State v. McCann

Dickerson, J.,

dissenting. R. S., c. 80, § 52, prohibits sheriffs and deputy sheriffs from “drawing any writ, plaint, declaration, process or plea for any other person.” The word “process” is applicable to both criminal and civil proceedings. “Process,” says Jacobs in his Law Dictionary, defining that word, “is largely taken for all the proceedings in any action, real or personal, civil or criminal, from the beginning to the end.” “In criminal cases,” says JBouvier, 2 Law Die. 387, “that proceeding which is called a warrant before the finding of a bill is termed process.”

The act of the deputy sheriff in drawing the complaint obviously comes within the purview of § 52, c. 80, R. S., and must be held to render them void, unless it can be sustained under the enforcement act of 1872, c. 62, §§ 1 and 2, which makes it the duty of sheriffs and their deputies to institute legal proceedings against violations or supposed ¡violations of law, and particularly against the illegal sale of intoxicating liquors, and certain other laws, in the following manner, to wit: “Either by promptly entering a complaint before a magistrate competent to examine, or try the offense charged, and execute such warrants, as may be issued on such complaints, or by furnishing the county attorney without delay with the names of alleged offenders and of the witnesses.” i

The acts complained of do not come within either of the modes of “instituting legal proceedings,” designated by the statute. The complaint having been signed and sworn to, must be regarded as the complaint of the person who perfornjied these acts, and not as the complaint of the party who drew it. ■ It is not the drawing, but the signing and swearing to the instrument that fixes its paternity. The person who signs and swears to the complaint, in contemplation of law, is the person whcj “enters” it; and the enforcement act authorizes deputy sheriffs to “enter” complaints, not to draw them to be “entered” by another, as was done in this case. Besides, that act only authorizes officers to “enter complaints;” it gives them no authority wfhatever to draw warrants, which the officer in this case undertook to do.

If the legislature had intended to remove the disabilities imposed upon sheriffs and their deputies py § 52 of c. 80, E. S., in criminal cases, it would have done so in express terms. It did not do so; and I think that the language it used does not warrant the legal implication of such intention, and that the entry should be, exceptions sustained.

Barrows and Libbey, J<J., concurred in this dissenting opinion.