The decision in this case is rested upon the authority of State ex rel. Tate v. One Lexington Automobile, 84 So. 297,1 and State v. Crosswhite, 84 So. 813,2 present term; and the result here attained is supported by these cases.
I am unable to agree, as I entertain the view that the above-cited cases (in the consideration of which the writer and the Justice concurring in this dissent did not participate) are unsound and constitute a departure from the original holding of this court construing this condemnation statute in the cases of State v. Hughes, 82 So. 104,3 and Maples v. State, 203 Ala. 153,82 So. 183. In the Hughes Case, supra, this court said:
"The statute therefore clearly never contemplated condemning and selling the property of those who did not aid or assist in the illegal act, or who were not chargeable with notice or knowledge that their property was to be used for such illegal purpose. It seems to us too clear for argument that the Legislature did not intend that the property of a person wholly innocent of any intent to violate the law, or to aid or assist another in violating, and without knowledge or notice of facts to put him on notice that his property was to be used in violation of the statute, should be confiscated. * * * It is perfectly plain that the lawmakers intended to forfeit and confiscate only the property interest and right of those who were culpable as to its use in violating the law. It is not necessary to the forfeiture that the owner be guilty of the crime or offense of unlawfully transporting the liquors; but it is necessary that he be culpable or derelict in the use of his property in allowing it to be used for an unlawful purpose."
In the Maples Case, supra, the court held this reasoning as directly applicable to the situation of a bona fide mortgagee, "innocent of, or without fault as to," any illegal use of the property.
An analysis of the case of State v. One Lexington Automobile, supra, will disclose that the vendor who held the conditional sale contract was entirely innocent of any illegal use of the property at the time of sale, as well as subsequent thereto, and, indeed, that the vendee also had no notice or knowledge of such illegal use prior to the seizure. The opinion discloses that the vendor had no notice or knowledge of any facts which would lead to knowledge that any illegal use of the *Page 46 car was contemplated, and the reversal of the cause is rested upon that part of the admission and proof that the vendor, since the sale and delivery of the car, had not done anything to investigate the way and manner in which the automobile was being operated, nor the character of the persons operating the same, except that they knew it was being operated as a public taxicab in the city of Birmingham. It is upon this admission and proof, which is italicized in the opinion, that the reversal of the case is rested. This conclusion is reached on account of the language in the statute, "or could by reasonable diligence have obtained knowledge or notice thereof."
This language, in my opinion, does not authorize the construction given. The statute was clear in its intent and purpose to punish the guilty, but equally clear in its purpose to protect the innocent. In my opinion, the diligence there referred to is only such diligence as is required when such suspicious facts or circumstances are brought to the knowledge or attention of the owner, or mortgagee, as would be calculated to arouse the interest of an innocent person and stimulate a reasonably prudent one into activity.
The decision in the Lexington Automobile Case, supra, which was followed in State v. Crosswhite, supra, places the duty upon the owner, or otherwise innocent mortgagee, to keep a watchful eye upon the property which leaves his possession — requires of him investigation, and, in fact, places such a burden upon him as, in my opinion, in the practical affairs of the business world cannot be reasonably expected. This condemnation statute not only includes automobiles but any vehicle, such as buggies, wagons, and the like. Thousands of these conveyances are sold during each season, and either mortgages or retention title notes taken to secure the balance of the purchase price. To hold that the sellers of these vehicles are under an obligation, by virtue of this statute, to make investigation and keep a watchful eye upon the property after it has left their possession, would place upon them a burden impracticable in its operation, such as would seriously impair the business world, and such as, in my opinion, is clearly not the legislative intent.
I entertain the view that what was said by this court in construing this act in the Hughes Case, supra, and subsequently adopted in the Maples Case, is a sound interpretation of the language of the act and correctly stated the legislative intent; and that the foregoing decisions of State v. One Lexington Automobile, and State v. Crosswhite — although doubtless not so intended — are in fact a departure from these former decisions and should not be adhered to. They are, in my opinion, of far-reaching influence, and I have thought the question of sufficient importance to briefly give the reasons for my disagreement therewith.
I therefore respectfully dissent.
SAYRE, J., concurs in the foregoing views.