I must dissent from the opinion of the court on the question decisive in this case, to wit, whether or not the seizure of the automobile taken is authorized by statute.
The provisions of section 3617, Rev. Laws of 1910, are that:
"When a violation of any provision of this chapter shall occur in the presence of any sheriff, constable, marshal, or other officer having power to serve criminal process, it shall be the duty of such officer, without warrant, to arrest the offender and seize the liquor, bars, furniture, fixtures, vessels, and appurtenances thereunto belonging so unlawfully used, and to take the same immediately before the court or judge having jurisdiction in the premises, and there make complaint, under oath, charging the offense so committed, and he shall also make return, setting forth a particular description of the liquor and property seized, and of the place where the same was so seized, whereupon the court or judge shall issue a warrant commanding and directing the officer to hold the property so seized in his possession until discharged by due process of law, and such property shall be held and a hearing and adjudication on said return had in like manner as if the seizure had been made under a warrant therefor."
It will be noticed that the authority to seize is not confined to a violation of the provisions of any particular section; but is broader and provides that a violation of any provision of the chapter on prohibition, when it occurs in the presence, of an officer, shall give him the right to seize such liquor and the appurtenances thereunto belonging or so unlawfully used. And section 3605 of that chapter makes it unlawful for any person "to ship or in any way convey such liquor from one place within the state to *Page 120 another place therein, except the conveyance of a lawful purchase, as herein authorized."
And the illegal conveyance of liquor from one place in the state of Oklahoma to another place therein is as much a violation of the provisions of the chapter on prohibition as the sale of liquor over the bar. And the automobile, cart, wagon, or other vehicle, used in such unlawful conveyance, appertains to and is just as much an appurtenance of such unlawful conveyance, as the bar, glasses, furniture, and fixtures of a bar room are appurtenances of the unlawful sale of liquor over the bar.
If the provision of section 3617, authorizing the seizure of appurtenances unlawfully used, was confined to simply the violation of one phase of the prohibition law, to wit, the unlawful sale of intoxicating liquors, then the contention of the plaintiff in error would be well taken; and an automobile, used in unlawfully conveying spirituous liquors from one place in the state to another, would not be subject to seizure. But the provision is broader, and is to the effect that when a violation of any provision of the chapter on prohibition shall occur in the presence of any officer, having authority to serve criminal process, he shall at once arrest the offender, and seize the liquor and that which appertains to such violation. The language is not that the violation of The provisions of any particular section shall authorize the arrest and seizure, but contemplates that a violation of any provision of the chapter on prohibition will give the officer the right to arrest the person violating such provision, and to seize the appurtenances unlawfully used in such violation. Bouvier's Law Dictionary, vol. 1, p. 224 defines the word "appurtenant" as: "Belonging to; pertaining to." Then, can it be contended that the automobile, in which this liquor was being illegally hauled, did not pertain to and was not an appurtenance in the violation of the prohibited act?
If, under section 3617, we construe the right to seize appurtenances to be confined only to an appurtenances used in the illegal sale of intoxicating liquor, then that would leave an officer powerless to even seize liquor that was being illegally transported in his presence; for he derives the authority, not only to seize the appurtenances, but also the liquor from the same source. And the Legislature, to avert a narrow construction of the right of seizure, specifically and plainly provides that a violation of any provision of the entire chapter on prohibition, when it occurs in the presence of an officer, gives him the right to seize the liquor and everything appertaining to the violation, regardless of what particular phase of the prohibition law is being violated.
Then I am forced to the conclusion that when spirituous liquor is being illegally transported, the automobile, vehicle, cart, or wagon, in which it is being conveyed, is as much an appurtenance of that conveyance, as the glasses, bar, furniture, and fixtures used in a grogshop are appurtenances in the illegal sale of spirituous liquor over the bar. For the gist of the statute is that when a violation of any provision of the prohibition law occurs, in the presence of an officer having power to serve criminal process, he shall, without a warrant, arrest the offender and seize the liquor and the appurtenances so unlawfully used. So unlawfully used in what? In the sale of liquor? No! In the violation of any provision of the chapter on prohibition. The statute is aimed at every violation of the prohibition law, and it is the appurtenances used in the violation of any provision of that law that are authorized to be seized.