noting that the forfeiture procedure at issue was not “an action in personam against some offend- ing person” but, rather, “a special proceeding in rem against specific property * * * because of some unlawful use having been made of it in violation of the state prohibition law”
How later courts described this case
- noting that the forfeiture procedure at issue was not “an action in personam against some offend- ing person” but, rather, “a special proceeding in rem against specific property * * * because of some unlawful use having been made of it in violation of the state prohibition law”
- stating that “[t]here can be no doubt” that, at the time of the adoption of the Oregon Constitution, prop- erty could not be forfeited except in actions triable by jury
- rejecting argument that the legislature may abrogate a party’s right to a jury trial in a forfeiture proceeding by creating a “special statutory proceeding in rem against certain specific offending property”
- holding in statutory in rem forfeiture case that claimants or owners of the seized property were entitled to jury trial
Written by the judges who cited it.
The opinion
This is an appeal from the decree of the Circuit Court forfeiting an automobile found guilty of unlawfully transporting intoxicating *Page 272
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 afterward 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 Heffling 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 twenty-fourth 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; gave a redelivery bond to 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 *Page 273
also denied. The car was forfeited. The appellant N.B. Heffling appeals assigning thirty-six errors. The only assignments presented, however, at the argument and considered in the brief are the following three: First, permitting O.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.