The intervener, Nona B. Heffling, appellant here, predicates error on the court's denial of her motion to disallow O.C. Boggs as special prosecutor to represent plaintiff in this suit. Mr. Boggs was appointed special prosecutor, under the provision of Section 2224 — 45, Or. L., by the Governor. Since this suit was determined in the Circuit Court, this court has sustained that section of our statutes. Mr. Justice RAND announcing the decision in an exhaustive opinion, wrote:
"The statute does not expressly require the Governor, before acting, to make any investigation or that any fact shall exist except the mere fact that the prohibition law is not being enforced in the county. Whether it is being enforced or not, in many instances, is purely a matter of opinion, and being a matter of opinion it cannot be the subject of judicial decision. Under the statute the right to appoint special prosecutors is made to depend entirely upon the judgment of the Governor, and it is clear that the legislature intended that his judgment upon this question should be final and conclusive." State v. Farnham,114 Or. 32, 44, 45 (234 P. 806, 810).
In our opinion the intervener is not entitled to question the right of a special prosecutor to appear in this suit. It is immaterial to her whether the regularly elected prosecutor or a specially appointed *Page 274 prosecutor conducts this proceeding in behalf of plaintiff.
The most serious contention on the part of the intervener is that Chapter 29, General Laws of 1923, is unconstitutional because it prescribes that the trial to determine whether or not the automobile should be forfeited must be conducted without a jury, and as a suit in equity. She relies on Section 17, Article I of the state Constitution, reading as follows: "In all civil cases the right of trial by jury shall remain inviolate," and the federal Constitution, Article VII of Amendments, reading thus:
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury shall be otherwise re-examined in any court of the United States, than according to the rules of the common law."
The cases cited by the intervener include Shawnee Nat. Bank v. United States, 161 C.C.A. 509 (249 Fed. 583); The J.W.French, 5 Hughes, 429 (13 Fed. 916); The Sarah, 8 Wheat. (U.S.) 391 (5 L. Ed. 644); Garnhart v. United States, 16 Wall. 162 (21 L. Ed. 275); 12 R.C.L. 133, where the rule is thus stated:
"In the trial of all cases of seizure, on land or on waters not navigable, the court sits as a court of common law, and as in all cases at common law where there are issues of fact to be determined, the trial must be by jury."
This language is taken from the opinion of Chief Justice MARSHALL in The Sarah, 8 Wheat., above. The other cases cited above and many other later cases have followed that rule.
The Volstead Act does not prescribe the forum in which forfeiture of vehicles unlawfully used in transporting *Page 275 liquor shall be forfeited. In forfeiture cases under that act the federal courts have generally held that the owner of an automobile seized for unlawfully transporting intoxicants and held for forfeiture is entitled to a jury trial because the court sits as common-law courts in such trials: Shawnee Nat. Bank v.United States, 161 C.C.A. 509 (249 Fed. 583). The Seventh Amendment to the federal Constitution has no application here. "The first ten amendments are not concerned with state action and deal only with Federal action." Minneapolis St. L.R. Co. v.Bombolis, 241 U.S. 211 (60 L. Ed. 961, 36 Sup. Ct. Rep. 595, Ann. Cas. 1916E, 505, L.R.A. 1917A, 86). It has been uniformly held that the constitutional provision guaranteeing jury trials does not extend the right, but simply preserves it as it existed under the common law at the time the Constitution was adopted. It is difficult to follow the logic of some of the opinions expressing the reason for the right to a jury trial in forfeiture cases. Intervener cites with confidence this language from the opinion in The J.W. French, 13 Fed. 916, 924:
"Proceedings in rem were unknown to the common law. * * Common law courts have jurisdiction of them only by virtue of statutory enactment. If congress gives this proceeding in common-law courts without requiring trial by jury, it violates article 7 of the amendments to the national constitution."
It is upon this process of reasoning that the Supreme Court of Oklahoma reversed itself by holding that an owner of an automobile seized and held for forfeiture was entitled to a jury trial in spite of the statute of that state to the contrary. If the proceeding did not exist under the common law, the right *Page 276 of jury trials did not exist in such proceedings. It would seem that the power which created the proceeding could also prescribe the procedure: Hoskins v. State, 82 Okla. 200 (200 P. 168);Keeter v. State, 82 Okla. 89 (198 P. 866, 17 A.L.R. 557);One Hudson Super-Six Automobile v. State, 77 Okla. 130 (187 P. 806); One Cadillac Automobile, 1918 Model, v. State,75 Okla. 134 (182 P. 227).
In proceedings to abate a nuisance created by keeping a place for the unlawful sale of intoxicants, the trial is conducted as a suit in equity without a jury. Mugler v. Kansas, 123 U.S. 623 (31 L. Ed. 205, 8 Sup. Ct. Rep. 273, see, also, Rose's U.S. Notes), is the leading case, and has been for forty years the foundation of most prohibition legislation. A very recent case decided March 1, 1926, by Circuit Court of Appeals, Second Circuit, refers to that case in this language:
"* * It was held that the state of Kansas had, as a part of its police power, the right even to destroy a brewery, when a Kansas prohibition law made a brewery a nuisance. Granting that, before the Eighteenth Amendment, the United States possessed no police power competent for the purposes of the decree below, when the amendment gave to the United States the powers thereby created, it gave also all the power necessary and appropriate to carry out the object of the amendment. Therefore the nation has to-day as much authority, police power, or sovereignty (the words shade into each other) to forfeit a lease for selling beer as Kansas had 40 years ago to destroy a building wherein the beer was brewed." United States v. Gaffney et al., 10 F.2d 694,696.
The same judge who wrote the opinion in the case last cited also wrote the opinion in United States v. Duignan,4 Fed. 2d 983, from which we quote: *Page 277
"The applicable sections of the National Prohibition Law have a long legal history. The legal concept by extending by legislative fiat the definition of a public nuisance to something theretofore legal, and then calling upon equity to abate it, is found in the Kansas statute of 1885, quoted by Harlan, J., in Mugler v.Kansas, 123 U.S. 623, 670 (8 Sup. Ct. 273, 31 L. Ed. 205); and is there expressed in a form distinctly more violent than are the nuisance sections of the Volstead Act. The thoroughness with which the Supreme Court upheld the Kansas method has been the sustaining foundation of prohibitory legislation of sundry kinds for 40 years, while, as for jury trials, we quoted the rules in the Reisenweber Case, supra (United States v. Reisenweber, 288 Fed. 520), at page 523; and it is that, when the legislature constitutionally extends the definition of public nuisance to anything, such new-born nuisance, being created for destruction, may be destroyed without jury intervention."
Our statute provides for notice to be given to the owner and inquiry and search made for lienors before declaring a car forfeited. The determination of conflicting claims to an automobile can be more appropriately inquired into and determined under the practice in this state in a court of equity than in a court of law. The statute is an exercise of the police power of the state. If as valuable property as a brewery may be destroyed in a suit in equity, it would seem that an automobile might be forfeited by the same procedure. If a valuable lease on property in the City of New York may be destroyed without a trial by jury, an automobile may likewise be forfeited by the same method.
In both proceedings the same power of the state — the police power — is invoked. The brewery was destroyed because it was an injury to the public. The *Page 278 building itself was not inherently a nuisance. It was the use made of it in defiance of the law that made it such. The lease of a building in itself is not harmful. It was the use made of it to wilfully violate the law which brought about its destruction under the law. So an automobile is not in itself a harmful vehicle. It is highly useful. But it is capable of aiding materially to violate the law. It is swiftly moving, difficult of capture, and readily lends itself to concealing contraband liquors. When used to violate the law it is done wilfully and in defiance of the law and those appointed to enforce the law. Liens may be placed on it in different ways so as to conceal the state of the title thereto requiring the peculiar procedure of equity to find the true state of the title. The law is as much concerned to protect the property of the innocent as to forfeit the property of the rebelliously guilty. We are persuaded that the statute assailed denying the right of a jury trial in cases like the instant case is a valid exercise of the police power.
The state has long been committed to the doctrine that the jury trials guaranteed by our Constitution are those trials obtaining under the common law at the time our Constitution was adopted. InRaymond v. Flavel, 27 Or. 219, 230 (40 P. 158), Mr. Justice WOLVERTON with his usual clarity stated the rule thus:
"Art. I, section 17, constitution of Oregon, provides that `In all civil cases the right of trial by jury shall remain inviolate.' This section simply secures to suitors the right of trial by jury in all cases where it was demandable at common law. It is not an enlargement, but a guarantee, of the right as it existed before the adoption of the constitution." *Page 279 Stevens v. Myers, 62 Or. 372 (121 P. 434, 126 P. 29), is another well-considered case in which this court was divided. The question of the right to a jury trial under our Constitution is there treated exhaustively both in the majority opinion written by Mr. Justice BURNETT and the minority opinion by Mr. Justice McBRIDE. See, also, Fleischner v. Citizens' InvestmentCo., 25 Or. 119, 130 (35 P. 174), and Tribou v.Strowbridge, 7 Or. 156, 158. This is in harmony with the law in a great majority of the states of the Union, and is applied to cases of the kind at bar. A few of the leading cases are: Stateex rel. v. One Five-Passenger Paige Automobile, 204 Ala. 44 (85 So. 276); Kirkland v. State, 72 Ark. 171 (78 S.W. 770, 105 Am. St. Rep. 25, 2 Ann. Cas. 242 and note, 65 L.R.A. 76);Kite v. People, 32 Colo. 5 (74 P. 886, 888); State v.Peterson, 107 Kan. 641, (193 P. 342); State v. Lee,113 Kan. 462 (215 P. 299); State v. Ryder, 126 Minn. 95 (147 N.W. 953, 5 A.L.R. 1449); State v. One 1921 Cadillac TouringCar, 157 Minn. 138 (195 N.W. 778, 780); State v. Kelly,57 Mont. 123 (187 P. 637); Robinson Cadillac M.C. Co. v.Ratekin, 104 Neb. 369 (177 N.W. 337); Lawton v. Steele,152 U.S. 133 (38 L. Ed. 385, 14 Sup. Ct. Rep. 499, see, also, Rose's U.S. Notes); Joyce, Intoxicating Liquors, § 500.
In State v. Kelly, 57 Mont. 123 (187 P. 637, 638), it is ruled:
"Such summary proceedings as were known to the common law were not triable by jury, as a matter of right, 4 Bl. Com. 280. Summary proceedings of this character, authorized by the state in the exercise of its police power and designed to effectually suppress the unlawful traffic in intoxicating liquors, were unknown to the common law or to the statutory laws of this territory at the time our Constitution was *Page 280 adopted, and are not comprehended in the guarantee of trial by jury. Upon this question there is some diversity of opinion, but the decided weight of authority and the better reasoning support the view herein indicated. (Authorities cited.)
"Cases cited by appellant within the admiralty and maritime jurisdiction of the federal courts, and cases arising under the revenue laws of the United States, are not applicable here."
Cornelius, Search Seizure, 571 et seq., § 294; Blackmore on Prohibition (2 ed.) 469 et seq.
The proceeding for seizure and forfeiture is in rem, is a civil suit and summary. This conclusion requires this court to try this case anew.
This is not a criminal proceeding and the plaintiff is not required to prove its case beyond a reasonable doubt: Blackmore on Prohibition (2 ed.), 570, § 37. "The forfeiture statutes are highly penal and should be strictly construed." Blackmore on Prohibition (2 ed.), 571, § 38.
If the defendant automobile was engaged in transporting liquor it was subject to forfeiture notwithstanding only a pint was carried. The evidence in behalf of plaintiff, if believed, is sufficient to sustain the decree. If the liquor was transported, the automobile was deliberately, intentionally and wilfully employed for that purpose. It is not a case of an owner or driver of a car innocently carrying a passenger with a bottle of intoxicants concealed on his person: Cornelius, Search Seizure, 603, § 303; Blackmore on Prohibition, 219-223, §§ 108-112. The automobile was employed expressly for the purpose of driving about one mile into the country to procure and transport the liquor. The husband generally and habitually used the car as his own. *Page 281
It is not necessary under Chapter 29, General Laws of 1923, that liquor be found in the car or that it should be engaged in transporting liquor at the time it is seized. Authorities to that purport cited by appellant are not in point because construing different statutes: Cornelius, Search Seizure, 587, note 63; Blackmore on Prohibition, 573, § 44; Williams v. State etal., 27 Ga. App. 224 (107 So. 620). Our statute prescribes:
"Whenever, in connection with the pursuit or search of any boat, vehicle or other conveyance or otherwise, any peace officer shall find intoxicating liquor upon or in the same or which hasrecently been removed therefrom, in which he has probable cause to believe it is then being or has recently been unlawfullycarried, transported, kept or possessed by the owner or personin charge of, or operating such, * * vehicle, said officer shall * * seize such * * vehicle * *."
This is a valid exercise of the police power: Blackmore on Prohibition (2 ed.), 573, § 44.
"It is the universal view of the federal courts that a conviction of a person for breach of the Volstead Act is a prerequisite to a forfeiture under this section: The Saxon, 269 Fed. 639; United States v. Slusser, 270 Fed. 818; UnitedStates v. One Packard Motor Truck, 284 Fed. 394." Blackmore on Prohibition, 543, § 9.
This view is based upon the language of that act. Our statute does not require previous conviction of the person operating an automobile in order to forfeit such automobile. The driver of an automobile may abandon such a car, escape and never be captured, as was the case in Hoover v. People, 68 Colo. 249 (187 P. 531). The car was not forfeited in that case because the owner was found innocent of any *Page 282 knowledge of the unlawful use of the car. But the court retained jurisdiction notwithstanding the guilty driver was not convicted. Some of the state statutes, like the Volstead Act, make the forfeiture depend upon conviction of the person in control of the car. Decisions under such statutes are not applicable here. Because of the difference in the wording of statutes in the several states, the decisions of other jurisdictions are not authority under our statute in this regard: Thorpe, Prohibition Industrial Liquor, 486, § 928.
Our statute prescribes that a car shall be forfeited for the unlawful transportation of intoxicating liquor either with the knowledge of the owner, or the person operating or in charge thereof. In Section 3 of the act, Chapter 29, General Laws of 1923, provision is made for giving notice to the owners and lienors, if any. The statute prescribes in detail the procedure for ascertaining the names of the owners and clearly manifests the intention to protect the property in the car of any innocent owners and lienors. Section 11 prescribes:
"Whenever, in proceedings under this act, intoxicating liquor is shown to have been found in or upon any boat, vehicle or other conveyance or in the possession of any person or in or upon the same, or is proved to have been transported or kept therein, it shall be presumed that the same was done with the knowledge and consent of the owner and of the person in charge of or possession of such boat, vehicle or other conveyance and with the knowledge and consent of any holder of any lien thereon, but such presumption shall be a disputable one."
The burden of proving lack of knowledge on the part of the owner is cast upon the owner by the statute. If the evidence relied upon by the state is true, *Page 283 there is no doubt that the husband of the claimant, appellant here, consented to the use of the car for the transportation of intoxicating liquors. He deliberately, intentionally and wilfully used the car for that specific purpose. He is the husband of the claimant. She testified that he used it habitually as and when he wanted to. It is not necessary to prove her actual knowledge. That is imputed to her under the circumstances. The statute does not require it but simply requires knowledge on the part of the person having charge of the car: State v. Brown, 119 Kan. 874 (241 P. 112); State v. One 1921 Cadillac Tr. Car andOthers, 157 Minn. 138 (195 N.W. 778). The proceeding is against the offending car: Harwood v. State, 29 Ga. App. 464 (116 S.E. 211); Traffic Truck Sales Co. v. Justice's Court,192 Cal. 377 (220 P. 306, 309). It is within the police power of the state to forfeit vehicles used in the transportation of intoxicating liquors regardless of their ownership: UnitedStates v. One Buick Rd. Automobile, 244 Fed. 961; UnitedStates v. One 7 Pass. Paige Car, 259 Fed. 641; Cornelius, Search Seizure, 594 et seq., § 298; Blackmore on Prohibition, 577 et seq., §§ 57-63.
"But it is generally conceded that if the statute specifically provides for the forfeiture of innocent interests, and if such legislation is reasonably necessary to enforce obedience to the law, the statute is a proper exercise of the police power." Thorpe, Prohibition Industrial Liquor, 375, § 723.
"It is insisted, however, that unless the rights of an innocent mortgagee under such circumstances are protected, the act is unconstitutional. The contention is that the interpretation of the law by the trial court deprives appellant of its property without due process of law, in violation of the Fourteenth Amendment to the Constitution of the United States, for the reason that no crime has been charged against the *Page 284 appellant, who merely intervened, and set up its claim because its property had been seized by the state under the provisions of a law concerning a crime committed by others. * *"
"In our opinion it is a sufficient answer to these suggestions to say that it is within the police power of the state to provide for the forfeiture of property used in violation of a criminal statute, and to provide expressly that the rights of an owner or mortgagee, however innocent of the intent or purpose for which the property is to be used, shall be forfeited, and such a law is not open to the objection that it violates the Fourteenth Amendment by taking property without due process of law." State v. Peterson, 107 Kan. 641 (193 P. 342, 343).
"The right of the legislature to enact the law in question is derived from that undefinable branch of government known as the police power, which by some writers is said to bear the same relation to the state that the principle of self-defense bears to the individual. Barrett v. Richard, 85 Neb. 769 (124 N.W. 153). Whether the necessity exists for such an exercise of the police power as the act provides is a legislative question. The amendment under consideration was enacted for the express purpose of meeting a situation that to the lawmaker appeared to have become intolerable. The facility with which automobiles and other high-power means of locomotion, under the control of a single person, untrammeled as to selection of time or route, could be used to transport spirituous liquors unlawfully, made the prohibitory act practically impossible of enforcement. Hence the act in question. We conclude that the act provides a valid exercise of the police power, and that it does not contravene the provisions of the fundamental law." Robinson Cadillac M.C. Co. v. Ratekin, 104 Neb. 369, 377 (177 N.W. 337, 340).
The authorities are collected in Blackmore on Prohibition beginning in page 578, Section 58 et seq. The conflict in the decisions in the several jurisdictions *Page 285 are explained by the difference in the statutes under construction. Particular attention is directed to Section 60. So far as the power of the legislature is concerned, there is no difference in principle between statutes enacted to enforce prohibition and to enforce laws against smuggling: Cornelius, Search Seizure, 529 et seq., § 301.
"Unless the owner shows absence of guilty knowledge, the court is without authority to return to the owner a vehicle used in the illegal transportation of liquors." Cornelius, Search Seizure, 600, citing United States v. Burns, 270 Fed. 681.
In this suit the claimant, appellant here, contented herself with denying knowledge of the use of the automobile for the purpose of transporting liquor. She testified, however, that her husband used it when he pleased. He had control of the machine. There is no testimony that she forbade its use for any such purposes or that she exercised any care to prevent its unlawful use. Under our statute he was both the person operating and in charge of the automobile. The automobile is subject to forfeiture when the same is employed by him for the unlawful transportation of intoxicating liquors: Goldsmith-Grant Co. v. UnitedStates, 254 U.S. 505 (65 L. Ed. 376, 41 Sup. Ct. Rep. 189);White Auto Co. v. Collins, 136 Ark. 81 (206 S.W. 748, 2 A.L.R. 1594). Some of the authorities draw a distinction between a bona fide lienholder and an owner. A bona fide lienholder can recover the car or have his lien transferred to the proceeds of the sale of the car under circumstances that an owner or a seller on installments retaining title until the automobile has been fully paid for is not entitled to recover: Cornelius, Search Seizure, 608-611; *Page 286 McKay v. Commonwealth, 137 Va. 826 (120 S.E. 133).
It was not error for the Circuit Court to admit the evidence on rebuttal complained of by the appellant. Some of that evidence was properly direct evidence in chief, but it was also proper rebuttal. Such matters are largely in the discretion of the trial court and its ruling will not be disturbed on appeal, unless there is clearly an abuse of discretion. The complaint about the cross-examination is not well taken. The decree ought to be affirmed.
BROWN, J., concurs in conclusion that the act is constitutional.