(Or., 251 Pac. 701.) thority, therefore, for the proposition that, where the right to trial by jury existed at the time of the adoption of any of the Constitutions, such right continues to exist unless taken away by the fundamental law, and that this right is not limited to cases where such right had previously been actually used, but embraces cases of the same class thereafter arising. So that, if, prior to the adoption of the Constitution, the right to enforce a penalty by a forfeiture of property could only be exercised through the medium of an action, and if the party against whom the forfeiture was sought to be enforced was entitled to a trial by jury, then such right exists now, and this principle of law is applicable to the present case." See also 16 R. C. L. p. 195. It is contended, however, that, because the procedure authorized by this act is a special statutory proceeding in rem against certain specific offending property, it is a proceeding unknown to the common law, and therefore does not entitle the claimant, or owner of the property sought to be forfeited, to a jury trial. Where, as in this case, the seizure was made on land, and a libel or information was filed to condemn the seized property, which as in this case was purely a proceeding in rem, the rule before the adoption of the Constitution was and still is that the suit is at common law, and that the claimants or owners of the property are entitled to a jury trial before a judgment can be passed forfeiting the seized property. In Garnhart v. United States, 16 Wall. 162, 21 L. ed. 275, the United States was seeking to enforce a forfeiture of certain distilled spirits for an alleged breach of the Act of July 20, 1868 (15 Stat. at L. 140, chap. 186), which provided that distilled spirits found elsewhere than in a distillery or distillery warehouse, not having been removed therefrom according to law, shall be forfeited to the United States. The spirits were seized on land and not in a distillery or distillery warehouse. tillery warehouse. The case arose on an information against the distilled spirits, and was a proceeding in rem. The claimants answered, denying the facts charged in the information, and alleging a compliance with the provisions of the act. The answer was stricken from the files in the lower court, and a decree was there entered, condemning the property. Upon writ of error, this decree was reversed, and the cause was remanded, with directions to award a venire. In reversing the decree, the Supreme Court of the United States said: "Where the seizure is made on land, the claimant is entitled to a trial by jury, if he appears and files an answer denying the facts set forth in the information. Repeated decisions of this court have established the rule that, where the seizure is made on navigable waters, the case belongs to the instance side of the subordinate court, but, where the seizure is made on land, the suit is one at common law, and the claimants are entitled to a trial by jury. Beyond all question, the claimants were entitled to a trial by jury." In 12 R. C. L. p. 133, in stating the law applicable to forfeitures, the authors say: "In the trial of all cases of seizure, on land or on waters not navigable, the court sits as a court of common law, and, as in all cases at common law where there are issues of fact to be determined, the trial must be by jury. In cases, however, of seizure made on navigable waters, the court sits as a court of admiralty, and, as in cases of admiralty and maritime jurisdiction generally, it is settled that the trial is to be by the court. Although the two jurisdictions are vested in the same tribunal, they are as distinct from each other as if they were vested in different tribunals, and can no more be blended than a court of chancery with a court of common law." Reference was made on the argument to the case of Dobbins's Dis tillery v. United States, 96 U. S. 395, 24 L. ed. 637, where a distillery and property connected therewith were forfeited to the United States, and this, it is contended, is an illustration of the power possessed by legislative bodies to enact this kind of legislation authorizing the condemnation of property by a proceeding in rem. An examination of that case will show that, while it was a proceeding in rem to enforce a forfeiture, it was tried as a law action and by a jury; that the United States had verdict; and that the judgment of condemnation of the property was entered on the verdict of the jury, and not upon an adjudication made by the court without the intervention of a jury. In The J. W. French (D. C.) 5 Hughes, 429, 13 Fed. 916, a leading case upon this question, the court said: "This was a proceeding at common law; and, while it is true that in actions in rem in admiralty property in the nature of ships may be divested from an owner without the verdict of a jury, yet I think it can be laid down with perfect truth that in any proceeding at common law, even proceedings in rem, a citizen of the United States cannot be divested of his property except by verdict of a jury, under due process of law, in a proceeding in which he is in some manner a party, having opportunity to be heard, and having a day in court. Condemnations and forfeitures are unknown in the practice of the United States courts, except upon specific proceedings against the property, and after the verdict of a jury." Like other property which may be and ordinarily is used for lawful purposes, an automobile is not a nui Nuisancesautomobile. sance per se. This act, unlike the National Prohibition Act, does not declare that an automobile, or any other vehicle in which intoxicating liquor is being unlawfully transported, is a public nuisance, nor is there any other statute in this state making an automobile, or other vehicle so used, a public nuisance. Also, unlike the National Prohibition Act, this statute does not make the conviction of the offending person a condition precedent to the forfeiture of property. Under the National Prohibition Act, before there can be a forfeiture of property, there must first be a conviction of the offending person, and before there can be a conviction in the absence of a plea of guilty, a trial by jury must first be had. Under this act, no prior conviction being necessary, property may be forfeited without any opportunity for a jury trial. If it should be assumed, in the absence of a statute declaring it to be such, that an automobile in which intoxicating liquor has at some time been carried, is a public nuisance, and subject to forfeiture, equity has jurisdiction to restrain a public Forfeiture— nuisance on behalf nuisances-jurisof the public, but diction of not to enforce a forfeiture. Injunctions have been granted to restrain violations of prohibition laws, the maintenance of gambling houses, and other acts which constitute a public nuisance. 1 Pom. Eq. Jur. § 479. equity. Concerning this jurisdiction, Mr. Justice Story says: "In case of public nuisances properly so called, an indictment lies to abate them, and to punish the offenders. But an information also lies in equity to redress the grievance by way of injunction.' junction." 2 Story, Eq. Jur. § 923. In accordance with this principle, it was held in Mugler v. Kansas, 123 U. S. 623, 31 L. ed. 205, 8 Sup. Ct. Rep. 273, that, in the exercise of the police powers of the state, the state may prohibit the manufacture and sale of intoxicating liquors, and prohibit the use of property in the future for the illegal manufacture thereof. There the court said: "They [courts of equity] cannot only prevent nuisances that threaten, and before irreparable mischief ensues, but arrest or abate those in progress, and, by perpetual injunction, protect the public against them in the future; whereas courts (— Or. —, 251 Pac. 701.) of law can only reach existing nuisances, leaving future acts to be the subject of new prosecutions or proceedings. This is a salutary jurisdiction, especially where a nuisance affects the health, morals, or safety of the community. Though not frequently exercised, the power undoubtedly exists in courts of equity thus to protect the public against injury." Under these and other authorities, a court of equity has power to abate a public nuisance by restraining its continuance, and in some instances to order the destruction of the particular property which constitutes the nuisance, if the nuisance cannot be abated in any other manner. But we know of no authority authorizing a court of equity to decree the forfeiture or destruction of property which is not a nuisance per se, or which is not made contraband by statute, or which is of the kind and character described in this statute. It seems, therefore, that, where the seizure is made on land, forfeitures of lawful property can be adjudged only in commonlaw actions, where the right to a trial by jury exists, and that such was the law at the time when our Constitution was adopted. Jury-right to, in proceeding in rem. The fact that because the proceedings authorized under this act are in rem and not in personam does not change the character of the suit from that of a common-law action into a suit in equity, nor does it affect the question of the owner to a trial by jury in this case. The property involved here is not intoxicating liquor, nor any other article which, under the law, is deemed contraband. Automobiles are property in the highest sense, and cannot be destroyed because some unlawful use may have been made of them. When used for unlawful purposes, they may become subject to forfeiture, but the proceedings under which the forfeiture is to be worked must be proceedings in which the party who is to be deprived of his property is accorded all of his constitutional rights. These questions were ably considered in Keeter v. State, 82 Okla. 89, 17 A.L.R. 557, 198 Pac. 866, which overruled several former decisions of that court, and held that an act similar to this was unconstitutional because denying to the party to be affected by forfeiture proceedings the right of trial by jury. That case has been followed in that court in Hoskins v. State, 82 Okla. 200, 200 Pac. 168, and One Paige Touring Car v. State, 83 Okla. 40, 200 Pac. 852. The cases of Colon v. Lisk, supra, also contain a discussion of many of the principles which we have considered above, and we think that these three cases correctly state the principles of law applicable to this controversy. In Fisher v. McGirr, 1 Gray, 1-35, 61 Am. Dec. 381, Mr. Chief Justice Shaw said: "The theory, upon which a judgment in rem is regarded as a judgment binding upon all the world, is that all the world have constructive notice of the seizure, with the cause and purpose of the taking, and the time and place at which any person may appear before a competent tribunal and have a trial, before the condemnation of his property. "Supposing the process in rem, when rightly conducted, to be a suitable and proper mode of enforcing obedience to a useful and salutary law, it does it by punishing the offender, who must be the owner, or some person intrusted with the possession by him, or some person for whose unlawful possession of it the owner is responsible; it does this by depriving such owner of his property, at the same time preventing the further noxious and unlawful use of it. Such being the character of the prosecution, in a high degree penal in its operation and consequences, it should be surrounded with all the safeguards necessary to the security of the innocent, having the full benefit of the maxim that every person shall be presumed in nocent until his guilt be established by proof. He should have notice of the charge of guilty purpose, upon which his property is declared to be unlawfully held and in danger of being forfeited, a time and opportunity to prepare his defense, an opportunity to meet the witnesses against him face to face, and the benefit of the legal presumption of innocence. Now we can per ceive no provision for the trial and proof of this offense of keeping liquors with illegal intent, in any sense in which a judicial trial is understood, in which a party charged with an offense, for which his property may be taken from him and confiscated, may stand on his defense, and have the presumption of innocence, until proofs are adduced against him to establish the crime or misdemeanor with which he is charged. Such a trial alone can satisfy the express provision in the Declaration of Rights, art. 12, which declares that no subject shall be arrested, or deprived of his property, immunities or privileges, or of his life, liberty or estate, but by the judgment of his peers, or the law of the land. These expressions have been understood, from Magna Charta to the present time, to mean a trial by jury, in a regular course of legal and judicial proceedings." If, under the provisions of this act, the property which was made. the subject of forfeiture had consisted of intoxicating liquor, gambling devices, or anything which in its nature is injurious to the public welfare, or if the act had required, as a condition of the forfeiture, the conviction of the offending person, the question would be different, but where, as here, the lawful property of an innocent person may be forfeited to the state without the previous conviction of any one, and without the opportunity of a jury trial at any stage of the proceedings, we think -forfeiture of vehicle trans right to. the act, in so far as porting liquor- it provides that the forfeiture shall be tried by the court without the inter vention of a jury, is unconstitutional and void, because denying a trial by jury as guaranteed by the state Constitution. A majority of the court are of the opinion that, in so far as the statute directs that a forfeiture may be had without a trial by jury, the direction is merely surplusage, and beyond the power of the Legislature to enact, but that the remainder of the act should stand. For these reasons the decree appealed from is reversed, and the cause is remanded, with directions to award a venire, and let a jury pass upon the question of whether the automobile should be forfeited. Coshow, J., dissenting: This is an appeal from the decree of the circuit court forfeiting an automobile found guilty of unlawfully transporting intoxicating liquor on July 21, 1923. One N. B. Heffling drove the automobile, the defendant herein, from his home near Medford into the city of Medford. The title to the automobile was at that time in the name of his wife, who afterwards claimed the car, and is the appellant here. The owner of the car permitted her husband to drive it and use it at his pleasure. While in Medford on that date it is claimed that he arranged with one Sam McClendon to procure some intoxicating liquor for the latter. Heffling and McClendon got into the car and the former drove it for some distance into the country where Heffing got some liquor in a bottle, took it to the car with him, gave it to McClendon, and the two then returned to the city of Medford in the car. Later McClendon was arrested on a liquor charge and three days later that is, on the 24th day of July, 1923-the car was seized by a deputy constable for Medford Precinct. The deputy constable made proper return of the seizure of said automobile as required by statute and delivered the car to the sheriff. Nona B. Heffling, wife of the driver of the car, filed her petition for a return of the car to her, and gave a redelivery bond to (— Or. —, 251 Pac. 701.) the sheriff after the car was appraised in manner and form as required by the statute. The car was appraised at the sum of $500. The cause came on for trial when the state was represented by O. C. Boggs, a special prosecutor appointed by the governor. The appellant objected to Boggs serving in that capacity. She also demanded a jury trial, which the court denied. A motion to dismiss because the court was without jurisdiction was also denied. A trial was had by the court and at the close of the testimony a motion to dismiss for want of sufficient evidence to forfeit the car was also denied. The car was forfeited. The appellant, N. B. Heffing, appeals, assigning 36 errors. The only assignments presented, however, at the argument and considered in the brief, are the following three: First, permitting 0. C. Boggs to prosecute the suit; second, denial of a jury trial; third, declaring the car forfeited, because it is alleged the evidence was insufficient to work a forfeiture. The intervener, Nona B. Heffling, appellant here, predicates error on the court's denial of her motion to disallow O. C. Boggs, as special to of the governor, and it is clear that the legislature intended that his judgment upon this question should be final and conclusive." State ex rel. Moore v. Farnham, 114 Or. 32, 44, 45, 234 Pac. 810. In our opinion the intervener is not entitled to question the right of the special prosecutor to appear in this suit. It is immaterial to her whether the regularly elected prosecutor or a specially appointed prosecutor conducts this proceeding in behalf of plaintiff. The most serious contention on the part of the intervener is that chapter 29, Gen. Laws 1923, is unconstitutional because it prescribes that the trial to determine whether or not the automobile should be forfeited must be conducted without a jury, and as a suit in equity. She relies on § 17, art. 1, of the state Constitution, reading as follows: "In all civil cases, the right of trial by jury shall remain inviolate". and the Federal Constitution, art. 7 of amendments, reading thus: "In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law." The cases cited by the intervener include Shawnee Nat. Bank v. United States, 161 C. C. A. 509, 249 Fed. 583; The J. W. French (D. C.) 5 Hughes, 429, 13 Fed. 916; The Sarah, 8 Wheat. 391, 5 L. ed. 644; Garnhart v. United States, 16 Wall. 162, 21 L. ed. 275; 12 R. C. L. 133, where the rule is thus stated: "In the trial of all cases of seizure, on land or on waters not navigable, the court sits as a court of common law, and, as in all cases at common law where there are issues of fact to be determined, the trial must be by jury." This language is taken from the opinion of Chief Justice Marshall in The Sarah, 8 Wheat. 391, 5 L. ed. 644, above. The other cases cited |