State v. Klondike Machine

76 Vt. 426 | Vt. | 1904

Munson, J.

No. 12i, Acts of 1898, consists of three sections; of which the first imposes ’ a penalty for keeping a Klondike machine in a place of public resort, the second prouddes for the seizure, condemnation and destruction of the machine, and the third gives justices jurisdiction of cases arising under the act. The question is whether there is a right of appeal in proceedings under the second section.

It is held that the general provision allowing appeals from 'the judgments of justices in civil causes applies only to cases falling within the ordinary jurisdiction of justices, and cannot 'be extended to cases arising under a special and extraordinary jurisdiction. Griswold v. Rutland, 23 Vt. 324. This decision is not directly in point here, for the proceeding under the second section of this act, while not strictly a criminal proceeding, must be classed with criminal cases. State v. One Bottle of Brandy, 43 Vt. 297. But we think the reasoning of the •decision may properly be applied to a case of this character.

The general provision governing appeals in criminal ■causes allows respondents to appeal from justice judgments against them in- all cases where the judgment is not rendered upon a plea of guilty., V. S. 1932. The prosecution of the keeper under the first section of the act of 1898 is in line with the ordinary jurisdiction of justices, and may properly be treated as within the general provision just cited. Moreover, the third section of the act could not be construed as giving’ the justice final jurisdiction of the prosecution of the keeper, for to do so would make the provision unconstitutional. State v. Peterson, 41 Vt. 504. But the proceeding under the second section of the act is not a matter of ordinary jurisdiction,, nor fairly within the language of the general provision for appeals; and the constitutional consideration does not require-that it be brought within that provision, for in these cases the-claimant would not be entitled to a jury in the County Court. State v. Intoxicating Liquor, Smith Claimant, 55 Vt. 82.

Section two provides that “if, upon hearing, it is found' .that such machine was seized in a place of public resort, the-same shall be ordered destroyed, and the justice shall issue-his warrant to carry such order into effect.” If the Legislature had contemplated an appeal, it would doubtless have accompanied this provision with further sections regulating the appeal, and have adapted the language of the provision to the contingency of a final order in a higher court; as is done-in the statute authorizing the destruction of intoxicating liquor. But the claimant argues that inasmuch as that statute recognizes the right of appeal without directly conferring it, it must be considered that the Legislature deemed the general provision for appeals applicable to proceedings of that character. This can hardly be claimed, however, when the history of the-enactment is considered; for the act as originally passed contained an express provision for an appeal, and this remained in the statutes until omitted from the revision of 1880. Acts 1852, No. 24, § 14; G. S. ch. 94, § 24; R. L. § 3824.

We hold that no^ appeal lies from the order authorized, by the second section of this act.

Judgment affirmed.