Commonwealth v. Certain Intoxicating Liquors

107 Mass. 396 | Mass. | 1871

Chapman', C. J.

The seizure of liquors under the St. of 1869, c. 415, because they are kept for sale illegally, is a proceeding in rem, which regards such liquors as a nuisance. The statute permits the keeper or any other person to come and claim them as his property; and if they appear to be his, they are delivered to him, unless they are so kept as to constitute what the statute regards as a nuisance. By § 51, if it appears that the liquor, or any part thereof, was, at the time of making the complaint, owned or kept by the person alleged therein, for the purpose of being sold in violation of this act, the court or justice shall render judgment that such or so much of Jie liquor so seized as was so unlawfully kept, and the vessels in which it was contained, shall be forfeited to the Commonwealth. If the claimant was not the keeper, his intent is not made material. The liquors are forfeited on account of the intent with which they were kept. The object of the legislature was to adapt the process to the nature of the evil to be prevented. Fisher v. McCrirr, 1 Gray, 1, 27.

Legislation of this character is not novel. United States v. Brig Malek Adhel, 2 How. 210, 233, is a strong case, and states the principle on which such legislation rests. A brig was seized under the act against piracy, and was condemned to be forfeited, though the owner, who was the claimant, was innocent of. any offence. The court said that the innocence of the owner could not withdraw the vessel from the penalty of confiscation; that the vessel was treated as the offender, — as the guilty instrument or thing to which the forfeiture attached; that this is done from the necessity of the case, and the same doctrine is familiarly applied to cases of smuggling and other misconduct under our revenue laws, and cases arising under non-intercourse laws or an embargo. Authorities are cited by the court, showing that the English law is the same. The ship is held liable for the torts and misconduct of the master and crew, of which the owner is ignorant.

This principle of legislation has been acted upon in this Commonwealth in other cases, not relating to the traffic in liquor. By Gen. Sts. c. 26, a great variety of nuisances may be removed, or ordered to be removed by the proper officers; and by § 12, they may be destroyed. Or if the claimant had owned a valuable dog, and sent him here to be kept according to law, and /lis agent had kept him illegally, or if a trespasser had done so, it would have been the duty of the officers of the law to kill Turn.

There is nothing in the reported facts to exempt this liquor from forfeiture. It was no less a nuisance, and subject to be seized and forfeited, than if the claimant’s agent had acted by authority from him; and no issue is to be framed under the statute, to try the question whether the claimant authorized the sales. The instructions given to the jury were correct. The jury must have found, under the instructions, that the liquors came into the hands of Parks by his consent. There was nothing to show that they were stolen.

Exceptions overruled.