p. 255■statute, not being committed in a highway; that the amendment to the act embraced the case, but although it warranted a summary c&nviction, yet it did not in express terms give the power to a justice to arrest or commit an offender to a constable for trial on his view of the offence; that penal statutes are to be construed strictly, and that the liberty of a citizen is not to be taken away or restrained by implication; therefore whether the defendant made the arrest himself or ordered the plaintiff into the custody of the constable on his own view of the offence, without process, if the plaintiff was restrained in his liberty and conducted to the camp as a prisoner by the act or order of the defendant, it was an unjustifiable trespass, for which the plaintiff was entitled to recover. He thereupon left the question of fact to the jury, whether the plaintiff was .so restrained of his liberty, and if they found that he was so restrained, charged them to find for the plaintiff. The defendant excepted to the charge, and the jury found for the plaintiff with #140 damages. A motion was now made to set aside the verdict.
F. G. Jewett, for defendant.
The defendant being a justice of the peace, on view of the violation of the provisions of the act of 1824, had the same authority to order the plaintiff into custody, that he would have had under the act of 1813. The question of fact which the judge submitted to the jury was not disputed by the defendant. The defendant relied upon the law for his justification, and the question which should have been submitted to the jury, was whether the defendant, on view, ordered the plaintiff into custody.The justice (the defendant in this cause) proceeded under the fourth section of the act of 1813. On view of a violation of the act, he ordered the plaintiff into custody, and being brought before him, he obtained jurisdiction of his person and the record of conviction is a complete protection. The act of 1824, by declaring that offenders “ shall be subject to the same penalties, to be sued for, recovered and applied in the same manner as is provided in the fourth section of the act” of 1813, conferred the same powers and authorized the same mode of proceeding designated by the latter act
p. 256N. P. Randall, for plaintiff.
The naked fact of keeping a huckster’s shop within the distance of two miles from the place of a religious meéting, without intending or creating any disturbance, is not within the evil intended to be rem- " edied, nor within the meaning of the act. The latter clause of the fourth section of the act of 1813, shews the intention of the legislature, which was to punish licentious and disorderly persons, who interrupted or disturbed the public worship of any religious society. Unless the act complained of is done with the intention to interrupt or disturb, or necessarily must have that effect, there is no offence. There was no noise or disturbance ; there was no complaint made to the justice, but he left the place of worship to seek an opportunity to exercise his authority.The act being highly penal, must be strictly, construed. The shop was not in a highway, and therefore not within the provisions of the act of .1813. The act of 1824 prohibits such shop to be kept “ upon any part of any highway, or upon any lands, waters or streams.” The word lands must be understood here in its common or vulgar acceptation, viz. open fields, or woods, or why this particular enumeration. If used in its legal (acceptation, there was no necessity for particularizing highways, waters, and streams, as the latter would be included in the former. A statute must be so construed as that no clause, sentence or word shall be superfluous, void, or insignificant. (1 Show. 108.) The intention of the legislature is to be sought after.- (1 Black. Com. 59, 60.) A thing within the letter is not within the statute, unless it be within the intention of the maker. (Bacon’s Abr. tit. Construction of Statute, 1, 5.) A statute should be so construed, that no man who is innocent be punished or damnified. (1 Inst. 360.) Allowing the act complained of to be within the letter, it is not within the intent of the legislature.The act of 1824, gives no authority to the magistrate to order an offender into custody; it directs the penalties to be sued for, recovered and applied, in the same manner as is directed by the act of 1813. The right to commit upon view is not given in terms, nor necessarily implied. Where a statute of this kind admits of two constructions; that should be
p. 257given to it, which is consonant to the ordinary modes of proceeding and which secures the trial by jury. (3 Caines, 259.)By the Court,
The only question arising upon the decision of the judge before whom this cause was tried, and upon his charge to the jury, is, whether the defendant, who is admitted to have been a justice of the peace, had a right, upon his own personal view of the offence committed by the plaintiff, to order him into the custody of a constable for safe keeping, (without issuing a warrant,) until he could be tried. I am clearly of opinion that he had such authority.
It is conceded that the fourth section of the act for suppressing immorality, (2 R. L. 193,) authorizes an arrest in that manner. The terms are express: “ That all judges, justices of the peace, &c. upon the view of any person or persons offending as aforesaid, are hereby authorized to order such offender or offenders into the custody of any officer, &c. for safe keeping, until he shall be let to bail, or a trial for such offence can be had according to law.” The offence for which the plaintiff was arrested, and of which he was convicted, was created by the act of November 25, 1824, (Statutes, vol. 6, 374 c,) which was merely amendatory of the original act of 1813. The act of 1813 made it an offence to keep a huckster’s shop, &c. upon any part of any highway within one mile from the place where any religious society might be assembled for public worship. The act of 1824 enacts, “ That if any person or persons, &c. shall keep or open any huckster’s shop, See. upon any part of any highway, or upon any lands, waters or streams within the distance of two miles from the place where such religious society shall be actually assembled for public worship, the person or persons so offending shall be subject to the same penalties, and to be sued for, recovered and applied in t! te same manner as is provided in the fourth section of the act entitled an act for suppressing immorality.” The legislature most clearly intended to authorize the same mode of proceeding throughout for the punishment of offenders against this act, as was authorized by the fourth section of the act of 1813. It purports
p. 258to be an amendatory
act merely ; it enlarges the circumference ™ which the keeping of huckster’s shops is prohibited, and it is unreasonable to suppose that the legislature, at the same time that they extended the principles of the act of 1813, intended to restrict the means of punishment or conviction provided by that act. Nothing but the most explicit and unequivocal language would authorize such a conclusion. Persons offending against the act of 1824 shall
be subject to the same penalties, and to be sued for, recovered and applied in the same manner as is provided in the fourth section of the apt of 1813. One means of
recovering the penalties authorized by the 4th section of the act of 1813, is for the justice of the peace, upon the view of any person offending, &c. to order him into the custody of an officer for safe keeping, until he shall be let to bail, or a trial for such offence shall be had according to law. That was the course pursued in this case, and I think it was fully authorized by the act.
This being the only point presented by the charge of the judge, to which the defendant excepted, it is unnecessary to express any opinion upon the merits of the case.
New trial granted.