NORTH .CAAOt,INA tf.' VA1'oi>tRFORD.
complaitiedof,as tenaing to show the spirit and purpose 'of the de'fendOn this view or the case, I think that lean with propriety express thestroug inclination of my opinion upon the matters that have been so ably aJidelaborately discussed. The rights of persons' in civil and private life are either absolute or relative, and most of them were clearly announced and asserted in magna charta. In the common law the rights of .persons are usually classed as consisting of the right of personal security, the right of personal liberty, and the right to acquire and enjoy.property; and ample provisions have been devised to preventwfongs that may 1)e attempted, and to redress injuries caused by. unlawful acts. Sec1ion:17,art.1, of our state constitution distinctly announces the principle50fthe commOn law in nearly the terms employecfin magna charta on this subject.. Article 5 of the amendments to the constitution of the U.nited :States only announces and reaffirms the ancient principles of the common law, and preveuts them from being unjustly invaded by the power of the federal government. The fourteenth amendmenhvas intended to preserve the rights, privileges, and immunities of all citizens of the United States from any unequal and unjust legislation of the states. It is unnecessary to cite judicial authorities to show that the fundamental principle of the common law is well established both in England and in this country; that a citizen may, in the manner and by the methods recognized and provided by the rules and regulations of law, acquire and enjoy property; and cannot be deprived of the same without due process of law. He is also entitled to have a legal opportunity of explanation and defense of any conduct alleged to be unlawful before he is deprived of any of his private rights of person or property. Property is the dominion that a person can legally acquire and exercise over external thinga. He must establish some legal right or title in himself to property which has been invadeq or destroyed by the negligent, unlawful, or malicious act of another, before he can sustain an action to recover damages for such alleged injury. The modes of acquiring property are either recognized or regulated by law, and there can be no right of property that is not legally vested. A man cannot acquire a right or title to property by any act declared by law to be criminal; and no right of action can arise out of an illegal or immoral transaction. Holman v. Johnson, Cowp. 341. The state and federal constitutions and the common law only afford protection to property, and secure its enjoymtmt, when legally acquired. This doctrine of the common law has been applied in numerous cases to rights claimed under contracts; and the principle is well settled that whenever the consideration of an agreement, or the act undertaken to be done, is in violation of law, good morals, or public policy, the agreement is void, and no alleged right founded upon it can be enforced in a court.TriBt v. Child, 21 Wall. 441; Oscanyan v. A7'm8 Co., 103 U. S. 261. The government of the United States has the constitutional power to control the business and the property of the citizen, in the exercise of the essential and inherent right of taxation; and the methods of aSl?essment, and the means and process of collecting and enforcing payment of taxes are matters clearly
within the extensive discretion of congress. In the exercise of this expressly conferred constitutional power congress has enacted the internal revenue laws, which prohibit the manufacture or tbe possession of spirituous liquors in any otber manner than that regulated by such laws; and penalties, forfeitures, and methods of legal procedure bave been provided to prevent and punisb frauds, evasions, and willful violations of sucb legal requirements. Where spirituous liquors are manufactured, or come into the possession of anyone in a manner tbat is contrary to or not in accordance with law, they become liable to forfeiture at the time of the commission of the unlawful act, and the title to such property at once vests in the United States, to be consummated by judgment of condemnation; an<t may be rightfully seized by a proper officer of the government in order that proceedings in rem may be instituted. Upon such seizure the question whether a forfeiture has been actually incurred longs entirely to the federal courts, and cannot he drawn to another forum. After the seizure of property, if legal proceedings are not instituted to ascertain the forfeiture, the aggrieved party may seek relief by application to the proper United States court. He has no right of action in a state court until the proper federal court has adjudged the seizure to be wrongful, and without reasonable cause. I will now proceed to inquire whether the conduct of the defendant in this caSe hasdeprived Shoemaker of any legal right to be heard in this court in defense of his property. Where property is seized under a provision of law, the proceedings for condemnation are in rem. "In such suits the. claimant is an actor, and is entitled to come before the court in that character only in virtue of his proprietory interest in the thing in controversy j this a.lone gives him a persona standi in jttdicio. It is necessary tha.t he should establish his right to that character as a preliminary to his admission as a party ad litem capable of sustaining the litigation." U. S. v. Four Hundred and Twenty-Two Casks, etc., 1 Pet. 547. From the facts found by the jury in their special verdict it appears that the barrel of whisky seized and destroyed was illicit whisky, as it was without the stamps and brands required by law, and was found locked up in a lumber-house on the premises of Shoemaker. In this condition the law presumed that the whisky was illegally manufactured. The manufacturer, by his illegal action, acquired no right which could be transferred to another, or be. enforced by any legal remedy. He could not be admitted as claimant in a proceeding in 1'emto contest the right of the United States to a judgment of forfeiture and condemnation, unless upon affidavit he would allege that he was the bona fide owner of the property in controversy, and SD-tisfy the court that he had a prirnafacie title; and then he would be required to file an answer on oath denying the facts set forth in tbe information before he would be entitled to a trial by jury. Where whisky hal! been properly manufactured, and the producer has acquired a vested right to the product of his labor, and by some subsequent irregularity or alleged wrongful act the property becomes lial;Jle to seizure, the right of the owner is not completely divested until is duly seized and condemned by proper legal proceedings.
NORTH CAROLINA V. VANDERFORD.
He is entitled to be heard as claimant, as he has a proprietory right, and may show why the property seized should not be condemned as forfeited; and he would have a right of trial by jury to determine the issues raised by the pleadings. Windsor v. McVeigh, 93 U. S. 274. If the views which I have expressed are correct, then Shoemaker, from the facts found in the special verdict, appears to have had no right of property or right of possession in the barrel of whisky destroyed, as he obtained or held such property in a manner that was in criminal violation of law. The fact that the barrel ·of whisky was concealed in his lumbtr-house, and was not legally stamped and branded, rendered it liable to forfeiture, and vested a title in the United States. The seizure by a properly authorized officer of the government vested the possession in the United States, and the collector would have been empowered to dispoae of the same in conformity with law (Rev. St. § 3460) if the property had not been destroyed. As it was destroyed, the government was deprived of the power to institute proceedings in rem for condemnation and sale; the seizure became a nullity, although there was reasonable cause of seizure; and Shoemaker was placed in a condition to assert and enforce his rights at common law, if he had any. In a civil suit in a court of competent jurisdiction he can, if he is so disposed, have the question of law reconsidered, and again determined, whether a person can acquire a legal title to property manufactured or kept in possession against the express prohibition of a positive statute. Themere possession of the barrel of whisky would not be prima facie evidence of a right of property, as it was not stamped and branded, or in a bonded warehouse, as re,quired bylaw. 'There are no facts in this case tending to show that Shoemaker has ever complained of the conduct of the defendant, or has desired or sought any legal redress. I will not consider at much length the question of law elaborately discussed on the argument, whether congress, in the exercise of the power of taxation, has the constitutional right to enact a law authoriztng the destruction of illicit spirits, or property used in their illegal manufacture. A 'ltatute has been enacted (1 Supp. Rev. St. U. S. 436) authorizing the destruction of property under certain circumstances, and after certain provisions have been complied with by the revenue officers making seizure, such law is a of a complicated system of taxation, and was intended to prevent frauds and evasions of the rm'enue laws. This delicate and important question as to the correctness of legislative action is not involved in this case, and requires no expression of judicial opinion; but I am inclined to think that it would not be difficult to show by reason and authority that congress has not exceeded constitutional limits. Upon the subject of taxation, and the manner and methods of assessing and enforcing the prompt and effective collection and payment of taxes, the power of congrese is almost unlimited by express constitutional restraint, and embraces all objects and measures that do not encroach upon the sovereign and reserved rights of the state governments. The doctrine has been frequently announced in the decisions of the supreme eourt that "the power ()ftaxation involves the power to destroy." In the exercise
FEDERAT, REPORTER. ,. ,
of ;this 'po1(er !by.'(iongressstate t .of existence for the a: convenient, useful" and: uniform national currency; although' such banks were duly and rightfully chartered by the SWal1. v. 'Day, 11 Wall. 113; states. S:, 102,U. 8.586..: The hardshipioi injustice of revenue laws may properly be subjects for political discussion and legislative rection, but: 'do not often present 'questions forjudicial determination. The law that I cam now considooing :iBin no sense oppressive; as provis" ion is made for any rightful property 'destroyed to seek reliefin due form Oflaw, and obtain cOIllpensationfrom the government. This summary.proceeding was devised by congress toprev.ent frauds upon the revenue,laws'-whenthe emergencies would not. admit of delay, and wheli the ordinary modes 6f legal procedure by. seizure and condemna-tioninthe cqurts could not he made available. government found itneoessary to adopt this stringent measure to enforce the revenue laws ,by suppressing crimes committed: in remote, inaccessible, and dangerous localities.' -The mode ·of redress provided furnishes an adequate remedy -to rightful owners of property who may sustain damage.. A person who is not a rightful owner has no just 'cause to complain of an invasion of vested rights. A vested interest in property is a right which it is ble that the government should recognize and observe, and of which the individual cannot be deprived without injustice. In the exercise of the police power a state may ,by legislative enactment, authorize the .tion of private property without making compensation to the owners, and without any formal proceedings in a court of law. All rights of -property are, to a large extent, subject to the police power. Cooley. ·Const. Lim. c. 16; Mttgler v. Kansas, 123 U. S. 623, 8 Sup. Ct. Rep. 273; Statev. Yopp, 97 N. C. 477, 2S. E. Rep. 458. The legislature of this state, under the exercise of the police power, has by statute authorized the destruction of gaming tables, and the seizure of "all money or other property or thing of value exhibited for the purpose of alluring persons to bet," etc., and, without affording anyopportunity to the owner to make explanation applied the same to the use of the poor and the person making the seizure. 1 Code N. C. §§ 1051, 1052. I feel sure that the manufacturers of illicit whiskY are not entitled to more constitutional protection and legislative favor than gamblers or other persons whose rights of property are injured: or destroyed for the security or advancement of the public welfare. I will now proceed to consider the facts and pleadings in the case fore the court. This indictment is for an alleged public wrong mitted in the destruction of a barrel of illicit whisky that had been duly seized, and had no rightful owner' except the United States. I readily concede the legal proposition that it is the imperative duty of a state to protect the property of a citizen from wanton and willful destruction;' as such conduct is a serious injury to the peace aqd welfare of the whole community: But in this case no right of property of a citizen has been unlawfully invaded, and 1 feel sure that the peace, dignity, and general welfare of the state has not been disturbed, insulted, or injured by the
NORTH CAROLINA fl. VANDERFORD.
destruction of a barrel of whisky that had been manufactured in a manner contrary to the law oBhe land. A fair construction of the statute, upon which this indictment is founded, shows that it was only the purpose of the state legislature to protect personal property in which a citizen had acquired a legal right and title, and not to recognize and protect as property articles produced in fraudulent and criminal violation of law. the position that it was the right and duty of the state But, to institute this indictment against an officer of the federal government, for the destruction of a barrel of "blockadewhiliky," duly seized and in his lawful custody, I will proceed to consider whether the allegations in the indictment are sustained by the facts found by the jury in their special verdict... The indictment alleges that the d,estruction of the property of John L. Shoemaker. was done" wantonly and willfully. It These descriptive words have acquired a technical meaning by frequent judicial interpretation. In the recent case of State v. Ma88f!!J, 97 N. C. 465, 2 S. E. Rep. 445, the supreme court of this state said: "The term' wantonly' implies that the act done is of willful, wicked purpose. The term' willful' implies that the act is done knowingly, and of stubborn purpose, but not of malice." State v. Morgan, 98 N. C. 641, 3 S. E. Rep. 927. In .state v. Whitener, 93 N. C. 590, the court gave a more extended definition of the .word "willful," when used in a stll,tu,te creating a criminal offense; .and this definition resembles one that was approved by the su,preme court of the United States. "The word I willfully,' in the ordinary sense in which it is used in statutes, means not merely 'voluntarily,' but with. a bad purpose." Felton v. U. S., 96 U. S. 699. The act alleged in the must appear from the -evidence to have been done "wantonly and willfully," before the defendant can be convicted. lam of opinion, from the facts found byihe jury, that there was no element of turpitude in the conduct of the qefendant, and that he was not actuated by a bad spirit or wicked purpose. It doesnot ap,pear that he had any improper motive or ill will against Shoemaker, and he acted with the aid and consent of the deputy-collector, who had the barrel of whisky in legal custody. The fact that Shoemaker mounted his horse, and l'ode away from his premises, while the revenue officers Were there, may reasonably have excited apprehension in their minds that he had gone among his neighbors to make preparation to effect a rescue of the property, whieh' the officers were not prepared to remove to a place of safe deposit. But it is unnecessary to make further conjectures as to the motives and purposes of the defendant, as the facts found by the jury fail to show that he acted "wantonly and willfully," as charged in the bill of indictment. Let a verdict of "not guilty" be entered of record.
In re KAYs, Sheriff.
(Di8triot Court, B.D. Oalifornia. May 28. 1888 )
JAILS AND JAILERS-SUPPORT OF UNITED STATES PRISONERS.
i;Q the county jail any prisoner committed by authority of the United States,
By Penal Code Cal. §§ 1601, 1602, the sheriff is required to receive and koep
for the support of state prisoners must be presumed to be a reasonable compensation; and for a refusal of the sheriff to receive a United States prisoner," IIPon being tendered such amount, he is liable for contempt.
Held., that the amount per diem fixed by the board of supervisors of tbe county
"provision being made by the United States for the support of such prisoner. "
Oontempt Proceedings against James C. Kays, sheriff of Los An· geles county. George J. Denis, U. S. Atty., and R. B. Oarpenter, for the United States. Stephen M. .White, for respondent. Ross, J. One Gallagher having, for an offense against the laws of the United States, been duly committed to the custody and keeping of the sheriff· of Los Angeles county,-the officer in charge. of the jail of the county,-that officer refused to receive him into his custody unless the government of the United States would pay for the support of the prisoner at the rate of 75 cents per day. The rate fixed by the board the sheriff for the keeping of of supervisors of the county to be prisoners charged with or convicted of offenses against the laws of the state is 35 cents per day and the agreed case shows that for the keeping of Gallagher the sberiff was, on behalf of the United States government, duly tendered a like sum. The real purpose of the present proceeding, as stated by counsel for the respective parties, is to obtain a judicial determination of the rights and obligations of the sheriff in the premises. The question is, I think, of easy solution. By sections 1601 and 1602 of the Penal Code of California, it is declared: "1601. The sheriff must receive, and keep in the county jau, any prisoner committed thereto by process or order issued nnder the authority of the United States, until he is discharged according to law, as if he had been committed under process ,ssued under the authority of this state; provision being made by the United States for the support of such prisoner. "1602. A sheriff to whose custody a prisoner is committed, as provided in the last section, is .answerable for his safe-keeping, in the courts of the United States, according to the laws thereof." It is thus made the duty of the sheriff to receive, qnd. keep in the county jail, until legally discharged, any prisoner committed thereto by procpss or order issued under the authority of the United States, as if he had been 'committed under process issued under the authority of the state; provision being made by the United States for the support of such prisoner. And the sheriff is made answerable for his safe-keeping, in the courts of the United States, according to the laws thereof. As the sheriff has the custody and control of the prisoner, and is made answerable for his safe-keeping, of course, the provision to be made by the