(Ga. L. 1917, Ex. Sess., p. 7, § 20; Ga. L. 1924, p. 198, § 1; Code 1933, § 58-207; Ga. L. 1946, p. 96, § 1; Ga. L. 1977, p. 632, § 1; Code 1933, § 5A-7113, enacted by Ga. L. 1980, p. 1573, § 1; Ga. L. 1981, p. 1269, § 62; Ga. L. 1986, p. 1605, § 2; Ga. L. 1987, p. 3, § 3; Ga. L. 2015, p. 693, § 3-2/HB 233.)
Cross references.- Disposition of property seized, T. 17, C. 5, A. 3.
Editor's notes.- Ga. L. 2015, p. 693, § 4-1/HB 233, not codified by the General Assembly, provides: "This Act shall become effective on July 1, 2015, and shall apply to seizures of property for forfeiture that occur on or after that date. Any such seizure that occurs before July 1, 2015, shall be governed by the statute in effect at the time of such seizure."
Law reviews.- For article on the 2015 amendment of this Code section, see 32 Ga. St. U. L. Rev. 1 (2015).
JUDICIAL DECISIONS
This section, being in derogation of common law, is to be strictly construed. Bowman v. Davis, 51 Ga. App. 478, 180 S.E. 917 (1935); Leath v. Rosser, 52 Ga. App. 587, 183 S.E. 839 (1936); State v. Patterson, 80 Ga. App. 450, 56 S.E.2d 195 (1949); State v. McRee, 83 Ga. App. 284, 63 S.E.2d 348 (1951).
Applicability of limitation period to claim by officer for share of proceeds from sales of contraband.
- The 12-month limitation period relating to filing of claims against county does not apply to claim by county police officer for the officer's share of proceeds of sales of automobiles confiscated for engaging in illegal transportation of liquor. Cloud v. DeKalb County, 70 Ga. App. 777, 29 S.E.2d 441 (1944).
Applicability to malt beverages.
- It is not a violation merely to transport, possess, or store fermented beverages made from malt, and a vehicle being used for such purpose cannot legally be seized and condemned as contraband (but see Ga. L. 1937, p. 148 (see now O.C.G.A. § 3-5-3)) State v. Patterson, 80 Ga. App. 450, 56 S.E.2d 195 (1949).
The only application that this section has in a wet county is to fix the court procedure. Clements v. State, 85 Ga. App. 614, 70 S.E.2d 70 (1952).
Condemnation action properly prosecuted by state.
- Proceeding to condemn automobile allegedly used in illegal transportation of liquors presupposes violation of criminal laws, and such proceeding is properly prosecuted by state. Thompson v. State, 74 Ga. App. 821, 41 S.E.2d 583 (1947).
Right of condemnation in state.
- Right of condemnation is in state, not in officers seizing property illegally used in conveying liquors or beverages, and law requiring solicitor (now prosecuting attorney) of county, city, or superior court having jurisdiction in county where seizure was made to institute condemnation proceedings, necessarily imply that such proceedings shall be in name of state. Fact that arresting officer may be interested financially in proceeds from condemnation does not make such officer a necessary party plaintiff in first instance. Thompson v. State, 74 Ga. App. 821, 41 S.E.2d 583 (1947).
Right of state to condemn nonowner's equity in vehicle while protecting lien holder's interest.
- State can condemn equity, if any, in an automobile held by operator who illegally transports liquors and beverages therein although legal title to the automobile may be held by another. It is the intention of the legislature to protect bona fide lien holders without destroying right of state to condemn. Consolidated Loan Co. v. State, 75 Ga. App. 77, 41 S.E.2d 802 (1947).
Proceeding brought in name of state.
- Proceeding for condemnation of vehicle used in illegally transporting prohibited liquors and beverages is properly brought in name of state. State v. Weaver, 87 Ga. App. 172, 73 S.E.2d 227 (1952).
Procedure.
- Sheriff or other peace officer must report property seized, because of its use in conveying illegal liquor, to solicitor (now prosecuting attorney) of court having jurisdiction within ten days after such seizure, and thereupon condemnation proceedings will be instituted as set forth. Kitchens v. Beverly, 86 Ga. App. 880, 72 S.E.2d 819 (1952).
Report by sheriff of seized property to prosecuting attorney.
- County sheriff, in no way connected with federal government, has no right by reason of his office to turn property over to federal authorities instead of making a report to proper prosecuting attorney in conformity with this section. Kitchens v. Beverly, 86 Ga. App. 880, 72 S.E.2d 819 (1952).
Consequences of sheriff's turning contraband vehicle over to federal authorities.
- Where a sheriff, upon seizing a vehicle conveying illegal liquor, turns it over to the federal government for condemnation under the federal Internal Revenue Code, instead of reporting its seizure to the prosecuting attorney as required by state statute, the sheriff does so at the sheriff's peril as a private citizen seizing private property for forfeiture to the federal government. If, however, the officer turns the property over to proper federal authorities for condemnation in federal court in a proceeding regular on its face, of which owner of vehicle had due notice of time and place of trial thereof, act of state officer in turning property over to federal government for condemnation is thereby ratified by federal government and such adoption on its part is sufficient recognition and confirmation of seizure to give it an equal validity in law with an original seizure under proper authority by an agent of federal government. Kitchens v. Beverly, 86 Ga. App. 880, 72 S.E.2d 819 (1952).
Truck as contraband apparatus or appliance used in manufacture of moonshine.
- Pickup truck not alleged to have been used in conveying, removing, concealing, or storing of non-tax-paid liquor may not be declared contraband as some "apparatus or appliances" used in manufacture of moonshine. Vaughan v. State, 110 Ga. App. 709, 140 S.E.2d 66 (1964).
Salaried officers not precluded from receiving authorized fees.
- Fact that officer making seizure of automobile engaged in illegal transportation of intoxicating liquors received a salary does not preclude the officer from receiving the officer's part of fees provided by this section for officers responsible for confiscation of such automobiles. Cloud v. DeKalb County, 70 Ga. App. 777, 29 S.E.2d 441 (1944).
Liquors seized in dry county unrecoverable in trover action.
- Liquors, possession of which is prohibited by law in county which has not by vote made operative the provisions of Ga. L. 1937-38, Ex. Sess., p. 103 (see now O.C.G.A. § 3-4-1 et seq.) even though bearing revenue stamps, are without property value and are subject to seizure by the Department of Revenue, and, even though transported from such county into a wet county by department, cannot be the basis of trover action by person from whom they were seized in the dry county. Williams v. Snelling, 71 Ga. App. 525, 31 S.E.2d 105 (1944).
Trover action against sheriff holding property more than 10 days.
- When seizure is effected contrary to this section, and sheriff attempts to hold vehicle in excess of 10 days without reporting the seizure, the sheriff is, as to plaintiff's property, mere trespasser, and trover action will lie against the sheriff for recovery of property. Kitchens v. Beverly, 86 Ga. App. 880, 72 S.E.2d 819 (1952).
Interest of innocent lien holder not condemnable.
- State has right to condemn only the equity of lienor or owner of vehicle, and cannot condemn any interest of an innocent lien holder, whether that interest is of record or not. State v. McRee, 83 Ga. App. 284, 63 S.E.2d 348 (1951).
Courts having jurisdiction.
- This section does not limit jurisdiction to superior courts or constitutional city courts, but specifically provides that any county, city, or superior court having jurisdiction in county where automobile is seized shall have jurisdiction. Bowman v. Davis, 51 Ga. App. 478, 180 S.E. 917 (1935).
Jurisdiction in condemnation proceeding.
- Jurisdiction of proceeding to condemn vehicle seized for violation of this section as to transportation of intoxicating liquors is confined to county of seizure, and in such a proceeding such jurisdiction must affirmatively appear. Bowman v. Davis, 51 Ga. App. 478, 180 S.E. 917 (1935).
Jurisdiction of state and federal courts.
- The State of Georgia under this section, and the United States government under 26 U.S.C. § 2803, have concurrent jurisdiction, and each has power and authority to seize and condemn automobiles used in illegally transporting liquor. As to actions in rem, between state and federal court, the one first taking steps equivalent to exercising dominion over and possession of the res will have exclusive jurisdiction. Kitchens v. Beverly, 86 Ga. App. 880, 72 S.E.2d 819 (1952).
Jurisdiction of court in county where vehicle seized.
- Only a court having jurisdiction in the county where vehicle is seized has jurisdiction of the condemnation proceeding; therefore, in order to confer jurisdiction upon the court in which condemnation proceedings are instituted against such vehicle, it must affirmatively appear that the vehicle was seized within the county over which the court has jurisdiction. State v. Weaver, 87 Ga. App. 172, 73 S.E.2d 227 (1952).
Recording instrument prior to intervention in condemnation action not required.
- It is not necessary that lien or mortgage upon which intervenor relies be properly recorded in order that lienee or mortgagee may assert it as evidence of the intervenor's right to intervene in proceeding to condemn mortgaged vehicle. Cummings v. State, 84 Ga. App. 698, 67 S.E.2d 156 (1951).
Arresting officer's not being party to action no ground for dismissal.
- In an action involving condemnation of vehicle allegedly used in illegally transporting prohibited liquors and beverages, and brought in name of state, in which arresting officer was not made a party in trial court, and trial court finds in favor of intervenor and against condemnation of vehicle, it is no ground for dismissal of bill of exceptions by court that arresting officer was not made a party in court, as the officer's interest is not adverse to that of state as plaintiff in error. State v. Weaver, 87 Ga. App. 172, 73 S.E.2d 227 (1952) (decided under former Code 1933, § 58-207).
Dismissal of intervenor's writ of error.
- Where, after seizure by two empowered officers, state condemned truck, and thereafter under order of court the truck was sold at public auction, after which a party intervened and claimed truck and, after court sustained demurrer (now motion to dismiss) filed by solicitor general (now district attorney) on behalf of state, the intervenor excepted and brought case to Supreme Court by writ of error, but served only state with copy of bill of exceptions, writ of error would be dismissed as state was only a formal or technical party, and two officers were real contestants. Carter v. State, 180 Ga. 578, 180 S.E. 110 (1935).
Notice to owner of condemnation of vehicle.
- A motor vehicle owned or leased by third party other than operator cannot be condemned without notice to such third person, if known, and without proving that the motor vehicle was being used for illegal transportation of contraband liquors by operator. Bentley v. State, 70 Ga. App. 494, 28 S.E.2d 658 (1944).
Requirement of service on officers making seizure.
- Since officers making seizure are necessary parties to a proceeding to condemn an automobile used in illegal transport of liquor and have an interest in proceeds from the sale of the vehicle, service of process should be had on them or acknowledgment of service by them. Alford v. State, 82 Ga. App. 79, 60 S.E.2d 431 (1950).
Service only of copy of petition on defendant.
- In an action instituted to condemn an automobile carrying intoxicating liquor, defendant must be served with copy of petition, but there is no requirement that process be issued. Thomas v. State, 97 Ga. App. 761, 104 S.E.2d 547 (1958).
When defense is filed in condemnation proceeding, case proceeds as other civil cases. Grant v. State, 74 Ga. App. 493, 40 S.E.2d 406 (1946).
Required defenses of owners, lessees, and lien holders.
- Requirement as to showing proper registration of vehicle applies only to owner or lessee, and sole prerequisite as to lien holder is that the owner or lessee show that such illegal use was without the owner's or lessee's knowledge or consent. State v. McRee, 83 Ga. App. 284, 63 S.E.2d 348 (1951).
Failure to allege registration of vehicle insufficient for dismissal.
- In proceeding by state to condemn vehicles found to be illegally transporting or conveying intoxicating liquor, failure of intervenor to allege that vehicle was legally registered with Department of Motor Vehicles (now Motor Vehicle Division of Department of Revenue) in true name and address of owner did not subject petition to demurrer (now motion to dismiss) and dismissal. State v. McRee, 83 Ga. App. 284, 63 S.E.2d 348 (1951).
Allegation of lack of knowledge of illegal use of vehicles sufficient.
- In proceeding to condemn automobile truck-tractor and trailer on ground that vehicles had been used in illegally transporting and conveying intoxicating liquor, petition of intervenor alleging that the use of vehicles was without knowledge, express or implied, was sufficient; it was not necessary for intervenor to allege both the intervenor's lack of knowledge of illegal use the intervenor of vehicle and also that such use was without the intervenor's connivance or consent because if the intervenor did not know of illegal use the intervenor could not have connived in or consented to such use. State v. McRee, 83 Ga. App. 284, 63 S.E.2d 348 (1951).
State's burden of proof not met.
- Where, in condemnation proceeding, the only evidence as to any actual use of automobile to convey alcoholic liquors was that it was standing in private way near a residence where 42 gallons of whiskey were seized, that two gallons of whiskey were taken from car, and that a person was seen approaching car with another gallon of whiskey, this evidence being equally if not more indicative that automobile was merely being prepared for use to transport liquor than that it had been so used, state did not meet burden of showing that this section had been violated. Thompson v. State, 52 Ga. App. 355, 183 S.E. 214 (1936).
Burden of proof as to illegal use of vehicle.
- When the state shows illegal use of vehicle, burden then shifts to intervenor to show that illegal use of automobile was without the intervenor's knowledge, connivance, or consent, express or implied. Intervenor must also show that property seized, if a motor vehicle, was legally registered with Department of Motor Vehicles (now Motor Vehicle Division of Department of Revenue) in true name and address of such owner or the owner's predecessor in title, unless vehicle was bought new from dealer within 30 days of time of seizure. Strickland Motors, Inc. v. State, 81 Ga. App. 824, 60 S.E.2d 254 (1950); Simpson v. State, 82 Ga. App. 319, 60 S.E.2d 537 (1950).
Preparatory acts insufficient to evoke penalties of section.
- Acts merely preparatory to commission of quasi-criminal acts which, if completed, would subject automobile to condemnation under this section, are not sufficient to evoke penalties of section. Thompson v. State, 52 Ga. App. 355, 183 S.E. 214 (1936).
Evidence insufficient to infer hitched team used in conveying moonshine.
- Evidence that team consisting of mules and wagon was found hitched at place where a still producing alcoholic liquor was in operation, and that there was some alcoholic liquor in wagon, was insufficient to authorize inference that team was used in conveying such liquors along public road or private way of this state. Leath v. Rosser, 52 Ga. App. 587, 183 S.E. 839 (1936).
Evidence requiring new trial.
- In proceeding for condemnation of vehicle used in transporting liquor, where evidence showed that finance company did not have notice on date it purchased conditional sales contract in question that automobile buyer was engaged in dealing in liquor, trial court erred in overruling intervening finance company's motion for new trial. Liberal Fin. Co. v. State, 80 Ga. App. 697, 57 S.E.2d 220 (1950).
Motion for new trial denied where intervenor had notice of truck's use.
- New trial motion brought by intervenor claiming sole ownership in proceeding to condemn truck was properly denied, where conditional sale agreement for vehicle was dated prior to seizure, even though contract was actually made at later date, after seizure, at which time seller (intervenor) had notice of purposes for which truck was being used. Walker-Durant Motor Co. v. State, 51 Ga. App. 261, 180 S.E. 239 (1935).
OPINIONS OF THE ATTORNEY GENERAL
Section controls as to disposition of proceeds over act creating city court.
- This section, governing disposition of proceeds from condemnation and sale of vehicles used in violation of liquor laws, controls over provisions for disposition of fines and forfeitures in act creating city court. 1945-47 Op. Att'y Gen. p. 75.
Sharing proceeds of condemnation sale with member of uniform division.- Member of uniform division of Department of Public Safety is not authorized to accept any money for sale of condemned conveyances used in transporting contraband, but there is no law which would prohibit sheriff or other peace officer receiving such reward from voluntarily sharing it with member of uniform division. 1952-53 Op. Att'y Gen. p. 247.
Payments from sale of seized vehicles to members of state patrol.- Uniformed members of Georgia State Patrol cannot legally accept payments from proceeds of sale of seized vehicles since they are specifically precluded from receiving money other than their salaries, except for criminal apprehension awards. 1962 Op. Att'y Gen. p. 436.
Authorization of officers to seize contraband vehicles and to receive special fees.- Special agents and enforcement officers designated by revenue commissioner for enforcement of laws with respect to transportation and possession of non-tax-paid liquors are authorized to seize and take possession of contraband vehicles and would be entitled to receive special fees provided. 1963-65 Op. Att'y Gen. p. 241.
Parked car not condemnable absent certain evidence.- Parked car containing alcoholic liquors may not be condemned in absence of evidence that it was used to transport the alcoholic liquors in violation of this section. 1945-47 Op. Att'y Gen. p. 379.
Sheriff or any other peace officer is not authorized merely to resell condemned vehicle to owner without following statutory procedure. 1952-53 Op. Att'y Gen. p. 247.
RESEARCH REFERENCES
Am. Jur. 2d.
- 45 Am. Jur. 2d, Intoxicating Liquors, § 393 et seq.
C.J.S.- 48 C.J.S., Intoxicating Liquors, §§ 90, 325 et seq. 48A C.J.S., Intoxicating Liquors, §§ 750 et seq., 777 et seq.
ALR.
- Constitutional guaranties against unreasonable searches and seizures as applied to search for or seizure of intoxicating liquor, 3 A.L.R. 1514; 13 A.L.R. 1316; 27 A.L.R. 709; 39 A.L.R. 811; 74 A.L.R. 1418.
Constitutionality of statute providing for forfeiture of property upon which intoxicating liquor is manufactured or sold, 10 A.L.R. 1591.
Right to jury trial in case of seizure of property alleged to be illegally used, 17 A.L.R. 568; 50 A.L.R. 97.
Constitutionality of statute making unlawful possession of intoxicating liquor legally obtained, or providing for its confiscation, 37 A.L.R. 1386.
Criticism of attitude of the court or judge toward violations of liquor law as contempt, 58 A.L.R. 1001.
Rights and protection of innocent persons where property in which they are interested is seized because of its illegal use in connection with intoxicating liquor, 61 A.L.R. 551; 73 A.L.R. 1087; 82 A.L.R. 607; 124 A.L.R. 288.
Criminal responsibility of one who acts as sentinel during violation of intoxicating liquor law, 64 A.L.R. 427.
Jurisdiction to quash search warrant and order return of property seized in liquor cases under federal statutes, 65 A.L.R. 1246.
Presence of liquor in vehicle at the time of search and seizure as condition of forfeiture for violating prohibition law, 71 A.L.R. 911.
Admissibility, in prosecution for violation of intoxicating liquor law, of general reputation of person with whom defendant had dealings, as tending to show such violation, 83 A.L.R. 1401.
Lawfulness of seizure of property used in violation of law as prerequisite to forfeiture action or proceeding, 8 A.L.R.3d 473.
Requirements for allowance of remission or mitigation of forfeiture of vehicle used in violation of liquor laws under 18 U.S.C. § 3617(b), 14 A.L.R.3d 128.
Relief to claimant of interest in motor vehicle subject to state forfeiture for use in violation of liquor laws, 14 A.L.R.3d 221.