Allen against Gray and others, 11 Conn. 95

Bussell, J. It was urged, in the court below, that the return of the officer upon the warrant, furnished no evidence against Webb, the grand-juror. The jury were instructed, that the return was prima facie evidence that the arrest was made. This decision is in conformity to the well settled rule upon this subject; and, indeed, the point has not been much insisted on, before this court.

The jury having found, that the plaintiff was arrested and held to trial, the only question involved in the charge, is, whether the process, set forth in the motion, furnishes a ground of justification to the defendants, or either of them. The process issued upon the complaint of a grand-juror, for voting in a society meeting;, contrary to law.

The statute upon this subject, after prescribing who may legally vote in a society meeting, enacts, “that if any person, not a member of the society or congregation, shall intermeddle or vote in any meeting thereof, he shall forfeit and pay the sum of two dollars and fifty cents, one half to the complainant who shall prosecute the same to effect, and the other half to the treasury of the society or congregation where the offence is committed.” Stat. 434. tit. 94. s. 8.

The complaint in question was predicated upon this statute: and the first enquiry which arises, is, whether this be an offence within the cognizance of a grand-juior, and of which he is authorized to complain? It may here be remarked, that the legislature have made ample provision for the prosecution of this offence, by giving the right of complaint to a common informer, and dividing the penalty between him and the treasury of the society. There would seem to be no danger that the rights of the society can suffer materially, while the means of redress are so completely in their own power.

It should further be remarked, that the statute before us gives no authority to a grand-juror to make complaint. And as the offence is created by statute, and as, in the same section, which creates the offence, a mode of prosecution is prescribed; the inference would seem to be strong, if not conclusive, that the legislature did not intend, that any other mode should be adopted.

At any rate, the grand-juror derives no authority, either expressly or impliedly, from the statute under consideration: and if he be authorised to complain, such authority must be embraced within the general powers, derived from the statutes. It has been contended, that he has such authority, and thus derived. It is said, that the act relating to grand-jurors, provides, that it shall be their duty diligently to enquire after, and to make due presentment of all crimes and misdemeanors, that shall come to their knowledge.

It is admitted, that the terms of this statute are very broad; and that the powers conferred by it, are very general. But the statute is to receive a reasonable construction: and it is especially to be construed with reference to other statutes regarding the same subject matter. The question is, whether by the terms “all crimes and misdemeanors,” as here used, the legislature intended to designate every offence which might be committed against the rights of an individual, or of a corporation?

We have a number of statutes regarding cities and boroughs, empowering them to make by-laws, and to inflict penalties for a breach of those laws. A violation of a city by-law is an offence against that corporation, and is visited with a penalty. But is it a crime or misdemeanor, within the meaning of the statute; and has a grand-juror authority to complain for the infraction of a city by-law? The act regulating fisheries forbids the taking of fish in Connecticut river, but within the times, and under the restrictions specified in the act.

It then provides that all boats, seines and nets, used in fishing contrary to the act, shall be forfeited to him or them who shall complain, and inform, and shall prosecute his or their iriformation to effect. This is the mode of prosecution pointed out; and was it ever supposed, that a grand-juror was au-thorised to complain of a violation of this statute? It has been contended, and authorities have been cited to prove, that where a suit and a part of the penalty are given to a common informer, a prosecution, by an informing officer, may also be sustained. This, to a certain extent, is undoubtedly true.

But we think the cases in which this may be done are limited and defined by statute.

The statute concerning crimes and punishments (sect. 133.) provides, that in all cases “where a fine, penalty, or forfeiture is, or may be provided or inflicted, by any statute of this state, as a punishment for any offence; and one moiety, or any other part thereof, is given to the person or persons aggrieved, or to him or them who shall sue for and prosecute the same to effect, and the other moiety, or part thereof, to the state, county or town treasury; it shall be the duty of the proper informing officers to make presentment of such offence, to the court having cognizance thereof; and in case of conviction on such presentment, the whole of such fine, penalty, or forfeiture, shall go and belong to the state, county, or town treasury, as the case may be." This statute, in our view, contains not merely a grant, but a limitation of the powers of informing officers.

In the cases specified, they may prosecute, and provision is made for the disposition of the penalty. Is not the inference irresistible, that in other cases, where a suit is given to a common informer, informing officers may not prosecute? And is not the maxim “expressio unius exclusio est allerius," strictly applicable? Where, it may be asked, is the penalty to go, in the case under consideration? Can the justice adjudge the whole of it to the treasury of the society? And where is his authority for so doing? Certain it is, that the statute gives him no such authority.

The statute recognises the great divisions of the state, and provides, that offences against their rights may be prosecuted, by an informing officer. But with regard to the minor divisions, such as societies, school districts, &c. no such provision is made. They are left to protect their rights, either through the medium of a common informer, or in some other mode. From these considerations, we are of opinion, that the grand-juror had no authority to prefer the complaint in question. This being so, the next enquiry is, what is the character of the process, in virtue of which the plaintiff was arrested?

And this enquiry would seem to be of easy solution. It has, indeed, been contended, that the process is, at most, erroneous, and not void. And in support of this position, it is said, that the justice had jurisdiction of the offence, of the person, and of the process. There is no doubt, that the offence was within his jurisdiction. He had also jurisdiction of the person, if it were brought before him, on a proper warrant. Was it thus brought? Or, in other words, had the justice jurisdiction of the process?

Had he any right to issue this warrant 1 If the grand-juror had no authority to prefer the complaint, it would seem to follow, as a necessary consequence, that no complaint was ever made to the justice. The mere fact that the complainant was a grand-juror, is of no manner of importance. He might as well have been a tithing-man, or one of the society’s committee. The process, then, was issued without complaint: and the only question is, whether such a process be void? And this question would seem to be too well settled, both on the ground of principle and authority, to admit of dispute.

For although the justice had jurisdiction of the offence, and a right to issue process against the person of the plaintiff, he had no jurisdiction of this cause: an essential prerequisite was wanting: there was no complaint. He was no judge;, and the proceedings were utterly void. Grumon v. Raymond, 1 Conn. Rep. 40. Slocum v. Wheeler, 1 Conn. Rep. 452. Tracy v. Williams, 4 Conn. Rep. 113. Martin v. Marshall, Hob. 63. Perkins v. Proctor &. al. 2 Wils. 386. Morgan v. Hughes, 2 Term Rep. 225. Smith v. Boucher, 2 Stra. 933. Com. Dig. tit. Trespass. C. 1. Bac. Abr. tit. Trespass. D. 2.

The only remaining enquiry is, whether the defendants are liable, in this action? The defendant, Webb, preferred the complaint, and prayed that process might issue upon it. Gray, the other defendant, issued the process, and in so doing, he acted ministerially. It has been shown, that he had no right to issue such a process; and that all the proceedings were coram non judice and void. It would seem to follow, as a necessary consequence, that the defendants are liable.

The plaintiff having been arrested, by the act of the defendants, they are put upon their justification; and it surely is not easy to see how a process utterly void should afford any ground of justification. It has, indeed, been said, that if the defendants are liable in this case, a magistrate may be subjected in every case where the complaint on which he acts is insufficient. This consequence by no means follows.-The distinction is between erroneous and irregular process.

It surely was never supposed, that a judicial officer was liable for an error in judgment; and on a process merely erroneous, nobody is liable. But if the process be irregular, there is no judgment, because there is no jurisdiction and no judge. It need only be added, that the authorities which have been adduced to show that the process is void, prove also the liability of the defendants; and that the point now before us was decided, by this court, in the case of Tracy v. Williams, already cited, A majority of the court are of opinion, that the charge on the circuit was correct; and that there be no new trial.

Williams, Ch. J. and Church, J. concurred in this opinion. Huntington, J. gave no opinion.