Gray v. Kimball , 42 Me. 299 ( 1856 )

Tenney, C. J.

This action is trespass for the alleged taking of five barrels of New England rum, and one barrel of Holland gin, by the defendant. The defendant pleads specially, that he took the articles named in the writ, by virtue of a complaint and warrant, put into his hands as a coroner of the county of Kennebec, he being duly appointed and qualified, as such, to which officer the warrant was directed; that the office of sheriff of that county, at the time the warrant was issued, and the taking of the goods, was vacant; that he made the search, as commanded in the warrant, and having found them, seized the same, and earned them to a proper place of security, there to be kept till final action on the complaint; that he afterwards apprehended Frederic Spencer, and had him before a justice of the peace, according to the command of the warrant, and made return of the same, with his doings thereon. It is agreed, that at the time the property was taken, the plaintiff was the agent of the town of Anson, duly appointed for the sale of liquors under the statute of 1853; and it is also agreed, that the question, whether the defendant is liable in this action, shall be determined by the pleadings filed in the case.

The counsel for the plaintiff raises several objections to the sufficiency of the matters set forth in the defendant’s special plea. And the first is, that the proceedings were unknown to the plaintiff.

The plaintiff was not made, or intended to be made, a party to the proceedings. The warrant was against the liquors, in the building described as that of Frederic Spencer; and it was liquors there deposited, and only such, that the defendant was commanded to search for, and seize, if they should be found; and against Spencer, as the keeper of those liquors, for sale in violation of law. The proceedings were in rem, as to the liquors, which were believed, by the complainants, to be intended for unlawful sale in this State, by Frederic Spencer, and were in conformity to the provisions of the statute of 1853, c. 48, § 1.

2. Another answer to the defence is, that the pleadings do not show, that any complaint was made before the justice, to authorize subsequent proceedings. The complaint, fully set out in the special plea, contains the following, to wit: — “'And that said spirituous and intoxicating liquors are kept and deposited,” Ac., “by Frederic Spencer,” Ac.; “and that the said Frederic Spencer is not authorized to sell spirituous liquors,” Ac.; “ and that said liquors arc intended for sale in this State, by said Frederic Spencer, in violation of law, all of which is against the peace,” Ac., “whereby said liquors have become forfeited to be destroyed,” Ac., “and the said Frederic Spencer to pay a fine of twenty dollars.” Then follows the prayer for the warrant, that search may be made, the liquors, if found, to be seized, to be held, till finally disposed of according to law; and that the said Spencer may be apprehended, and held to answer to this complaint, and further dealt with according to law. The plaintiff’s counsel have pointed out no specific defect in the complaint, in reference to subsequent proceedings ; and it is not perceived to be wanting in substance or form, so that the magistrate was not fully authorized to take jurisdiction, and proceed to hear the evidence touching the complaint, and to render such judgment, in rem, and against the keeper," as the statute and the evidence would authorize.

3. It is further objected, that neither the pleadings, nor the officer’s return, show any judgment, or the manner in which the property was disposed of. This objection, from the terms employed, seems to be predicated upon the ground, that the trespass complained of in the writ, was for acts done to the property, after the hearing before the justice upon the complaint, and after it was returned by the defendant. The pleadings will not authorize this position of the plaintiff. The special plea throughout, is clearly intended as a justification for the acts, which are alleged to have been done by authority of the warrant, issued upon the complaint of three individuals, and not for the destruction of the property after the hearing. This is manifest, from the statement in the plea of the search made for the liquors, the seizure of the same, the removal to a place of security, there to be kept until final action on said complaint, mentioned in said warrant; the subsequent apprehension of the keeper of the liquors, who was brought before the magistrate, and the return of the warrant, “which,” as it is alleged in the plea, “is the trespass complained of in the plaintiff’s declaration as to the taking and carrying away of the rum and the gin, whereof the said plaintiff complains against the said defendant,” Ac. If the plaintiff commenced his suit for acts done by the defendant, to his property, after the hearing before the justice, upon the return of the warrant, and the apprehension of Spencer, and not those done before, he could have presented this in his replication to the defendant’s special plea, and made a re-assignment. Instead of this, he omits to make any replication, so far as the case shows, but enters into the agreement, that the case shall be decided, upon the declaration, and the defendant’s pleadings.

4. Again, it is urged against the defence, that if there was any sufficient complaint, it shows that the liquor was forfeited, and Spencer fined, before the seizure of the property, or the arrest of the keeper. If such was the complaint, upon a fair construction, it was not only unauthorized, but absurd. But the language of the complaint is otherwise; after alleging the belief that the liquors were unlawfully kept by Spencer, it proceeds, “ whereby said liquors have become forfeited to be destroyed, and said Spencer to pay a fine,” Ac.

5. The proposition is made by the plaintiff’s counsel that the proceedings were in violation of the constitution. But he has omitted to specify the parts of the constitution which have been violated, or to point out wherein the proceedings were obnoxious to this charge.

Certain articles, which are treated as property, while used for lawful purposes, -may be subjects of forfeiture and destruction, under proper statutory provisions, if their use is deemed pernicious to the best interests of the community. And when such articles are attempted to be used for unlawful purposes, or in an unlawful manner, and the attempts are so concealed, that ordinary diligence fails to make such discovery as to enable the law to declare the forfeiture, statutes, authorizing searches and seizures, have been held legitimate. The exercise of this power must be properly guarded, that abuses may be prevented, and that a citizen shall not be deprived of his property, without having an accusation against him, setting out the nature and charge thereof, and but by the judgment of his peers, or the law of the land; and he shall be secure in his person, houses, papers and possessions, from unreasonable searches and seizures. It is not perceived, that the statute, under which the suit in this case is attempted to be defended, violates any of the provisions of the constitution, which have been adverted to; or that the proceedings invoked have not been such as are authorized by the statute.

We are to take the declaration as true, in this case. But this case does not differ from numerous others, in which one man may be prosecuted and tried for the acts which he never committed, but which were done by another. And laws authorizing proceedings in rem, may be enforced against the property seized, when the real owner may not be informed thereof. But where the process is issued by a court or magistrate, having jurisdiction, and is right upon its face, it is a protection to the officer who executes it. Butler v. Potter, 17 Johns. 145; Horton v. Auchmoody, 7 Wend. 200; Relgea v. Ramsay, 2 Wend. 604; Fisher v. McGirr & al., 1 Gray, 1. The appointment of the plaintiff, as the agent of the town of Anson, to make sale of liquors for certain lawful purposes, gives him no rights, in the maintenance of the present action, so long as the defendant was bound to execute the warrant, and was protected therein.

It is said, that the saving clause in the statutes of 1855, c. 166, § 33, is indistinct and ambiguous: We think that the actions, indictments and processes pending, are clearly saved from the operation of the repeal of former acts therein specified. But were it otherwise, there is nothing in the case as presented, which would take away the defence set up, if the repeal had no exceptions; and the prosecution against the liquors, and the supposed keeper, had failed by the repeal, or for any other cause.

Plaintiff nonsuit, judgment for defendant.

Rice, J., concurred.