Farley v. Liquors Seized in Car at Brown Station

[1] After this decision the Legislature of the state of New York •substituted section 33 of the Liquor Tax Law for section 31c (Laws -of 1910, c. 485) which amended section provides that a notice^ shall "be given to the owner of the vessels containing the offending intoxicating liquors. Section 33 directs as follows, viz.:

“The warrant shall contain a notice directed generally to all persons claiming any right, title or interest in such liquors” or in the vessels containing the same, “to appear before the judge, or justice issuing such warrant, at a place and at a time therein specified, not more than twenty days after the issuance of said warrant and not less than ten days after the execution thereof, and show cause why such liquors” and the vessels containing the .same “should not be forfeited to the state. * * * ” Also, that “at the time and place specified in the notice contained in such warrant, any person claiming any right, title or interest in the liquors seized under such warrant” • or in the vessels containing the same “may interpose an answer, controverting the allegations of the complaint upon which such warrant was issued. If such answer is interposed, the issue thus framed shall be deemed an ac- • tion pending in the court of the judge or justice who issued the warrant, between the commissioner of excise of the state of New York and the liquor .so seized and may be entitled in the name of the said state commissioner of -excise and against the liquors so seized, .adding for identification the name • of the person or persons interposing such answer and claiming or defending the liquors so seized, and shall be tried in said court as other issues of . fact are tried therein.”

It will be noticed that after Judge Brady in his opinion in Clement v. Rabbach, supra, called attention to the defect in section 31c of the Liquor Tax Law as it stood at the time of his decision, the Legislature • directed that notice should be given to the owner óf the vessels to be •destroyed, and such owner should have an opportunity to appear and • defend his property.

■ 'On the 29th day of January, 1913, Gardiner C. Hibbard, a special • agent of the state commissioner of excise of the state of New York, :made an application to the Ulster county judge under section 33 of the Liquor Tax Law for a warrant directing such special agent to .search the freight house, box or freight car, etc., of the Ulster & Delaware Railroad Company at Brown Station to seize liquors, together with the vessels containing the same, which in said application -or complaint were alleged to be stored or kept for1 unlawful sales. Upon this complaint a warrant was issued. The return thereto was -made by the said Gardiner C. Hibbard, the said special agent of the state commissioner of excise, stating that he had seized 178 quarter kegs of lager beer and 92 cases, etc. It was alleged in the moving papers that James E. Snead kept, stored, or deposited the liquors above mentioned. The said proceedings were duly brought on for a ".'hearing at the Ulster County Court chambers, Kingston, N. Y., on March 10, 1913, at which time A. M. Sperry and Alfred D. Van Burén appeared for the plaintiff, and Van Bitten & Cook for George Hauck & Sons Brewing Company, which filed an answer alleging that -the vessels containing the offending liquors seized as aforesaid belonged to it. James E. Snead, the alleged owner of the intoxicating ".liquors did not appear. The following was stipulated between the

“It is stipulated: That on the 28th day of January, 1913, the George Hauck Brewing Company is and was a domestic corporation having its principal office at the city of Kingston, N. Y., and is engaged in the manufacture and sale of lager beer, and is duly licensed for such business by the United States government and the state of New York. That on the 28th day of January, 1913, said corporation sold and delivered to one James E. Snead 200 quarter barrels of beer and 60 cases of bottled beer, and that said beer was lager beer. That said sale was made f. o. b. cars Kingston, N. Y., and was consigned to said James E. Snead at Brown Station, town of Olive, Ulster county, N. Y., over the Ulster & Delaware Railroad, car initial A. R. T. Co., car No. 8909. That for at least a year past similar sales and shipments of from one to two cars per week had been made to said Janies E. Snead, by said company. That said James E. Snead paid the freight op said shipments from Kingston, N. Y., to Brown Station, N. Y. That the said company is the owner of the packages, consisting of 200 kegs or quarter barrels, and 92 cases, containing 24 bottles each; each case containing 2% gallons, which packages contained the lager beer consigned to the said James E. Snead as aforesaid, and were seized in this proceeding. That said James E. Snead had agreed with this company to return said packages containing said lager beer to it, the said company. That the said James E. Snead had a contract with said company to buy at least a certain number of kegs of beer during the year, which the company agreed to sell to him, and that he, the said James E. Snead, would sell no other beer than the beer manufactured by the said company, in the Ashokan Reservoir vicinity, and that said contract is "still in force. That the Ashokan Reservoir is located within the towns of Olive and Hurley, Ulster county, N. Y., and that the vicinity of the Ashokan Reservoir includes the northwesterly portion of the town of Marbletown, in the said county of Ulster, where part of the work of the aqueduct is carried on. That the shipment which was seized in this proceeding was made pursuant to said contract between said James E. Snead and said company, and was made from Kingston, N. Y., to Brown Station, in said town of Olive, and the delivery by said company to said James E. Snead was f. o. b'. cars Kingston, N. Y. That the said town of Olive is a no license town by a vote of the inhabitants of said town at the annual election. That the towns of Hurley and Marbletown, heretofore mentioned, are license towns. That the beer shipped to the said James E. Snead by said company, previous to the said shipment which was seized, was consumed in the said towns of Olive, Hurley, and Marbletown. That one-quarter barrel of beer contains approximately 734 gallons and that a case of beer contains less than 5 gallons of beer.”

The testimony shows the sale of one case of lager beer, containing 24 bottles, taken from the cars at Brown Station, N. Y. The language of section 33 of the Liquor Tax Law is quite plain as to the destruction of the offending intoxicating liquors and the vessels containing the same, regardless of ownership, and, unless said act is unconstitutional under the facts disclosed in this case, it seems to me judgment of forfeiture of the lager beer seized and the vessels containing the same should be granted.

[2] It appears by the stipulation that George Hauck & Sons Brewing Company is innocent of any wrongful act; that it had a right to sell the beer in question and retain title to the vessels containing the same. The sale was made in the city of- Kingston f. o. b. in entire good faith. It is contended that it is a harsh law which ’makes necessary the forfeiture of the vessels belonging to George Hauck & Sons

It will also be noticed that after the decision of Clement v. Rabbach, supra, the Legislature of the state of New York passed section 33, above referred to, amending the defect in section 31c of the Liquor Tax Law, by providing that notice be given to the owner of the vessels containing the liquors, and giving such owner an opportunity to be heard, thus removing the objection of the former act, and, therefore, not violating the Constitution of the United States or of the state of New York, providing that no person shall be deprived of property without due process of law. The Legislature has declared that intoxicating liquors and the vessels containing the same, when stored, etc., for unlawful sale or distribution, are liable to be forfeited and destroyed. The lawmaking power of the state passed upon the constitutionality of this act before it became a law. Trial courts should hesitate to pronounce a statute unconstitutional. Clement v. Lour Barrels of Beer, etc., 66 Mise. Rep. 1, 122 N. Y. Supp. 441 .

The conclusion of the court is that the plaintiff is entitled to judgment as provided by section 33 of the Liquor Tax Law.

Judgment for plaintiff.