State v. Maxwell's Liquors ( 1869 )

Butler, J.

In this case the .motion to dismiss for want of jurisdiction must be denied. The case is not a civil action, within the meaning of the statute relating to civil actions, nor the act in addition, passed.in 1867, requiring an affidavit in case of an appeal from a judgment of a justice of the peace-

The statute under which the proceedings in question were had and the appeal taken, is a special and peculiar statute in relation to a special subject of police regulation, and was originally criminal and penal in all its features. No other view of it could be taken on principle, nor has any other view of it ever been taken by this court. In Hine v. Belden, 27 Conn., 384, the court, although it did not decide the question intimated very clearly that they should have so holden if it had been important to do so in that case.

By the act of 1857, which now forme section 45th of the special statute, the particular provisions of the law, which authorized proceedings to obtain the forfeiture of the liquor, under sections 22d to 25th of the act, and the proceedings prescribed by those sections, were declared to be “ proceedings in rem,” to be proceeded with as in civil actions. The statute of 1857 was a singular one. The proceedings prescribed in the sections in the special act to which it refers are numerous and peculiar, particular even as to forms, and intended to provide for every contingency and every necessary step required to be taken in the execution of that part of the law. Not one of those prescribed steps, forms or proceeding's was repealed or qualified by the act of 1857, and no effect has ever been given to that act by which any of the proceedings under the act relating to civil actions have been substituted for, or permitted to operate upon, any of the provisions or proceedings prescribed by the act relating to taverns and spirituous liquors. Effect has been given to the act of 1857, in respect to incidental proceedings not provided for or prescribed in the special statute, in a few particulars. Thus, the justice if absent on the return day has been permitted, by force of a provision in the act relating to civil actions, to call the parties before him at a future day, (Hine v. Belden, 27 Conn., 384,) and so the parties have been permitted to testify and counsel to open and close the argument upon the trial of the issue, pursuant to the provisions of a statute relating to civil actions, or the practice in civil cases. But no provision or regulation of any statute relating to civil actions has been permitted to interfere with the operation of a clearly prescribed proceeding in the statute relating to taverns &e.

Section 45th is an operative section in the special act, so far as it can be properly operative, undoubtedly, but it is apparent upon its face that it was not intended to alter or interfere with the proceedings described in the 22d, 23d, 24tli and 25th sections, nor was it intended to invoke the operation of any other statute, to alter, add to, or interfere with, those proceedings. It says, “ proceedings &a. under certain sections (naming them) shall be held to be proceedings in rem &c.” They were therefore intended to be and are the proceedings by which liquor is to be seized and forfeited, and must be strictly pursued as such. Neither the provisions- of the statute of 1867, nor of any other statute relating to civil actions, is operative upon them, and the act of 1857, now section 45th of the prinicipal act, is limited in its operation to the practice of the courts in which the proceedings are had, or to some matter not inconsistent with the proceedings as prescribed, by which they may be aided. If these views are correct it follows that the act of 1867 was inoperative in relation to the right of appeal given by the special act referred to, there being confessedly nothing in the former act evincing an intent to make it applicable to the latter.

But it is unquestionably true as we have intimated, that by the 45th section of the special act the proceedings are to be had and pursued in the Superior Court, pursuant to the rules and regulations which govern the practice of that court in civil actions, whether statutory or otherwise. By the provis. ions of the special act relating to taverns &c. the claimant of the, liquor is entitled to a trial by jury, but that right he may waive by agreement or by closing the issue to the court. In this case it appears by the record that the issue is so closed.

The Superior Court is therefore advised to retain jurisdiction of the case, and enter it in the court docket to be proceeded with thereafter according to law and the rules of the court.

In this opinion the other judges concurred.