Opinion
38126 Record No. 2760.
December 6, 1943.
Present, Campbell, C. J., and Hudgins, Gregory, Browning, Eggleston and Spratley, JJ.
1. INTOXICATING LIQUORS — Forfeiture of Vehicles — Code Section 4675 (38a) — Nature of Proceeding. — A proceeding under section 4675 (38a) of the Code of 1942 to have an automobile condemned and sold because of a violation of the Alcoholic Beverage Control Act, is a proceeding in rem rather than in personam, and is a civil action against an automobile and not a criminal action against a person.
2. SERVICE OF PROCESS — Mode and Validity — Necessity for Personal Service. — Personal service of notice is not necessary to the validity of a proceeding in rem.
3. INTOXICATING LIQUORS — Forfeiture of Vehicles — Code Section 4675 (38a) — Sufficiency of Publication of Notice — Case at Bar. — In the instant case, a proceeding under section 4675 (38a) of the Code of 1942 to have an automobile condemned and sold because of a violation of the Alcoholic Beverage Control Act, plaintiff in error contended that the notice prescribed by the statute was published less than two weeks prior to the return day thereof, as required by the statute. There were two publications, one on March 25th and one on April 1st and the return day of the latter was on April 24th.
Held: That the two weeks requirement had been met.
4. INTOXICATING LIQUORS — Forfeiture of Vehicles — Code Section 4675 (38a) — Affidavit Not Required for Publication of Notice — Case at Bar. — In the instant case, a proceeding under section 4675 (38a) of the code of 1942 to have an automobile condemned and sold because of a violation of the Alcoholic Beverage Control Act, plaintiff in error contended that there was no affidavit upon which the order of publication of the notice of the proceeding was based.
Held: That no affidavit was required by the statute as a basis for the publication, it being entirely different from the order of publication which is required under section 6069 of the Code of 1942.
5. INTOXICATING LIQUORS — Forfeiture of Vehicles — Code Section 4675 (38a) — Failure to Send Registered Letter to Owner — Case at Bar. — In the instant case, a proceeding under section 4675 (38a) of the Code of 1942 to have an automobile condemned and sold because of a violation of the Alcoholic Beverage Control Act, the basis of one assignment of error was that no registered letter was mailed to the owner of the automobile at his last known address. The automobile bore a New York license and the Commonwealth's Attorney had no means of knowing and did not know who was the owner of the vehicle or the last known address of such owner.
Held: That there was no merit in the contention.
6. INTOXICATING LIQUORS — Forfeiture of Vehicles — Code Section 4675 (38a) — Information Not to Designate Day of Appearance. — Section 4675 (38a), subsection (d), of the Code of 1942, relating to proceedings to have an automobile condemned and sold for violation of the Alcoholic Beverage Control Act, does not contemplate that the information to be filed by the attorney for the Commonwealth shall designate the day or time when the persons cited therein shall appear.
7. INTOXICATING LIQUORS — Forfeiture of Vehicles — Code Section 4675 (38a) Variance in Dates in Information and Notice — Case at Bar. — In the instant case, a proceeding under section 4675 (38a) of the Code of 1942 to have an automobile condemned and sold because of a violation of the Alcoholic Beverage Control Act, plaintiff in error contended that the time set for the confiscation as set out in the information filed by the Commonwealth's Attorney and the time set out in the published notice prescribed by the statute were not the same and therefore there was a fatal variance.
Held: That there was no merit in this contention, the time for the hearing being fixed by the notice, which is the process.
8. APPEARANCES — Special Appearance — Action in Rem. — The office of a special appearance is limited to the right to object to the jurisdiction of the court over the person and such jurisdiction is not in issue in an action in rem.
9. INTOXICATING LIQUORS — Forfeiture of Vehicles — Code Section 4675 (38a) — Sufficiency of Evidence of Illegal Transportation — Case at Bar. — In the instant case, a proceeding under section 4675 (38a) of the Code of 1942 to have an automobile condemned and sold because of a violation of the Alcoholic Beverage Control Act, one assignment of error was that there had been no illegal transportation of whiskey, but there were fifty-three pints of whiskey found in the automobile. In addition, there was evidence that plaintiff in error had made two offers to sell the whiskey.
Held: That there was no merit in the assignment of error.
10. INTOXICATING LIQUORS — Forfeiture of Vehicles — Code Section 4675 (38a) — Admissibility of Law of another State — Case at Bar. — In the instant case, a proceeding under section 4675 (38a) of the Code of 1942 to have an automobile condemned and sold because of a violation of the Alcoholic Beverage Control Act, plaintiff in error, who was alleged to be a resident of Florida, assigned as error the ruling of the trial court in rejecting his testimony as to the law of the State of Florida, in a case of possession or bringing into that State intoxicating beverages.
Held: That there was no merit in the assignment of error since the law of another State could not be interposed as a defense to one's illegal conduct in this State.
11. INTOXICATING LIQUORS — Forfeiture of Vehicles — Code Section 4675 (38a) — Federal Price Control Regulations Not Contravened — Case at Bar. — In the instant case, a proceeding under section 4675 (38a) of the Code of 1942 to have an automobile condemned and sold because of a violation of the Alcoholic Beverage Control Act, one assignment of error challenged the right of a State to confiscate the automobile in question because it would be in contravention of the United States Price Control regulations.
Held: That there was no merit in the assignment of error.
Error to a judgment of the Corporation Court of the city of Norfolk. Hon. R. B. Spindle, judge presiding.
Affirmed.
The opinion states the case.
W. L. Devany, Jr., for the plaintiff in error.
Abram P. Staples, Attorney General, and M. Ray Doubles, Assistant Attorney General, for the Commonwealth.
This case involves the confiscation of an automobile under the following circumstances: Eugene Ives, the plaintiff in error, is an alleged resident of the State of Florida. He had been employed in some governmental work in Chincoteague, Virginia. He went over to Maryland and purchased a quantity of whiskey and, with it, or a part of it, he was found in the city of Norfolk and was there apprehended and taken into custody upon the charge of driving under the influence of intoxicants and for violation of section 49a of the Alcoholic Beverage Control Act, which relates to the illegal transportation of alcoholic beverages. This was on February 10, 1943. There was found in the trunk of the automobile two cases of whiskey, each containing twenty-four pints in the original packages and five pints in his hand bag. The automobile bore a New York license. Ives' testimony was to the effect that he had purchased this whiskey in Pocomoke City, Maryland, and for his personal use, and was en route to his home in Florida, stopping in Norfolk to have some keys made and get something to eat. The evidence for the Commonwealth showed that shortly before his arrest and on the same day he had offered to sell the whiskey to a man who operated a confectionery and sold beer, etc., in the city of Norfolk, and he had made the same offer to one of the confectioner's customers.
The result of the trial upon the charges referred to does not appear in the record.
The Commonwealth attorney for the city of Norfolk, began proceedings under the Alcoholic Beverage Control Act, Michie's Code section 4675 (38) and (38a), on February 19, 1943, to have the automobile condemned and sold. The required information was filed in the corporation court of the city of Norfolk and the clerk was instructed to cause publication of the notice prescribed by the statute. The information, which was sworn to, prayed that all interested persons be cited to appear on March 27, 1943, to show cause, if any, why the automobile should not be confiscated. The notice, for some undisclosed reason, was not published until March 25, 1943, and was made returnable to April 24, 1943. This was done at the instance of the Commonwealth attorney who, evidently finding that the publication of the notice had not been complied with, made a motion for a continuance on March 27, 1943, on which date the plaintiff in error made what he termed a special appearance and moved to quash the information, advancing a number of technical grounds therefor.
These are comprehended in the assignments of error which are as follows:
"ASSIGNMENTS OF ERRORS.
1. The overruling of the motion of March 27, 2943, to quash the Information.
2. The overruling of the motion of April 24, 2943, to quash the information.
3. The rejection of the plea in abatement.
4. The overruling of the plea of the statute of limitations.
5. The overruling of the demurrer.
6. That there had been no illegal transportation of whiskey.
7. Rejection of certain evidence on behalf of the defendant.
8. That the Commonwealth could not confiscate the said automobile; to do so would be in contravention of U.S. Price Control regulations."
The Alcoholic Beverage Control Act, sections 38 and 38a, provide for the confiscation of contraband articles and the proceedings connected therewith when alcoholic beverages are illegally transported. The appropriate portion of paragraph 38a(d) of the Act is as follows:
"The owner of and all persons in any manner then indebted or liable for the purchase price of said property, and any person having a lien thereon, if they be known to the attorney who files said information, shall be made parties defendant thereto, and shall be served with the notice hereinafter provided for, in the manner provided by law for serving a notice, at least ten days before the day therein specified for the hearing on said information, if they be residents of this State, and if they be unknown or nonresidents, or cannot with reasonable diligence be found in this State, they shall be deemed sufficiently served by publication of said notice once a week for two successive weeks, in some newspaper published in such county or city, or if none be published therein, then in some newspaper having general circulation therein and shall send a notice by registered mail of such seizure to the last known address of the owner of such conveyance or vehicle."
The first two assignments of error are based on alleged irregularities as to the information. Some of them are as follows: 1. That no search warrant was issued as required by law. 2. That there was no personal service on the defendant ten days before the date that the information prayed the notice should be made returnable. 3. That the order of publication was published less than two weeks prior to the return day thereof. 4. That there was no affidavit upon which the order of publication was based. 5. That there was no registered letter mailed to the owner, etc. 6. That the attorney for the Commonwealth knew the name of the owner and his address but made no effort to serve him with process of any sort. 7. That there was no service in contemplation of paragraph 38a of section 4675 of the Code. 8. That the time set for the confiscation as set out in the information and the time set out in the notice of publication are not the same and therefore there was a fatal variance.
These objections suggest a misapprehension of the plaintiff in error as to the meaning of the statute which runs through his entire defense and much beclouds it. In the first place he fails to grasp the important fact that this is a proceeding in rem rather than in personam. He does not realize that it is a civil action against an automobile and not a criminal action against a person. The objection that no proper search warrant was issued was abandoned.
Personal service of the notice is not necessary to the validity of a proceeding in rem. Landers v. Commonwealth, 126 Va. 780, 101 S.E. 778.
There were two publications in the case which appeared in the Norfolk Ledger-Dispatch, one on March 25, 1943, and one on April 1, 1943. The return day of the latter was on April 24, 1943, and certainly then, the two weeks requirement was met.
No affidavit is required by the statute as a basis for the publication. The publication in this proceeding is entirely different from the order of publication which is required under section 6069 of the Code of Virginia.
As to the objection that there was no registered letter sent to the last known address of the owner of the said automobile it is sufficient to say that the Commonwealth attorney had no means of knowing, and did not know who was the owner of the vehicle nor the last known address of such owner. He exhausted the means at his hands for the acquisition of such knowledge. The automobile was not titled in Virginia, therefore he could not obtain it from the Director of Motor Vehicles in Virginia. The motor vehicle department of New York advised him that the plaintiff in error was the owner so far as its records showed. This would hardly have justified the affirmance on his part of such ownership and certainly it did not supply the information as to the last known address of the plaintiff in error.
[6, 7] As to the contention embraced in the eighth objection herein listed, it seems sufficient to say that the statute (second paragraph section 38-a, subsection (d)) does not contemplate that the information shall designate the day or time when the persons cited therein shall appear. The information is the work of the attorney for the Commonwealth. The time for the hearing is fixed by the notice, which is the process.
We feel, however, that it is needless to give serious attention to objections of this character when we note that the plaintiff in error was present during the proceeding and had actual knowledge of all that transpired and no notice, whether by personal service, publication, or registered letter, could afford him more definite knowledge than that of which he was possessed. But he urges that his appearance before the court was special, made for a special purpose, and that therefore he was not affected by what was done in the proceedings.
Again we say that he is oblivious of the fact that the office of a special appearance is limited to the right to object to the jurisdiction of the court over the person and that such jurisdiction is not in issue here, the action being in rem.
In Corpus Juris Secundum, volume 6, page 13, section 7, is this: "Where there is no statute to the contrary the right of a party to appear specifically to object to the jurisdiction of the court over his person, and have that question determined in limine, is generally recognized; but this right is not a substantial one inherently existing, and as is pointed out in section 22, infra, it can be, and has been, taken away by statute in a number of states."
What we have said disposes of assignments 3, 4 and 5. Assignment 6 is the statement that there had been no illegal transportation of whiskey. With what degree of seriousness this contention is made we do not know but it is in the face of the fact that there were 53 pints of whiskey found in the automobile, which of course is far in excess of the quantity which may be legally transported without a permit in Virginia. It is quite beside the point to say that it was for his own personal use and that he was just passing through Virginia and had adopted the most direct route between his terminals. The law does not recognize such circumstances as justifying its violation. His offers of sale emphasize his culpability.
The seventh assignment brings under review the ruling of the court in rejecting the testimony of the plaintiff in error as to the law of the State of Florida in a case of possession or bringing into that State intoxicating beverages. The court very properly refused to admit such testimony. Here the law of another State could not be interposed as a defense to one's illegal conduct in this State.
The eighth assignment challenges the right of a State to confiscate the automobile in question because, forsooth, it would be in contravention of the United States Price Control regulations. To state this objection is to refute it. If it were sustained, then this State would be powerless to deal with such a situation as is here presented. The State could not successfully cope with illegal traffic within its borders. Such a situation in favor of crime is unthinkable and it is vain for a perpetrator to undertake to barricade himself behind a U.S. regulation. The court was plainly right and its judgment is
Affirmed.