Samuels v. McCurdy/Dissent Butler
Mr. Justice BUTLER dissenting.

I cannot agree with the opinion of the court in this case. Plaintiff in error is a man of temperate habits, long accustomed to use alcoholic liquor as a beverage. He never sold or in any way illegally dealt with intoxicating liquors and has never been accused of so doing. His supply was lawfully acquired years before the passage of the enactment in question (the act of March 28, 1917) for the use of himself, his family and friends in his own home, and not for any unlawful purpose. It consisted of spirituous, vinous and malt liquors and, before the passage of the act, was worth about $400. September 21, 1922, a deputy sheriff or constable, in company with a number of other persons, went to the house of plaintiff in error and searched it and seized and carried away his stock of liquor and delivered it to the sheriff. It was his purpose summarily to destroy it. This suit was brought to restrain him.

Plaintiff in error insists that the seizure deprived him of his property in violation of the due process clause of the Fourteenth Amendment. The decisions of this court in Crane v. Campbell, 245 U.S. 304, 38 S.C.t. 98, 62 L. Ed. 304, and Barbour v. Georgia, 249 U.S. 454, 39 S.C.t. 316, 63 L. Ed. 704, are not controlling. In the Crane Case, the Idaho statute under consideration (chapter 11, Session Laws 1915) made it unlawful to have in possession or to transport any intoxicating liquor within a prohibition district in that state. Crane was accused of having in his possession a bottle of whisky for his own use and benefit, and not for the purpose of giving away or selling the same. The state Supreme Court said:

'The only means provided by the act for procuring      intoxicating liquors in a prohibition district for any      purpose relates to wine to be used for sacramental purposes      and pure alcohol to be used for scientific or mechanical      purposes, or for compounding or preparing medicine, so that      the possession of whisky, or of any intoxicating liquor,      other than wine and pure alcohol for the uses above-mentioned      is prohibited.' In re Crane, 27 Idaho 671, 679, 151 P. 1006,      1008 (L. R. A. 1918A, 942).

The point was not made that the liquor was lawfully acquired or that it had never been unlawfully sold, transported or held. Presumably, the whisky was acquired after the act took effect, and it could not be claimed that it had not been sold or transported in violation of law. In the Barbour Case, the prosecution was under Georgia legislation approved November 18, 1915, which did not take effect until May 1, 1916. Barbour was convicted of having more than a gallon of vinous liquor in his possession on June 10, 1916. This court, following the Supreme Court of Georgia, assumed that the liquor was acquired after the act was passed and before it took effect, and held that Barbour took the the liquor with notice that after a day certain its possession, by mere lapse of time, would become a crime. The act of 1907, now section 426 of the Georgia Penal Code, was in force and made it unlawful for any person to sell or barter intoxicating liquors. It did not appear and was not claimed that the liquor had been lawfully acquired by the accused or that it had not been sold, transported or held in violation of law. The precise question here raised was not decided in either of these cases. Each presented facts materially different from those in the present case.

The seizure and destruction cannot be sustained on the ground that the act in question destroyed the value of the liquor. The question of compensation is not involved. That alcoholic liquors are capable of valuable uses is recognized by the whole mass of state and national regulatory and prohibitory laws, as well as by the state legislation in question. The liquors seized were valuable for such private use as was intended by plaintiff in error. The insistence is that the state is without power to seize and destroy a private supply of intoxicating liquor lawfully acquired before the prohibitory legislation and kept in one's house for his own use. Such seizure and destruction can be supported only on the ground that the private possession and use would injure the public. See Mugler v. Kansas, 123 U.S. 623, 663, 8 S.C.t. 273, 31 L. Ed. 205; Gardner v. Michigan, 199 U.S. 325, 333, 26 S.C.t. 106, 50 L. Ed. 212.

The enactment does not directly forbid the drinking of intoxicating liquors. The state Supreme Court has not construed it to prevent such private use of intoxicants. It is aimed at the liquor traffic. See Delaney v. Plunkett, 146 Ga. 547, 91 S. E. 561, L. R. A. 1917D, 926, Ann. Cas. 1917E, 685, Barbour v. State, 146 Ga. 667, 92 S. E. 70, 2 A. L. R. 1095, Bunger v. State, 146 Ga. 672, 92 S. E. 72, cited by that court as authority for its decision in this case. Attention has not been called to any legislation which attempts directly to forbid the mere drinking or other private use of such liquors. As against the objection that it would infringe constitutional provisions safeguarding liberty and property, the power of the state to enact and enforce such legislation has not been established. That question is not involved in this case.

Any suggestion that the destruction of such private supply lawfully acquired and held for the use of the owner in his own home is necessary for or has any relation to the suppression of sales or to the regulation of the liquor traffic or to the protection of the public from injury would be fanciful and without foundation. The facts in the case do not permit the application of the doctrine applied in Purity Extract Co. v. Lynch, 226 U.S. 192, 204, 33 S.C.t. 44, 57 L. Ed. 184.

To me it seems very plain that, as applied, the law is oppressive and arbitrary, and that the seizure deprived plaintiff in error of his property in violation of the due process clause of the Fourteenth Amendment. I would reverse the judgment of the state court. 

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