State (Potter, Com.) v. James Snow , 3 R.I. 64 ( 1854 )

Brayton, J.

In the argument in this case, the objections of the defendant’s counsel to the constitutionality of the act before us, are mainly directed to the validity of the ninth section of the act commonly termed the seizure clause of the act, which provides for the forfeiture and destruction of the liquors unlawfully kept for sale against the provisions of the first and fourth sections of the act.

The first objection raised by the defendant’s counsel is, that the act is in conflict with section 16th, art. 1st, of the Constitution, which is, “ private property shall not be taken for public uses without just compensation.”— This objection supposes that the property to be adjudged forfeited is in the sense of that section taken for public use. It is, however, simply adjudged forfeit for the violation of the law, and to this extent is hr the nature of a penalty inflicted upon the owner. This provision of the Constitution was never supposed to apply to forfeiture and confiscation.

The second objection is against the fourteenth section of the act, which is claimed to be in conflict with the sixth section of article first of the Constitution. The provision contained in the fourteenth section of the act objected to is this: “ Nor shall it be necessary to particularly describe the packages or kinds of liquors to be searched for.” And the provision of the sixth section of article first of the Constitution is, that “no search warrant shall issue but upon complaint in writing upon probable cause, supported by oath or affirmation, and describing, as nearly as may be, the place to be searched and the persons or things to be seized.”

Does this provision of section fourteen authorize a warrant to issue, without describing the place to bo searched, and the things to be seized, as nearly as may be ? The provision in section ninth is, that the same requisites shall be observed before issuing a search warrant under this act, as are required before the issuing of search warrants in other cases. Those requisites are such as are required by the Constitution.

The constitutional provision supposes that it would not be possible particularly to' describe in all cases, and therefore it contents itself with providing for a description as near as may be — i. e., as near as the circumstances will admit, according to the nature of the property or thing.

We do not think the act in this respect is necessarily or clearly in conflict with the constitutional provision. It is still requisite that the description should be as nearly as may be, and yet not necessarily particular and precise, but varying according to the nature of the thing to be described.

The third objection is, that section fourteenth of the act providing as follows: “ And any defect in siicli complaint and warrant, indictment or other proceeding, either of form or substance, may be amended either by the justice, or court exercising the jurisdiction of a justice or other court, before whom the action, complaint or indictment, or other proceeding is originally brought,” conflicts with section tenth of article one of the constitution, which provides that the accused shall enjoy the right “ to be informed of the nature and cause of the accusation.”

It is perhaps not necessary to consider whether an amendment under this section would deprive the accused of his right to be informed of the nature of the accusation of the cause. An amended accusation is nevertheless the same accusation, and when it ceases to be so, the alteration proposed ceases to be an amendment. But a fuller and more conclusive answer to the objection is, that the process is provided for in other portions of the act, and if this section fourteenth were omitted altogether, the residue of the act might be carried into effect.

One portion of an act might be declared unconstitutional, and the residue constitutional. The act is void so far only as it conflicts with the constitutional provisions, and no further. If to amend in the manner pro* vided in this section so conflicts, it would only be necessary to say that such amendments cannot be made, and the proceedings as they are, must be tried by the law, as if no such' provision for amendments had been made. The question of constitutionality, as to that provision, could never arise until some amendment is proposed to be made, and as a reason why it should not be made.

The defendant’s counsel contends that the provisions of the ninth section are in conflict with the tenth section of article first of the Constitution, which is that “ in all criminal prosecutions the accused shall be informed of the nature and cause of the accusation against him,” &c. “ Nor shall he be deprived of life, liberty or property, unless by the judgment of his peers or the law of the land.” And he claims that it is in conflict with the constitutional provision in this, that no trial is provided of the fact that the liquors to be condemned and forfeited were kept for sale, but only that some liquors were so kept.

The first section of the act provides that no person shall be allowed to keep or suffer to be kept on his premises or possessions, or under his charge, for the purposes of sale, any ale, wine, rum or other strong or malt liquors, or any mixed liquors, a part of which is ale, wine, rum or other strong or malt liquors.

Section fourth “ provides that if any person shall keep or suffer to be kept such liquors for sale contrary to the provisions of the act, he shall, on conviction, pay the sum of twenty dollars,” and then proceeds: “ And all such liquors so kept by any person for sale in violation of the provisions of this act, shall be liable to be seized, together with the casks or other vessels containing them, and adjudged forfeited, upon complaint made and trial had as hereinafter provided.”

This last provision for the forfeiture of liquors is to be carried into effect by virtue of the provisions of section ninth. This section provides the mode of proceeding to condemnation of the liquors, and it is to be done in that mode only. If that mode is not warranted by the Constitution, then no forfeiture can be adjudged under the act.

It is necessary to inquire what that mode is. Upon what complaint and what trial is the adjudication to be made ? This section begins with providing that search warrants may issue to search for any of the liquors held for sale contrary to law; that before issuing it, there shall be a complaint in writing by three legal voters, and on oath, as required before issuing search warrants in other cases, and which shall distinctly set forth that the liquors described in the warrant are believed to be held for sale contrary to the provisions of this act. Upon this warrant the officer is to search the place described, and all such liquors described in his warrant as ho shall find, he is required “ to keep safely for the purposes of evidence in any case arising under this act.”

No further proceedings are contemplated upon this complaint or warrant. Its purpose is answered in producing the liquors to bo used in evidence. ■ The judgment of forfeiture is upon some other complaint. But if it were in the contemplation of the act that any trial should be had upon this complaint, if any such inference were not excluded by the fact that they are to be kept for the purpose of evidence in any and all cases arising under the act, since there are no parties, no person is charged with the unlawful keeping of them — no one has notice of any such charge. Any trial upon it would be nugatory, since it would bind no one. The person in whose possession the liquors are found could neither be convicted nor acquitted upon it, for he is not accused.

There is another, and but one other, complaint provided for in this section. It is required that before any search warrant issues, a warrant shall issue for the supposed owner or keeper of the liquors, on a complaint of keeping or suffering to be kept on his premises, or pos sessions, or under Ms charge, liquors of the kind aforesaid, i. e. liquors suck as are prohibited from, being kept for sale.

Whatever trial is to be had then, is to be had upon this complaint. This does not charge the defendant with having kept the liquors seized contrary to the provisions of the act, but only that he has so kept liquors of the same kind.

Upon final conviction of the person in whose possession the liquors seized are found, they are to be thereupon adjudged forfeited and ordered to be destroyed.

Upon this complaint, upon proof of having kept for sale any liquors of the same kind, but other than those seized, he may be convicted, and thereupon the liquors seized adjudged forfeit: that is, upon proof that some liquors have been kept by the defendant, all other liquors which may be found in his possession may be forfeited, provided three legal voters shall have made oath that they believe they have been so kept by somebody — not that the one charged has so kept them — and without any proof produced against the defendant on his trial as to whether the liquors adjudged forfeit were or were not kept contrary to the provisions of the act, and without any trial of that fact or any notice of any such trial.

The fourth section, which provides for the forfeiture, provides that they shall be adjudged forfeit if they shall bo kept for sale contrary to the provisions of this act ; not because other liquors have been so kept, or because the same liquors have been kept by any other than the defendant.

It is the fact whether or not the liquors proposed to be adjudged forfeit h$ve been kept contrary to the pro visions of the act, that must be tried and determined before a judgment of forfeiture can be made. Until that is judicially determined, it is not ascertained that they are liable to forfeiture under the act. Until then it does not appear that these liquors have been used as a means of violating the provisions of the act.

In order to the validity of any judicial trial, the parties interested in the subject of the adjudication should be informed of the nature and cause of the charge upon which the adjudication is to be made — they must have an opportunity to answer and defend.

Can it be said in this case that there is any such opportunity given to any person who has an interest in the things seized upon the search warrant, that he has any notice of any allegation of the facts necessary to exist in order to warrant a forfeiture, or of any proceeding against the liquors themselves ?

"We think not. No such allegation is anywhere made or to be made. No complaint of that kind is provided for, and the property is to be divested from the owner without any charge or trial of the facts upon which alone he could be legally divested, and without any notice of any such intended trial or inquiry.

We are therefore of opinion that that portion of the said act, providing for the judgment of forfeiture of the liquors, is not such as, consistently with the provisions of the constitution, can be carried into effect by any mode therein provided, and that such provisions are void.

The objections which we have considered are mainly directed to the ninth section of the act.

The complaint, however, upon which the defendant has been, in tbe Court below found guilty, charges him with keeping for sale, contrary to law, strong or malt liquors, and is a proceeding for the penalty provided for in the fourth section.

The objections against the act, so far as they relate to or affect this proceeding, are, first, that the fourteenth section providing for amendment renders this proceeding unconstitutional. This we have already considered, and inasmuch as the provision for amendment is a distinct provision, and the act may be in all its other parts carried into effect without it, the proceeding would not be affected by that section.

There was another objection urged against the constitutionality of the act, viz: that in and by the eighth section of the act, it is provided that no person shall bo allowed “to be a common seller of liquors,- on pain of forfeiting on the first conviction the sum of one hundred dollars; and three several sales, either to different persons, or to the same person, shall be sufficient to constitute one a common seller within the meaning of the act and that under the eighth and fourth sections one may be twice convicted upon the same facts; that he may be convicted upon each several sale, and then as a common seller, upon proving the same three sales.

Whatever might be the effect of these provisions upon a charge for selling without authority, the objection has no application to the case of the defendant. He is not charged with selling, and could not be convicted as a common seller, upon proof of merely keeping liquors for sale, and there is no such provision in the act. And it is a rule, and a very wholesome rule, that no one can take advantage of the unconstitutionality of an act, who has no interest in, and is not affected by it.

And we are, therefore, of opinion, that for any reasons urged, the provisions of the fourth section of the act, which provide penalties for keeping liquors for sale contrary to the act, are not in conflict with the Constitution.

The order following was passed in pursuance of the Court’s. Opinion:

“ This cause having been certified from the Court of Magistrates of the city of Providence, to this Court, for a decision upon the constitutionality of the act of the General Assembly entitled, “ An act for the more effectual suppression of Drinking Houses and Tippling Shops,” which was brought in question in the trial of said cause in the said Court of Magistrates, upon the points submitted to this Court, we do now certify to the said Court of Magistrates,—

“ That this Court are of opinion that the said act, in that portion thereof which provides for a judgment of forfeiture of liquors seized, is unconstitutional, and so far void.

“ And the first and fourth sections of said act under which the proceedings against the defendant in the said cause have been prosecuted, are not, for any cause suggested, in conflict with the Constitution, and are therefore valid; and the said Court of Magistrates shall, on the sixth day of February, A. D. 1855, meet and proceed in said cause.”