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Pac. 158; Fleishner v. Citizens' Real Estate & Invest. Co. 25 Or. 119, 35 Pac. 174; Tribou v. Strowbridge, 7 Or. 156; McLeod v. Lloyd, 43 Or. 275, 71 Pac. 795, 74 Pac. 491; Hall v. Dunn, 52 Or. 475, 25 L.R.A.(N.S.) 193, 97 Pac. 811.

An automobile, not being contraband in itself, should never be confiscated because of some alleged infraction of the prohibitory laws, unless there be clear and convincing proof that the owner of the car knew, or should have known by reason of all attendant facts and circumstances, that the driver of the car was violating such prohibitory law at the time he had possession of such car.

State v. Cox, 91 Or. 518, 179 Pac. 575; Pittsburgh Taxicab Co. v. United States (C. C. A. 6th) 24 L.R.A. 1125, 281 Fed. 669; United States v. Burns (D. C. ) 270 Fed. 681; United States v. Brockley (D. C.) 266 Fed. 1001; The Saxon (D. C.) 269 Fed. 639; State ex rel. Tate v. One Lexington Auto. 203 Ala. 506, 84 So. 297; One Packard Auto. v. State, 204 Ala. 435, 86 So. 21; Bowling v. State, 204 Ala. 405, 85 So. 500; Lang v. Hitt, 149 Ga. 667, 101 S. E. 795; Aldinger v. State, 115 Miss. 314, 75 So. 441; State v. Johnson, 181 N. C. 638, 107 S. E. 433; Hoover v. People, 68 Colo. 249, 187 Pac. 531.

Statutes imposing forfeitures are to be strictly construed, and in a manner as favorable to the person whose property is attempted to be seized as is consistent with the principles of interpretation.

19 Cyc. 1358; Nicklas v. Rathburn, 69 Or. 483, 139 Pac. 567.

Mr. Newton C. Chaney, for respondent:

The act of the legislature embodied in chapter 29, Session Laws of 1923, is a good and valid exercise of the police power of the state, and cannot be interfered with by the court unless it be found beyond a reasonable doubt to be purely arbitrary and in violation of some constitutional limitation.

Stettler v. O'Hara, 69 Or. 519, L.R.A. 1917C, 944, 139 Pac. 743, Ann. Cas. 1916A, 217; People v. Elerding, 254 Ill. 579, 40 L.R.A. (N.S.) 893, 98 N. E. 982; Lochner v. New York, 198 U. S. 45, 49 L. ed. 937, 25 Sup. Ct. Rep. 539, 3 Ann. Cas. 1133; Jacobson v. Massachusetts, 197 U. S. 11, 49 L. ed. 643, 25 Sup. Ct. Rep. 358, 3 Ann. Cas. 765; Kroner v. Portland, 116 Or. 141, 240 Pac. 536; Robinson Cadillac Motor Car Co. v. Ratekin, 104 Neb. 369, 177

N. W. 337; State v. Peterson, 107 Kan. 641, 193 Pac. 342.

The right of trial by jury extends only to those cases where it was secured by the laws and practice of the courts at the time of the adoption of the Constitution.

Tribou v. Strowbridge, 7 Or. 156; Fleischner v. Citizens' Real Estate & Invest. Co. 25 Or. 119, 35 Pac. 174; Raymond v. Flavel, 27 Or. 219, 40 Pac. 158; Stevens v. Myers, 62 Or. 372, 121 Pac. 434, 126 Pac. 29.

A statute for the seizure and confiscation of an instrumentality used in the commission of a crime cannot be declared to be unconstitutional because it provides for hearing and trial without the intervention of a jury.

One Cadillac Auto. v. State, 75 Okla. 134, 182 Pac. 227; One Hudson SuperSix Auto. v. State, 77 Okla. 130, 187 Pac. 806; Lawton v. Steele, 152 U. S. 133, 38 L. ed. 385, 14 Sup. Ct. Rep. 499; Kite v. People, 32 Colo. 5, 74 Pac. 886; Dowda v. State, 203 Ala. 441, 83 So. 324; State v. Kelly, 57 Mont. 123, 187 Pac. 637; State v. One 1921 Cadillac Touring Car, 157 Minn. 138, 195 N. W. 778; State ex rel. Wilcox v. Byder, 126 Minn. 95, 5 A.L.R. 1449, 147 N. W. 953; State v. Hanson, 114 Minn. 136, 130 N. W. 79; Hawkins v. Langum, 115 Minn. 100, 131 N. W. 1014; Kirkland v. State, 2 Ann. Cas. 242, and note, 72 Ark. 171, 65 L.R.A. 76, 105 Am. St. Rep. 25, 78 S. W. 770; State v. Stephens, 109 Kan. 254, 198 Pac. 1087; State v. Lee, 113 Kan. 462, 215 Pac. 299; State v. Robinson, 118 Kan. 775, 236 Pac. 647; Robinson Cadillac Motor Car Co. v. Ratekin, 104 Neb. 369, 177 N. W. 337; State v. Peterson, 107 Kan. 641, 193 Pac. 342.

The mere fact that the person owning a vehicle used in the commission of a crime was not informed that it was being so used is not a good defense against the seizure and confiscation of an automobile used unlawfully.

Oakland Auto. v. State, 203 Ala. 600, 84 So. 839; State ex rel. Patterson v. One Five-Passenger Paige Auto. 204 Ala. 44, 85 So. 276; Williams v. State, 27 Ga. App. 224, 107 S. E. 620; Doster v. State, 25 Ga. App. 723, 104 S. E. 642; Parks v. State, 25 Ga. App. 723, 104 S. E. 911.

Mr. N. W. Borden also for repond

ent.

Rand, J., delivered the opinion of the court:

This is an appeal by Nona B.

(-- Or. -
251 Pac. 701.)

Heffling, from a decree rendered by
the circuit court for Jackson county,
pursuant to the provisions of chap-
ter 29, Laws 1923, by the terms of
which a Studebaker car belonging
to her was forfeited to the state be-
cause of an alleged act of her hus-
band in transporting, on his person
therein, a bottle of intoxicating liq-

uor.

There was evidence tending to show that prior to the seizure of the car, the husband of appellant, while engaged in driving the car, but not in her presence, had carried on his person a bottle of intoxicating liquor, for which he had been arrested and bound over to await the action of the grand jury; that the grand jury had refused to indict him for said offense, and had returned a not true bill, and that appellant had no knowledge of the alleged unlawful act of her husband.

Under the act in question, no previous conviction of the offending person is required as a basis for the entry of a decree forfeiting an automobile because of an alleged use of the automobile in violation of the prohibition law. Whether there has been such violation or not is left by this act to the determination of a judge of the circuit court, without the aid or presence of a jury. The proceedings provided for by this act are to be determined exclusively by the circuit judges of the state. The act provides for an appeal from their decrees, but there is no provision of law by which, upon appeal, a trial by jury can be obtained. The act, therefore, operates to deny to the owner or claimant of the property sought to be forfeited the right of trial by jury, and because of this it is contended that the act is unconstitutional and void, in that it violates article 1, § 17, of the state Constitution, which guarantees that "in all civil cases, the right of trial by jury shall remain inviolate."

So far as deemed material to this controversy, the act provides (§§ 1 and 15) that any boat, vehicle or other conveyance, except a "railroad

car" or "ocean-going vessel," which is or has been "used by or with the knowledge of the owner or the person operating or in charge thereof, in any unlawful bringing of intoxicating liquor into this state, or in the unlawful transportation of the same within this state, or in or on which intoxicating liquor unlawfully possessed is kept or concealed by or with the knowledge of such owner or person operating or in charge thereof, shall be forfeited to the state."

Section 2 provides: "Whenever, in connection with the pursuit or search of any boat, vehicle or other conveyance or otherwise, any peace officer shall find intoxicating liquor upon or in the same or which has recently been removed therefrom, which he has probable cause to believe is then being or has recently been unlawfully carried, transported, kept or possessed by the owner or person in charge of, or operating such boat, vehicle or other conveyance, said officer shall, in addition to seizing the intoxicating liquor so found and arresting the person, if any, then in charge of or operating such boat, vehicle or other conveyance as heretofore provided by law, also seize such boat, vehicle or other conveyance and make return of such seizure to the circuit court of the state of Oregon for the county within which such seizure has been made, and if said seizure has been made by any other officer than a sheriff, the seized conveyance shall be delivered to the sheriff."

Section 5 provides: "Any circuit court of this state to which a return of seizure under this act shall be made shall have jurisdiction to try, without a jury, the question whether such boat, vehicle or other conveyance so seized is subject to forfeiture under the first section of this act, and to determine the same as in civil cases; and the attendance of witnesses may be compelled and testimony may be taken and appeals shall be allowed as in civil cases in equity. The proceedings shall be in the name of the state of Oregon,

as plaintiff, and the seized property and all persons claiming any interest therein shall be deemed defendants, but such persons need not be named as defendants until they have filed in the proceedings their written claims and caused their names to be entered as such defendants. The proceedings shall be in rem against the property and the jurisdiction of the court over the property and the cause and all parties in interest shall be complete by virtue of the fact of seizure and the filing of the return thereof. No pleading shall be necessary on the part of the state except the officer's return of seizure, nor on the part of any claimant except a brief statement of the interest or lien claimed by him and of his ground of defense, verified under oath, and which shall be deemed denied."

The procedure provided for in this act is not by way of an action in personam against some offending person, but is a special proceeding in rem against specific property, which may be brought to have the question determined of whether such property shall be forfeited because of some unlawful use having been made of it in violation of the state prohibition law. This act prescribes no penalty, except forfeiture, and contains no provision making a prior conviction essential to the working of such forfeiture. The criminal acts upon which the forfeiture is made to depend are made criminal by other statutes, which themselves contain no provision for the forfeiture of property.

There

is, therefore, no relation or connection between proceedings brought under this act and any prosecution or conviction of the offense which is made the basis of the right to forfeit such property. Under this act, persons who, it is claimed, have violated other statutes, may not be prosecuted at all for such offense, or, if prosecuted, may be acquitted, and yet the owner of property used by them may be divested of his property without a trial by jury because of some alleged act of theirs,

for which no conviction has been had. The question of whether such forfeiture shall be enforced is left, by this act, entirely to the determination of a circuit judge, who passes upon the question without the aid or presence of a jury. The question, therefore, is not whether the act itself would have been constitutional, had it provided for a jury trial, but whether it is constitutional, having provided, as it does, that the party whose property may be forfeited, shall not be entitled, at any stage of the proceedings, to a trial by jury. Nor is the question one which would arise, had this statute, like the National Prohibition Act, provided that, upon conviction of the offending person, forfeiture of the property used in the commission of the offense would follow as a matter of law, reserving only to the owner or claimant of the property so used the right to be heard upon the question of whether as against him, because of his negligence or other wrongful act, or otherwise, good cause does or does not exist for enforcing the forfeiture.

The right of trial by jury, guaranteed by the Constitution of this state, embraces every case where it existed before the Jury-constituadoption of the Con- tional rightstitution, and it is

scope.

not within the power of the Legislature to enact any law which deprives any litigant of that right. Hence if, as contended for here, this appellant, before the adoption of the Constitution of this state, in having the question determined of whether her property should be forfeited, would have been entitled to a jury trial as a matter of right, then this act, since it deprives her of such right, is unconstitutional and void. Tribou v. Strowbridge, 7 Or. 156; Wong v. Astoria, 13 Or. 538, 11 Pac. 295; Wilkes v. Cornelius, 21 Or. 341, 23 Pac. 473; Deane v. Willamette Bridge Co. 22 Or. 167, 15 L.R.A. 614, 29 Pac. 440; Fleischner v. Citizens' Real Estate & Invest. Co. 25 Or. 119, 35 Pac. 174; Raymond v.

(— Or. —, 251 Pac. 701.)

Flavel, 27 Or. 219, 40 Pac. 158; Hoag v. Washington-Oregon Corp. 75 Or. 588, 144 Pac. 574, 147 Pac. 756; Puffer v. American Ins. Co. 48 Or. 475, 87 Pac. 523; Schnitzer v. Stein, 96 Or. 343, 189 Pac. 984.

...

"It cannot be doubted that a forfeiture of property for a prohibited act is a penalty for committing the act. It is so denominated by lexicographers, and is so treated in judicial decisions. Lawton v. Steele, 152 U. S. 138, 38 L. ed. 385, 14 Sup. Ct. Rep. 499. It was said by Judge Strong, in Wood v. Brooklyn, 14 Barb. 432: 'It is a matter of public notoriety that suits for penalties . have generally been tried before a jury. If there have been exceptions they have not been sufficiently numerous to affect the general usage. The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions, unless there is something peculiar calling for their application. To allow the legislature to except from the operation of a constitutional provision, by direct enactment, a matter clearly falling within its meaning, would sanction a fraud upon the organic law and might in the end destroy its obligation.'" Colon v. Lisk, 13 App. Div. 195, 43 N. Y. Supp. 364.

There can be no doubt that at the time of the adoption of our state Constitution, in cases where the seizure was made on land, property such as a "boat, vehicle or other conveyance," could not be forfeited by way of penalty or punishment for the violation of law, except in actions triable by jury. "Where a proceeding is authorized which may result in a judgment that operates upon the property of the individual, either by way of forfeiture or by means of execution, the uniform rule of law has always been that, before such judgment can pass, the individual is entitled to a jury trial, unless he waives the same." Colon V. Lisk, 13 App. Div. 195, 204, 43 N. Y. Supp. 364, 370. "We regard it equally clear that suits to enforce forfeitures or penalties have been

generally tried by a jury.” Id. 153 N. Y. 188-194, 60 Am. St. Rep. 609, 47 N. E. 303. "Felony," says Sir William Blackstone, "in the general acceptation of our English law, comprises every species of crime which occasioned at common law the forfeiture of lands and goods. . And all these felonies were to be determined 'per laudamentum sive judicium parium suorum' (by the verdict or judgment of his peers) in the lords' court." 4 Bl. Com. chap. 7, 94-97.

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"If an act of Parliament inflict a certain penalty for the particular act, an action of debt will lie for the penalty, if no other remedy be specified in the statute; for the law implies that, by the fundamental contract of society, the offending party is bound and hath virtually agreed to obey the directions of the Legislature, and pay the forfeiture incurred to such persons as the law requires. But where a statute prohibits an act injurious to an individual, and does not assign any certain penalty for it, the remedy for the party grieved is by action on the case." Archbold, Civ. Pl. § IV. *18.

At the time when our state Constitution was adopted, courts were classified according to the nature and extent of their jurisdiction, their forms of proceeding, or the principles upon which they administered justice, either as courts of admiralty, courts of equity, or courts of law. Controversies concerning forfeitures of rights or property could be adjudicated only in some one or more of these courts, since in this country there were no other courts in which controversies of that nature could be adjudicated.

Courts of admiralty had jurisdiction to enforce forfeitures without the aid or presence of a jury, but their jurisdiction was limited to cases arising under the admiralty or maritime law, and they never had jurisdiction to enforce a forfeiture where the seizure was made on land.

Courts of equity have always refused to lend their aid to the en

forcement of a forfeiture. "It is a well-settled and familiar doctrine," says Professor Pomeroy, "that a court of equity will not interfere on behalf of the party entitled thereto, and enforce a forfeiture, but will leave him to his legal remedies, if any, even though the case might be one in which no equitable relief would be given to the defaulting party against the forfeiture. The few apparent exceptions to this doctrine are not real exceptions, since they all depend upon other rules and principles.

There are, in fact, no exceptions to this doctrine; those which appear to be exceptions are not so in reality." 1 Pom. Eq. Jur. 3d ed. §§ 459 and 460.

Courts of law administer justice according to the rules of the common law, and are held for the trial of civil causes with the presence and aid of a jury, and, where there are issues of fact to be determined, the trial ordinarily must be by jury. The jurisdiction exercised by such courts is of two kinds, summary and formal. Courts have always possessed summary power to prevent hardships, irregularities, and abuses, which would otherwise take place in the course of proceedings. There were also many petty offenses against statutes or municipal ordinances which were not triable by jury at the time the Constitution was adopted. As to them, the right to a trial by jury has never existed, and, since they were so triable when the Constitution was adopted, they are now triable without a jury. In all such cases the punishment was trivial. As said in Colon v. Lisk, supra, illustrations are found in the punishment attached to petit offenses in violation of health laws, and in some instances to the violations of municipal regulations, and perhaps others. Other illustrations are given in 4 Bl. Com. chap. 20, *280, of summary proceedings directed by Parliament, to which the common law was a stranger, but in none of the illustrations given was the power

upheld to enforce, in a summary proceeding, the forfeiture of property such as that involved here. We find no case, and none has been cited, in which the common-law courts, prior to the adoption of our state Constitution, through the exercise of summary powers, have sanctioned or upheld the forfeiture of property which may be and ordinarily is used for lawful purposes.

-right to, in matters arising

of Constitution.

It is argued that these proceedings concern matters in respect to prohibitory laws enacted since the adoption of the Constitution, and for that reason are not within the guaranty of the Constitution, and that controversies concerning violations of them may be disposed of by the courts in any manner the Legislature sees fit to adopt. The answer to this contention is that the constitutional right of trial by jury is not to be narrowly construed, and is not limited strict- after adoption ly to those cases in which it had existed before the adoption of the Constitution, but is to be extended to cases of like nature as they may hereafter arise. Upon this question the court, in Colon v. Lisk, 13 App. Div. 202, 43 N. Y. Supp. 369, said: "The question of constitutional right to a trial by jury, in the exercise of power which we are now considering, was much considered in the case of Wynehamer v. People, 13 N. Y. 426. It was there said that the provision of the Constitution, preserving the right to a jury trial, where it had previously existed, did not 'limit the right to the mere instances in which it had been used, but extends it to such new and like cases as might afterwards arise.' In People ex rel. Comaford v. Dutcher, 83 N. Y. 240, it was held that the offense of petty larceny was within the constitutional provision requiring a jury trial, were it not for the fact that, by amendment of § 23 of article 6 of the Constitution, jurisdiction of offenses of the grade of misdemeanor was conferred upon Courts of Special Sessions. These cases are au

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