State v. Spirituous Liquors , 37 Me. 228 ( 1854 )

Hathaway, J.

— The proceedings, in this case, were under a warrant which commanded the officer to whom it was directed, to search the defendant’s dwellinghouse for spirituous and intoxicating liquors, believed by the complainants to be kept and deposited therein for illegal sale.

The defendant moved in arrest of judgment for various reasons, among which the third one assigned was, “because it does not appear by said complaint or warrant that the magistrate, before issuing the warrant, took the testimony of witnesses as directed by § 11, of the Act of 1853, in addition to c. 211, of Laws of 1851.” The statute of 1853, c. 48, § 11, provides that “no warrant shall issue for, the search of any dwellinghouse in which, or a part of which, a shop is not kept, or other place is not kept for the sale of such liquors, unless it shall first be shown to the magistrate, before a warrant is issued for such search, by the testimony of witnesses upon oath, that there is reasonable ground for believing that such liquors are kept or deposited in such dwellingfiouse or its appurtenances, intended for unlawful sale in such dwellinghouse or elsewhere; which testimony the magistrate shall reduce to writing, and cause to be verified by oath or affirmation of such witnesses, and upon such testimony, so produced and verified, he may, upon complaint of three persons, &c. issue his warrant.” It was only “upon such testimony, so produced and verified,” that the magistrate had any authority “ upon the complaint of three persons” to issue his warrant to search the defendant’s dwellinghouse.

Nothing is to be presumed in favor of the jurisdiction of a justice of the peace, as it is not general, but given and limited by particular statutes. Bridge v. Ford, 4 Mass. 641.

The jurisdiction of an inferior tribunal must appear upon the face of its proceedings. Granite Bank v. Treat & al. 18 Maine, 340; 35 Maine, 129.

' The proceedings, in the case at bar, show no compliance with those requirements of the eleventh section of the Act of 1853, which were made indispensable and preliminary to issuing the warrant, and the defect is fatal.

Exceptions sustained and judgment arrested.

Shepley, C. J., and Howard, Rice and Cutting, J. J., concurred.