State v. Whalen

Foster, «T.

Search and seizure process. The warrant, by reference to the complaint, commanded the officer to search the saloon, dwelling-house, out-buildings, and the appurtenances thereof, occupied by the respondents.

Eevised Statutes, c. 27, § 43, provides that "No warrant shall be issued to search a dwelling-house, occupied as such, unless it, or some part of it, is used as an inn or shop, or for purposes of traffic, or unless the magistrate before whom the complaint is made, is satisfied by evidence presented to him, and so alleges in said warrant, that intoxicating liquor is kept in such house or its appurtenances, intended for sale in the State, in violation of law.”

It is only by the express provisions of this statute that a magistrate is authorized to issue his warrant to search a dwelling-house occupied as such, and in two contingencies : (1) That some part of it is used as an inn or shop, or for purposes of traffic: or (2) unless he is satisfied by evidence presented to him and so alleged in the warrant that intoxicating liquor is kept in such house or its appurtenances intended for sale in this State, in violation of law.

In this case neither the complaint nor warrant alleges that any part of the dwelling-house was used as an inn or shop, or for purposes of traffic.

*472 The important inquiry then is, whether the remaining statute requirement has been complied with so as to authorize the magistrate to issue his warrant to search the dwelling-house.

We think it has not. The warrant does not contain the essential affirmative allegation that the magistrate was satisfied, or that any evidence was presented to him. The only language contained in the warrant from which such inference can be drawn is in these words — "satisfactory evidence being presented,” etc. This is not sufficient to meet the explicit requirement of the statute that the-magistrate shall allege that he is "satisfied by evidence presented to him.”

This is a criminal proceeding. Nothing can be taken by intendment or inference. State v. Paul, 69 Maine, 215. The jurisdiction of the magistrate is not general, but given and limited by particular enactment. In such case nothing is to be presumed in favor of the jurisdiction of an inferior tribunal, but it must appear upon the face of the proceedings. Libby v. Main, 11 Maine, 344; State v. Hartwell, 35 Maine, 129; State v. Staples, 37 Maine, 228. The language of the statute is prohibitory. The right of procedure is granted conditionally. These statute requirements are absolutely essential to the validity of a warrant to search a dwelling-house, and these requirements must be affirmatively alleged in the warrant, otherwise it is void.

It has been repeatedly held by this court and in this class of cases, that a failure to follow the requirements of the statute renders the warrant not merely voidable, but absolutely void. State v. Staples, supra; State v. Spencer, 38 Maine, 30; State v. Carter, 39 Maine, 261; Jones v. Fletcher, 41 Maine, 254.

Nor was this objection waived by a general appearance before the magistrate and there pleading to the complaint. It is only to matters of form, and not to jurisdictional defects, that the rule applies. State v. Regan, 67 Maine, 380. Jurisdictional defects apparent upon the face of the process render it absolutely void. There being no sufficient allegation in the warrant that the magistrate was satisfied by evidence presented to him that intoxicating liquor was kept in the dwelling-house or its *473 appurtenances, intended for sale in the State in violation of law, no jurisdiction is disclosed upon the face of the process. The omission of the necessary statute requirements cannot he said to bo defects in form. They are the essentials of jurisdiction.

Exceptions sustained.

Peters, C. J., Walton, Libbey, Emery and Whitehouse, JJ., concurred.