Herald of the times. [volume] (Newport, R.I.) 1849-1856, 1855-01-04
WHOLE NO 1915

nature and CT use OF the ciiarge upon which
the adjudication is to be made-;h y must
have an opportunity TO answ' and defend.
Can il be said in his case that there
any such opportunity given to any Pcrsoi
who ha, an interest in the things seized
upon the search warrant, TINT he has any
notice of any allegation of the f'cts necessary
to exist i'm order To warrant forfeiture, OF
any proceeding against the liquors them
selves
We think not. No such allegation is
anywhere made or to be made. No COIN
plaint Of that hind j. pvoyided for, and the
property is to be divesel from the owner
without any charge or trial ofthc isesupoi
which alone he coul be legally divested,
and withou, any notice Of any such intended
trial or inquiry.
We are therefore of opinion tia: that por-
ton OF the said act, providing for the jnde-'
ment of forfeiture of the liquors, is not such
as, consistently with the provisions Of the
constitution, can lie carried into ffsct by
any mode therein provided, ani that such
provisions are void
| The objections which we have copne~d
are mainly directed 10 tn, ninth section Of
the act.
The complaint, however, upon which the
defendant has been in the Cour below found
guilty, charges him with keeping for sale,
contrary to law, strong or malt liquors, and
is proceeding for the penalty provided foo
in the fourth section.
The objections aga Mt the act so far &C.
they relate to or effect this proceeding are
first, that the fourteenth section providing
for amendment renders tHis proceeding un-
constitutional. This VIC have already con
sidered, and inasmuch as the provision for
amen !ment is distinct provision, and tho
act may be in all its other parts carried int.
effect without it, the proeet ding would not
be affected by that section.
There was another objection urged
against the ccnsiluiionaliy Of the act, viz:
! That in and by the eight section of the act
it is provided that no person shall be allowed
ITO be a common seller of liqn,r@. on pain
! of forfeting on The first conviction the sum
OF one hundred do lars and three several
sales, either to daE'rent persons, or 70. tho
same person shall be sufficient to constitute
one a common seller within the meaning OF
the act;"and that unicr the sth and fourth
section one may be twice convi-ted npon
the same facts that he may be convicted
upon each several sale, and then as n com>
, mon 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 tn
the case of the defendant. Iieis not charged
with selling, and could not be convicted as
a common seller, upon proof Of merely keep
| ing liquors for sale, and there is no such
1 provision in the act. And it isa rule, and
\ a very wholesome rule, that no one can take
advantage Of the unconstitutionality of an
act, who hess ~ Interest in, and is not af-
fected BY it.
And we are, therefore, of opinion that for
any reasons urged, the provisions of the 4th
section of the act, which provide penalties
for keeping liquors for sale contrary to tho
act are not in conflict with the Constitution.