State v. Intoxicating Liquors

• Decision Date: 07 February 1907
• Citation: 102 Me. 385,67 A. 312
• Parties: STATE v. INTOXICATING LIQUORS.
• Court: Maine Supreme Court

67 A. 312

102 Me. 385

STATE

v. INTOXICATING LIQUORS.

Supreme Judicial Court of Maine.

Feb. 7, 1907.

Exceptions from Supreme Judicial Court, Androscoggin County.

Three actions of search and seizure under Rev. St c. 29, § 49, in which certain intoxicating liquors were seized and taken from the possession of the Tarbox Express Company and in which the express company appeared as claimant. Judgment of forfeiture, and claimant excepts. Exceptions in each action sustained.

Three cases of search and seizure under the provisions of Rev. St. c. 29, § 49, originating in the Lewiston municipal court, Androscoggin county. In each of these cases certain intoxicating liquors were seized and taken from the possession of the Tarbox Express Company, a common carrier, while alleged to be still in transit. The liquors seized had been transported by the Tarbox Express Company by continuous shipment from Boston, Mass., to Lewiston, Me. Under the provisions of section 48 of the aforesaid chapter, the seizures were made by the officer before the making of the complaints and the issuing of the warrants.

In the first case, as numbered on the docket, the complaint and warrant are as follows:

"State of Maine, Androscoggin—ss.

"To the Acting Clerk of Our Municipal Court for the City of Lewiston, in the County of Androscoggin:

"A. B. Howard of Auburn in said county, and competent to be a witness in civil suits, on the twenty-fourth day of August in the year of our Lord one thousand nine hundred and six in behalf of said state, on oath, complains that he believes that on the twenty-fourth day of August in said year, at said Lewiston, in said county, intoxicating liquors were unlawfully kept and deposited by some person to your complainant unknown, at the freight depot of the Tarbox Express Company situated on the east side of Park street, in said Lewiston, said person to your complainant unknown, not being then and there authorized by law to sell liquors within said city of Lewiston, and that said liquors then and there were intended for sale by some person to your complainant unknown, in this state in violation of law, against the peace of said state, and contrary to the forms of the statute in such cases made and provided.

"And the said A. B. Howard on oath further complains that he, the said A. B. Howard, on the twenty-fourth day of August, A. D. 1906, being then and there an officer, to wit, a deputy enforcement commissioner for said state, duly qualified and authorized by law to seize intoxicating liquors kept and deposited for unlawful sale, and the vessels containing them, by virtue of a warrant therefor, issued in conformity with the provisions of law, did find upon the above-described premises twelve bottles each containing one quart of whiskey marked 'M. Supowitz, 274 Main St., Lewiston, Me.' intoxicating liquors as aforesaid, and vessels containing the same then and there kept, deposited and intended for unlawful sale as aforesaid, within this state, by some person to your complainant unknown, and did then and there by virtue of his authority as a deputy enforcement commissioner for said state, as aforesaid, seize the above-described intoxicating liquors and the vessels containing the same, to be kept in some safe place for a reasonable time, and hath since kept, and does still keep, the said intoxicating liquors and vessels, to procure a warrant to seize the same.

"He therefore prays that due process be issued to seize said intoxicating liquors and vessels, and them safely keep until final action and decision be had thereon.

"A. B. Howard.

"Androscoggin—ss.

"On the twenty-fourth day of August afore said, the said A. B. Howard made oath that the above complaint signed by him is true.

"Before me, A. K. P. Knowlton,

Acting Clerk."

"State of Maine, Androscoggin—ss.

"To the Sheriff of Our Said County of Androscoggin, or Either of His Deputies, or the Constables of Either of the Towns or Cities within Said County, or to Any or Either of Them, or to Any Deputy Enforcement Commissioner for Said State-Greeting:

"In the name of the state of Maine, you are commanded to seize the intoxicating liquors and vessels in which they are contained, named in the foregoing complaint, of said A. B. Howard and now in his custody, as set forth in said complaint, which is expressly referred to as a part of this warrant, and safely keep the same until final action and decision be had thereon.

"Witness, Adelbert D. Cornish, esquire, judge of our said court, at Lewiston aforesaid, this twenty-fourth day of August in the year of our Lord one thousand nine hundred and six.

"A. K. P. Knowlton, Acting Clerk."

The complaints and warrants in the other two cases were of the same general tenor with the necessary changes in names and dates, etc.

In each case the liquors were properly libelled, as provided by Rev. St. c. 29, § 50, and on the return days of the libels the said Tarbox Express Company appeared before the Lewiston municipal court and claimed the liquors. In each case its claim was denied, and the liquors in each case were adjudged forfeited, as provided by Rev. St. c. 29, § 51. The claimant in each case then appealed to the Supreme Judicial Court as provided by said section 51.

After the hearing in the Supreme Judicial Court, the presiding justice ruled in each case as a matter of law that the liquors should be forfeited. To these rulings the claimant took exceptions.

The case fully appears in the opinion.

Argued before EMERT, C. J., and WHITEHOUSE, SAVAGE, POWERS, and SPEAR, JJ.

Ralph W. Crockett, County Atty., for the State. McGillicuddy & Morey, for claimant.

SAVAGE, J. These are three cases of claims by a common carrier for intoxicating liquors seized and taken from its possession, while alleged still to be in transit, and within the protection of the interstate commerce provisions of the Constitution of the United? States. The liquors seized were properly libelled. The claimant appeared before the municipal court its claims were denied, the liquors in each case adjudged forfeited, and the claimant appealed to the Supreme Judicial Court. After a hearing in that court the presiding justice ruled in each case as a matter of law that the liquors should be forfeited, and the claimant alleged exceptions which were regularly allowed.

At the outset the attorney for the state claims that the exceptions were not allowable, should not have been allowed, and should now be dismissed, because, as he says, the cases were heard by the presiding justice without the intervention of a jury, and that the right of exceptions was not expressly reserved. It is true that in such cases exceptions are not properly allowable, and, if allowed, should be dismissed when the fact properly appears. Reed v. Reed, 70 Me. 504; Prank v. Mallett, 92 Me. 77, 42 Atl. 238. The trouble in this case, however, is that the fact is not shown to be as claimed by the state's attorney. We cannot travel out of the bill of exceptions, and this bill is silent upon the matter. The attorney argues that it must appear affirmatively from the bill that the right of exceptions was expressly reserved before the hearing. We do not think so. We hold that, in the absence of anything in the bill to show the contrary, the certificate of the presiding justice that the exceptions are "allowed" is conclusive as to their being rightfully allowed in this respect. Dunn v. Auburn Electric Motor Company, 92 Me. 165, 42 Atl. 389. These bills of exceptions, therefore, are properly open to consideration.

The presiding justice made no specific findings of fact, but his ruling as a matter of law necessarily involved certain findings of fact, which must be deemed, upon exceptions, to be true. He must have found that the liquors seized were intoxicating, and that they were intended for sale in violation of law in this state. But the undisputed testimony, which is made a part of the bill of exceptions, shows certain other facts, which, in considering the exceptions, we must deem were true, and that they were so found by the justice, because his ruling was essentially based upon their truth.

In the first place it appears that the claimant is a common carrier of merchandise, and that each of the packages seized was transported by the claimant by continuous shipment from Boston, Mass., to Lewiston, in this state.

1. In the first case, as numbered on the docket, the package was a C. O. D. shipment, marked "M. Supovitz, No. 274 Main Street, Lewiston, Maine." Max Supervitz testified that he lived at 274 Maine street, Lewiston, and was the only one of the name living there; that he had not ordered the liquors and did not know to whom they belonged. The liquors were brought by the claimant over the Maine Central Railroad line to Lewiston, and were taken by it from the railroad freight shed to its office on Park street, where they were shortly after seized by the officer.

2. In the next case the liquors were marked "H. E. Perkins, Lewiston, Maine." Prom the evidence we think it may be assumed that the name was fictitious. The evidence shows that the package was never in the claimant's office, but was seized and taken from the claimant's delivery wagon, apparently either while going out to make delivery or returning from an unsuccessful attempt to make delivery. And as we shall see later it is immaterial which. Whether the driver knew who was the real consignee does not appear, but that we think is also immaterial in this case.

3. The third case is that of a C. O. D. shipment. The package was marked "J. P. Sutton, Auburn, Maine," and was seized from the claimant's wagon while being taken to its office. The evidence strongly tends to show that Mr. Sutton did not order the liquors, but that they were ordered by another person in his name, without his knowledge.

It is well settled that intoxicating liquors are articles of commerce, and, as such, while being transported from state to state, are...