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Subject Area: Law
Topic: The American Revolution and Constitution

§ 168.: Destruction of personal property on account of illegal use. 2 — - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 168.

Destruction of personal property on account of illegal use.2 —

In a variety of cases, it has been provided, as a penalty for the infraction of the law, that the implements used in the prosecution of an unlawful trade, or in the doing of an illegal act, shall be seized and destroyed. It is a most common provision in the laws for the regulation and prohibition of the sale of intoxicating liquors.1 The same provision has been made to apply to nets and other implements employed in illegal fishing;2 so also in respect to the stock in trade of a gambler,3 or of a counterfeiter.4 But in all of these cases the seizure and destruction must rest upon a judgment of forfeiture, procured at the close of an ordinary trial, in which the owner of the property has had a full opportunity to be heard in defense of his property.5 Conceding in every case the illegality of the use to which the property has been put, the constitutionality of the statute cannot be questioned, when the proper hearing is provided for before condemnation.

The authorities do not, however, sustain the text altogether in the statement that things, which are being used in violation of law, cannot be lawfully destroyed without a judgment for condemnation in proceedings in which the owner of them has had an opportunity to be heard in his defense. The courts seem to justify summary destruction without condemnation proceedings in every case in which the illegal character of the things or of their use is unmistakable, and in which the value of the things destroyed is comparatively trivial. Thus in the case of the law of New York, which authorizes the game protectors to destroy summarily: “Any net found, or other means or device for taking or capturing fish, or whereby they may be taken or captured, set, put, floated, had, found, or maintained in or upon any of the waters of this State, or upon the shores or islands in any waters of this State, in violation of any existing or hereafter enacted statutes or laws for the protection of fish,” the United States Supreme Court joins the New York Court of Appeals in sustaining its constitutionality, notwithstanding condemnation proceedings are not first required.1 Thus, in the case cited the United States Supreme Court says on this point:—

“It is not easy to draw the line between cases where property illegally used may be destroyed summarily and where judicial proceedings are necessary for its condemnation. If the property were of great value, as, for instance, if it were a vessel employed for smuggling or other illegal purposes, it would be putting a dangerous power in the hands of a customs officer to permit him to sell or destroy it as a public nuisance, and the owner would have good reason to complain of such act as depriving him of his property without due process of law. But where the property was of trifling value, and its destruction is necessary to effect the object of a certain statute, we think it is within the power of the legislature to order its summary abatement. For instance, if the legislature should prohibit the killing of fish by explosive shells, and should order the cartridges so used to be destroyed, it would seem like belittling the dignity of the judiciary to require such destruction to be preceded by a solemn condemnation in a court of justice. The same remark might be made of the cards, chips and dice of a gambling room.”2

[2]In respect to the destruction of domestic animals for being nuisances, see post, § 175.

[1]State v. Miller, 48 Me. 576; State v. Snow, 3 R. I. 54; Green v. James, 2 Curt. 187.

[2]Jeck v. Anderson, 57 Cal. 251 (40 Am. Rep. 115); Weller v. Snover, 42 N. J. L. (13 Vroom) 341; Lawton v. Steele, 51 Hun, 643; s. c. 119 N. Y. 226: s. c. 152 U. S. 133; Bittenhaus v. Johnston, 92 Wis. 588; State v. Lewis, 134 Ind. 250; Peters v. State, 96 Tenn. 682; State v. Owen, 10 L. D. 163; s. c. 3 Ohio N. P. 181; State v. Mrozinski, 59 Minn. 465; People v. Bridges, 142 Ill. 30; Osborn v. Charlevoix Circuit Judge, 114 Mich. 655.

[3]Lowry v. Rainwater, 70 Mo. 152 (35 Am. Rep. 420); Glennon v. Britton, 155 Ill. 232.

[4]Boyd v. United States, 116 U. S. 616.

[5]Greene v. James, 2 Curt. 187; Jeck v. Anderson, 57 Cal. 251 (40 Am. Rep. 115); Lowry v. Rainwater, 70 Mo. 152 (35 Am. Rep. 420).

[1]Lawton v. Steele, 119 N. Y. 226; s. c. 152 U. S. 133.

[2]See, also, to same effect, State v. Owen, 10 L. D. 163; 3 Ohio N. P. 181; Bittenhaus v. Johnson, 92 Wis. 588; Glennon v. Britton, 155 Ill. 232 (in reference to the destruction of gambling implements).