For the prosecutor, Vincent S. Haneman and Samuel D. Hoffman.
For the respondent, Walter D. Van Riper, Attorney-General, and Joseph A. Murphy, Assistant Deputy Attorney-General.
Before Justices Case, Bodine and Porter.
The opinion of the court was delivered by
CASE, J. The writ brings up an order of forfeiture made, after seizure and due hearing, on April 6th, 1944, by Alfred E. Driscoll, Commissioner of Alcoholic Beverage Control of the State of New Jersey, under the authority, as he conceived, of R.S. 33:2-1, et seq., and particularly of sections 2, 3 and 5 which provide as follows:
2. "Any such still or distilling apparatus or parts thereof not registered pursuant to section 33:2-1 of this title, together with all articles, implements or paraphernalia used or adaptable for use in connection therewith and all personal property of whatsoever kind, found in a building or in any yard or inclosure connected with a building or on the premises in which such still or distilling apparatus or parts thereof are found, are declared to be unlawful property."
3. "Any officer knowing or having reasonable cause to believe that any still or distilling apparatus or any parts thereof constitute such unlawful property, it shall be his duty * * * to seize such still or distilling apparatus or parts thereof, together with all articles, implements or paraphernalia used or adaptable for use in connection therewith and all personal property of whatsoever kind, found in a building
or in any yard or inclosure connected with a building or on the premises in which such still or distilling apparatus or parts thereof are found * * *."
5. "If after such hearing the commissioner determines that the seized property constitutes such unlawful property he shall declare such property forfeited * * *."
The seized articles upon which most stress is laid are four automobiles consisting of three Ford trucks and a station wagon. One of these vehicles was at the scene when the officers arrived; the others were driven in while the seizure was in progress. It must be assumed for the purposes of this review that the prosecutor manufactured illicit apple brandy at his dwelling and that he unlawfully sold that liquor; indeed prosecutor so admits. The still was being operated at the time of the seizure in the cellar of his home located on a 26 acre farm which was owned and occupied by himself and his wife. The brandy was made on the farm from cider there expressed. The cider was kept in vats about 480 feet from the dwelling and piped to the still through an underground conduit. At the same time that the illicit still was being operated in the house prosecutor's wife was conducting a licensed tavern on the farm premises only 164 feet from the dwelling. In addition the Patricks operated a picnic ground at the back of their lawn along the bank of a bit of water known as Farrington Lake. Although other articles were seized prosecutor now demands only the mentioned motor vehicles, a few pieces of furniture (consisting of a kitchen table, a single bed, three chairs and a dresser) and 96 bottles of tax-paid alcoholic beverages (92 bottles of brandy, whiskey, gin and rum and four bottles of wine). The liquor was seized in the house located where the still was, the motor vehicles on the grounds in close proximity thereto and the furniture in a room which was a part of the cider press structure -- a "sort of a living room alongside (the cider press) containing furniture as if someone was sleeping there."
Prosecutor builds his case in part upon the proposition that the automobiles were not on the premises when the officers arrived and began their seizure and were not found in the building where ...