Hurd, Solicitor v. Nadeau

• Decision Date: 04 December 1923
• Docket Number: No. 1871.,1871.
• Citation: 123 A. 236
• Parties: HURD, Solicitor, v. NADEAU.
• Court: New Hampshire Supreme Court

123 A. 236

HURD, Solicitor,

v. NADEAU.

No. 1871.

Supreme Court of New Hampshire. Sullivan.

Dec. 4, 1923.

Young, J., dissenting.

Transferred from Superior Court, Sullivan County; Kivel, Judge.

Libel by Henry N. Hurd, Solicitor, against Octave Nadeau. Question transferred without ruling. Case discharged.

Libel for the forfeiture of a motor vehicle under Laws 1919, c. 99, § 6. The defendant had pleaded guilty of violation of the law relating to intoxicating liquor. It is understood from the arguments that such plea was upon a complaint for possessing and transporting liquors prohibited by section 4. The question whether the motor vehicle was paraphernalia within the meaning of section 6 was transferred without ruling by Kivel, C. J.

Henry N. Hurd, Sol., of Claremont, for the State.

Francis W. Johnston and Louis A. Maxson, both of Claremont (Mr. Maxson, orally), for defendant.

SNOW, J. Laws 1919, c. 99, is an amendment of Laws 1917, c. 147. When simultaneous reference to both statutes is deemed necessary, the numbers of the amended sections will be inserted in brackets. Laws 1919, § 3 [19], provides for the punishment by fine and imprisonment of any person who, not being authorized by law, "shall sell, or keep for sale, any intoxicating liquor." Section 4 [20] provides that—

"The procuring, possessing, furnishing, giving away or transporting intoxicating liquor, * * * and any shift or device to evade the provisions of any law now or hereafter in force, in relation to intoxicating liquor are prohibited, and the penalties for a violation of any of the provisions of this section shall be the same as in the case of selling or keeping for sale intoxicating liquor."

The claim to forfeiture is based upon section 6 [34], which enacts that—

"Any liquor kept for sale in violation of the provisions of this act, together with the casks, bottles or other paraphernalia used in such illegal keeping, shall be subject to seizure" and "may be adjudged forfeited."

The position of the state in this case and in State v. Buick Roadster (Melanson) 123 Atl. 239, which will be considered herewith is: First, that section 0 was designed to provide for the seizure and disposition of liquor where conviction has been had under section 4, as well as where conviction has been had under section 3; and, second, whether or not so designed, that nevertheless the language of section 6 is sufficiently broad to authorize the forfeiture of any vehicle in which liquor was being kept when seized.

The first position is predicated upon the language of section 4 that the "penalties" there imposed "shall be the same as in the case of selling or keeping for sale." The history of sections 3 and 4 in connection with the history of the correlative sections, sections 6 and 10, hereinafter considered, shows that the word "penalties," used in section 4, clearly refers to the fines and imprisonments specifically enumerated in section 3 immediately preceding.

If, however, it were conceded that section 6 was intended to apply when there has been conviction under section 4, it would not help the plaintiff! unless the terms of section 6 are broad enough to include a motor vehicle. This brings us to the question specifically reserved, namely, whether "parapernalia" as there used was intended to include such a vehicle. This word was used at common law to designate the articles which a bride brought with her at her marriage or which the wife possessed beyond her dower, and hence the word came to include appendages; ornaments; trappings. Webster's Diet. 1850, 1874; Worcester's Diet. 1868. In its technical application and according to its earlier popular use, therefore, the word connotes articles appendant or appurtenant to a particular status, order, or calling. That the word in its nontechnical sense still retains the idea of pertinence or appendance is clear from the definitions and illustrated use of the word by the later lexicographers, viz.: Miscellaneous articles of equipment or adornment; appendages; belongings; such as "the paraphernalia of an invalid." Standard Diet. (1895). Furnishings or apparatus; articles of equipment, as the "paraphernalia of a circus"; "equestrian paraphernalia." Webster's New International Diet. (1910). "Also the articles that compose an apparatus, outfit or equipment; the mechanical accessories of any function or complex scheme; appointments or appurtenances in general." Murray's New English Diet. 1905. It is not claimed that the word has acquired any special meaning with relation to the business of selling or transporting intoxicating liquors, or that it is customarily employed to describe the instrumentalities used therein. The state, relying upon the later authorities, takes the position that the word has come, sometimes, to have a meaning synonymous with the words "equipment" or "apparatus," irrespective of the pertinence thereof to any particular business. It is claimed in argument that in this sense it is an appropriate term, when applied either to the illegal keeping for sale or to illegal transportation of intoxicating liquors, to describe any tool, implement, utensil, carrier, instrumentality, appliance, or apparatus of which the offender was making use when he was violating the law including a motor vehicle in which the liquor was kept or transported.

If it be conceded that the word is susceptible of such an interpretation, the question then arises whether the Legislature used the term in such enlarged and unrelated sense, or according to its more common acceptation signifying the instrumentalities usually pertaining to or employed in the traffic inveighed against, namely, illegal keeping for sale. "The construction of a statute, as of any written document, is the ascertainment of the meaning of the language to those using it." Opinion of the Justices, 72 N. H. 605, 607, 55 Atl. 943, 944. The question is: What did the word mean to the members of the Legislature of 1919, who introduced it into the statute? Glover v. Baker, 76 N. H. 393, 407, 83 Atl. 916. The journals of the proceedings of the Legislature are public records "intended to furnish the courts and the public with the means of ascertaining what was actually done in and by each branch" thereof. Opinion of the Justices, 35 N. H. 579; Id., 52 N. H. 622, 624; Wyatt v. Board of Equalization, 74 N. H. 552, 558, 583, 70 Atl. 387; Opinion of the Justice, 76 N. H. 603, 81 Atl. 170.

The essential facts in the history of the bill, resulting in Laws 1919, c. 99, as disclosed by the journals, appear to be conceded in argument. The bill was first presented to the House by the committee on liquor laws, was recommitted, and after material changes was reported in new draft in which form it passed the house. Further material amendments were made in the Senate, and the act thus amended was adopted by the House. The changes in the wording during this process of enactment afford strong, if not conclusive, evidence that the Legislature did not intend by the use of the words in section 6 [34], "casks, bottles and other paraphernalia" to include motor vehicles, used either in transportation or in keeping for sale. Italics will be used to distinguish the language more material to the discussion.

Laws 1917, c. 147, § 34, provided:

"Any intoxicating liquor kept for sale in violation of law, with the casks, bottles and vessels containing the same or used in the sale thereof, may be seized * * * and upon due proceedings may be adjudged forfeited. * * *"

The original draft of the House bill proposing amendment to this section, as introduced in the Legislature of 1919, read:

"Any intoxicating liquor in the possession of any person or kept, in storage, or for sale in any place, or in transit, in violation of any law now or hereafter in force, with the casks, cases, bottles and vessels containing the same, and any other articles used in connection with the illegal possession, storage, transportation or sale of such intoxicating liquor, may be seized * * * and upon due proceedings may be adjudged forfeited. * * *"

After providing for the destruction or sale of the forfeited liquor the bill proceeded:

"The court shall also make an order for the destruction, or sale for the benefit of the county, of the casks, cases, bottles, or other contamers or any articles used in connection with the illegal possession, storage, transportation or sale of such intoxicating liquors."

As reported in new draft and finally enacted as Laws 1919, c. 99, § 6 [34], this section reads:

"Any liquor kept for sale in violation of the provisions of this act, together with the casks, bottles or other paraphernalia used in such illegal keeping, shall be subject to seizure * * * and upon due proceedings may be adjudged forfeited. Upon a decree of forfeiture, the property may be ordered * * * sold in accordance with the decree of the court. * * *"

It is contended in behalf of the state that the modifications in the act from the original draft were not intended to curtail the subjective or remedial scope of the proposed amendment, but that the changes were made merely for the sake of terseness and better rhetorical form. This view cannot be adopted. The original draft was a definite proposal to subject to forfeiture "any other articles" (that is, other than casks, cases, bottles, and vessels) used in connection with "illegal possession, storage, transportation" of...