67 Me. 372 | Me. | 1877
Lead Opinion
Chapter eightieth of the revised statutes relates to sheriffs, coroners and constables and to their duties.
Section 52 refers exclusively to civil proceedings. The object was to prevent officers of either of the classes mentioned acting ' as attorneys or advising in any suit or drawing writs, &c., for any other person. But a complaint for a criminal offense is not a suit within the meaning of this section. Criminal proceedings are in the name of the state,'not of the party complaining. The complaint is in behalf of the state, not of the complainant. It is by the complainant, not for the complainant. The process issues in the name of the state, not “of any other person.” The fine or forfeiture, if there be one, enures to the state, not to the complainant. The judgment is for the state, not for the complainant or “for any other person.”
The language of the section relates to civil proceedings. The word “writ” has application to civil proceedings. “Plaint (Fr. plainte, Lat. querela) is the exhibiting any action, real or personal, in writing; and the party making it is called the plaintiff.” Jac. Law Diet. The term declaration is applicable only to civil procedure. Citation is a summons to appear, applied particularly to process in the spiritual court, but ¡adopted in civil procedure from the canon and civil law. “Process” is so called because it proceeds or goes’ out upon former matter, either original or judicial.” Jac. Law Die. It assumes former matter. The process may be criminal where the “former matter,” whence it proceeds or goes out, is criminal. But in the section under consideration there is no reference to any criminal procedure. The words preceding and following have no relation to anything ci’iminai. Its meaning must be determined by tffe context. JSTosoitur
A complaint under the liquor law is not a suit “for any party,” nor a plea “for any other person.” No words exclusively applicable to criminal procedure, as complaint, warrant or indictment, are to be found in this section. Nor does the reason for its passage apply to proceedings in behalf of the state. Anybody may draw a writ, but criminal process issues under judicial discretion and by judicial magistrates. It is judicial action for the state, not civil process for “any party” or “any other person.”
It is not readily conceived how writing a complaint for a violation of law, which another is to sign and to the truth of which he is to make oath, or inserting the appropriate names in the blank form of a warrant or writing it out, ready for the signature of the magistrate, can be regarded as a violation of the statute.
Officers are specially enjoined by the act of 1872, c. 62, § 2, to see the law enforced, to institute proceedings against offenders, to enter complaints against them, and to inform prosecuting officers of alleged offenses. What was done in the present instance would seem to be much more in accordance with their duty than in violation of law.
Exceptions overruled.
Dissenting Opinion
dissenting. R. S., c. 80, § 52, prohibits sheriffs and deputy sheriffs from “drawing any writ, plaint, declaration, process or plea for any other person.” The word “process” is applicable to both criminal and civil proceedings. “Process,” says Jacobs in his Law Dictionary, defining that word, “is largely taken for all the proceedings in any action, real or personal, civil or criminal, from the beginning to the end.” “In criminal cases,” says JBouvier, 2 Law Die. 387, “that proceeding which is called a warrant before the finding of a bill is termed process.”
The act of the deputy sheriff in drawing the complaint obviously comes within the purview of § 52, c. 80, R. S., and must be held to render them void, unless it can be sustained under the enforcement act of 1872, c. 62, §§ 1 and 2, which
The acts complained of do not come within either of the modes of “instituting legal proceedings,” designated by the statute. The complaint having been signed and sworn to, must be regarded as the complaint of the person who perfornjied these acts, and not as the complaint of the party who drew it. ■ It is not the drawing, but the signing and swearing to the instrument that fixes its paternity. The person who signs and swears to the complaint, in contemplation of law, is the person whcj “enters” it; and the enforcement act authorizes deputy sheriffs to “enter” complaints, not to draw them to be “entered” by another, as was done in this case. Besides, that act only authorizes officers to “enter complaints;” it gives them no authority wfhatever to draw warrants, which the officer in this case undertook to do.
If the legislature had intended to remove the disabilities imposed upon sheriffs and their deputies py § 52 of c. 80, E. S., in criminal cases, it would have done so in express terms. It did not do so; and I think that the language it used does not warrant the legal implication of such intention, and that the entry should be, exceptions sustained.
