
    State versus Intoxicating Liquors, claimed by George G. Hathaway, Appellant.
    
    Intoxicating liquors in possession of a warehouseman, but intended by the owner for unlawful sale in this State, when they should reach their destination, are liable to forfeiture.
    And the lien of the warehouseman is no bar to the forfeiture, although he has no intention to violate the law.
    On Exceptions to the rulings of Appleton, J.
    Libel against certain intoxicating liquors, claimed by the appellant, who had been acquitted upon the charge of keeping them with intent to sell them in this State in violation, of law. The claimant alleged and the evidence tended to prove that these liquors were in his possession as_ warehouseman, and that he had a lien upon them for trucking and storage. The evidence also tended to show that the liquors were not intended for sale • by the claimant, but that they were intended for sale by the owner in this State, in violation of law, when they should reach their destination.
    The presiding Judge instructed the jury that if the liquors seized were in possession of the claimant at his warehouse, where he trucked and stored them, and he had a lien upon them for such services, and if claimant had no intent to sell them himself and no intent that they should be sold by any other person, and no intent or design to aid or assist any person in such sale, still, if the jury were of opinion that the true owners of the liquors, when they reached their destination, intended them for sale within this State in violation of law, then the liquors by law were liable to be forfeited, and the verdict ought to be for the libellant, notwithstanding the possession of claimant, and any lien upon them as truckman or warehouseman.
    The verdict being against the claimant, he excepted to this instruction.
    There was also a motion to set aside the verdict as being against the evidence, but no question of law, other than that involved in the exceptions, was raised upon it.
    
      W. H. McOrillis, submitted a very elaborate argument for the claimant.
    The twelfth section of the Act of 1858 provides that no person shall deposit or have in his possession any intoxicating liquors, with au intent to sell the same in this State in violation of law, or with an intent that the same shall be sold by any person, or to aid or assist any person in such sale. If any person shall deposit or have in his possession intoxicating liquors, with an intent to sell them himself, or that they shall be sold by another, or to aid or assist another in the sale of them in violation of law, what is the penalty? Section twelve presupposes some penalty for the violation of its prohibitions. Every law does. The Legislature did not enact the prohibitions of this section without intending to provide some penalty for their violation. Unless section thirteen does so provide the penalty for their violation, there is none in the statute. If section thirteen does provide the penalty, then section twelve must be interpreted to be the prohibitive section of the statute, and section thirteen as providing the penalty, and the rules of interpretation applicable to the two sections of a statute, one containing the prohibitions and the other 'providing the penalty, must be applied to these two sections. They must be regarded as counterparts of each other, but the section providing the penalty must also be regarded so far subordinate to the prohibitory section, that the former cannot embrace a case not within the latter, for the reason that the penal provisions of a statute cannot be made broader than the directive or prohibitive ones.
    They being counterparts of each other, the words "deposit or have in his possession,” in the twelfth section, are the counterparts of the words "kept and deposited,” in the thirteenth section.
    In order to create a forfeiture, there must be a legal intent, and an intent must be coupled with an act in order to be ■ a legal intent, and such act under this statute is the having possession of intoxicating liquors, and such act of possession, coupled with an intent to sell in violation of law, creates a forfeiture. Under this statute, is there any other act coupled with such unlawful intent, which will create a forfeiture ? If “there is, it will be admitted that it is the act of depositing liquors with an intent to sell in violation of law. What is the distinction between the depositing of liquors with an intent to sell in violation of law, and to have possession of liquors with an intent to sell in violation of law ? How does the act of depositing differ from the act of possession? If a person in possession of liquors delivers them to another, and divests himself of the possession of them, is such delivery a deposit?
    If a person in possession of liquors bona fide delivers them to another, and also by such delivery becomes the vendor, mortgager, pledger or bailor of such liquors, is such delivery a deposit, within the statute? If such person at the time of such delivery intends to repurchase or redeem the liquors and then to sell them in violation of law, is such delivery a deposit'; and if made with unlawful intent, will it render such liquors, kept and deposited by the vendee, mortgagee, pledgee or bailee, liable to forfeiture ? In the present case, suppose the jury had found that, at the.time Hathaway trucked the liquors and stored them, the owñers had the intention to redeem them and then sell them, could the delivery of the liquors to Hathaway be regarded as a deposit which, coupled with such intention, rendered such liquors liable to forfeiture? We contend not. If a person in possession of liquors divests himself of the possession of them, or gives the possession and custody, and control and property of them to a vendee, mortgagee, pledgee or bailee, such a delivery cannot be a deposit with an intent to sell. Such delivery divests such person of the custody and control of the liquors, and of the power and right to sell, and such delivery therefore cannot be a deposit with an intent to sell. It is not an act compatible, or consistent, or in furtherance of an intent to sell. On the contrary, it is an act inconsistent and incompatible, with an intent to sell. The intent to commit murder, in order to constitute a crime, must be accompanied with an act; but could that act be one which necessarily placed the intended victim beyond the power of the person who had such intent to carry it into execution ?
    It is the act which in the eye of the law is punishable, and the unlawful intent is but an incident or accompaniment which stamps the quality of unlawfulness upon the act*, and makes it punishable. When an act is done, the law judges not only of the act itself, but of the intent with which it was done, and if the act be coupled with an unlawful intent, though in itself the act would otherwise have been innocent, yet, the intent being criminal, the act likewise became criminal and punishable. Broom’s-Legal Maxims, p. 213.
    But, if the act itself be innocent, the law will not adjudge it done with any unlawful intent, if the act'be of a character which renders the execution of any such uidawful intent impossible. An act cannot be committed with an unlawful intent to violate the law, when the act itself makes it impossible to execute such intent.
    An act of delivery of intoxicating liquors to a vendee, mortgagee, pledgee or bailee, cannot be an act of deposit, in the meaning of the statute, for such delivery would render the execution of an intent to sell by the person who made such délivery impossible, and, besides, there must be an act united with an unlawful intent to sell at the time of the seizure, and by such delivery the forfeiture would depend upon the intent, at the time of the seizure, of the person to whom they were delivered; and in no real or conceivable case coidd the forfeiture depend upon the intent, at the time of such delivery, of the person who delivered them. After such delivery is made, the liquors are kept and deposited by such vendee, mortgagee, pledgee or bailee, and if kept and deposited without any intent to sell, or that another should sell, or assist another to sell in violation of law, they are not liable to forfeiture.
    But-there are other reasons in the way of regarding such delivery as a deposit, within the statute. The thirteenth section is a counterpart of the twelfth section, and the words " kept and deposited,” in the former, are the counterparts of the words, "deposit or have in his possession,” in the latter section. The words "kept and deposited,” interpret and explain the true meaning and intention of the words "deposit or have in his possession.” The depositing of liquors and the keeping of liquors are the same acts, and the word "deposit” and the word "kept” are convertible terms, and so intended by the statute, and mean the same thing, and both must be construed to require the custody and control of the intoxicating liquors.
    - The whole theory and idea of the forfeiture is based upon the principle that the possession of intoxicating liquors by a person, with an intent to sell illegally, may be forbid by the law, and being éo forbid, the property of any person in such situation can by law be properly and constitutionally seized and declared forfeited and destroyed. By the sixteenth section, it is the person who was in the possession of the liquors at the time of the seizure, who has the right to have them restored to him, if it appears they were not intended for sale; and he is the only person who is allowed to become a claimant for them before the magistrate. The law does not esteem or regard the interest or claim of any other person of any importance or consequence. The process issues only against the person in possession, and the inquiry of the magistrate is confined to the claim of the person in possession, and there is no provision for the restoration of the liquors to any person but to the person in possession at the time of the seizure.
    The deposit of intoxicating liquors within the intention of the statute is not a delivery of them to another person, but is a deposit of the liquors in a place where the liquors remain within the keeping of the person who deposits them.
    
      If the owner of intoxicating liquors has the intent to sell them illegally, are they not liable to forfeiture? Not by this statute. Where is it provided that the illegal intent of the owner of intoxicating liquors to sell them renders them liable to forfeiture ? Where in the statute is the owner prohibited having such intent? There is no such provision. To so interpret it, would be a forced construction of the statute, and more, it would be forcing the statute itself. The statute forbids any person to be the keeper of intoxicating liquors with intent to sell, or that another shall sell, or to aid or assist another to sell in violation of law. It is such intent of the keeper which the statute prohibits and makes unlawful, and punishes by a forfeiture of the liquors so kept with such intent. If it appears that the keeper kept and deposited the liquors with an intent to sell, or that another should sell, or to assist another to sell, they must be decreed forfeited, without regard to the intent of the owner. And does it not follow that if it appears that the keeper did keep and deposit the liquors without any intent to sell, or that another should sell, or to aid another to sell, that they must be restored to him without regard to the intent of the owner?
    Is constructive possession an act of possession, or if the agent or servant actually keeps and deposits the liquors, and the owner is only the keeper constructively, is such constructive possession or keeping an act of possession or keeping, within the statute ? The agent or servant, who is in the actual possession or keeping of the liquors, may not have any intent to sell or to assist another to sell them. If such constructive possession or keeping is an act, then if the owner unites with such constructive possession or keeping an intent to sell illegally, he has committed a crime for which he may be fined twenty dollars, and his property forfeited.
    But constructive possession is a fiction, and a fiction holds good "only for the ends and purposes for which it was invented.” When attempted to be used for other purposes, the truth and not the fiction must prevail. Fictions in law ar,e designed to be in furtherance of equitable objects, and for the attainment of substantial justice, and to prevent the failure of right. . It is a maxim of the law that "a legal fiction is always consistent with equity.” Crime cannot be imputed tó a person, nor property forfeited by a fiction. The possession and keeping must be an actual possession or keeping. Broom’s Legal Maxims, p. 113. Constructive offences and forfeitures are not in accordance with the spirit of our laws- or institutions ; the common law abhors them.
    But in the present case the general owners were neither actually or constructively in possession or in keeping of these liquors. Hathaway’s possession and keeping was adverse to theirs, and he could have maintained an action against them for disturbing his possession; By law, Hathaway was the owner of the liquor, and the bailors had what is termed a reversionary interest only. Bouvier’s Institutes, vol. 4, p. 55.
    The possession of Hathaway, with no intent to sell, and the property of Hathaway in the liquors, were facts which show the liquors not liable to forfeiture.
    We conclude, First, That the statute does not forbid the keeping or the possession of intoxicating liquors alone; nor the intent alone; but only the keeping and the unlawful intent when both are united together.
    
      Second, That such prohibition is in accordance with the universal principle of the law which requires an act, as well as an unlawful intent.
    
      Third, That a deposit of intoxicating liquors is a keeping of the liquors in the custody of the person who deposits them, and such is the plain and clear provision of the statute, and such interpretation is required for many reasons; and for one which is omnipotent, and that is, because by the statute the forfeiture is made to depend upon the intent of the person who keeps the liquors at the time they are seized.
    
      Fourth, That an actual and not a constructive keeping or possession is necessary, for one person may have the actual possession, while another, for certain purposes, is regarded as having the constructive possession of liquors, while the forfeiture depends upon the intent of the person who has the actual possession, and for another reason cannot depend upon the intent of the person who has only the constructive possession, for constructive possession is a fiction of law, and a fiction of law cannot be resorted to in order to impute a crime or create a forfeiture.
    
      Drummond, Attorney General, for the State.
   The opinion of the Court was drawn up by

Davis, J.

The claimant in this case appealed from the decree of the Police Court, in the city of Bangor, by which the liquors in controversy were declared forfeited. He had been arrested for having them in his possession unlawfully, and had been acquitted upon his trial. Upon the liquors being libelled by the officer, he claimed & portion of them as his own property, and they were restored to him. A portion of them he claimed as in his custody for storage, for which he had a lien upon them; and these were condemned.

When the case was tried in this Court, the jury were instructed that any lien of the claimant as a warehouseman would not affect the liability of the liquors to forfeiture; and that if the liquors were intended by the owners, when they should reach their destination, for unlawful sale in this State, they were liable to forfeiture, though the claimant, who had the custody of them, had no unlawful intent.

To these instructions exceptions were taken by the claimant.

The question in regard to the lien of the claimant seems to have been abandoned in the argument. It would be strange, certainly, if the express provisions of a criminal statute could be nullified by the lien of a carrier, warehouse keeper, or other bailee. A bailee can acquire no better ti-tie, than that of the bailor. If the latter is a tortfeasor, the former has no lien upon the goods. Robinson v. Baker, 5 Cush., 137; Clark v. Railroad Company, 4 Allen, 231. The bailor can confer no rights superior to his own. A liability to forfeiture for his unlawful acts relating to the goods, under state or national laws, annihilates all rights in him, or under him, as against the government, in any legal proceeding for such forfeiture.

The other questions raised have been argued with great ability, and require a careful consideration.

The statute provides various penalties for selling intoxicating liquors, according to the circumstances under which they are sold. With these provisions we have nothing to do in the present case.

Section 12 prohibits any person from depositing, or "having in his possession, any intoxicating liquors, (1) with intent to sell the same (himself) in this State in violation of law, or (2) with intent that the same shall be so sold by any (other) person, or (3) with intent to aid or assist any person in such sale thereof.”

When a person is on trial, for a violation of, section 12, he cannot be convicted unless he is proved to have had the possession of the liquors, with the unlawful intent, within oiie of the three clauses embraced in it.- Such intent, by him, must be charged in the complaint. State v. Larnerd, 47 Maine, 426.

It is contended, that he cannot be convicted unless he has the liquors in his actual possession. The counsel for the claimant makes two propositions (1,) that, in order to render liquors liable to forfeiture, there must be an unlawful intent, "accompanied by the actual possession of the liquors;” — (2,) that such intent of the person having actual possession renders such liquors liable to forfeiture, "whoever may be the owner of them.”

Whether the person can be convicted, is one question; whether the liquors are forfeited, is another, and entirely •different question. State v. Miller & al., 48 Maine, 576. Tlio counsel for the claimant confounds them. We shall consider them separately.

The proposition that there can be no unlawful intent, without actual possession, is at variance with the most familiar principles of law. That a person does himself, what he does by a servant or agent, is not a legal fiction, but a fact, which has almost universal application, in civil, as well as in criminal matters. The possession of the servant or agent, is the possession of the principal. There is no branch of jurisprudence in which this rule is not applied. And the statute under consideration, instead of being any exception, expressly recognizes the rule. A person may not only have the unlawful intent, he may be guilty of the unlawful act, without having actual, personal possession of the liquors. "If any person, by himself, clerk, servant or agent, shall sell, &e.,” § 7. As a person may be convicted of selling liquors, himself, upon evidence of a sale by his agent, so he may be convicted of having them in his possession, with intent to sell, though they are in the possession and custody of his agent, lie, the owner, intending to sell the same, either by himself, or by his agent. To "deposit ” liquors is to put them into some warehouse, shop or other place. To "keep” them is to have possession of them. The words are intended to embrace every possible case. All liquors are deposited and kept; and, if within this State, they are within these terms of the statute. And it is entirely immaterial whether the owner does the depositing and keeping himself, personally, or employs a carrier, warehouseman, or other agent, to do it. The innocence of the agent will protect him, personally, from punishment; but it will not save tbe liquors from forfeiture, if the oioner has tbe unlawful intent. Tf the liquors are in the possession of an agent, both he and the owner may he convicted, if both have the unlawful intent. If the agent has no unlawful intent, he cannot be convicted; but the owner, if known, may he.

In addition to these provisions respecting the person of one having intoxicating liquors in his possession with an unlawful intent, section 13 provides that all such liquors shall be declared "contraband and forfeited;” or rather it "declares” them contraband and forfeited. So that the only matters left for judicial determination, in any case, are, (1,) whether the liquors, when seized, were "within this State,” and (2,) whether they were "intended for unlawful sale in this State.” When these facts are found by the Coui't, then the liquors are forfeited by operation of law.

It is quite true, as the counsel for the claimant has argued, that if one, not the owner, obtains possession of liquors wrongfully, his intent to sell them will not render them liable to forfeiture, if such owner is innocent, and claims them, in case of seizure. The unlawful intent must.be that of the owner, or of his clerk, servant, or agent, or of some one having possession by his consent.

To carry the law into effect, provision is made for a process inrem.

The Legislature might have provided for this by proceedings analogous to those in the courts of the United States, when goods are seized for being imported in violation of the revenue laws. In that case no proceeding against the person would have been necessary.

But no provision is made by the statute for a libel as an original proceeding. The liquors must first be seized. Whether a complaint could be made, charging no person by name with any unlawful intent, and a warrant be issued that would authorize the seizure of liquors without requiring any arrest, we need not now determine. That the statute authorizes, if it does not require, the usual process against both the person, and the thing, is not denied.

But from this point the proceedings' immediately diverge into two channels.

The officer seizes the liquors, and libels them, as forfeited under the thirteenth section.

He arrests the person, and he is put on trial, under the twelfth section.

The proceedings in the two matters are entirely distinct. The result in one is not affected at all by the other. The charge in the libel is different from that in the complaint. The evidence upon the trial must be different. If tried by a jury, the verdict must be different. Though the liquors are forfeited, the person may be acquitted. State v. Miller, 48 Maine, 576.

"When liquors, that have been seized and libelled, are claimed by any person, his claim cannot be allowed unless it appears " that he is entitled to the custody thereof,” Sec. 16. This cannot appear, unless he is the owner, or an agent of the owner. As a mere stranger he can have no right of custody.

If the claimant in the case before us is not the owner, and the liquors were intended for unlawful sale by the owners, then he is placed in one of two positions, either of which is fatal to his claim.

1. If he was the agent of the owners, then his possession was the possession of the owners, and the liquors are liable to forfeiture, the jury having found that they were intended for unlawful sale.

2. If he was not the agent of the owners, then he is a mere stranger, and is not entitled to the custody of the liquors. He has no rights to be protected.

But the claimant was the agent of the owners. He claims no title, except as a warehouseman. The liquors were in this State. If the owners intended to sell them in this State, in violation of law, after they should reach their destination, they wore liable to forfeiture. The instructions were correct.

The exceptions and motion must he overruled.

Tenney, C. J., Appleton, Cutting, Goobenow and Kent, J.J., concurred.  