State v. Certain Contraceptive Materials

• Decision Date: 06 March 1940
• Court: Connecticut Supreme Court
• Parties: STATE v. CERTAIN CONTRACEPTIVE MATERIALS.

11 A.2d 863

126 Conn. 428

STATE v. CERTAIN CONTRACEPTIVE MATERIALS.

Supreme Court of Errors of Connecticut.

March 6, 1940

Appeal from Superior Court, New Haven County; Frank P. McEvoy Judge.

Proceeding by the State, under Gen.St. 1930, § 6439, for a search warrant, which was issued by a judge of the superior court on finding probable cause, and from a judgment under section 6441 for destruction of contraceptive materials seized under the warrant, the Birth Control League, Inc., and another which were made parties defendant, appeal.

Error judgment set aside, and case remanded with direction.

J. Warren Upson and William J. Secor, Jr., both of Waterbury, for appellants.

William B. Fitzgerald, State's Atty., of Waterbury, for appellee.

Argued before MALTBIE, C.J., and HINMAN, AVERY, BROWN, and JENNINGS, JJ.

HINMAN, Judge.

The state's attorney for New Haven County at Waterbury brought a complaint to Judge McEvoy of the Superior Court alleging, under oath, that he ‘ is informed and * * * suspects and has reason to suspect that books, records, registers, instruments, apparatus and appliances used and kept for the purpose of violating the criminal laws of this state and particularly the provisions of Sections 6246 and 6562 of the General Statutes’ were kept and used in a specified building in Waterbury, and making application for a search warrant therefor. Judge McEvoy expressly found that probable cause existed for the complaint and issued the warrant. Under it a quantity of literature pertaining to birth control and numerous medicinal and other articles and instruments designed for the purpose of preventing conception were seized, and there was issued, pursuant to § 6441 of the General Statutes, a rule to show cause why they should not be adjudged a nuisance and ordered destroyed. The Birth Control League, Inc., and the Waterbury Maternal Health Center, admitting ownership of the articles, applied to be and were made parties defendant and filed a plea claiming, upon numerous grounds set up therein, that the proceeding be dismissed and the articles returned to them. This was denied and judgment rendered finding the facts alleged in the complaint to be true and ordering that the articles be destroyed, from which the defendants appealed to this court.

The paragraphs of the finding which are attacked are not material to the considerations found determinative of the case, which pertain to the conclusions to the effect that § 6439 of the General Statutes authorizes and empowers the issuance of a warrant for search for and seizure of contraceptive devices. The complaint and search warrant were predicated, and the state depends for justification thereof solely, upon provisions in § 6439 of the General Statutes, that ‘ any judge of the superior court * * * upon the complaint of any proper informing officer or upon the sworn complaint of any two credible persons * * *, alleging that they suspect or have cause to suspect that any tables, tickets, slips, papers, tokens, lottery tickets, books, records, registers, printing presses, instruments, apparatus, appliances, slot machines or any money or valuable prize, for the purpose of gaming, policy playing or carrying on lotteries or for the purpose of violating any of the criminal laws of this state, are manufactured, kept, deposited, stored, sold or used in any building, or part of any building, may issue a warrant commanding any proper officer to enter into such building, or part thereof, and search the same and take into his custody all such tables, tickets, slips, papers, tokens, lottery tickets, books, records, registers, printing presses, instruments, apparatus, appliances or slot machines or any money or valuable prize which he may find therein and keep the same securely until final action be had thereon.’ Dependence by the state is upon the general provision which we have italicized in the above quotation. The defendants pleaded that the warrant was illegally and unlawfully applied for and issued because § 6439 does not authorize the warrant when directed against contraceptive apparatus and literature, and that therefore § 6441 of the General Statutes does not provide for their condemnation and destruction, since the applicability of that section is dependent upon a valid seizure under § 6439.

The defendants' claim is that § 6439 is not to be construed as extending and applying to and authorizing search for and seizure of property such as that involved in the present case. In making this contention they invoke the rule of construction known as ‘ ejusdem generis,’ which is that where general words follow an enumeration of persons or things, by words of particular and specific meaning, the general words will not be construed in their widest sense, but are to be held as applying only to persons or things of the same general kind or class as those specifically enumerated. Black, Interpretation of Laws, 2d Ed., § 71; 2 Lewis' Sutherland, Statutory Construction, 2 Ed., § 422 et seq.; Brown v. Congdon, 50 Conn. 302, 309; Dudley v. Hull, 105 Conn. 710, 717, 136 A. 575; Commonwealth v. Dejardin, 126 Mass. 46, 30 Am.Rep. 652. Specifically, the claim is that this statute applies only to property possessed for purposes akin to those enumerated-‘ gaming, policy playing or carrying on lotteries.’

Where search and seizure has been extended by statute to cases in which the property sought has been used as a means of committing or is possessed with the intent to use it as the means of committing a criminal offense, the use of the process may not be extended by construction to any case not clearly covered by the statute. 24 R.C.L. 716; State ex rel. Streit v. Justice Court, 45 Mont. 375, 123 P. 405 48 L.R.A.N.S., 156; People ex rel. Robert Simpson Co. v. Kempner, 208 N.Y. 16, 101 N.E. 794, 46 L.R.A.N.S., 970, Ann.Cas.1914D, 169. Such search warrants partake of the nature of criminal process, are drastic in their nature and it is the general rule that statutes authorizing them must be strictly construed. 56 C.J. 1160, 1184; Giles v. United States, 1 Cir., 284 F. 208, 212; Perry v. United States, 9 Cir., 14 F.2d 88; People v. Moten, 233 Mich. 169, 170, 206 N.W. 506; State v. Whalen, 85 Me. 469, 27 A. 348. The rule of ejusdem generis therefore is to be given a strict application in interpreting such a statute, similar to that pertaining to statutes defining crimes and imposing penalties, so that no one can be brought under it ‘ unless his case comes within its explicit terms, or within the absolutely clear intention of the act, as well as within the spirit of the law and the mischief intended to be remedied.’ 2 Black, op. cit., p. 213. As examples of the application of the rule in the construction of penal statutes there are cited in this work, p. 214, cases in which provisions against maintenance of a faro bank, roulette table ‘ or other instrument, device or...