10 A. 659 | R.I. | 1887
This is a constitutional question certified to us for decision from the District Court of the Sixth Judicial District. It is raised on a complaint made against certain intoxicating liquors for the purpose of procuring their condemnation, forfeiture, and destruction, as liquors kept for illegal sale. The complaint is brought under Pub. Laws R.I. cap. 596, of May 27, 1886, §§ 19, 20, 21, 22, 23, 24, 25, 26, and cap. 634, of May 4, 1887, in amendment thereof. The first seven of these sections provide for complaint, seizure, and trial, and upon proof that the liquors are kept for illegal sale, for judgment of condemnation and forfeiture. Section 26 provides that, "Upon entry of judgment of forfeiture against such liquors and the vessels containing the same, unless an appeal be then taken and recognizance given as prescribed in case of an appeal from a sentence of a district court for an offence under the provisions of this act, the court shall forthwith issue a warrant commanding the officer intrusted with the service of the same forthwith to destroy said liquors, and also to destroy the vessels containing the same, or to sell said vessels at public or private sale, as the court may direct." The recognizance required to be given is a recognizance in the sum of three hundred dollars, with good and sufficient surety, with condition that the appellant "will file his reasons of appeal in the court appealed to at least five days before the sitting of said court; that he will appear before said court and there prosecute his appeal with effect, and abide or perform the order or sentence of said court in said case; and that he will not, during the pendency of such appeal, violate any of the provisions of this act." The claimant of the liquors contends that these sections *610 are unconstitutional, because under them he has no proper opportunity to obtain the jury trial which he is entitled to by the Constitution, art. I. §§ 10, 14, 15. Jury trial is obtainable only by appeal, and the claimant complains that the appeal is ineffectual unless it is accompanied by the prescribed recognizance with surety, for the procurement of which no time is afforded, and that the recognizance prescribed is excessive in amount and subject to unreasonable conditions. He contends that the requirement of any recognizance is unconstitutional, but insists particularly on the three objections mentioned, to wit:First, that time to procure surety is not allowed; second, that the recognizance required is excessive in amount; and,third, that unreasonable conditions are imposed, notably the condition that the claimant will not, during the pendency of his appeal, violate any of the provisions of the act.
There is no doubt, in our opinion, but that a proper recognizance may be required as prerequisite to an appeal.Jones v. Robbins, 8 Gray, 329, 341; Hapgood v. Doherty, 8 Gray, 373; The Commonwealth v. Whitney,
The first objection specifically urged, as we have seen, is that § 26 directs the court to order the liquors to be forthwith destroyed after judgment, unless appeal be then taken and recognizance given as prescribed. Under this provision, it is urged, the claimant may lose his property without jury trial unless he can instantly find surety for appeal. He directs our attention to the difference between this and other cases; for, in other cases, the appeal avails though no recognizance be given, the appellant being committed until recognizance is given. But the other cases are cases in which the appellant is under arrest, the complaint being against him personally; but the proceeding here is against the liquors only, and the claimant, not being in custody, is not amenable to commitment. The most the claimant can ask, therefore, is reasonable time to find surety. Doubtless it would have been better if some definite time had been allowed; but, in our opinion, the use of the word "forthwith" does not imply that a reasonable time is not to be allowed, since that, like all other directions to judicial tribunal, is to be judicially carried out with due regard to individual rights. Besides, we need not ignore, for the sake of theory, what we know as matter of fact, that a party who intends to take an appeal if judgment goes against him is seldom unprepared for it, having had time to prepare for such a contingency before the trial, and if he can furnish surety, is little likely to fail to do so for want of time merely. We are not prepared to sustain the first objection.
The objection that the recognizance required is excessive in amount was not much pressed in argument and we do not think it can be sustained. It is reasonable that the amount should be large enough to discourage the taking of appeals without cause, since the keeping of the liquors is attended with trouble and expense; and though probably a less sum than three hundred dollars might have sufficed, we cannot say that three hundred dollars is clearly exorbitant. It is the amount required in other cases in which it is unquestionably reasonable.
The objection that the conditions of the recognizance required *612
to perfect the appeal are unreasonable and oppressive, does not seem to us to have any force, except as it applies to the condition that the appellant, during the pendency of the appeal, shall not violate any of the provisions of the act. In Saco v.Wentworth,
It is true that in Saco v. Wentworth, supra, the court held that the recognizance itself, not simply the condition, was void, but, so far as appears, the recognizance, for the other purposes for which it was taken, was functus officio, and was not supposed to have any vitality. Perhaps, too, it may be supposed that our decision is in conflict with Greene v. Briggs, 1 Curtis, 311; but there, though the recognizance was condemned on account of one of its conditions, the seizure and forfeiture sections were themselves infected with unconstitutionality. We deem it our duty to sustain legislation so far as we can, and not to condemn the whole for some unconstitutionality in a part, if the part can be stricken out, and a consistent, valid whole still remain. And see Allen v. Staples, 6 Gray, 491.
Our conclusion is that the objections must be overruled, and the cause remitted to the District Court for further proceedings.
Order accordingly.