State v. le Clair

Decision Date17 August 1894
Citation86 Me. 522,30 A. 7
PartiesSTATE v. LE CLAIR.
CourtMaine Supreme Court

(Official.)

Exceptions from Androscoggin county.

Complaint and process against John Le Clair for the seizure of intoxicating liquors. There was an order overruling a demurrer to the complaint and process, and defendant excepts. Exceptions overruled, and judgment for the state.

Prank L. Noble, for defendant.

Henry W. Oakes, Co. Atty., for the State.

WHITEHOUSE, J. This is a process for the seizure of intoxicating liquors, and the case comes to this court on a special demurrer to the complaint and warrant, specifying two grounds of objection: First, that the complaint and warrant constituted a seizure process, and not a search and seizure process; second, that the clerk of the municipal court of Lewiston, and not the judge, received the complaint and issued the warrant.

1. With respect to the first objection, it appears that, by virtue of section 39 of chapter 27 of the Revised Statutes, the officer seized certain intoxicating liquors found in the defendant's shop, and forthwith signed the complaint in question, representing that he believed the liquors so found were kept for unlawful sale, and praying that a warrant might be issued authorizing a seizure of the same. The warrant in question was accordingly issued, commanding the officer to seize the liquors named in the complaint, and safely keep them until final decision of the court.

The defendant contends that the only warrant known to the prohibitory law is one which authorizes a search for, as well as a seizure of, intoxicating liquors. But the propriety of requiring an officer to insert in his complaint a false recital that the liquors which he has found and removed "are still kept and deposited" by the defendant, or the necessity of a command in the warrant to search premises for what the officer has already taken and knows cannot be found there, is certainly not apparent. The forms set forth in section 63, c. 27, Rev. St., are declared to be sufficient in law for all cases "to which they purport to be adapted." The form there provided for a "complaint in case of seizure" was prepared before the passage of the act of 1870, c. 125, § 2 (Rev. St. c. 27, $ 39), and does not "purport to be adapted" to the seizure without a warrant there authorized. This change in the statute obviously requires such a change in the form of the process as will bring it into conformity with the facts.

In this case the complaint and warrant were properly made in accordance with the facts, and are unobjectionable in form. State v. McCann, 59 Me. 383.

By the amendment of 1870, above referred to, "no new or additional authority is given to search. It is only to seize. It is to seize what the officer may be enabled to seize without the unreasonable searches prohibited by the constitution. The act, to this extent, is constitutional." State v. McCann, supra; Jones v. Root, 6 Gray, 435; Mason v. Lothrop, 7 Gray, 355.

2. The complaint in this case is addressed, "To the Clerk of Our Municipal Court for the City of Lewiston," and is sworn to before the clerk. The warrant issued on this complaint is signed by the clerk, but bears teste of the judge of the court.

As originally constituted, the municipal court for the city of Lewiston was declared to be a court of record consisting of one judge, who was authorized to appoint a recorder to act in his stead in certain contingencies named in the act. See chapter 636 of the Private Laws of 1871. But this act was amended by chapter 626 of the Private Laws of 1874. Section 12 of this act provides that "the governor by and with the advice of the council shall appoint a clerk of said court * * * who shall hold his office for the term of four years, who shall be sworn and who shall give bond," etc.; and section 13 provides that "said clerk shall hear complaints in all criminal matters, * * * draw all complaints and sign all warrants and make and sign all processes of commitment, but the same shall be heard and determined as now provided by law, but such complaints, * * * warrants or processes of commitment drawn and signed by the judge of said court shall be equally valid."

In view of these enactments, it cannot reasonably be questioned that the clerk who heard the complaint and issued the warrant in this case was clearly and explicitly authorized so to do by the legislature; but it is contended that, while the clerk is only a ministerial officer, the act of examining a complainant and issuing a warrant involves a judicial duty which can only be performed by the judge, and that the statute purporting to authorize the clerk to exercise this function is unconstitutional and void.

An act is deemed ministerial when it is performed "by an officer in a given state of facts, in a prescribed manner, in obedience to the mandate of legal authority, without the exercise of, and without regard to, his own judgment upon the propriety of the act being done." Flournoy v. City of Jeffersonville, 17 Ind. 169; Pennington v. Streight, 54 Ind. 376. See, also, Longfellow v. Quimby, 29 Me. 196. And the act is none the less ministerial be cause the person performing it may have to satisfy himself that the state of facts exists under which it is his right and duty to perform the act Betts v. Dimon, 3 Conn. 107; State v. Knowles, 8 Me. 71. See, also, Yates v. Lansing, 5 Johns. 282.

With reference to this question the court says in Com. v. Roark, 8 Cush. 215: "The mere power to receive complaints and issue warrants, without any right or authority to hear or try the parties, cannot be considered an exercise of jurisdiction on the part of a magistrate. It partakes more of a ministerial than a judicial character. It is laid down in 2 Hawk. P. C. c. 13, § 20, that, when a warrant is issued for the arrest of one guilty of an offense not cognizable by the justice who issues it, the justice may be cod sidered as acting ministerially." And if out attention were specially directed and confined to the language of section 40, c. 27, Rev. St., authorizing the search and seizure process, it might well be claimed that the act of the clerk in issuing the warrant in question was purely ministerial. That section declares that, "if any person, competent to be a witness in civil suits, makes sworn complaint before any judge of a municipal, or police court, or trial justice, * * * such magistrate shall issue his warrant" This was undoubtedly intended to be a mandatory provision requiring the magistrate to issue a warrant whenever a sworn complaint should be made reciting the prescribed state of facts, without any judicial inquiry or the exercise of any discretion on his part. He is only to satisfy himself that the complainant is "competent to be a witness in a civil suit"

But the general statute respecting the criminal jurisdiction of magistrates (Rev. St c. 132, § 6) provides that they "shall carefully examine on oath, the complainant, the witnesses by him produced, and the circumstances, and when satisfied that the accused committed the offense, shall issue a warrant for his arrest." Again, section 43, c. 27, Rev. St., provides that "no warrant shall be issued to search a dwelling-house, * * * unless the magistrate before whom the complaint is made is satisfied by evidence presented to him, that intoxicating liquor is there kept for sale in violation of law." And as the decision of other cases involving the action of this clerk under these statutes, as well as under section 40, is awaiting the result of this one, it seems proper and necessary to examine the question in the broader aspect thus presented.

Assuming, then, that, in hearing complaints and issuing warrants under the...

To continue reading

Request your trial
23 cases
  • Neil v. Public Utilities Commission of State of Idaho
    • United States
    • Idaho Supreme Court
    • January 17, 1919
    ... ... must be rendered or determination made. (23 Cyc. 1613--1623, ... and notes; In re Saline Co. Subscription, 45 Mo. 52, ... 100 Am. Dec. 337; De Camp v. Archibald, 50 Ohio St ... 618, 40 Am. St. 692, 35 N.E. 1056; In re Walker, 74 ... N.Y.S. 94, 68 A.D. 196; State v. Le Clair, 86 Me ... 522, 30 A. 7; Century Dictionary, 'Judicial Power.') ... It is a matter of common knowledge to every student of the ... law that in this country, notwithstanding this constitutional ... provision to be found in all the states, nevertheless almost ... every executive, ministerial ... ...
  • Bell v. Town of Wells
    • United States
    • Maine Supreme Court
    • March 30, 1989
    ..."to encourage the courts to facilitate claims of public recreation easements in the seashore." Comment, Coastal Recreation at 102.16 In State v. LeClair, the Law Court again emphasized that the judicial power is exercised in the context of private dispute resolution.[J]udicial power, is .........
  • Park v. United States, 1646.
    • United States
    • U.S. Court of Appeals — First Circuit
    • January 2, 1924
    ... ... defendant's contention, both are based on the grounds ... that the alcohol was seized by an officer of the United ... States or by state or city police officers acting under ... direction of an officer of the United States; that the ... seizure was made without a search warrant or ... 140, 162, 2 A. 586, 56 Am.Rep. 557; ... section 39, c. 27, Revised Statutes of Maine; State v ... McCann, 59 Me. 383; State v. Le Clair, 86 Me ... 522, 30 A. 7; State v. Bradley, 96 Me. 121, 51 A ... 816; chapter 100, Sec. 86, Revised Laws Mass. 1902; Mason ... v. Lothrop, 7 ... ...
  • People ex rel. Riordan v. Hersey
    • United States
    • Colorado Supreme Court
    • January 10, 1921
    ...38 P. 14; that a pauper belongs in another state, Knowles' Case, 8 Greenl. (Me.) 71; that liquor is stored in a building, State v. Le Clair, 86 Me. 522, 30 A. 7; police commissioners are guilty of misconduct in office, State v. Hawkins, 44 Ohio St. 98, 5 N.E. 228; that an affidavit in reple......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT