Thurston v. Adams , 41 Me. 419 ( 1856 )

Appleton, J.

A warrant against the person, issued, by an inferior court, affords no protection to the officer by whom it may have been executed, when the court issuing it had no jurisdiction over the subject matter of the offence, or over the person; or when, on issuing the same, it exceeded its authority and that fact is apparent on the face of the process. If the warrant issued by the justice of the peace, in the shape in which it is given to the officer, is such that the party may lawfully resist, or, if taken upon it, may be released upon habeas corpus; it is a warrant which, in that shape, the magistrate had no authority to issue, and which, therefore, the officer need not have obeyed, and which at common law will not protect against the action of the party injured. When the warrant is imperfectly expressed, the officer may be bound to act, if the subject matter be within the jurisdiction of the magistrate, but when no cause is expressed, there is no question as to the want of jurisdiction. Gurney v. Tufts, 31 Maine, 130; State v. Weed, 1 Foster, 268; Whipple v. Kent, 2 Gray, 210; Barnes v. Barber, 1 Gilman, 410; Green v. Elgin, 5 Ad. & Ell., N. S., 100.

When the process is in rent the same general principles are equally applicable. The magistrate must have jurisdiction in rent over the thing upon which he adjudicates, and against which his process issues. If he has no jurisdiction, or, if having general jurisdiction, he shows by warrant an entire want of authority to issue it in the particular case, and entirely fails to set forth any cause of forfeiture, the officer acting under such warrant cannot be protected.

The rights of the present defendant are determined by the warrant, and if that discloses sufficient ground for the judicial action of the magistrate, it affords a complete justification for the officer. The officer is not to look beyond his process, or to be held responsible for antecedent defects or informalities. His rights are to be determined upon what is apparent upon the face of the warrant, whenever the magistrate has jurisdiction, and if that discloses sufficient authority, the officer will have established a complete defence, otherwise not.

In Green v. Elgin, 5 Ad. & Ell., N. S., 100, the warrant of commitment, issued by the Court of Eeview, was held bad, as not containing any proper adjudication of a contempt, nor showing how the party committed might clear himself. “ In the present case,” says Denman, C. J., “ no offence whatever can be collected from the documents.”

The distinction is fully recognized between a court of ultimate resort‘and inferior magistrates. “ There is,” says Bigelow, J., in Piper v Pearson, 2 Gray, 122, “ a marked distinction in this respect between courts of general jurisdiction and inferior tribunals having only a special or limited jurisdiction. In the former case the presumption of law is, that they had jurisdiction until the contrary is shown; but with regard to inferior courts and magistrates, it is for them, when claiming any right or exemption under their proceedings, to show affirmatively that they acted within the limits of their jurisdiction.” It is material, therefore, to consider whether the warrant discloses-any authority on the part of the magistrate to issue the process under which the defendant justifies.

It appears from the warrant, by the authority of which the liquors in dispute were destroyed, that the magistrate issuing the same, on the 3d of Dec., 1852, received a complaint under the Act of June 2,1851, for the suppression of drinking-houses and tippling-shops, c. 211, § 11; that he thereupon issued process for the search of the premises described in the complaint ; that the officer serving the same seized certain liquors, the owners of which he returned as unknown; that of this a portion was claimed and given up by the magistrate to the several claimants; that for the liquors not thus surrendered, there were no claimants; and that such remaining portion was declared forfeited on the 9th of the same December, and ordered to be destroyed.

Now, by § 12 it is provided, that “ if the owner, keeper, or possessor of liquors under the provisions of this Act shall be unknown to the officer seizing the same, they shall not he condemned and destroyed until they shall have been advertized, &c., for two weeks, by posting up a written description of the same in some public place,” &c. As the complaint was made on the 3d of December, and the adjudication had on the 9th of the same month, it is apparent from the warrant that the notice, without which the liquors of owners unknown “ shall not be condemned and destroyed,” could never have been given. The liquors, therefore, were never before the magistrate so that he could legally condemn them and order their destruction; and this is apparent by inspection of the warrant. The owners are set forth as unknown and as not appearing. They were not bound to appear, except after the notice, which the statute directs to be given; and until that time had expired the magistrate had no right to act upon their forfeiture.

The Act in question no where prohibits the possession of liquors for mechanical or medical purposes, or for the use of the person thus possessing. Its prohibitions are against, and its penalties are for the keeping with intent to sell, and its forfeitures are when the liquors are so kept. If the liquors were not so kept, they are as much within the protection of the law as any other property. The warrant discloses no adjudication by the magistrate that they were so kept. If not so kept, if held for legitimate and lawful purposes, the law affords the owner the usual remedies for the vindication of his rights.

It is apparent, therefore, that no defence has been disclosed. The warrant under which the officer acted, negatives the fact of the magistrate’s authority to issue the same; and such want of authority being apparent to the officer, he was under no obligation to obey or enforce its mandates.

The statute, § 16, provides that no action of any kind shall be maintained in this State “ for the recovery or possession of spirituous liquors or the value thereof.” This provision has been limited to- liquors kept for sale in violation of the provisions of law. Preston v. Drew, 33 Maine, 558. The statute in this respect is clear and imperative. It violates no provision of the constitution. It says liquors shall be kept for sale only on certain conditions and for certain purposes. It defines the conditions and prescribes the purposes. If kept in violation, of its provisions, it refuses its aid and withholds its protection. If, therefore, on trial, it shall be made to appear that the liquors were intended for sale contrary to law, no action can be maintained for their value under the provisions of the statute. McGilvery v. Black, 38 Maine, 287.

The cause to stand for trial.

Tenney, C. J., and Hathaway, May, and Goodenow, J. J., concurred. Rice, J., did not sit.