Herald of the times. [volume] (Newport, R.I.) 1849-1856, 1852-06-24
Maine Law Decisions.


the following abstracts e opinions de-
livered by Chief Justice Shepley, Of
Maine, in two cases Of appeal from the
decisions OF the Court below, upon the
Liquor Law:
On complaint Of Neal Dow and others
to The Judge OF the Municipal Court in
Portland, In November, 1851, that
"spirituous and intoxicating liquors
were kept and deposited and intended
ior sale by a person unknown 10 the
compainanis, said p, rson unknown not
being authorized TO sell the same" d.,
"in a certain building situated on Plumb
street, called a she'd in said Portland"
warrant VAS Issued, certain liquors
were seized and advertised, declared
forfeited. and ordered to be destroyed
From this decree Il. Il. Robinson the
claimant Of the liquors, appealed TO the
District Court There jury was I'M
panneed in the usual form for criminal
trials, and returned verdict of guilty.
Exceptions were taken 10 certain rulings
Of the presiding Judge, (Emery.) and
thus the case was brought before the
Supreme Court.
CUMB. THE STATE rs. Spiri,uous and
Intoxicating Liquors claimed by Rich
ARD X. RoBINsoN.
!. The complaint should contain n
distinct averment that the liquors are in
tended Tor sale in the city, town or place
in which they are kept or deposited.
2. II is not necessary TO aver in the
complaint that the liquors are intended
for sale in the shop or other building in
which they are kept or deposited.
g. The requirement Of the constitution
in reference to search warrant, that "a
special designation OF the place TO be
searched" shall be made, is not answer
ed by words, which, il used in convey
ance, would not convey il, and which
would not continue the search TO one
building or place.
4. The Court decline to consider the
complaint and warrant as illegally made
and issued because the article TO be
searched for is described by the generic
term "spirituous and intoxicating IL
quors" alone.
5. The officers return, which omits 70
bkutC INV iObk Nuu DCCl uu-
vertised, or the notice posted contained
the number or any description Of the
packages, is too detective TO authorize u
decree Of forfeiture based upon il.
6. The jury having been impanneled
in form Tor the trial Of person accused
OF crime, and finding verdict Of guilty,
when the complaint contained no aver
ment that the liquors were deposited or
kept by the claimant, or that they were
intended for sale by him, and his name
was not even mentioned in 1.-THE whole
proceedings must be considered irregu.
lar and unauthorized. There was no is
sue framed on which a verdict could
rest.
7. Legal proof that the liquors were
kept tor saIe by the owner or keeper Of
them is an essential preliminary TO de-
cree Of forfeiture, (where claimant ap-
pears.) and 10 the imposition of fine on
the owner or keeper. An affidavit made
by three persons, for the mere purpose
OF obtaining warrant, that they have
good reason to believe, and do believe,
that the liqut RS were intended for sale,
does not afford the least legal proof Of
tDC luCt W uC VII tIlut
they are intended for sale.
C,MB. ELISHA PREsToN, ct al, rs
HENRY G.. DREw.
II is competent for The State, by leg
islative enactment, operating prospec-
lively, to determine that articles. in
furious 10 the public health or morals
shall not constitute property.
N ~ shnnId on como nd in rolo ion IN
spirituous or intoxicating drinks. when
designed to be used us a beverage. the
conclusion would he justified by the ex-
perience and history Of m; n, and would
furnish 10 occasion to complain that
any provision Of the constitution had,
been violated.
The act Of 1851, " for the suppression
of drinking houses and tippling shops"
though it provides for the seizure and
forfeiture of such liquors when design
ed for sale, does not enact that no pro-
perty can be acquired in them, when
not signed for unlawinl sale but, OH
the contrary, recognizes them as sub
; jects of property, when kept for certain
purposes.
The prohibition to sell such liquors
does not prevent the acquisition Of pro-
per,y on them, or the transport OF them
through the State, when not designed
for unlawful sale.
The general inteLt and avowcd pur-
pose Of the act would not be infringed
by a construction which should no,
disallow the maintenance of actions, ex-
cept Tor such liquors as were liable to
seizure and forfeiture, and intended for
unlawful sale.
The attaching of such n cons,ruc tion
to Legislative language, so clear and
uneqnvocal, il within the province OF
the judiciary department, is perhaps
very near to the outward boundary Of
its power
4 IL such a construction should be
applied. il would OF course, remove the
statute prohibition from all actions
brought for liquors, except those proved
to have been intended Tor unlawful
sale.
Without such a construction, the
statute prohibition is imperative, as to
actions for any liquors, except those
/ proved TO have been intended for un-
lawful sale, because as to other liquors
the prohibition is volative Of the State
constitution.