Robinson v. Barrows , 48 Me. 186 ( 1859 )

The opinion of the Court was drawn up by

Appleton, J.

It was enacted by c. 166, § 23, of the Acts of 1855, that “no action of any kind shall be maintained in any Court in this State, either in whole or in part, for intoxicating liquors sold in any State or county whatever, nor shall any action of any kind be had or maintained in any Court in this State, for the recovery or possession of intoxicating liquors or the value thereof.”

The effect to be given to a similar provision of a previous statute came under the consideration of this Court, in Lord v. Chadbourne, 42 Maine, 429. It was there held that the section applied to all actions, whether in tort or assumpsit, and that, in accordance with the case of Preston v. Drew, 33 Maine, 562, the general language of the statute must be so limited as to forbid the maintenance of any action for the recovery or possession of such liquors, or for their value, as were liable to seizure or forfeiture, or were intended for sale, in violation of the provisions of the statute prohibiting the sale of spirituous and intoxicating liquors.

The Court were, by the plain and unambiguous language of the statute, prohibited from permitting compensation to be given for the destruction of liquors kept in contravention of its provisions and for the purposes of their violation. The statute was only carrying out, by express enactment, what, in many States, has been regarded as a principle of the common law. “ There are, no doubt, cases,” says Lawrie, J., in Mohney v. Cook, 26 Penn., 349, “wherein an injured party will be remediless, because of his own fault, even when the fault does not contribute to the accident. A vessel engaged in the slave trade, piracy or smuggling, and injured by another, or the keeper of a gambling house injured in his business by a neighboring nuisance, could have no remedy. Not, however, because the persons are out of the protection of the law for these offences, nor because their illegal business brought them to the place of danger; but because their business itself, with all its instruments, is outlawed. Prohibited contracts, prohibited trades and prohibited things, receive no protection.”

Since the alleged seizure of the liquors, the statute, under and by virtue of which it was made, has been repealed.

The proceedings against the plaintiff were quashed for informality. It is apparent, from the record, that there has been no adjudication as to the guilt or innocence of Robinson, nor as to the status of the liquors seized. They have been neither condemned nor acquitted. In Lord v. Chadbourne, it was held that, as the question, whether the liquors in controversy, in that case, were held in violation of law, had never been judicially determined, and, as their status was a matter essential in determining the damages, if any, that the defendant might offer proof as to that point.

It has been repeatedly decided, that the repeal of a statute does not make contracts valid, which were in violation of its provisions and, consequently, could not be enforced. Hathaway v. Moran, 44 Maine, 67; West v. Roby, 4 N. H., 285.

Where a contract is void as against the provisions of a statute, it is not rendered valid by its repeal, and a subsequent promise to perform it is without consideration and cannot be enforced. Dever v. Corcoran, 3 Allen, (N. B.) 338.

Upon the termination of the proceedings in the complaint against Robinson and certain spirituous liquors, the ale in controversy, in pursuance of the writ of restitution, was restored to the plaintiff and received by him.

If the proceedings in that case were null and void, affording no justification, the defendant is to be regarded as acting without legal authority.

The conversion of the goods was either when they were seized or when the suit on which they were seized terminated.

If the conversion was when seized, it has been repeatedly held, in Massachusetts and in this State, that, in trover, the measure of damages is the value of the property at the time the right of action accrued, with interest thereon. Johnson v. Sumner, 1 Met., 172; Kennedy v. Whitwell, 4 Pick., 466; Hayden v. Bartlett, 35 Maine, 203; Moody v. Whitney, 38 Maine, 174; Clarke v. Whitaker, 19 Pick., 309.

If the seizure of the liquors is the alleged conversion, for which this action is brought, it took place when the statute of 1855, c. 166, was in full force. The measure of damages would be the value of the property at that time. The law, as then existing, would limit the rights of the' plaintiff and the liabilities of the defendant. ' But, if the liquors in controversy were then in possession of the plaintiff, for the purpose of being sold in violation of law, the plaintiff, by the then existing law, was not entitled to recover their value. The defendant was not liable in damage. The rule of damage at the time, of conversion being the rule by which the rights of the parties are to be determined, the plaintiff would seem not entitled to recover.

If the conversion was when the proceedings against the plaintiff and his liquors were quashed, then the ordinary rule of damages would be the value of the liquors at that time. The conversion would be of liquors moi’e or less damaged. But, the liquors, however much or little damaged, were received by the plaintiff, and by the hypothesis being received as they were when converted, it is difficult to perceive how the plaintiff would be entitled to more than nominal damages.

But, if the proceedings were in accordance with the statute, the officer would not be responsible for any deterioration occurring without fault on his part, while they were in the custody of the law. Nor would he be liable for his official acts under a sufficient warrant, because the statute, by virtue of which the warrant issued, may have been repealed. Gray v. Kimball, 42 Maine, 299.

The cause, by agreement of parties, is to stand for trial.

Tenney, C. J., Rice, Goodenow and Kent, JJ., concurred.