The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1891-08-20
THE BuRNs-McFAppEn CASE.
A New Point Brought Up Before
Judge Webb Yesterday.

1t was in June. 1887, that Michael Burns OF
Augusta, opened a shop for the sale Oh iiq-
uors In the original packages In when tney
had been imported He expected thereby 10
evade our prohibitory law, since he assumed
that the state authorities would not presume
| to Interfere with the customs revenues OF the
limited States by taking a line Of action that
would stop importation. Governor Bodwell,
however, called the attention OF Attorney
General Baker and County Attorney Garlic
ton TO Burns's defiance OF the state law. The
county attorney commenced proceedings at
once. A warrant was issued, and Sheriff
McFadden OF Kennebec county and City
Marshal Morse seized Burns's entire stock.
Sc cases of rum and 10 of whiskey. This was
In june Burns was held in the Augusta
Municipal Court for the ensuing term OF. the
Superior Court, which met In September
Burns was then tried. and after Judge
Whitehouse had delivered an address strong
ly leaning towards the light Of the state au.
thorities to make the seizure, the jury in
three minutes brought in verdict of guilty
against Burns.
The case was next appealed to the Su-
preme Court OF the state. and while there
the famous original package decision of the
United States Supreme Court was made. The
United States judges decided against the
state authority and In favor of the right to
vend In original packages. The Maine Su-
preme Court, in accordance with this decis-
ion, soon found In favor of Burns.
This ended the case against Burns. The
last Congress passed a law which neutralizes
the effect of the Supreme Court decision !;
and Burns could not now sell liquor In origi-
nal packages without being treated like any
other rum seller.
But In 1887 he was right in his estimate Of
what the courts would hold, and his case
turned out as he expected 1t would.
Soon Michael Burns commenced a suit
against c. r. McFadden for selling
the liquors involved In this celebrat-
ed case. After the decision of the Supreme
Court Of this state made about a year ago,
the seized liquors were returned to Burns,
but he nevertheless commenced this action,
claiming damages In $4,000. Mr.. McFadden
pleaded his warrants in defense. in techni-
cal form, but Burns claimed that the war
rants were no protection to McFadden be-
cause the liquors which he seized were
liquors imported by himself and were in the
original packages. in his possession when
seized. The question Of law growing out Of
these conflicting claims was argued yesterday
morning before Judge Webb. S. G. Strout,
Esq, appeared for Burns and Hon. ]. d.
Drummond for McFadden.
Mr.. Drummond argued that as the war
rant was issued by court Of competent ju-
risdictioD, was regular upon its face and
was executed according to its mandate, It
was protection to the office serving It.;
that the owner OF imported liquors so seized
must come into court and there make his de-
fence, and II he prevails he has no more
claim to hold the officer than any other per-
SON who is acquitted in any other form of
prosecution.
Mr.. Strout raised new question under
the statute. viz: That only liquors intended
for unlawful sale can be seized, and the ofic-
er must determine at his peril what, If any.
OF the liquors found In the place described
are intended for unlawful sale, and seize
only them, and IL he seizes liquors found
there not intended for unlawful sale, he is
trespasser. and as these liquors were not in
tended for unlawful sale, this seizure was
unlawful. He held further that as the
pleadings admit that McFadden knew that
these we've imported liquors and was pre-
sumed to know the law, he was liable in
this case.
Mr.. Drummond in reply held that the
warrant by Its terms runs against all the In.
toxicating liquors found In the place de-
scribed and that neither the law nor the
warrant imposes upon the officer the duty of
deciding whether the liquors are, or are not,
really intended for unlawful sale. but that
1t is sufficient for him that his warrant alleges
that they are intended for unlawful sale !;
end that as it is his duty to execute the
warrant according to its terms. His knowl-
edge as to the truth or falsity of the allie
cations in the warrants has nothing to do
| with the case.