104.]

Courts, § 84 supervision of legislative power.

2. The legislature alone may determine the policy of the state, and its will is supreme except where limited by constitutional inhibitions which, when invoked, present a question of power for the courts to decide.

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presumption as to

[See 7 R. C. L. 1049; 2 R. C. L. Supp. 499; 4 R. C. L. Supp. 509; 6 R. C. L. Supp. 474.] Evidence, § 104 validity of statute. 3. Every presumption is indulged in favor of the validity of an act of the lawmaking body.

[See 6 R. C. L. 97; 2 R. C. L. Supp. 24; 4 R. C. L. Supp. 381; 5 R. C. L. Supp. 319; 6 R. C. L. Supp. 355; 25 R. C. L. 1000; 4 R. C. L. Supp. 1615; 5 R. C. L. Supp. 1358; 6 R. C. L. Supp. 1498.]

Constitutional law, § 39 grant of power.

scope of

4. A constitutional grant carries

with it the necessary power of execution, and, in the absence of specific prohibition, the legislature may employ such means of execution as in its judgment may seem needful, advantageous, or appropriate.

[See 6 R. C. L. 155; 2 R. C. L. Supp. 41; 5 R. C. L. Supp. 322.]

Convicts, § 1- corporal punishment constitutional limitation.

5. A constitutional provision that the following punishments only shall be known in the state, death, imprisonment with or without hard labor, fines, removal from office, and disqualification to hold office, does not deprive the legislature of power to authorize corporal punishment of prisoners when necessary to enforce a sentence of imprisonment with hard labor, at least where the Constitution further provides that no convict whose labor may be farmed out shall be punished for any failure of duty, except by a responsible officer of the state.

APPEAL by defendant from a judgment of the Superior Court for Buncombe County (Stack, J.) convicting him of assault. Reversed.

Statement by Stacy, Ch. J.:

Criminal prosecution tried upon an indictment charging the defendant with an assault upon one Lee Cody, August 16, 1926.

It was shown on the trial :

(1) That the defendant is now, and has been for the past six years, superintendent of the prison camps of Buncombe county.

(2) That all prisoners confined in the prison barracks or prison camps of said county are divided into three classes, based on their conduct, as follows:

"Class A. Shall include all those prisoners who have given evidence that they will, or who it is believed will, observe the rules and regulations and work diligently and are likely to maintain themselves by honest industry after their discharge.

"Class B. Shall include those prisoners who have not as yet given evidence that they can be trusted, but are competent to work and are

reasonably obedient to the rules and regulations of the institution.

"Class C. Shall include those prisoners who have demonstrated that they are incorrigible, have no respect for the rules and regulations, and seriously interfere with the discipline and effectiveness of the labor of the other prisoners."

This classification is identical with that set out in Consol. Stat. § 7723, for the governance of penitentiary convicts. As a reward for good behavior, prisoners are entitled to be promoted from a lower to a higher class with progressively larger freedom; and, as evidence of demerit for bad conduct, they are subject to demission from a higher to a lower class.

(3) That only convicts assigned to Class C under the above rules are subject to corporal punishment as provided by chapter 328, Public Local Laws 1923, and only then after all other means of discipline have failed of proper results.

(4) That Lee Cody was convicted of highway robbery, assault, and prison breach, sentenced to the common jail of Buncombe county for a term of 12 months, and assigned to work upon the public roads of said county, and on March 22, 1926, was sent to the prison camp of which the defendant is superintendent.

(5) That on or about July 1, or about July 1, 1926, the said convict, who was strong and able-bodied, well and capable of working, having previously been assigned to Class C, as above designated, became mutinous and unruly, refused to work or labor as he was required to do, refused to obey orders of the guards (used obscene language in the hearing of women travelers on the highway), declined to observe the prison rules, and contended that the superintendent had no right to whip him or to discipline him for his misconduct.

(6) That the rules of the camp, adopted and promulgated by the county board of commissioners, under authority of and agreeably with the provisions of the statute, were well known to the recalcitrant prisoner, and he was duly warned of the results to follow if he continued to persist in his course of mischievous wrongdoing.

(7) That after all other means of discipline had failed, it being apparent that the prisoner, by his unruliness, was determined to test the right of the defendant to whip him, thereby rendering it necessary to do so in order to maintain authority in the camp, the defendant, in strict conformity with the provisions of the statute and the rules adopted in pursuance thereof, thereof, proceeded to whip the prisoner privately, in the presence of two persons of good moral character, with a leather strap two feet in length, two inches wide and one-eighth of an inch thick, striking the prisoner, who was dressed in his prison clothes, six licks across his back and hips.

(8) That the whipping so administered was not done in a cruel or unmerciful manner.

(9) That the superintendent made and kept a record of the offenses for which the prisoner was whipped, the number of blows inflicted, the names of the witnesses present, and reported the same, within ten days thereafter, to the board of commissioners of the county for preservation as a public record and to be kept open to public inspection, as required by the statute.

Upon the facts found and declared by the jury, a special verdict of guilty was rendered under appropriate instructions from the court, not because the whipping was cruel or unmerciful, but for the reason that, in the opinion of the presiding judge, all corporal punishment of convicts is illegal, even when administered under statutory authority and in strict compliance therewith. From the judgment entered on the verdict, the defendant appeals, assigning error. C. S. 4649.

Messrs. J. W. Haynes and Mark W. Brown for appellant.

Messrs. D. G. Brummitt, Attorney General, and Frank Nash, Assistant Attorney General, for the State.

Stacy, Ch. J., delivered the opinion of the court:

The immediate question presented is whether the Legislature has the power to authorize the whipping of convicts as a necessary means of discipline in the management of able-bodied men convicted of crime and assigned to work on the public roads of Buncombe county. In its ultimate effect, the case involves the power of the Legislature to deal, in a similar manner, with the management of incorrigible and unruly convicts throughout the state. The constitutionality of §§ 8 and 9 of chapter 328, Public Local Laws 1923, is the only point raised by the appeal.

Let it be observed in the outset that the question for decision is not one of wisdom or policy, but one of power. The Legislature alone may determine the policy Courts-superof the state, and its vision of legiswill is supreme, except where limited by constitutional

lative power.

(198 N. C. 19%, 136 S. E. 346.)

inhibition, which exception or limitation, when invoked, presents a question of power for the courts to decide. Marbury v. Madison, 1 Cranch, 137, 2 L. ed. 60. But even then the courts do not undertake to say what the law ought to be; they only declare what it is. Wood v. Braswell, 192 N. C. 588, 135 S. E. 529. To interpret, expound, or declare what the law is, or has been, and to adjudicate the rights of litigants, are judicial powers; to say what the law shall be is legislative. Chisholm v. Georgia, 2 Dall. 432, 1 L. ed. 445; Kilbourn v. Thompson, 103 U. S. 192, 26 L. ed. 387.

This results necessarily from the character of the structure which has been ordained and established by the people for the government of the state. Every student knows that, in North Carolina, those who make the laws determine their expediency and wisdom, but they do not administer them. The chief magistrate, who executes them, is not allowed to judge them. To another tribunal, the judiciary, is given the authority to pass upon their constitutional validity, to the end that it be "a government of laws and not of men." Long v. Watts, 183 N. C. 99, 22 A.L.R. 277, 110 S. E. 765.

In can make no difference whether the judges, as individuals, think ill or well of the manner in which the Legislature has dealt with a given subject, for, so long as the lawmaking body stays within the bounds of the Constitution, its acts are free from judicial interference. Muskrat v. United States, 219 U. S. 346, 55 L. ed. 246, 31 Sup. Ct. Rep. 250. It is only when the General Assembly undertakes to exceed the grant of legislative authority, made to it in the organic law, that the courts are directed to restrain its action. State v. Lewis, 142 N. C. 626, 7 L.R.A. (N.S.) 669, 55 S. E. 600, 9 Ann. Cas. 604. Such is one of the functions of the judiciary under a constitutional form of government like ours, but it can go no further in this respect. Person v.

Doughton, 186 N. C. 725, 120 S. E. 481.

Speaking to the question in State v. Burnett, 179 N. C. 735, 102 S. E. 711, Hoke, J., said: "It is the accepted position in this state that our Constitution in vesting the General Assembly with legislative authority, conferred and intended to confer upon that body all the 'legislative powers of the English Parliament or other government of a free people,' except where restrained by express constitutional provision or necessary implication therefrom"-citing Thomas v. Sanderlin, 173 N. C. 329, 91 S. E. 1028; State v. Lewis, 142 N. C. 626, 7 L.R.A. (N.S.) 669, 55 S. E. 600, 9 Ann. Cas. 604; Black, Const. Law, 3d ed. § 351, as authorities in support of the position.

The courts are limited to the exercise of judicial power by the same instrument which limits the Legislature to a given field of operation. Southern R. Co. v. Cherokee County, 177 N. C. 86, 97 S. E. 758. Unconstitutional acts of the Legislature may be rendered harmless by the courts in individual cases, when properly presented, but for the courts to strike down valid acts of the Legislature would be wholly repugnant to, and at variance with, the genius of our institutions. For this reason, every Evidence-prepresumption is in- sumption as to dulged in favor of validity of the validity of an act of the lawmaking body. Adkins v. Children's Hospital, 261 U. S. 525, 67 L. ed. 785, 24 A.L.R. 1238, 43 Sup. Ct. Rep. 394.

statute.

Again, it should be remembered that we are dealing with a case where all other means of discipline had failed of proper results, and it is the judgment of the Legislature, as well as of the responsible authorities in charge, that, in such a case, corporal punishment should be administered as a necessary means of maintaining order and authority in the convict camps. It seems to have been the deliberate purpose of the refractory prisoner to defy the law and to challenge its authority.

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