Kalloch v. Newbert

| Me. | Dec 22, 1908

Spear, J.

This is an action of trespass and comes up on exceptions. The plaintiff was the master of a vessel which was engaged in interstate commerce and lying at a wharf in the city of Rockland. The defendant was a deputy enforcement commissioner duly appointed and qualified under chapter 92, Public Laws of 1905. By virtue of a complaint and warrant properly issued from the police court of the city of Rockland, which was placed in his hands for execution, the defendant was directed to search the plaintiff’s vessel for intoxicating liquors, and seize them if found. No controversy is made that the warrant was an ordinary search and seizure warrant in due form and without apparent defect. The defendant served the warrant and found and seized about 500 gallons of intoxicating liquor. The liquor was .duly libeled and upon hearing, being adjudged to be within the protection of the interstate commerce clause of the Constitution, was ordered returned, and this order was properly executed. While making the search, the defendant went into the cabin of the vessel with the plaintiff and found a small package of liquor containing about two quarts which the plaintiff said "a friend of his sent by him to Boston to get.” Upon this statement the defendant did not take the package. The case was submitted to the jury with a verdict for the defendant. The defendant justified his acts in making the search and seizure as a duly qualified officer acting under a legal warrant issued from a court of competent jurisdiction. The Justice presiding ruled that if properly executed, such a warrant was a legal justification. The plaintiff objected to this ruling and denied that the warrant if fair upon its face and legally sound afforded justification for three reasons. First, because the vessel was engaged in interstate commerce. Second, by the provisions of the Public Laws of 1905, chapter 92, section 2, the defendant had no power to act in the enforcement of the prohibitory law with respect to the keeping of intoxicating liquors. Third, to afford a complete justification under the warrant, it was the duty of the defendant to seize all the liquors he found on board the vessel. Nothing appeared upon the face of the warrant in any way indicating that the liquors described therein were commodities of interstate commerce.

Upon the facts here presented, the plaintiff’s first ground of complaint is without merit. There is nothing in the interstate commerce law that renders intoxicating liquors immune from seizure and we are aware of no decision that so holds. But after seizure and upon libel and hearing if it is shown that they were articles of interstate commerce, then the carrier is entitled to a return of the goods. Whether liquors are commodities within the protection of the interstate commerce law, is a judicial question to be settled by the court and not one to be determined by the officer as a condition precedent to the execution of his warrant. We think this is precisely the rule laid down in B. & M. Railroad v. Small, 85 Maine, 462. The court say : "It is urged that it may at times work a great hardship upon an innocent owner, if an officer must in every case seize whatever intoxicating liquors he finds under a search warrant, however evident it is they are not intended for unlawful sale. The policy of the law is that every owner or keeper of intoxicating liquors shall be prepared to defend them, before the courts and not before the officer against the accusation, that they are intended for unlawful sale.” In other words the officer is not required to adjudicate whether the liquors described in his warrant are seizable or not.

It is also a rule of law too well established to now require discussion, that for reasons founded on public policy and in order to secure a prompt and effective service of legal process, the law protects its officers in the performance of their duties, if there is no defect or want of jurisdiction apparent on the face of the writ or warrant under which they act. The officer is not bound to look beyond his warrant. He is not to exercise his judgment touching the validity of the process in point of law; but if it is in due form, and is issued by a court or magistrate apparently having jurisdiction of the case, or subject matter, he is to obey its commands. The defendant’s warrant if properly executed, was a complete justification.

The plaintiff’s second proposition is that the defendant’s warrant, if in other respects a justification, failed in this that the act of the legislature creating the enforcement commissioners, vested in them authority only "in the enforcement of the .law against the manufacture and sale of intoxicating liquors, omitting to give them any authority against the keeping of intoxicating liquors, an offense specified in sec. 47, R. S., chapter 29.” We think this contention is equally untenable. It will be observed by reference to chapter 29, R. S., that sections 3G to 58 inclusive, the sections relating to the manufacture, selling and keeping for sale intoxicating liquors, are under the title, "Manufacture and sale of intoxicating liquors.” This title covers six pages of the chapter. The act of 1905 provides that "Commissioners, with the advice and under the direction of the Governor, shall have and are authorized to exercise all the common law and statutory powers of sheriffs in their respective counties in the enforcement of the law against the "manufacture and sale of intoxicating liquors.” By section 3, the deputy enforcement commissioners have the same powers as the Commissioners, that is, all the powers of sheriffs.

The subject matter of R. S., chapter 29, covering section 47 relating to the keeping of intoxicating liquors, is "The manufacture and sale of intoxicating liquors.” The act of 1905 is entitled "An act to provide for the better enforcement of the laws against "The manufacture and sale of intoxicating liquors.” "The manufacture and sale referred to and intended in the act of 1905 is "The manufacture and sale” specified in chapter 29. This act, therefore, construed in pari materia embraces everything in chapter 29 under the title "Manufacture and sale of intoxicating liquors.” Section 47 is there found and consequently included.

If this were not so, it is perfectly clear that the legislature intended that these officers should have authority to enforce every provision of the prohibitory law.

They used the phrase "manufacture and sale” as a general term calculated to cover every violation of the prohibitory law from section 36 to 58 inclusive, and as before noted section 47 comes under this general head and was intended to be included within it. The rule of construction upon the interpretation of statutes that the intention of the legislature shall control, when such interpretation does no violence to the language used, is too well established to require citation. Collins v. Chase, 71 Maine, 434; Holmes v. Paris, 75 Maine, 559; Landers v. Smith, 78 Maine, 212; Gray v. County Commissioners, 83 Maine, 429.

The third ground upon which the plaintiff seeks to hold the defendant for damages in trespass is based upon the fact that the defendant in serving his warrant did not make a seizure of all the liquors upon the vessel, which came to his notice. It appears from the evidence of both the officer and his aid that they left in the cabin of the vessel about two quarts of liquor. The uncontradicted testimony with respect to the omission to seize this liquor was given by the defendant as follows : "We looked all around the cabin, saw nothing there but a small package of liquors, there might have been a couple of quarts in it, which Captain Kalloch said a friend of his sent by bim to Boston to get.”

The plaintiff argues that this omission of the officer brings the case fully within the rule laid down in B. & M. Railroad v. Small, 85 Maine, 462. But the cases seem to be clearly distinguishable. The facts and the motives which animated the officers in the execution of their warrants, in. the two cases are entirely dissimilar. In the railroad case, the court say : "The defendant officer exercised the authority to search but he wilfully and deliberately refused to seize the intoxicating liquors he found, and made a false return that he found none. He assumed to nullify the main command of the statute and of his process.” The officer omitted to seize a barrel of intoxicating liquor.

Not so in the case at bar. The defendant seized hundreds of gallons of intoxicating liquors. It was not in a spirit of "wilful and deliberate” refusal to obey his warrant that he omitted to seize the two quarts found in the cabin, separate and distinct from the rest of the cargo, but in deference to the plighted word of the Captain that they had been purchased by him for a friend. It would at least be a travesty upon justice if not an anomaly in law, to now allow the plaintiff to invoke the kindness of a favor as the technical foundation of a suit for damages against the doer of the friendly act.

The omission of the officer to take the small -package should be regarded as a mere incident, when considered in connection with the actual seizure of 500 gallons of intoxicating liquors under his warrant. The duty of the officer to seize this comparatively insignificant quantity must be held to have, been intended to be waived by the plaintiff by virtue of his own statement that he had purchased it for a friend. Under the circumstances in this case, he cannot now be permitted to assert his own wrong by taking advantage of the position assumed by the officer upon his own suggestion. The plaintiff was surely not injured by the officer’s act of courtesy and confidence. The railroad case above cited is not in conflict with this conclusion. The opinion seems to be founded upon the doctrine of sound public policy. After discussing the Six Carpenter’s case, the court say: "Our stricter rule is firmly established in our law, and we think upon grounds of public policy it is the better and more reasonable rule. While, of course, in a given case an officer may have a sufficient, lawful excuse for his omission, the general, plain, reasonable and necessary proposition is, that a ministerial officer must faithfully obey every lawful command in the statute or process, or he will be left without its protection in any suit against him for any acts done by him under color of such statute or process.” We think this case falls fairly within the exception.

Neither public policy nor private right requires that the defendant in the case at bar should answer in damages to the plaintiff for performing an act in compliance with the plaintiff’s assent.

Exceptions overruled.