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dealing with the treaty and lawmaking power. Those concerning the treaty-making power provided that a two-thirds vote of all the members (instead of that proportion of a quorum) should be necessary to ratify a treaty dealing with enumerated subjects, and exacted even a larger proportionate vote of all the members in order to ratify a treaty dealing with other mentioned subjects; and those dealing with the lawmaking power required that a two-thirds (instead of a majority) vote of a quorum should be necessary to pass a law concerning specified subjects.

The construction which was thus given to the Constitution in dealing with a matter of such vast importance, and which was necessarily sanctioned by the states and all the people, has governed as to every amendment to the Constitution submitted from that day to this. This is not disputed, and we need not stop to refer to the precedents demonstrating its accuracy. The settled rule, however, was so clearly and aptly stated by the speaker, Mr. Reed, in the House, on the passage in 1898 of the amendment to the Constitution providing for the election of Senators by vote of the people, that we quote it. The ruling was made under these circumstances: When the vote was announced, yeas, 184, and nays, 11, in reply to an inquiry from the floor as to whether such vote was a compliance with the two-thirds rule fixed by the Constitution, as it did not constitute a two-thirds vote of all the members elected, the speaker said:

"The question is one that has been so often decided that it seems hardly necessary to dwell upon it. The provision of the Constitution says 'two thirds of both houses.' What constitutes a house? A quorum of the membership, a majority, one half and one more. That is all that is necessary to constitute a house to do all the business that comes before the House. Among the business that comes before the

House is the reconsideration of a bill which has been vetoed by the President; another is a proposed amendment to the Constitution; and the practice is uniform in both cases that if a quorum of the House is present, the House is constituted, and two thirds of those voting are sufficient in order to accomplish the object. "Hinds, Precedents of the House of Representatives, vol. 5, pp. 1009, 1010.

This occurrence demonstrates that there is no ground for saying that the adherence to the practice settled in both houses in 1789 resulted from a mere blind application of an existing rule; a conclusion which is also clearly manifested, as to the Senate, by proceedings in that body in 1861, where, on the passage of a pending amendment to the Constitution, as the result of an inquiry made by Mr. Trumbull relative to the vote required to pass it, it was determined by the Senate by a vote of 33 to 1 that two thirds of a quorum only was essential. 36 Cong., 2d Sess., March 2, 1861, Senate Journal, 383.

In consequence of the identity in principle between the rule applicable to amendments to the Constitution and that controlling in passing a bill over a veto, the rule of two thirds of a quorum has been universally applied as to the two-thirds vote essential to pass a bill over a veto. In passing from the subject, however, we again direct attention to the fact that in both cases the continued application of the rule was the result of no mere formal following of what had gone before, but came from conviction expressed, after deliberation as to its correctness, by many illustrious men.

While there is no decision of this court covering the subject, in the state courts of last resort the question has arisen and been passed upon, resulting in every case in the recognition of the principle that, in the absence of an express command to the contrary, the two-thirds vote of the house required to pass a bill over a veto is the two thirds of a

(248 U. S. 276, 63 L. ed., 39 Sup. Ct. Rep. 93.)

quorum of the body as empowered to perform other legislative duties. Farmers' Union Warehouse Co. v. McIntosh, 1 Ala. App. 407, 56 So. 102; State v. McBride, 4 Mo. 303, 29 Am. Dec. 636; Southworth v. Palmyra & J. R. Co. 2 Mich. 287; Smith v. Jennings, 67 S. C. 324, 45 S. E. 821; Green v. Weller, 32 Miss. 650. We say that the decisions have been without difference, for the insistence that the ruling in State ex rel. Eastland v. Gould, 31 Minn. 189,

17 N. W. 276, is to the contrary, is a wholly mistaken one, since the decision in that case was that, as the state Constitution required a vote of the majority of all the members. elected to the house to pass a law, the two-thirds vote necessary to override a veto was a two-thirds vote of the same body.

Any further consideration of the subject is unnecessary, and our order must be, and is, judgment affirmed.

ANNOTATION.

Vote necessary to pass bill over veto.

It will be observed that in the reported case (MISSOURI P. R. Co. v. KANSAS, ante, 1589), it is held that the requirement of "two thirds of that house" in the United States Constitution, relating to the passing of bills over the President's veto, is satisfied by a vote of two thirds of the members present of that house, there being a quorum present, the Constitution providing that "a majority of each [house] shall constitute a quorum to do business."

The same was held as to the similar provisions in the Constitution of South Carolina in Smith v. Jennings (1903) 67 S. C. 324, 45 S. E. 821, holding that a vote of sixty to twenty-five was sufficient to override the governor's veto, eighty-five being present out of a house of 124.

The "two thirds of that house" necessary to override a veto of the governor of a territory was held in Brown v. Nash (1872) 1 Wyo. 85; Union P. R. Co. v. Carr (1872) 1 Wyo. 96, to require a vote of two thirds of the members present, so that a vote of two thirds of those voting is not sufficient, where it is not large enough to be two thirds of those present. The act organizing the territory seems not to contain any provision as to a quorum, but there seems to have been a rule of the house in question that “a majority of the house shall constitute a quorum.”

In State ex rel. Eastland v. Gould (1883) 31 Minn. 189, 17 N. W. 276,

cited in the reported case (MISSOURI P. R. Co. v. KANSAS) the question was as to whether a law establishing a new court was enacted by the constitutional "two-thirds vote," and the court considered the question to be the same as if upon a vote to pass a bill over a veto, and held that as the state Constitution required, to pass a law, a vote of the majority of all the members elected to each branch of the legislature, the two-thirds vote required to establish a new court was two thirds of all the members of each house.

Of the cases cited by the court in the last paragraph but one of the opinion in the reported case (MISSOURI P. R. Co. v. KANSAS) only Smith v. Jennings (1903) 67 S. C. 324, 45 S. E. 821, supra, related to the passage of a bill over a veto. The others relate to other laws, viz.: Farmers Union Warehouse Co. v. McIntosh (1911) 1 Ala. App. 407, 56 So. 102; Southworth v. Palmyra & J. R. Co. (1851) 2 Mich. 287; Green v. Weller (1856) 32 Miss. 650; and State v. McBride (1835) 4 Mo. 303, 29 Am. Dec. 636, all hold that a bill requiring a vote of two thirds is satisfied by a vote of two thirds of a quorum, where the Constitution provides that a majority of each house shall constitute a quorum to do business. State ex rel. Eastland v. Gould (Minn.) is referred to supra.

Where to pass a city ordinance over a veto required a vote of two thirds of

all the members of the council, a veto was not overriden by a vote of four in a council of seven, one being absent, one voting to sustain the veto and one refraining from voting because of interest. Quinn v. Sea Isle City (1909) 77 N. J. L. 428, 71 Atl. 1118.

The number of votes necessary to pass a city ordinance over a veto, under a statute providing that such passage required a vote of two thirds of all the members elected to the council, must be based on the total number elected, although at the time of the vote one member has died and one resigned. Pollasky v. Schmid (1901) 128 Mich. 699, 55 L.R.A. 614, 92 Am. St. Rep. 560, 89 N. W. 1030. So, where the passage over a veto required two thirds of the members of the common council elected, and one of the council had died. State, Stanton, Prosecutor,

v. Hoboken (1889) 52 N. J. L. 88, 18 Atl. 685.

It may be noted that where a bill requiring the unanimous vote of all members of a city council present received the vote of the nine members of the council, was then vetoed by the mayor, and thereafter again passed by a vote of 8 to 1, it was held that this was sufficient under the charter provision, declaring that if such vetoed bill "be again passed by the affirmative vote of not less than two thirds of all the members elected, the president of the council shall certify the fact on the bill, and when so certified the bill shall become an ordinance, with like effect as if it had not been disapproved by the mayor." State ex rel. Independent Asphalt Paving Co. v. Gill (1915) 87 Wash. 201, 151 Pac. 498. B. B. B.

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One selling an automobile on credit, retaining title as security, cannot recover the machine in case it is forfeited to the state because used f the illegal transportation of intoxicating liquor, although he had no notice. that it was to be used for an unlawful purpose.

[See note on this question beginning on page 1596.]

APPEAL by plaintiff from a judgment of the Circuit Court for Mississippi County in favor of defendant in an action brought to recover possession of an automobile. Affirmed.

The facts are stated in the opinion of the court.
Messrs. W. D. Gravette and E. L.
Westbrooke, for appellant:

Plaintiff, who had no knowledge of the use being made of the car by Jones when the sheriff seized it, was not a party to transporting the whisky, and to sustain the judgment appealed from would be to uphold the taking of property without right or reason-pure confiscation without compensation.

Moody v. McKinney, 73 S. C. 438, 53 S. E. 543; Skinner v. Thomas, 171 N.

C. 98, L.R.A.1916E, 338, 87 S. E. 976; Healey v. Cockrill, 133 Ark. 327, L.R.A. 1918D, 115, 202 S. W. 229.

Messrs. John D. Arbuckle, Attorney General, and T. W. Campbell, Assistant Attorney General, for appellee.

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

Prior to October 8, 1917, the appellant company sold to one Jones, in Memphis, Tennessee, an automo

'- Ark. —, 206 S. W. 748.)

bile for jitney and taxi service, retaining the title to the car until the purchase price had been paid. But the payment had not been made on the date aforesaid. After purchasing the car, Jones, without the knowledge or consent of appellant, fitted the car with copper tanks having an aggregate capacity of 70 to 80 gallons of liquid, and, with the car thus camouflaged, proceeded to transport intoxicating liquor from Caruthersville, Missouri, into and through Mississippi county, Arkansas, in violation of the laws of this state. The sheriff of that county arrested the occupants of the car, who were fined for their violation of the law, and an order of the court was made confiscating the car.

Appellant brought replevin against the sheriff to recover the car, and the cause was heard upon an agreed statement of facts, containing, in addition to the above recitals, the statement that appellant was not a party to any of the procedure above outlined, and had no knowledge of the tanks or of the use to which they were put, but, on the contrary, had no reason to believe the car was being used for any purpose other than that for which it was sold to Jones, to wit, for taxi and jitney service.

Appellant has prosecuted this appeal to reverse the judgment of the court refusing to award it the possession of the car.

The car was confiscated under the provisions of § 6 of Act No. 13 of the Acts of 1917, vol. 1, p. 41, prohibiting the shipment of intoxicating liquors into this state, and otherwise restricting the sale or transportation of intoxicating liquors. The relevant portions of the section referred to are as follows: "That no property rights of any kind shall exist in the liquors mentioned in section 1 of this act,

or

in any vessel, fixture, furniture, implements, or vehicles, when the said liquors or other property mentioned are kept, stored or used for the purpose of violating any law of

this state, nor in any such liquors, bitters and drinks when received, possessed, kept or stored at any forbidden place; and in all such cases the liquors, bitters and drinks aforesaid, and said property herein named are forfeited to the state of Arkansas and may be seized, or searched for and seized, under the laws of this state and ordered to be destroyed in the manner and under the rules prescribed by law respecting contraband liquors, or by order of the judge or court after a conviction.

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Appellant cites and relies upon the case of Moody v. McKinney, 73 S. C. 438, 53 S. E. 543. That was a suit to recover the possession of a horse and buggy which had been used in the transportation of liquor, in violation of a statute of South Carolina which provided as follows: "Any wagon, cart, boat, or any other conveyance, together with horses, mules, or other animal or animals and harness, accompanying the same, transporting liquors at night, other than regular passenger or freight steamers and railway cars, shall be liable to seizure and confiscation. ." S. C. Crim. Code 1902, § 594.

In that case, however, the violator of the Liquor Laws had possession of the horse and buggy without the knowledge or consent of the owner thereof, and the supreme court of that state held that the statute quoted did not apply under the facts stated.

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pose, under statutes forfeiting property rights in property so used.

In the case of United States v. One Black Horse (D. C.) 129 Fed. 167, it was held that a vehicle and horse owned and let by a liveryman, used in smuggling liquor across the line into the United States, was subject to seizure and forfeiture, though the liveryman, who owned them, had no knowledge of the purpose for which the team and vehicle were to be used.

And in the case of United States v. Two Bay Mules (D. C.) 36 Fed. 84, it was said: "When property becomes liable to forfeiture under the positive provisions of a statute, owners who have in no way participated in the frauds which caused the forfeiture must seek redress from the wrongdoers who unlawfully used the property with which they were intrusted; or they can apply to the officers of the government invested with the authority to remit forfeitures."

The case of Dobbins's Distillery v. United States, 96 U. S. 395, 24 L. ed. 637, gives support to the view that one may forfeit his property by permitting another to have its use and possession who devotes it to an unlawful purpose without the owner's knowledge or consent.

A statute similar in principle to the one here under consideration was construed in the case of United States v. Distillery, 11 Blatchf. 255, Fed. Cas. No. 14,963, in which the court said that it is expected that the owner of property will see to the use made of it, at his peril.

The case of Dobbins's Distillery v. United States, supra, is annotated in 10 Rose's Notes to United States Supreme Court Reports, p. 193, and are there cited which support judgments similar to the one here assailed. See also Daniels v. Homer, 139 N. C. 219, 3 L.R.A. (N.S.) 997, 51 S. E. 992.

numerous cases

There appears to be no question about the constitutionality of statrtes similar to our own. Indeed, under the common law, property thus illegally used would be forfeitable, ipso facto, without a statute.

We conclude, therefore, that, as the appellant company had voluntarily parted with the possession of the car, it cannot Sale-conditioncomplain against illegal usethe judgment of forfeiture. confiscation rendered against it because of the unlawful use made of it by persons who were in possession of it with the appellant's knowledge and consent. Judgment affirmed.

ANNOTATION.

Forfeiture by innocent vendor of article sold conditionally and used by vendee in violation of law.

It will be observed that the statute governing the reported case (WHITE AUTO Co. v. COLLINS, ante, 1594) is unqualified.

In State ex rel. Robertson v. New England Furniture & Carpet Co. (State ex rel. Robertson v. Lane) (1914) 126 Minn. 78, 52 L.R.A. (N.S.) 932, 147 N. W. 951, Ann. Cas. 1915D, 549, it was held that an owner of personal property covered by a contract of conditional sale, executed prior to the enactment of a statute providing for the sale of movable personalty

used in conducting or maintaining a bawdyhouse, etc., has no vested right, contractual or otherwise, to allow it to be used in connection with the maintenance of a bawdyhouse after the passage of the act, even if prior thereto such sale and use were not unlawful; and such owner cannot complain of the statutory provision. that to save his property he must prove innocence "to the satisfaction of the court" of knowledge of said use thereof, and also inability to have acquired such knowledge by reasonable

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