Gill v. Parker

Poland, J. I. The questions raised by the defendant as to the constitutionality of the law of 1852, under which these proceedings were had, we regard as fully settled by the decision of this court in the case of Lincoln v. Smith, 27 Vt. 328. We are sufficiently well satisfied with the reasons upon which that decision was made, to feel no disposition to again open that subject for discussion, however we might view it if the question were new, and now before the court for the first time. The public mind in this State was much agitated with these questions before that decision was made, but it has been settled by it; the decision has been fully acquiesced in, and the law been executed accordingly ; and a contrary decision would open a door to interminable litigation and mischief. II. The principal objection made to the regularity of the proceedings in this case, under which the liquors sued for were seized [615] and destroyed is, that the complaint to the justice was not in fact signed by the persons making it, until after the seizure had been in fact made by the officer. We think it may very well be doubted, when the justice’s rec^•ord shows a complaint signed, whether it is Open to be proved by parol evidence, that it was not in fact signed at its date, as it appears to be, upon the common principle that a record can not be contradicted, but we do not ehoose to place the decision on that ground. The act of 1852 did not in terms require the complaint to be in writing, nor that it should be signed by the persons making it, nor are either of these things required in terms by the act of 1855, in amendment of the act of 1852, But the act of 1855 gives a form of complaint to be used in such cases, which we think is equivalent to requiring that the complaint shall be reduced to writing by the justice to whom it is made. But there is nothing in the form given which indicates that it must be signed by the complainants, and the form given, in our judgment, intended to exclude any such requirement. In the first place, the names and residences of the complainants are to be set forth in the complaint, and there is no blank left, or any indication that it is to be signed. The form of the certificate which is to be added to the complaint by the justice, seems from its form and language to b'e intended to take the place, and answer the purpose_ of signatures, as a verification of the fact of the existence of the persons who made the complaint, by requiring the names of the complainants to be inserted in the certificate, and that they exhibited the Complaint and made Oath to its truth. The argument as to the intention of the legislature, derives additional force from the fact that all the other forms given by the act of 1855, require a signature, or have one added to the form, showing that one is required. Such we believe to be generally if not universally true of all our statutes giving forms of proceeding in any case, that where a signing is required the forms given show it. III. Nor was the plaintiff’s failure to appear before the justice, and have a hearing as to whether this liquor was really liable to [616] be destroyed, under tbe circumstances such an irregularity as to render tbe proceedings irregular and void. Tbe ownership of the liquors when seized was unknown, and they were proceeded against under the provisions of the statute applicable to such a state of facts. The only notice that the statute requires in such- case is, that a notice shall be set up in some public place for two weeks, giving notice of the seizure and describing the liquors; and the owner is allowed to appear and assert his title, and make his showing to the justice within that time. The proper notice by publication was given, and within the time the plaintiff appeared and asserted his claim. For some reason the plaintiff did not proceed with his showing, but made an arrangement that he should have a hearing at some future day, and that the justice should fix a day, and give the plaintiff’s counsel notice of it. The justice fixed a day and gave hotice, and the plaintiff did not appear. It does not seem to have been shown but that the justice did- all that he was to do by the arrangement, as to giving notice, but how or why the plaintiff’s counsel failed to appear, the exceptions say did not appear. It is as reasonable to suppose the fault was that of the plaintiff’s counsel, as that of the justice. At any rate the arrangement made by the plaintiff’s counsel for notice seems to have been honestly carried out, and if it failed to be as beneficial to the plaintiff as he expected, we think he can not now complain. He had all the notice the statute requires, and if he did not get such as he was to have by contract, he should show that somebody beside himself was in fault about it. But clearly this could not affect the officer who afterwards destroyed the liquor under a regular warrant, nor the defendant, who acted as his assistant, and who had nothing to do with any . of the proceedings before the justice, after making his complaint. The judgment below appears to have been fully justified upon the proof before the court, and is affirmed.