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SWAN

decided: December 18, 1893.

IN RE SWAN, PETITIONER.


ORIGINAL.

Author: Fuller

[ 150 U.S. Page 648]

 MR. CHIEF JUSTICE FULLER, after stating the case, delivered the opinion of the court.

We reiterate what has so often been said before, that the writ of habeas corpus cannot be used to perform the office of a writ of error or appeal; but when no writ of error or appeal will lie, if a petitioner is imprisoned under a judgment of the Circuit Court which had no jurisdiction of the person or of the subject-matter, or authority to render the judgment complained of, then relief may be accorded. In re Frederich, 149 U.S. 70; In re Tyler, Petitioner, 149 U.S. 164.

The contention here is that the order of committal was wholly void for want of jurisdiction to make any order whatever, or to make the particular order.

1. To sustain the proposition that the court had no jurisdiction to commit, it is argued that the petitioner was in the discharge of his duty as an officer of the State in the execution of a valid police law of the State, authorizing the search and seizure; that his action was therefore justifiable, and judicial interference with him absolutely precluded.

The validity of the Dispensary Act was elaborately discussed

[ 150 U.S. Page 649]

     by counsel for petitioner, but we perceive no necessity for entering upon an examination of that question. The Circuit Court was of opinion that the act did not authorize a seizure without warrant. It was admitted below that such a seizure could not be made except under the authority of a statute conferring the power to do so, and nothing to the contrary has been adduced on this argument.

Any other view would be inconsistent with settled principles of the common law and with familiar constitutional provisions for the security of person and property and immunity from unreasonable searches and seizures. The original occasion for securing that immunity may have been the abuse of executive authority in the matter of obtaining evidence of political offences, but these safeguards are not therefore limited in their scope, and extend protection against every exertion in that direction of merely arbitrary power.

In some of the States authority to proceed in respect of liquors, without warrant in the first instance, is expressly given by statute, but is accompanied by the provision that when the seizure is so made, the property seized is to be kept in safety for a reasonable time until a warrant can be procured, and it is held that, should the officer neglect to obtain a warrant within such time, he will be liable as a trespasser. Kent v. Willey, 11 Gray, 368; Weston v. Carr, 71 Maine, 356. In Kennedy v. Favor, 14 Gray, 200, 202, Chief Justice Shaw said: "The authority to seize liquors without a warrant, though sometimes necessary, is a high power; and, being in derogation of common law right, it is to be exercised only where it is clearly authorized by the statute or rule of law which warrants it."

In his examination of the Dispensary Act the learned judge holding the Circuit Court pointed out that it was to be strictly construed and not to be extended beyond the import of its terms. Northern Pacific Railroad v. Whalen, 149 U.S. 157. The act could not be regarded as dealing with intoxicating liquors as if they were a deadly poison whose presence was noxious per se, which might justify an enlarged construction of the language of the statute to the end that so fearful a nuisance

[ 150 U.S. Page 650]

     might be abated, for their use as a beverage was recognized, and their sale placed in the hands of public officials. Moreover, it was not admissible to hold by construction that the statute had authorized the seizure of the goods without warrant, in view of section twenty-two of article I. of the constitution of South Carolina, which declared that "all persons have a right to be secure from unreasonable searches, or seizure of their persons, houses, papers, or possessions. All warrants shall be supported by oath or affirmation, and the order of the warrant to a civil officer to make search or seizure in suspected places, or to arrest one or more suspected persons, or to seize their property, shall be ...


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