Boston Five Cents Savings Bank v. Searles

Rugg, C. J. This is an action of tort wherein the defendant is charged with having converted to his own use a revolver belonging to the plaintiff. The agreed facts show that the revolver was the property of the plaintiff and was taken from the desk or drawer of its treasurer without the authority, consent or knowledge of the plaintiff or its officers by one Edward J. Lewis for his own personal use. Lewis subsequently was arrested and the revolver taken from his person by a police officer of Boston. Lewis then was put on trial in the Municipal Court of the City of Boston for carrying the revolver contrary to St. 1906, c. 172, as amended by St. 1908, cc. 350, 583, and duly convicted. Thereafter the revolver was deposited with the defendant, a police officer and “property clerk” of the police department of the city of Boston, who upon demand refused to deliver it to the plaintiff. This action was brought more than fourteen days after the last of these events. It is provided by St. 1908, c. 583, that whenever any person is convicted of carrying a revolver contrary to the statute, the weapon so carried “shall be confiscated to the use of the Common [492] wealth Any . . . revolver ... so confiscated shall, by the authority of the written order of the court ... be forwarded by common carrier to the chief of the district police, who, upon receipt-of the same, shall notify said court. . . . Said officer may sell or destroy the same, and, in case of a sale, after paying the cost of forwarding the article, he shall pay over the net proceeds to the Treasurer and Receiver General.” No application has been made to any court nor has any order been made by any court for disposition of the revolver under that act. It is manifest that the defendant cannot justify under the terms of that statute, because it has not been complied with in any particular and he is not one of the officers named therein. There is provision in R. L. c. 200, for libelling property forfeited for an offence, where no other provision is made, by proceedings in court to be instituted within fourteen days after seizure, for giving seasonable public notice of the pendency of the proceeding, for the appearance of claimants and for a decree óf restitution or of forfeiture, sale, disposition of proceeds, or other appropriate disposition of the case. The course there pointed out has not been followed. Hence that statute affords the defendant no protection. It is plain from these statutes that the Legislature did not intend by its mere fiat to cause property to be forfeited under the circumstances here disclosed. It made explicit provision for judicial proceedings to that end in every case. The defendant had no right indefinitely to retain possession of property, which did not belong to him, against the rights of the true owner. The defendant quotes in his brief a rule of the police department. That is not referred to in the agreed facts. But giving it force, there is nothing in its terms which under the facts here disclosed constitutes any defence. No presumption can be made in favor of an intention on the part of the Legislature to declare forfeited lawful property of an innocent third person, of possession of which he is deprived by what appears to have been a theft. Whether a statute authorizing forfeiture under these circumstances would be constitutional need not be considered. See J. W. Goldsmith, Jr.-Grant Co. v. United States, 254 U. S. 505; Dobbins’s Distillery v. United States, 96 U. S. 395; Commonwealth v. Mixer, 207 Mass. 141, and cases [493] there reviewed; Attorney General v. Justices of the Municipal Court of the City of Boston, 103 Mass. 456; Fisher v. McGirr, 1 Gray, 1, 28; White Auto Co. v. Collins, 136 Ark. 81; Moody v. McKinney, 73 S. C. 438; and cases collected in 20 Columbia Law Rev. 798. It is enough to say that this defendant fails of justification under the terms of the statute. The case in this particular is completely within the authority of Russell v. Hanscomb, 15 Gray, 166, where it was said by Chief Justice Shaw at page 167: "Where an officer of the law, or other person in the exercise of a power conferred by law, rightfully takes property, but afterwards fails to comply with the provisions of. law in disposing of it, he thereby becomes a trespasser ah initia, and fails in his justification.” Order dismissing report affirmed.