Kalloch v. Newbert

• Decision Date: 22 December 1908
• Citation: 72 A. 736,105 Me. 23
• Parties: KALLOCH v. NEWBERT.
• Court: Maine Supreme Court

72 A. 736

105 Me. 23

KALLOCH

v. NEWBERT.

Supreme Judicial Court of Maine.

Dec. 22, 1908.

(Official.)

Exceptions from Supreme Judicial Court, Knox County.

Action by William R. Kalloch against A. H. Newbert. Verdict for defendant, and plaintiff excepts. Exceptions overruled.

Action of trespass against the defendant, who was a deputy enforcement commissioner duly appointed and qualified under chapter 92, p. 94, Pub. Laws 1905, for breaking and entering on July 30, 1906, the plaintiff's vessel lying at a wharf in Rockland harbor, and of which said vessel the plaintiff was then and there captain and in command, and taking and carrying away certain intoxicating liquors found in said vessel. The declaration in the plaintiff's writ is as follows:

"In a plea of trespass, for that the said A. H. Newbert at Rockland aforesaid on the thirtieth day of July, A. D. 1906, with force and arms broke and entered the plaintiff's schooner and vessel called the 'Hastings,' of which said schooner and vessel the plaintiff was then the captain and commander, said schooner and vessel being then and there engaged in lawful interstate commerce, and then and there had on board said vessel a valuable cargo of freight and merchandise for transportation, and said defendant, after breaking and entering as aforesaid, then and there took and carried away the goods and chattels of the plaintiff, viz., two barrels each containing twenty-six gallons of whisky; one ten gallon keg of rum; one ten-gallon can of gin; 25 cases of whisky; one keg containing twenty gallons of gin; one keg containing twenty gallons of wine; one keg containing ten gallons of wine; one keg containing five gallons of brandy; and seven hundred and twenty pint bottles of whisky then and there being found, and being of great value, to wit, of the value of five hundred dollars, and then and there converted the same to the use of the said defendant, against the peace of the state.

"For that the plaintiff on the thirtieth day of July, A. D. 1906, at Rockland aforesaid, was owner and in command as captain of a vessel named Hastings, and was then and there lawfully engaged with said vessel in interstate commerce, and on said day had in his possession on board said vessel at Rockland aforesaid a large amount of merchandise as freight for transportation and delivery; that on said thirtieth day of July, A. D. 1906, said defendant, falsely pretending to have in his possession for service a legal complaint and warrant to enable him to enter on board and search said vessel, with force and arms broke and entered said vessel and cargo of merchandise aforesaid, and then and there took and carried away the goods and chattels of the plaintiff, viz., two barrels of whisky, one keg of rum, one can of gin, one keg of gin, two kegs of wine, seven hundred and twenty-seven bottles of whisky contained in barrels and cases, also twenty-five other cases containing whisky and other liquors, all of the value of five hundred dollars, and then and there assaulted the plaintiff and placed him under arrest and caused him to be tried and condemned in the police court of said Rockland, and sentenced to a fine and imprisonment, without being charged with any crime, from which condemnation and sentence said plaintiff was obliged to appeal to the next succeeding term of the Supreme Judicial Court, whereby the plaintiff was caused great loss of the goods and chattels aforesaid, and by reason thereof for a long time was obliged to neglect and abandon his said vessel, and to employ others to care for same, and thereby suffered great loss of time, and thereby was prevented from delivering said freight and merchandise, and from receiving charges for freight thereon to the amount of fifty dollars, and other injuries the said A. H. Newbert then and there did to the plaintiff against the peace of the state which shall then and there be made to appear, with other due damages."

Plea, the general issue with brief statement as follows:

"And for special matter of defense by way of brief statement by leave of court pleaded, to be used under the foregoing general issue, the defendant says:

"That he was on said 30th day of July one of the deputy enforcement commissioners of the state of Maine, duly appointed and qualified; that whatever he did in the premises he did by virtue and in accordance with the commands of a warrant duly signed and issued by the judge of the police court of the city of Rockland under the seal of said court and to him directed as one of said deputy enforcement commissioners, and of the libel filed therein to forfeit said liquors, the said judge and said court having jurisdiction in the premises, which said warrant was by him duly served and returned, and on which proper legal proceedings were therefore had; and that he did no more in the premises than was necessary in the performance of his duty under said warrant and libel.

"That said liquors have since been returned to and accepted by said Kalloch, and he, said Kalloch, has not suffered any legal loss of damage on account thereof, and this the defendant is ready to verify."

Tried at the January term, 1908, Supreme Judicial Court, Knox county. Verdict for defendant. The plaintiff excepted to certain rulings made by the presiding justice during the trial.

The case is stated in the opinion.

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

David N. Mortland and Rodney I. Thompson, for plaintiff. Arthur S. Littlefield, for defendant.

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, p. 94, Pub. Laws 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 Pub. Laws 1905, p. 94, c. 92, § 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...