State v. Lamos , 26 Me. 258 ( 1846 )

The opinion of the Court was drawn up by

Tenney

—The defendant is charged in the indictment with the offence of presuming to be, and of being a common innholder between the first day of June, and the time of finding the bill at the term of the Court holden in October, 1843, without being licensed therefor according to law, and without being duly authorized therefor. It was admitted by the defendant, that he carried on the business of a common innholder as alleged in the indictment, and by the prosecuting officer that he was duly licensed as such for the period during which the offence was alleged to have been committed, with the restriction not to sell spirituous liquors. But it was insisted by the latter, that the defendant’s license was legally revoked on August 5, 1843.

The defendant not being charged with any other offence than that of being a common innholder without license, the correctness of the instructions to the jury, that the evidence authorized a conviction, must depend upon the legal revocation of that license. The town officers, who are authorized to grant a license, are empowered also to revoke it, whenever any instance of a breach of the bond required by Rev. Stat. chap. 36, sect. 2, shall have come to their knowledge, and after complaint, notice to the party complained of, qnd a hearing thereon. Chap. 36, sect. 15.

The power given by the section referred to, to the board, is important, and its exercise may materially affect the interests of those against whom complaints may be made. Their jurisdiction, like that of all inferior magistrates, must appear affirmatively, and cannot be presumed, or inferred. The authority to give a hearing, and to revoke a license, is not conferred without a complaint, and a notice to the party complained of.

It is not necessary, that the complaint should be in writing, signed and sworn to as the law requires in complaints in criminal proceedings before a magistrate, to authorize him to issue a warrant; neither is it indispensable, that it should be signed by any one; but the language used in the statute implies, that the word complaint is to be understood in its legal sense.

A breach of the bond of a person licensed, may come to the knowledge of the board; this alone is not sufficient to give a hearing after notice; but a complaint is necessary. The legislature could not have intended to have made a distinction between simple information of the breach, and that information given verbally to the board, by way of complaint; such would be senseless; but it was evidently their purpose, that after the fact of a breach should become known to them, before they could give the notice to the person accused, of having committed it, and proceed to a hearing, the complaint should be in writing and contain an allegation of the charges, with specifications, and the time when, the breach took place. Of all these the party complained of was entitled to reasonable notice, that he might know particularly, what he was called upon to answer, and have opportunity to produce proof, that the charges were unfounded. Without this, there would be a looseness, which would be perfectly anomalous in all proceedings of the same general character. There would be an uncertainty, whether the evidence adduced at the hearing had relation to the charges of which he had notice, or others, which were distinct therefrom; if the license should be revoked, it could not appear whether it was upon satisfactory proof of the charges alleged, when no record or document existed to show what they were.

The order revoking the defendant’s license is in writing, and it is therein stated, that the undersigned, being a major part of the licensing board, after notifying him of their intention so to do, gave him a hearing on the charges preferred against him, and being satisfied beyond a reasonable doubt, that he has failed to keep the Wadleigh House, according to the restrictions and conditions of his bond and license, did revoke said license, rendering it of no effect, informing him at the same time of the fact. No written complaint or copy thereof was introduced at the trial as the basis of the proceedings of the board, nor was there evidence that any was before them at the hearing. The order of revocation was introduced without objection, but if it contained no statement showing a jurisdiction in the board, it certainly was insufficient for that purpose; and it contains nothing which indicates, that they proceeded under a written complaint. It does not state what charges were preferred against the defendant; and they could have jurisdiction only on complaint of a charge that the condition in the bond, which the law anthorizcd them to insert, had been broken. Crosby v. Snow & al. 16 Maine R. 121.

The board found the defendant guilty of not keeping the Wadleigh House according to the conditions and restrictions of his bond and license, and for that cause his license was revoked. Whether this was the charge preferred against him or not; or whether the conditions and restrictions in the bond and license, ivhich they found he failed to observe were those, which could be legally required, even if written complaint was not necessary, no proof was adduced to show.

Exceptions sustained.