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Show CIGARET LAW HELD LACKING ON SEIZURES Attorney General's Opirt-JoaJLAsserts Opirt-JoaJLAsserts Act Itself Does Not Permit Confiscation Confis-cation Without Due Law Clgarwta cannot ba confleceted and forfeltad to tha atata and tha elcarat act Inaofar aa tha act I'aalf attempts to provlda for eonflecsUon an forfeiture la nail and void In that It provides for confiscation of personal property . without tht dua proraaa of law, and that tha act whlrh prorldaa for confiscation without judicial kaarlng la uncon-atltutlonal. uncon-atltutlonal. . . J This, in affaot. la tha opinion of tho attornay general'a office In aa I opinion wrtttan by W. Hall Fare, ; aaalatant attornay general and : handad down on Saturday. Tha opinion waa requeeted by K. A. Roger, district attornay for tha Third judicial district. Tha opinion polnta out that "tha law In quaatlon doaa not declare clgareta or tha aala tharaof to ba a nulaanca. nor Is althar a nulaanca par aa. but on tha contrary tha law recognlgea tha proparty right In clgarete and legalise tbalr aala. Tharafora a altuatlon praeente where tha aala of eartaln proparty la not declarad a. nulaanca nor 10 It a 'nulaanca par aa; proparty which may ba sold Illegally but can be aold leallv. yrt I ha atstuts specifically specifi-cally prowldea that In tha event ot an Illegal aala that all of that particular par-ticular kind of proparty may ba confiscated and forfait sd to tha atata summarily without not lea or haarlna-. and without afford In tha owner an opportunity to ba heard In defense of hla property "a, pro-oeedlng pro-oeedlng which In any opinion la clearlv in contravention of hla constitutional con-stitutional right." "" DE'SDAriT HAS RIGHTS. That private property cannot ba eonfleeated and forfeited to tha atata without dua process of law la fundamental, requlrea regular Judicial Judi-cial proceedings and notice to defendant de-fendant before hla proparty can ba condemned, conflaratd or forfeltad. Tha opinion, which la declared to ba of unusual importance la In part a iollowa: "Tha ee salon laws of lata provides pro-vides that any person, firm or corporation cor-poration violating ana of tha Provisions Pro-visions of aectton 1 of thla act ahall ba guilty of a misdemeanor, and all clgarete. el gars t paper, or wrap, era and pa para made or prepared for tha purpoee of making clgarete In hla poaaeaalon or In hla place of bualneaa, aball ba confiscated and forfeited to tha eta's.' -From tha langueg naad In tba foregoing paragraph K appears," aaya tha opinion, "that the leglela-turs leglela-turs has attempted la provide aa additional penalty for any viola-l viola-l lone of tba provlalene ef seetlen 1 of the act that la they declare that any violation of tba provisions af section 1 ahall ba a miedemeanor and that further any per eon violating vio-lating any of tha provisions of tha act ahall In addition thereto, forfeit any and all clgarete and clgnret papers pa-pers and wrapper to the atata. a -That tha legislature bad tba power to declare any violation ef tha act to be a misdemeanor." points out tha opinion, "there can be no question; that it also had tha power ta declare that all clgarete and clgarrt papers sheuld ba confla-eated confla-eated and forfeited lo tha atata In rasa of a violation of the law there can ba ao ueatlon provided that the law Ineofar aa It attempts to confiscate and forfait the proparty doaa not violate tha rights and prtvllegee guaranteed by both the federal and etate conetltjtlona. Tha quaatlon then arises la the paragraph para-graph above quoted violative of the constitutional rights and prtvllegee guaranteed by the constitution. CONSTITUTION CITED. "Tbe constitution of the federal government and the atata provldee that. 'No person ahall be deprived of life, liberty or proparty without due prooeee of law.' "Inaofar aa tha act referred to do-clares do-clares a violation of eection 1 to be a miedemeanor there can be no question aa to Ita validity." eon-tlnues eon-tlnues the opinion, but It la when tha latter part of tbe paragraph providing for confiscation and forfeiture for-feiture la conaldered that a serious question arlaee aa te tha const llu-tlonalltv llu-tlonalltv of auch a prevlsipn. "la It within tha conotitutlonai power of a legislature thua to authorise au-thorise the confiscation and forfeiture forfeit-ure of property summarily without a Judicial hearing or Inquiry?" asks the attorney general, and he an-awere an-awere It by saying that there are eases In which tha summary abatement abate-ment of nulaancsa by executive officers of-ficers without a Judicial condemnation, condemna-tion, and tha destruction of articles used in the maintenance of same may be authorised by tbe legislature and then he eltes authorities ta maintain hi opinion. MANY CASES AVAILABLE. It I than pointed out In the opinion opin-ion that numeroua eourte have had occasion ta pasa upon tbe question that confronts I" tan and while tha caaee ate perhaps not exactly In point, they are analogoua In that the law laid down is applicable to tbe quealion presented In Utah. Caaee are cited from Indiana Ohio, and Nebraska, wherein the eelsuro of rune, ammunition, btlnde, t Cori Unoed on xuvz f J ' cigar .' (Continued from pace 1.) docs, decoys and ftsblnv tackle In actual uaa by any person while buntlnjr or fi thine; without tha license li-cense required by tha atata ahould ba forfeited to tha stae and which mada every officer charged with tha enforcement of tne act to salsa, sell or dispose of tha aama In tha manner provided by law for sale under execution and pay over the procaeda to the county treasurer for utve of tha school fund In tha Nebraska Ne-braska case la particular were not upheld by the supreme court. While the ciaaret law authorises tha confiscation and forfeiture of private property no opportunity Is afforded tha owner to appear tn his defense and his property la confiscated confis-cated and forfeited without a no tlce, heartne; or Judicial heaiinar and the act makes na provision for a hearing or judicial Inquiry. Tender auch a atata of facta," continues the opinion. "It would seem apparent appar-ent that auch proceeding would ba clearly a deprivation of property without due pro e ass Of law." AUTO VIEW GIVEN. The state law," concludes tha report re-port requree automobile owners to secure a license before they can operate op-erate and run their machlnea on the highways and If they do eo without securing a license they hava violated violat-ed tha law yet I do not think that anyone would eetiouely contend that a law which authforlsed the confiscation, confis-cation, and forfeiture of tha automobile auto-mobile to the atata summarily, with j out a hearing ar judicial inquiry. I because the car had been operatfd without a license would etand the teat, tha attuatlon there preeenyted Is identioai te tha one presented by the provisions ef the clgaret law.- "In conclusion I win aay that In my opinion that Insofar aa tha clgaret clga-ret law attempts to provide for the eonfieoatlon and forfeiture of private pri-vate property, namely, all cigars te. ; clgaret papers, or vrappere to the state without a Judicial hearing or i Inquiry it la a deprivation of private pri-vate property without due proceaa I of law and ta therefore uncoaatltu- j Uonal and void." |
