108 Mass. 19 | Mass. | 1871
The complaint and warrant describe the premises to be searched as “a certain store, and the cellar under the same, on the westerly side of Spring Street, and in the same building occupied by said Driscoll as a dwelling-house, said dwelling-house being numbered thirteen on said street, and occupied by said Driscoll, a place of common resort being kept therein.” There was no oath or affirmation by one of the complainants: that he “ has reason to believe, and does believe, that such liquor has been sold therein or taken therefrom for the purpose of being sold by the occupant, or by his consent or permission, contrary to law, within one month next before making such complaint.” The question in the case is, whether a warrant is valid, issued for the search of a tavern, store, grocery, eating-room or place of common resort, kept in a dwelling-house, without such oath or affirmation.
The statute is as follows: “No warrant shall issue for the search of a dwelling-house, unless a tavern, store, grocery, eating-room or place of common resort is kept therein ; and no warrant shall issue for the search of a dwelling-house unless one of the complainants makes oath or affirmation that he has reason to believe, and does believe, that such liquor has been sold therein or taken therefrom for the purpose of being sold by the occupant, or by his consent or permission contrary to law, within one month next before making such complaint, and is then kept therein for sale contrary to law by the person complained against. The complainant shall in his oath or affirmation state the facts and circumstances on which such belief is founded, and such allegations shall be recited in the complaint and warrant.” St. 1869, e. 415, § 45„
The claimant contends, that, to justify the issuing of a warrant to search any dwelling-house, it must appear that a tavern, store, grocery, eating-room or place of common resort is kept therein, and also that one of the complainants has made the oath or affirmation above recited. It must be admitted, that, if this section stood alone, such is the most obvious construction of its language. But upon a careful examination of all the provisions
The necessary result of the construction claimed would be, that no warrant could ever issue for the search of a dwelling-house, unless a tavern, store, grocery, eating-room or place of common resort is kept therein. The sixty-sixth section of this statute provides that “ the following forms may be used in prosecutions under this act, and if substantially followed, shall be deemed sufficient to fully and plainly, substantially and formally, describe the several offences in each of them set forth.” St. 1869, o. 415, § 66. The section then provides a form of complaint and warrant for the search of a dwelling-house in which no tavern, store, grocery, eating-room or place of common resort is kept, which contains the oath or affirmation of one of the complainants provided for in the forty-fifth section; and also a form for the search of a dwelling-house in which a tavern, store, grocery, eating-room or place of common resort is kept, which omits such oath or affirmation. The inevitable inference from these provisions is, that the legislature understood that, under the provisions of the statute of which this forms a part, a dwelling-house, used exclusively as such, might be searched, if the additional safeguard of the said oath or affirmation was exacted, and that a tavern, store, grocery, eating-room or place of common resort kept in a dwelling-house might be searched without such oath or affirmation. The difficulty with the construction contended for by the claimant is, that it renders the provisions of the sixty-sixth section upon this subject entirely inoperative. Upon this construction, the two sections are repugnant, and the provisions of the latter must be rejected as of no effect.
In the exposition of statutes, the court should take all the provisions of the act, and ascertain what the legislature intended, in order to determine the meaning and construction of any particular section. Holbrook v. Holbrook, 1 Pick. 248. Staniels v. Raymond, 4 Cush. 314. Cleaveland v. Norton, 6 Cush. 380. The manifest intent of the legislature must govern the construction,
An examination of the previous legislation upon this subject tends to confirm the view we have taken. The act of 1869 is a reenactment in the same words of the provisions on this subject contained in chapter 86 of the General Statutes. These provisions were intended to be a reenactment of similar provisions in the St. of 1855, c. 215, § 25. This section provides that “ if any two persons, being of full age and competent to testify, shall, before any justice of the peace or judge of any police court, having jurisdiction to try criminal causes, make complaint under oath or affirmation that they have reason to believe, and do believe, that any spirituous or intoxicating liquor, described in the complaint, is kept or deposited in any store, shop, warehouse, or in any steamboat or other vessel, or in any vehicle of any kind, or in any building or place in any city or town, by any person named in said complaint, and intended for sale in this Commonwealth by such person, such person not being authorized to sell the same or manufacture or to keep the same for sale in this Commonwealth for any purpose, under this act, or any other legal authority whatever, said justice or court, upon its appearing that there is probable cause to believe said complaint to be true, shall issue a warrant of search to any sheriff or deputy sheriff, or city marshal, or chief of police or deputy chief of police, or deputy marshal, or constable, commanding such officer to search the premises in which it is alleged such liquor is deposited, and to seize suck liquor, in the vessels in which it is contained, and to keep the same securely until final action be had thereon, and to return the
Upon the whole, therefore, we are of opinion that it was lawful for the municipal court of Worcester to issue a warrant for the search of the store of the claimant, though it was in the same building in which he dwelt, without requiring, as a preliminary, the oath or affirmation prescribed in the forty-fifth section of c. 415 of the statutes of 1869.
The other exceptions taken at the trial were not argued, and we consider them as waived.
Exceptions overruled.