State v. Poulin

Citation74 A. 119,105 Me. 224
PartiesSTATE v. POULIN.
Decision Date02 March 1909
CourtSupreme Judicial Court of Maine (US)

Exceptions from Supreme Judicial Court, Somerset County.

Omar Poulin, alias Omar Pooler, was convicted of being a common seller of intoxicating liquor, and he excopts. Exceptions overruled.

Indictment against the defendant as a common seller of intoxicating liquors, found and returned by the grand jury at the September term, 1908, Supreme Judicial Court, Somerset county. Before being arraigned the defendant moved to quash the indictment, which motion was overruled, to which ruling exceptions were taken and allowed, whereupon the defendant was ordered to plead to the indictment, and upon his arraignment pleaded that he was not guilty, and the matter went to the jury. The defendant offered no evidence and a verdict of guilty was re turned, whereupon after trial and verdict of guilty, and before judgment, the defendant moved in arrest of judgment, which motion was also overruled and sentence imposed. To the overruling of this motion the defendant also excepted. The reasons alleged in support of the motion in arrest of judgment were the same as set forth in the motion to quash.

The case is stated in the opinion.

Argued before EMERY, C. J., and WHITEHOUSE, SPEAR, CORNISH, and BIRD, JJ.

Amos K. Butler, Sp. Atty., for the State. George W. Gower, for defendant.

SPEAR, J. The defendant in this case, Omar Poulin, alias Omar Pooler, was indicted in Somerset county at the September term of court, 1903, as a common seller of intoxicating liquors. A plea of not guilty was entered, a trial had, a verdict of guilty rendered, and a motion in arrest of judgment seasonably filed. The motion was overruled and sentence imposed. To the overruling of the motion exceptions were filed and allowed.

This case arises under section 8, c. 92, p. 95, Pub. Laws 1905, an act authorizing the Governor to create the office of special attorney for the state, and appoint thereunder an attorney to perform the duties thereof. No question was made that the office was created, and that Amos K. Butler was prop erly appointed and qualified to perform the duties of the office in accordance with the act of the Legislature. It was the duty of Mr. Butler after his appointment to super sede the attorney for the state for Somerset county in all prosecutions relating to the law against the manufacture and sale of in toxicating liquors, including his presence with the grand jury, presenting the evidence and administering oaths to witnesses. He also signed the indictment as special attorney but this act becomes immaterial, as the law does not require even the signature of the attorney for the state. In view of the law and the facts as above appears, the defend ant in his motion presented the following reasons why the judgment against him should be arrested: Briefly stated they are, first that Mr. Butler was unlawfully present in the grand jury room, and unlawfully aided assisted, counseled, and advised the granc jury in receiving and deliberating upon the evidence; second, because the witnesses whe testified before the grand jury were not lawfully sworn: third, because they were sworn by Amos K. Butler, who was not authorized by law to administer the necessary oath to the witnesses, and that no other oath was administered to them; fourth, because, while the grand jury were receiving and considering evidence against the respondent and found and returned the indictment upon which he was convicted, Thomas J. Young was the duly elected and qualified attorney for the state for said county, and was in attendance upon said term of court willing and able to perform his duties with the grand jury in the matter before them, as required by law, and was unlawfully hindered and prevented from attending upon the grand jury.

Section 8, c. 92. Laws 1905, under which Mr. Butler was appointed special attorney, is as follows: "The Governor may, after notice to and opportunity for the attorney for the state for any county to show cause why the same should not be done, create to continue during his pleasure, the office of special attorney for the state in such county and appoint an attorney to perform the duties thereof.

"Such an appointee shall, under the direction of the Governor, have and execute the same powers now invested in the attorney for the state for such county in all prosecutions relating to the law against the manufacture and sale of intoxicating liquors, and shall have full charge and control thereof; and shall receive such reasonable compensation for services rendered in vacation and term time as the justice presiding at each criminal term in the county shall fix, to be allowed in the bill of costs for that term and paid by the county."

The real purpose of filing the motion in arrest of judgment was to test the constitutionality of the above statute. This question has very recently been decided adversely in State, by Information, v. Butler, 105 Me. 91, 73 Atl. 560.

But this decision does not necessarily end the state's case, nor peremptorily require a conclusion in favor of the defendant's motion. Declaring a statute unconstitutional does not necessarily render it void ab initio. It is an axiom of practical wisdom, coeval with the development of the common law, founded upon necessity, that de facto acts of binding force may be performed under presumption of law. There is another rule so uniform in its application that it, too, has become a legal maxim that "all acts of the Legislature are presumed to be constitutional." Lunt's Case, G Me. 412. This rule was confirmed in Eames v. Savage, 77 Me. 212, 52 Am. Rep. 751. a case in which the plaintiff claimed the statute was made null and void by the Maine Bill of Rights and the Constitution of the United States, but the court said: "The presumption is the other way, in favor of the validity of the statute, and it is a presumption of great strength. All the justices and writers agree upon this. Chief Justice Marshall in Fletcher v. Peck, 6 Cranch, 87, 3 L. Ed. 162, says: 'That to overturn this presumption the justices must be convinced, and the conviction must be clear and strong.' Judge Washington in Ogden v. Saunders, 12 Wheat. 270, 6 L. Ed. 606, declared: 'That, if he rested his opinion on no other ground than a doubt, that alone would be a satisfactory vindication of an opinion in favor of the constitutionality of a statute.' Chief Justice Mellen in Lunt's Case, 6 Me. 413, 'the court will never pronounce a statute to be otherwise (than constitutional) unless in a case where the point is free from all doubt.' This strong presumption is to be constantly borne in mind in considering the question here presented."

The same rule was reiterated in Soper v. Lawrence, 98 Me. 268, 56 Atl. 908, 99 Am. St. Rep. 397, in which it is held: "Power of the judicial department of the government to prevent the enforcement of a legislative enactment by declaring it unconstitutional and void is attended with responsibilities so grave that its exercise is properly confined to statutes that are clearly and conclusively shown to be in conflict with the organic law. The constitutionality of a law is to be presumed until the contrary is shown beyond a reasonable doubt." See, also, cases cited.

It logically follows from the rule enunciated in these cases that an act of the Legislature is to be regarded as valid until otherwise declared by the court. Directly in point is State v. Carroll, 38 Conn. 449, 9 Am. Rep. 409. a case undoubtedly presenting the most comprehensive and critical analysis upon the question of de facto offices and officers to be found in the history of the common law. "Every law of the Legislature, however repugnant to the Constitution, has not only the appearance and semblance of authority, but the force of law. It cannot be questioned at the bar of private judgment, and, if thought unconstitutional, resisted, but must be received and obeyed as to all intents and purposes law until questioned in and set aside by the court. This principle is essential to the very existence of order in society. It has never been questioned by any jurist to my knowledge.".

These citations clearly demonstrate the strength of the presumption in favor of the constitutionality of legislative enactments when under construction. How absolutely, then, must it prevail in establishing the right and duty of the public and the individual to act upon and obey them while in force.

The de facto doctrine is exotic, and was ingrafted upon the law as a matter of policy and necessity to protect the interests of the public and individuals where those interests were involved in the official acts of persons exercising the duty of an office without being lawful officers. It would be unreasonable to require the public to inquire into the title of an officer, or compel him to show title, and these have become settled principles in law. To protect those who deal with officers apparently holding office under color of law in such manner as to warrant the public in assuming that they are officers and in dealing with them as such the law validates their acts as to the public and third persons on the ground that as to them, although not officers de jure, they are officers in fact, whose acts public policy requires to be construed as valid. This was not because of any character or quality conferred upon the officer, or attached to him by reason of any defective election or appointment, but as a name or character given to his acts by the law for the purpose of making them valid. This doctrine is thoroughly established, and, as said in State v. Carroll, supra: "If you find a man executing the duties of an office, under such circumstances of continuance, reputation, or otherwise, as reasonably authorize the presumption that he is the officer he assumes to be, you may submit to or employ him without taking the trouble to inquire into his title, and the law will hold his...

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