Herald of the times. [volume] (Newport, R.I.) 1849-1856, 1854-03-23

the following abstract from the Travel
Ter:
In the Supreme Court, this morning.
Chief Justice Shaw delivered the unan-
imous opinion OF the Court that the 18th
section of the act passed in May, 1852,
relative to intoxicating liquors was un-
constitutional and void.
The particular case on which this de-
cision was made was IN at of Theodore
Fisher against Patrick McGifr, being
an action tor damages against The Off.
Ger who seized the liquor. II was origi-
nally tried IN Barnstable and came up
on an appeal from the Court OF Common
Pleas. The action WAS one Of tort, al
leglng that deiendent entered plaintiffs 8
dwelling house and carried away liqnor,
which was Subsequently Destroyed
The defendant jus'ifies under a warrant
issued by Justice Pearce, who was an
inhabiant Of another town of Barnstable
county than lhar OF which plaintiff was
resid nj. Many exceptions were rais-
ed in this case, but the Court consider
ed that it would Only be necessary TO
consider few OF the more conspicuous.
And. in commencing, the Court remark
cd that ii part oi a statute may be void
and the rest hid that the declaration
that one section OF a statute WIS uncon-
sihutonal does not in any way affect the
other parts OF the statue which may be
oi binding lorce and effect.
This was the first time that decision
had been Pronounced under the four
ieenth section Of the act. though other
cases have bccn argued. The question
to be decided was, what Is the true
meaning OF The sectun, and is II IN con-
hlct with the rights of the citizen under
the Constitution OF the State.
Il is not declared IN this section that
the Acepcr ol The liquors seized shall be
kept Tor punishment but it'll, gathered
By implication from The other SECTIONS
oi the law. The original complaint
does not necessarily aliege who keeps
the liquor, and that he keeps it 10 ilr-
gally sell, auG il Is also doubtful IRON
the form ol complaint, whether the place
named in the COMPLAINT is the place ol
sale 1; It may be kept there 10 sell in
some place out OF the lrsdlctlon OF the
State.
The complainant is not required TO
state The name Of The keeper, ii II is sta
ted, II s done to identify the liquor
The warrant also orders the seizure oI
all spIrluous liquors lound Oh the nace
desiyua ed, not such as are alleged 10
be kept for sale. The first time the
owner IL mentioned Is upon the SEIZURE
of the liquor, when he is notified so that
he can appear and show cause why IL
should not be deslroye ed.
1t was competent Tor the Legislature
to declare the possession OF property IN
certain cases Unlawful, when II becomes
dangerous and obnoxious, and TO pass
law for the seizure and destruction Of
property, such as contagious goods,
gunpowder. &C., &c.
The question then arose whether the
system authorized under the l4lh sec.
ton OF the law ~ question Is so repug-
nanl 10 the bill o! rights oi Massachu-
seits as 10 be void. The bill o rights
declares that the people shall be secure
ia their dwellings, from all unreasonable
search and seizure 'oi their property
The act does not require the conn lain
ants to make oath 10 he name oi the
person keeping or selling; II affects the
place only, the warrant being ol gem
eral nature II does not limit the oifi-
GERS right oi seizure 10 the quantity IN
tended to be solo and ii is lett TO the
discretion oi the Nj .glsrates what was
intended to be sold and wha, not. II
three persons state their belief that IL
quor 10 kept wlr, the intention to sell
the warrant issues to the officer TO search
and il he finds any liquors at the place
they are 10 be seized. SO that It lew
demijohns Of intoxicating drinks, with
the intent TO sell are in n warehouse,
the officer must seize and remove the
whole and thus the authority to seize is
carried lar bey ond the articles charged
IN the warrant and may Include euch as
are Intended Tor sale in other places
The section, therefore, requires unrea.
sonable search and seizure and Is un-
CONSTITUTIONAL.
upon complaint OF liquor kept in
warehouse the officer Is obliged to
seize the whole, though some is contain.
ed in the original packages Of lmporta.
ton, he inicrleres with the foreign COM
merce oi the United States, and although
the owner may 20 before The magistrate
and, upon statement Of iacts, obtain
his liquor again, yet such SEIZURE aud
detention might bring the State into
conflict with the laws OF the United
States, which in such matter are par
amount.
Many Of the rights Of the citizen as
sc, forth in the Bill OF Rights, are over
looked IN this section. The Bill OF Rlghis
says that 10 person shall be deprived oi
his liberty, property and estate, except
by the judgment ol his peers aud The
law OF the land. There can bt 10 dou6t
that the liquor before II was ordered to
be destroyed is property. The first act
under the section under consideration 10
an ex.parte statement by three CON-
plaInants, who nre not afterwards ne.
cessarlly examined IL the owner oi the
liquor IL known to the officer he 10 TO be
summoned, but the tact depends upon
his being known IL the officer returns
his name aud he do not appear, then
the lquor IL adJudged forfeited ! II the
officer happens To return the wrong
name then ,he liquor may be destroyed
belure the true owner 10 notified. Sup
posing that the true owners name is
gwen, and the order is 10 destroy ior'h.
with. AMI the summons 10 appear may
reach hun too late, This would De
procee dung Inconsistent with his rights
as "A citizen.
In case lhe officer does not know the
name OF the owner, then the liquor ID
not TO be destroyed until notice oi The