Daily Kennebec journal. [microfilm reel] (Augusta, Me.) 1870-1975, 1874-03-02
Decision of the Attorney General on thu
Knox County Sheriff Matter.
STATE OF MAINE,
OFFICE OF ATTORNEY GENERAL,
I-c1-cr. Enh &c 1914


To tie Hon. Nelson Dingley Jr., Gorernor Of
SIR:-The following question is submitted
| for my opinion, viz.
Whether upon the facts stated, the Sherffs
Enforcement Act, chapter sixty-two, public
| laws of eighteen hundred and seventy-two,
| gave to the Sheriff of Knox county the dis
erection to omit proceedings by complaint and
warrant of search and seizure, against GER
| tain alleged offenders, under the provisions Of
chapter II, revised statutes, known as the
Liquor Law, and to adopt the alternative
method prescribed in said Enforcement Act,
Of proceeding by indictment.
Section second of said act of 1872 provides
that it shall be the duty of sheriffs and their
deputies, diligently and faithfully to inquire
into, and institute legal proceedings against
the illegal sale of intoxicating liquor, the
keeping of drinking houses and tipping shops,
&C., within their respective counties, either
by entering complaints before magistrate
competent to try or examine the same, or by
furnishing the County Attorney with the
names ofsupposed offenders, together with the
names of the witnesses, for the action of the
grand jury.
These provisions of the said act are intend
ed to secure the more efficient enforcement Of
the law against drinking houses and tipping
deputies, as in addition to local officers, the
duty of instituting legal proceedings, either
by complaint or by indictment. Clearly the
alternative methods of procedure prescribed
by said Enforcement Act, do not give to the
said officers the discretion to elect to proceed
by indictment instead of by the process Of
search and seizure. If il were SO, the process
of search and seizure might become practical
ly dead letter. This most efficient feature
of the law is quite Independent of the pro.
ceeding by indictment, except SO far as it is
in aid of it-seizures being frequently made
the foundation of indictments for nuisances.
But the process of search and seizure is bas-
ed upon complaint supported by the oath or
affirmation of the complainant, that he 5elieres
intoxicating liquors are kept or deposited in
the places designated, and intended for I'M
lawful sale within this State. This is n OF
requirement Of statute merely, (sec. 80 chap.
%, II. s. but constitutional provision, in
tended to secure the people "trom all unrea-
sonable searches and seizures" If, therefore,
these officers whose duty it is to make the
complaints under the law, and upon which
alone warrants of search and seizures can is
sue, do not beliere intoxicating liquors are so
kept and deposited and intended for illegal
sale in the places designated. they cannot
make the requisite complaints without swear
u
violation of a sacred provision of the Consti-
tuition.
Itappears from the statement Of facts sub
mitted, that the Sheriff of Knox county was
requested, in writing, by certain prominent
citizens of Rockland, to procure warrant of
search and seizure, and to search certain des-
ignated places, where, it was alleged, intoxi-
eating liquors were kept for illegal sale, and
to prosecute the alleged offenders; that the
Sheriff applied to the proper magistrate for
such process, but before making his COM
plaint he learned that the proposed prosecu-
ton had come to the knowledge of the sup
posed offenders, without any fault on his part,
and he believed that if search were made, no
intoxicating liquors would be found in the
places designated; in other words, he believed
that no such liquors were then and there kept
and deposited for illegal sale. How then
could he make oath that he believed they
were then and there so kept or deposited and
intended for sale in violation of law? In my
opinion, he could no more make such COM
plant against the alleged offenders and the
places designated, than he could against any
other citizens of Rockland, or places of bust
ness where he did not believe Intoxicating
liquors were kept or deposited for illegal sale.
The only course open to the Sheriff under
the circumstances, was to prosecute the sup
posed offenders for illegal sales, either by
complaint to the proper magistrate, or by the
alternative method prescribed, of indictments
at the next session of the Grand Jury, early
in March, and in my opinion, it was within
his discretion to adopt either mode Of pro-
cedure.
| have the honor to be Sir,
With great respect,
Your ob't servant,
II. M. PLAIsTED,
Attorpov Genaral