State v. Tufts , 1875 N.H. LEXIS 18 ( 1875 )

Mr. Belknap, the historian of New Hampshire, in his third volume, in the chapter on trade, navigation, fishing, and manufactures, takes occasion to lament that the reputation of the articles manufactured for exportation was in danger of suffering abroad from the want of proper governmental regulations in regard to surveys and inspections.

However this may be, it is true that the regulation of the exportation of beef, pork, pot and pearl ashes, lumber, and other articles, was somewhat extensively attempted in the legislation of the state. Whether this began under the provincial government I have not inquired, but it is certain that it appears early in the statute books of the state.

Occasionally attempts were made to enforce the provisions of the law by forfeiture of the articles attempted to be exported without proper inspection. Some of these provisions still remain, some have dropped out by the wayside in the course of legislation, and some have been modified. Gen. Stats., ch. 116, sec. 12, is a provision authorizing the inspector, in the case of butter or lard "being laden in any port or place in this state for exportation, not being in conformity to the provisions of this chapter," to make seizure thereof forthwith, and proceed in any court proper to try it, and, if the breach of the law is proved, providing for its forfeiture to the use of the officer seizing and prosecuting.

By Gen. Stats., ch. 119, secs. 10 and 11, casks of potash or pearlash, not properly inspected or branded, may be forfeited and sold, and the proceeds paid, one half into the county treasury, and the other half to the inspector seizing the same.

In the Laws of 1830, title 56, sec. 16, is a provision for seizing beef and forfeiting the same, one moiety to the use of the state, and one moiety to the use of the inspector seizing the same.

These are given as examples, among many, of cases in which provision is made for the forfeiture of personal property, which some way or other has been made the subject or the instrument of the violation of the law.

In Rev. Stats., title 25, a step was made for the first time, as far as I have discovered, to give some system and order to these proceedings for the forfeiture of personal property. The proceedings throughout are treated as civil, and not criminal. It is true that the object is to enforce penal legislation, but it is the object to do so by means of private enterprise, and not as a matter of public prosecution. There is a provision that the complainant shall have his costs allowed, not only when he succeeds, but when he fails, if he had reasonable ground for his proceeding; and there is also provision for a recovery by the claimant of the property, not only of costs, but also of damages. This latter provision emphatically marks the proceeding as a civil suit maintained by a private individual, and not as a criminal suit maintained by the state.

Thus stood the law when, in 1855, the act for the suppression of intemperance was passed. In that statute there is a provision for issuing a search-warrant and searching premises where it is suspected that spirituous liquors are kept for sale, for seizing the liquors if found, for confiscating them, causing them to be sold, and the proceeds paid into the county treasury.

It is evident that this is a proceeding on behalf of the state. It seems designed mainly as a subsidiary provision for the discovery of evidence to be used in criminal prosecutions, and as there is no provision for remuneration to private prosecutors, there is certainly no reason to expect that these proceedings would be carried on by private enterprise. But here, again, the legislature marks this as a civil proceeding, by providing that in case the claimant succeeds "he shall be allowed his costs, to be paid out of the county treasury."

In the Gen. Stats. this provision for issuing a search-warrant does not appear in the chapter regulating the sale of spirituous liquors, but instead of it there is a provision — sec. 23 — for the seizure of liquor kept for sale in violation of law, which, "upon due proceedings, may be adjudged forfeited, and disposed of according to law." These "due proceedings" are clearly those described in chapter 249, relating to forfeitures of personal property. It was found, however, that, although the due proceedings were specified in the General Statutes, there was no provision for disposing of the liquors seized according to law. It seems manifest that this omission must have been accidental. Accordingly, when, in 1868 — State v. Rum, 51 N.H. 373 — some liquor was seized, and afterwards adjudged forfeited, it was found necessary to pass the act of 1870, providing for the disposition of the forfeited liquor. This statute provides that so much of the liquor as is valuable may be sold, and one half the proceeds, after deducting the cost and the expense of prosecution, paid to the person, town, or city prosecuting, and the residue into the county treasury.

This statute does not recognize any prosecutor, excepting individuals, towns, or cities. It very properly provides that those prosecutors shall be indemnified out of the sales of the proceeds, if any, for their costs and expenses, and also gives them one half of the balance after paying those costs and expenses. Now, I confess that I am entirely unable to see, in any part of the provisions now relating to this subject, anything which contemplates that the public authorities, either state or county, are to have anything to do, as prosecutors, with these proceedings for the forfeiture of spirituous liquor. Under the statute of 1855, the proceeding by search-warrant for the seizure of liquor, and the further proceedings for its disposition, were clearly designed to be conducted by the prosecuting officer of the state or county. The provisions, that the proceeds of forfeited liquor should be paid into the county treasury; that the claimant's costs, if he recovered, should be paid out of the county treasury, in strict analogy with the later provision — Gen. Stats., ch. 214, sec. 11; "that, in all civil actions in which the state is plaintiff, if the defendant prevails, he shall have judgment for costs against the county where the judgment is rendered," — seem most emphatically to mark the understanding of the legislature that the proceeding under the law of 1855, for the forfeiture of spirituous liquor, was a civil suit, and not a criminal proceeding. So, also, it was held, in State v. Barrels of Liquor,47 N.H. 369. The statute of 1870 — Laws of 1870, ch. 3 — by providing, without any reservation or exception, first for the indemnity of the persons, town, or city prosecuting, by payment of cost and expenses, and then the payment of one half of the net proceeds to such person, town, or city, seems equally emphatically to mark the sense of the legislature that this proceeding was intended to be left entirely to private prosecutors.

I cannot, therefore, avoid the conclusion, that neither the prosecuting officer of the state nor of the county has any authority, as such, over the proceeding in this case.

It is quite likely that prosecuting officers, not noticing the change in the law effected by the General Statutes, may have continued the practice of taking charge of these proceedings in court, and expenses may have been paid by the county. In such case I should hold, that, to the extent of indemnifying the county, the prosecuting officer ought to have a right to exercise that control which had been thus surrendered to him. I can see no reason why liquor seized upon a search-warrant, by virtue of Gen. Stats., ch. 237, sec. 1, and held by sec. 4, should not be embraced under the general provision in ch. 99, sec. 23, and proceeded against and disposed of according to Gen. Stats., ch. 249, and Laws of 1870, ch. 3.

I am not aware of any principle or rule of law, excepting convenience, which determines the classification of actions on the docket; and I do not see how the change of any particular action from the civil to the criminal docket, or the contrary, could be of any significance other than as matter of convenience.

Case discharged.