Chap. 16.—An ACT to amend and re-enact sections 20 and 28 and to repeal
section 46 of chapter 407 of the Acts of the General Assembly of 1924, ap-
proved March 20, 1924, as heretofore amended, which chapter is an act con-
cerning intoxicating liquors. [H. B. 5

Approved: September 7, 1933

1. Be it enacted by the General Assembly of Virginia, That sections
twenty and twenty-eight of chapter four hundred and seven of the acts
of the General Assembly of nineteen hundred and twenty-four, ap-
proved March twentieth, nineteen hundred and twenty-four, as hereto-
fore amended, be amended and re-enacted so as to read as follows:

Section 20. It shall be unlawful for any person to own or have in
his possession without a permit as provided by this section any still,
still cap, worm, tubs, fermenter, or any of them or any other appli-
ances connected with a still and used, or mash or other substances
capable of being used in the manufacture of ardent spirits, unless such
owner shall be registered with the commissioner and obtain from him a
permit to own such still, which permit shall be kept conspicuously
posted at the place where such still is located. All stills in this State
not registered under a permit as herein required and all mash or other
products used in the operation of such a still are hereby declared con-
traband and shall be subject to seizure by any officer charged with the
enforcement of the law, which officer shall destroy all mash and other
like products found at such still and used in the operation thereof, and
shall forthwith notify the commissioner and turn over to him all stills,
caps, worms, tubs, fermenters and other appliances to be disposed of as
required by this act.

All persons found at a distillery where ardent spirits are being manu-
factured shall be deemed prima facie guilty of manufacturing the same
or aiding and abetting in such manufacture and upon conviction thereof
shall be subject to the same penalties as if personally manufacturing the
same.

Provided the commissioner shall upon the application of any chemist,
superintendent of a laboratory or hospital, register such person, and
issue to him a permit to own or to have in his possession a still, not to
be used contrary to the provisions of this act, which permit may be re-
voked for catise ; and such commissioner may in his discretion issue such
permit to any druggist, physician or other person permitted by law to
practice his profession, or conduct his business in this State, which
permit may be revoked by said commissioner at his discretion; all per.
mits to be granted subject to rules and regulations to be prescribed by the
commissioner, and for which permit the applicant shall pay a fee ot
fifty cents. omy |

Section 28. (a) Where any officer charged with the enforcement o1
the prohibition laws of this State, shall have reason to believe that ardent
spirits are, contrary to law, in any conveyance of any kind, either or
land or on water (except conveyance owned or operated by a railroad
express, sleeping or parlor car or steamboat company, other than barges.
tugs or small craft), it shall be the duty of such officer to search such
conveyance, and if ardent spirits be found therein, contrary to the pro-
visions of this act, he shall seize the same, and shall also seize and take
possession of such conveyance, and the team if it be drawn by a team,
and deliver the same and the ardent spirits so seized, to the sheriff of the
county, or the sergeant of the city in which such seizure was made,
taking his receipt therefor, in duplicate, and the said conveyance and
other property so seized, shall be deemed forfeited to the Common-
wealth. |

(b) The officer making such seizure shall also arrest all persons
found in charge of, or occupying such conveyance, and shall forthwith
make report in writing, of such seizure and arrest, to the Attorney
General and to the attorney for the Commonwealth for the county or
city in which such seizure and arrest were made, and such attorney for
the Commonwealth shall promptly institute appropriate proceedings
against such persons, for violation of the prohibition laws of this State.

(c) If the conveyance so seized be a motor vehicle required by the
motor vehicle laws of Virginia, to be registered, the attorney for the
Commonwealth shall forthwith notify the Director of the Division of
Motor Vehicles, by letter, of such seizure and the motor number of the
vehicle so seized, who shall promptly certify to such attorney for the
Commonwealth, the name and address of the person in whose name
such vehicle is registered, together with the name and address of any
person holding a lien thereon, and the amount thereof; and said Di-
rector shall also forthwith notify such registered owner and lienor, in
writing, of the reported seizure, and the county or city wherein such
seizure was made. }

The certificate of said Director, concerning such registration and
lien, shall be received in evidence in any proceeding, either civil or
criminal, under any provision of this act, in which such facts may be
material to the issue involved; provided, however, that any failure of
said Director to notify such owner and lienor of said seizure, shall not
hinder or delay any such proceedings.

(d) Within ten days after receiving notice of any such seizure, the
attorney for the Commonwealth shall file in the name of the Common-
wealth, an information against the seized property, in the clerk’s office
of the circuit court of the county, or of the corporation court of the
city wherein said seizure was made; and should the attorney for the
Commonwealth, for any reason, fail to file such information within
said time, the same may, at any time thereafter, be filed by the Attorney
General, and the proceedings thereon shall be the same as if it had been
filed by the attorney for the Commonwealth.

Such information shall allege the seizure, and set forth in general
terms, the grounds of forfeiture of the seized property, and shall pray
that the same be condemned and sold and the proceeds disposed of ac-
cording to law, and that all persons concerned or interested, be cited to
appear and show cause why said property should not be condemned and
sold to enforce the forfeiture.

The owner of and all persons in any manner then indebted or liable
for the purchase price, said property and any person having a lien
thereon, if they be known to the attorney who files said information,
shall be made parties defendant thereto, and shall be served with the
notice hereinafter provided for, in the manner provided for in section
sixty hundred and forty-one and/or section sixty hundred and sixty-
three of the Code of Virginia and the amendments thereof, at least ten
days before the day therein specified for the hearing on said informa-
tion, if they be residents of this State, and if they be unknown or non-
residents, they shall be deemed sufficiently served by publication of said
notice once a week for two successive weeks, in some newspaper pub-
lished in the county or city wherein said information is filed, and if there
be no newspaper published in such county or city, then in some news-
paper having general circulation therein.

Upon the filing of the information, the clerk of the court shall forth-
with make out a notice reciting briefly the filing of the information, the
object thereof, the seizure of the property and a fair description thereof,
and citing the owner thereof and any person having a lien thereon, as set
out in said information, and all other persons concerned, to appear on
a specified day, of the next term of the court, or before the judge in
vacation to show cause why the seized property should not be con-
demned and sold: and said clerk, in addition to having such notice
served as aforesaid, shall promptly post a copy thereof at the front doo:
of the courthouse.

(e) If the owner or lienor ot the seized property shall desire tc
obtain possession thereof before the hearing on the information filec
against the same, such property shall be appraised by three disinterestec
persons, one to be appointed by such owner, or lienor, if he so desire
one by the clerk of the court and one by the judge, either in term time o1
in vacation, by an order entered of record; and the judge may appoin
a person to serve in all such cases, during his pleasure. If the owne:
or lienor shall fail to make an appointment, the clerk shall appoint tw«
of said appraisers. ‘The persons so appointed, or any two of them, i
the event one should fail to appear, shall promptly inspect and apprais
said property, under oath, at its fair cash value, and forthwith make
return thereof in writing, to the clerk’s office, upon the return of which
the said owner or lienor may give a bond payable to the Commonwealtl
of Virginia, in a penalty of double the amount of the appraised value o
said property, with security to be approved by the clerk, and conditionec
1933] ACTS OF ASSEMBLY 37

for the performance of the final judgment of the court, on the trial of
said information, and with a further condition to the effect that, if upon
the hearing on the information, the judgment of the court be that said
property, or such interest and equity as the owner or lienor may have
therein, be forfeited, judgment may thereupon be entered against the
obligors on said bond for the penalty, without further or other pro-
ceedings against them thereon, to be discharged by the payment of the
appraised value of the property seized and costs, upon which judgment,
execution may issue, on which the clerk shall endorse, “no security to
be taken”; upon giving of which bond, the said property shall be de-
livered to said owner or lienor.

(f£) Any person claiming to be the owner of such seized property, or
to hold a lien thereon, may appear at any time before final judgment,
and be made a party defendant to the information so filed, which ap-
pearance shall be by answer, under oath, in which shall be clearly set
forth, the nature of such defendant’s claim, whether as owner or as
lienor, and if as owner, the right or title by which he claims to be such
owner, and if lienor, the amount and character of his lien, and the evi-
dence thereof; and in either case, such owner shall set forth fully, any
reason or cause which such defendant may have to show against the for-
feiture of said property.

(g) If such claimant shall deny that ardent spirits were in such con-
veyance at the time of the seizure thereof, contrary to law, or shall be
proven to the satisfaction of the court or jury trying the case that the
amount in such conveyance was less than one quart and was
not for the purpose of sale but was for personal use, and shall demand
a trial by jury, of the issue thus made, the court shall, under proper
instructions, submit the same to a jury of five, to be selected and em-
panelled as prescribed by law, and if such jury shall find on said issue,
in favor of such claimant, or if the court, trying such issue without a
jury, shall so find, the judgment of the court shall be to entirely relieve
said property from forfeiture, and no costs shall be taxed against said
claimant.

(h) If, on the other hand, the jury, or the court trying the issue
without a jury, shall find against the claimant, or if it be admitted by the
claimant that said conveyance, at the time of the seizure, contained
ardent spirits, nevertheless, if it shall appear to the satisfaction of the
court that such claimant, if he claim to be the owner, was the actual
bona fide owner of said conveyance at the time of seizure, that he was
ignorant of such illegal use thereof, and that such illegal use was with-
out his connivance or consent, express or implied, and that such inno-
cent owner has perfected his title to the conveyance, if it be a motor
vehicle, prior to its seizure, or within ten days from the time same was
acquired. The court shall relieve said conveyance from forfeiture and
restore it to such innocent owner, upon the payment by him of the
costs as hereinafter provided.

Where it is shown to the satisfaction of the court that the conveyance
for the forfeiture of which proceedings have been instituted was stolen
from the person in possession, relief shall be granted the owner or
lienor, either or both, and the cost of the proceedings shall be paid by
the Commonwealth as now provided by law. ,

(i) If any such claimant be a lienor, and if it shall appear to the
satisfaction of the court that the owner of the conveyance has per-
fected his title to the conveyance if it be a motor vehicle, prior to its
seizure, or within ten days from the time same was acquired, and that
such lienor was ignorant of the fact that such conveyance was being
used for illegal purposes, when it was so seized; that such illegal use
was without such lienor’s connivance or consent, express or implied;
that at the time he acquired said lien, he did not know, and had no
reason to believe or suspect, that the owner of said conveyance had ever
been guilty of, or was suspected of violating any prohibition law, or that
such owner intended to use, or contemplated using, or permitting any
other person to use such conveyance for any unlawful purposes, and
that he held a bona fide lien on said property and had perfected the same
in the manner prescribed by law, prior to such seizure (if such convey-
ance be an automobile the memorandum of lien on the certificate of
title issued by the Director of the Division of Motor Vehicles on said
automobile shall make any other recordation of same unnecessary), the
court shall, by an order entered of record establish said lien, upon
satisfactory proof of the amount thereof; and if, in the same proceed-
ing, it shall be determined that the owner of said seized property was
himself in possession of the same, at the time it was seized, for any
illegal purpose, or-that such illegal use was with his knowledge or con-
sent, the forfeiture hereinbefore in this section declared, shall become
final as to any and all interest and equity which the said owner, or any
other person so illegally using the same, may have in such seized
property, which forfeiture shall be entered of record. In which last
mentioned event, if the lien established is equal or more than the value
of the conveyance, such conveyance shall be delivered to the lienor with
payment of costs; if the lien is less than the value of the conveyance,
the lienor may have the said conveyance delivered to him upon the pay-
ment of the difference and costs, should the lienor not demand delivery
as aforesaid, an order shall be made for the sale of said property by the
sheriff of the county, or sergeant of the city, as the case may be, in the
manner prescribed by law, out of the proceeds of which sale shall be
paid, first, the costs as hereinafter specified, second, the payment of
the lien; and the residue, if any, shall go to the literary fund.

Provided, when relief is granted a lienor under such circumstances
that such relief would not have been granted the owner, judgment shall
be entered in favor of the Commonwealth against the owner for the
full value of the conveyance, with actual cost of the proceedings, and
against all others liable to the lienor except a dealer, who, if he held the
lien, would have been entitled to the relief as an innocent lienor, for due
amount to the lienor the amount recovered to be applied, first, to the
amount then due the lienor, and the residue to the literary fund.

(j) If, however, no valid lien is established against the seized prop-
1933] ACTS OF ASSEMBLY 39

erty, and upon the trial of the information, it shall be determined that
the owner thereof was himself using the same, at the time of the seizure,
for an illegal purpose, or that such illegal use was with his knowledge or
consent, the said property shall be completely forfeited to the Common-
wealth, by an order entered of record, in which event the attorney for
the Commonwealth shall forthwith notify the Governor of such for-
feiture, giving him a fair description of the forfeited vehicle. The
Governor shall have the right to have such vehicle inspected by such
agency as he may appoint for the purpose, and if, in his judgment the
best interest of the State would be served by retaining such vehicle for
use in some department of the State government he may so retain the
same and have it applied to such use; and the costs of the forfeiture pro-
ceedings shall be paid by the Commonwealth in the manner provided by
law.

If, however, the Governor shall not order the use aforesaid of such
vehicle, he shall promptly notify the attorney for the Commonwealth,
and the vehicle shall be sold by the sheriff or sergeant, as the case may
be, and after payment of the costs as above specified, the residue of the
proceeds shall go to the literary fund.

Every sale authorized by this section shall be for cash and no sale
shall be made until after the publication of the time, place and terms
of sale, once a week, for two successive weeks in a newspaper pub-
lished in the county or city wherein the order of sale is entered, and if no
newspaper is published in said county or city, the advertisement as
above required shall be printed hand bills posted at the front door of
the courthouse of the county, or usual place for posting of publications
in a city, and in not less than five public places in the county and for
at least ten days prior to the day of sale.

(k) In the trial of any such information, the proven presence of
ardent spirits in the seized conveyance, shall be prima facie evidence
that the person or persons in charge of same at the time of seizure, had
knowledge of such fact, and it shall be no sufficient ground of defense,
that such person or persons so charged with using said conveyance in
violation of law, had not been convicted of such violation.

(1) The proceeding herein termed “information,” shall be inde-
pendent of any proceeding against the owner of the seized property, or
against any other person, for violation of the prohibition laws.

(m) In every such case, the ardent spirits so seized shall be turned
over to the Attorney General.

(n) If the seized property, upon the trial of the information, be
entirely relieved from forfeiture, as provided in paragraph (g), the
costs of such proceeding, shall be paid by the Commonwealth in the
manner provided by law; and if such seized property be relieved from.
forfeiture as provided in paragraph (h), all costs of the proceeding,
shall be taxed against and paid by the owner as therein provided.

(o) In all cases, the actual expense incident to the custody of the
seized property, and the expense incident to the sale thereof, including
commissions, shall be taxed as costs.
2. Be it further enacted by the General Assembly, That section
forty-six of chapter four hundred and seven of the Acts of the General
Assembly of nineteen hundred and twenty-four, as heretofore amended,
be, and the same is hereby repealed.

3. This act shall become effective February fifteenth, nineteen
hundred and thirty-four.