This is a replevin action against the chief of police of Cincinnati to recover possession of an automobile seized for having carried liquor illegally under Revised Code Section4301.45. The owner of the automobile is the plaintiff below and appellee here. His car having been seized and himself arrested, and the liquor confiscated, the plaintiff stood trial for violation of the liquor laws of Ohio. He was fined $100, paid the same, and the case was closed. The police court judge failed to include in his judgment of conviction an order for the sale of the plaintiff's automobile, as he was required to do by Section 4301.45, Revised Code. Thereafter, the plaintiff filed this action for replevin in the Civil Division of the Municipal Court of Cincinnati. The suit was dismissed for want of jurisdiction. The Common Pleas Court then overruled the dismissal, and the case is before this court on the issue of whether the plaintiff has, in law, stated a good cause of action.
The determination of the issue depends upon the meaning and application of the above-noted Section 4301.45, Revised Code. At first blush, it would seem that the statute is self-executing,i. e., once the automobile is used for transporting liquor illegally the automobile automatically becomes forfeited, and thereafter is the subject of a proceeding in the nature of an admiralty libel. If this is the correct view, then the plaintiff *Page 491 here has no standing. The automobile is not his. For this court to assume this view as correct, is not the correct approach in its role as protector of individual property rights.
Is the forfeiture of plaintiff's automobile automatic? It is not. The court of appropriate jurisdiction "shall order a sale at public auction of the property [automobile] seized" uponconviction of the accused, unless good cause is shown by the owner of the automobile. A correct interpretation of this statutory language clearly shows that no forfeiture — or sale — of the automobile, which was used to transport the liquor, shall take place until the person using the automobile is convicted, and then only upon court order. In 25 Corpus Juris, 1172, 1175, Fines, Forfeitures, and Penalties, Sections 53 and 65, the view is expressed that a forfeiture by statute, authorizing a seizure and confiscation, is valid only after judicial determination therefor, where the statute so provides. In my view, the Ohio statute does so provide. Indeed, why else would the person arrested, or the owner, be allowed to post bond and use the automobile pending conviction?
The plaintiff's position is unique amongst the reported Ohio cases involving Section 4301.45, Revised Code, and its forerunners. In Buell v. French (1922), 24 N. P. (N.S.), 225, it was not the user who was seeking replevin of his automobile, but the owner-bailor. Also, in that case, the court had ordered the sale of the car upon the user's conviction. The Buell case is distinguishable not only upon its facts, but upon principle as well. I regard the present case, then, as one in which a public administrative official holds private property under claim of forfeiture, where the forfeiture should have been, but was not, declared by the court order. The only other legal claim under which the chief of police could claim the plaintiff's automobile is that the police court's judgment of conviction, having not included the order of sale, was nevertheless operative, either by some latent intent, or by reason of the statute — Section4301.45, Revised Code.
It is well settled in Ohio that the failure of a judge to discharge his duty in imposing sentence does not operate to an accused's detriment. When it is provided by statute (Section2947.10, Revised Code) that the illegal act shall be punished by *Page 492 imprisonment and fine, the offender may receive either the fine or the imprisonment. The validity and finality of the judgment rendered is not affected. 16 Ohio Jurisprudence (2d), 94,Criminal Law, Section 719; Dillon v. State (1883), 38 Ohio St. 586. And, thus, upon conviction and sentence, and having satisfied the judgment against him, the accused person has satisfied his public debt, also.
Great stress is placed upon the still allegedly existent jurisdiction of the police branch of the Municipal Court. On August 10, 1956, the Municipal Court fined the plaintiff $100 and costs, for violation of Revised Code Section 4301.60, and fined costs under Section 4301.67. So far as the Municipal Court is concerned, when plaintiff paid the fines adjudged, he satisfied the judgment. But what about the car? Without expressing an opinion as to whether a proceeding in the nature of a libel could have been instituted by appropriate officials, I must conclude that the police branch of the Municipal Court lost jurisdiction over the car.
I do not agree with the majority in thinking that the Municipal Court's jurisdiction still persists over plaintiff's automobile.
How do the sections of Chapter 4301 of the Revised Code operate in relation to one another? For violation of Section4301.60 (illegal transportation) the penalty is prescribed in subsection (F) of Section 4301.99. By way of additional penalty,at the time of conviction, the court shall order a sale of the vehicle used in the illegal transportation. Section 4301.45, Revised Code. Whether the hardship of sale falls upon the owner is irrelevant, as pointed out in Buell v. French, supra. My view of the three above-cited code sections leads me to the conclusion that Section 4301.45 must be read with subsection (F) of Section 4301.99, at least so far as an order of sale of the offending vehicle is concerned. Briefly stated: No order of sale at the time of conviction of the user and no subsequent right to sell at public auction reside in the seizing officials.
The majority cites cases from other jurisdictions on the issue of constitutionality. That such statutes as our Section4301.45, Revised Code, are constitutional, I think is beyond question. Furthermore, the citation by the majority of the court *Page 493 of 48 Corpus Juris Secundum, 656, Section 397, is in no way conclusive on the interpretation of our Section 4301.45, to me seems very clear. There must be an order of sale, so that there may be a sale, upon conviction.
The majority opinion really admits my conclusion because, in their view, the police branch of the Municipal Court must order the sale of the automobile by reason of jurisdiction, originally, of the plaintiff's crime.
The briefs of the appellant and of the amicus curiae below do not, in my opinion, touch on the real matters of importance of this case, as I have expressed them above.
For the reasons herein stated, I hold that the police branch of the Municipal Court of Cincinnati does not have jurisdiction over the subject matter of this action — the automobile — and further hold that the plaintiff does have an immediate right to the possession of his automobile as a matter of law.
In my opinion, the judgment of the Court of Common Pleas should be affirmed.