and the fact that the sale is within the provi- tion of the sale of food in package form unso is a matter of defense. [Ed. Note. For other cases, see Indictment and Information, Cent. Dig. §§ 295-298; Dec. Dig. § 111.*] less it is marked as indicated. Prior to this enactment the sale of food in unmarked packages was not unlawful. Chapter 255 of the Public Acts of 1907, to the penalties of which violators of the act now in question are made subject, makes it unlawful to sell or offer for sale adulterated or misbranded Appeal from Criminal Court of Common Pleas, Fairfield County; John J. Walsh, Judge. Thomas H. McGee was convicted of violat-package foods, but it does not require that ing Pub. Acts 1911, c. 134, and appeals, assigning as errors the court's action in overruling a demurrer to the information, in refusing to charge as requested, in charging that on the agreed facts the state is entitled to a verdict, and in overruling defendant's objection to the imposition of any penalty, and in imposing a fine of $50. Affirmed. Ralph O. Wells, of Hartford, for appellant. Frederick W. Huxford, Pros. Atty., of Stamford, for appellee. THAYER, J. [1] The defendant was convicted in the criminal court of common pleas upon an information which charged him with having sold, on March 8, 1913, food in package form, namely, one can of tomatoes, without the net quantity of the contents of the package being plainly and conspicuously marked upon the outside of the package. The information was founded upon the provisions of chapter 134 of the Public Acts of 1911, which, so far as material to this case, reads as follows: foods sold in packages be marked or branded. If branded they must be correctly branded, and the act makes it clear that to state upon the package in terms of weight or measure any other than the correct weight or measure of the contents of the package is "misbranding." That is, the correct net quantity of the contents must be stated if the package is aimed at "misbranding," where the food marked or "branded." That statute was packages were in fact marked or branded. The purpose of the present act was to prevent the sale of food in packages unless the net quantity of the contents of the package is marked thereon. Considering the condition of the law at the time the act was passed this is entirely clear. To effectuate this purpose the offering of such foods for sale, unmarked as to the quantity, was included in the penalty. Section 3 of the act, after providing expressly that it shall take effect from its passage, adds the provision upon which the defendant relies to support his claim. He says that the last clause of the section, "prior to "Sec. 1. Any person who shall sell or offer 18 months after the passage of this act," for sale food in package form, unless the net modifies the words "prepared and inclosed" quantity of the contents be plainly and con- which immediately precede it. This would spicuously marked on the outside of the pack-doubtless be the natural grammatical con*shall be subject to the penalties provided in chapter 255 of the Public Acts of 1907. * * * age * * "Sec. 3. This act shall take effect from its passage but no penalty shall be enforced for any violation of the provisions of section one arising from the sale of food prepared and inclosed in package form prior to eighteen months after the passage of this act. Approved July 11, 1911." There was a demurrer to the information which was overruled, after which the case was submitted to the jury upon an agreed statement of facts with an instruction that if they found the facts as stipulated to be true their verdict should be for the state. All the facts alleged in the complaint were admitted by the stipulation and also the additional fact that the can of tomatoes described in the information had been prepared and inclosed in the can prior to January 11, 1913. The defendant's claim is that by reason of the provisions of section 3 of the act he could not properly be convicted or sentenced upon these facts, the tomatoes having been prepared and inclosed in the can prior to 18 months after the passage of the act. The question of the proper construction to be placed upon the statute is thus raised. struction, and should be followed unless it leads to results which it is clear that the Legislature in enacting the statute did not intend. If followed it leads to the result claimed by the defendant and the prohibition of the act applied only to the sale of food which should be prepared and inclosed in packages after January 11, 1913, 18 months after the passage of the act. That is, the act did not prohibit the sale at any time of unbranded package foods which existed in packages at the time the act was passed, or which should be prepared and inclosed in packages within 18 months thereafter. This means that during the period of 18 months after the act was passed there could be no sales of food in unmarked packages which would subject the seller to the penalties prescribed by the act. This is repugnant to the plainly expressed intent of the act. Had this been intended section 3 should have read: "This act shall not take effect until eighteen months after its passage and shall not apply to sales of foods prepared and inclosed in packages prior to the time when it takes effect." The construction thus claimed renders the The purpose of the statute is apparent. It first clause of section 3 nugatory. Some othcontains in the first section a general prohibi-er construction must therefore be sought, for *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes closed in package form" refer and were intended to refer to foods as inclosed at the it must be presumed that the Legislature by the explicit language of the first clause of section 3 intended the act to immediately time the statute in question was enacted. affect some sales at least, included in the general prohibition of section 1 of the act. We must look through the whole statute to determine its proper construction and the proper construction of its parts. for under that construction the sale at any time after the act was passed of any foods which were prepared and inclosed in unmarked packages after the passage of the act subjects the seller to the penalties provided, and the sale after January 11, 1913, of food in such packages, whenever inclosed therein, renders the seller liable. The defendant, admittedly, sold such an unmarked package of food on March 8, 1913, as alleged in the information, and it follows from our construction of the statute that he was properly convicted and sentenced. This construction renders the defendant's claim that the final clause of section 3 modifies the words "prepared and inclosed" untenable. Had Had the word "now" preceded these words, thus clearly expressing the inTo determine what sales, if any, were in- tent which we hold that the language of the tended to be saved from the penalties of the proviso as it now reads expresses, the claim general enac.ment it is pertinent to ask, could hardly have been made. Our construcWhat sales, if any, ought to be saved from tion makes the last clause of section 3 modisuch penalties? Naturally sales of foods fy the word "sale." It thus gives effect to prepared and inclosed in packages at the time the proviso by exempting from the operation the act took effect. These packages would of the general prohibition of section 1, for be on hand at the time when the law making 18 months, sales of foods already inclosed their sale unlawful, when unmarked wi.h the in packages when the statute was enacted. net quantity of their contents, was enacted. It gives immediate effect to the first clause There would be good reason for excepting of section 3 and to the first section of the act, their sale from the immediate operation of the statute. It might lead to public inconvenience to prevent the immediate sale of these, because time would be required for merchants and packers to restock with new goods properly marked of the character ordinarily carried by them, or to properly mark the goods which were on hand. As such goods had been prepared and inclosed when their sale, unmarked, was lawful, it would be proper to except from the provisions of the act, for a reasonable time, the sale of such unmarked packages. No good reason is apparent for allowing the owners of such packages and others during this time to stock up with other unmarked foods to be sold without penalty afterwards for an indefinite period until wholly disposed of. This would violate the plain intent of the enacting clause. It is not conceivable that the Legislature intended this when it said that the act should take effect from its passage. What it intended was that the act should have effect as to sales of unbranded package foods thereafter prepared and inclosed, but that the sale of such package foods prepared and inclosed at the time. the act took effect should not, for 18 months after its passage subject the seller to the penalties provided by the act. While the language is not felicitously chosen to express this intent we think that it is readily susceptible of that meaning. It is the only construction of the whole act which gives effect to all of its language and gives the act an immediate effect after its passage as its language requires; unless it be said that the proviso relates only to sales of foods and leaves the act to operate upon the offering of them for sale. Such a construction would be preposterous. It would render the defendant guilty and punishable for offering the goods for sale at any time after the passage of the act, while for the actual sale of them he would be immune from punishment. We cannot impute to the Legislature an intent to accomplish such a result. We think that the words "prepared and in [2] The claim upon the demurrer was that the information is insufficient because it does not state when the tomatoes sold were prepared and inclosed in the package, and negatives the proviso. This was not necessary. The proviso does not enter into the description of the offense. The information counts upon the general prohibition of section 1 of the statute. The proviso in the subsequent section merely excepts a case from that prohibition. If the sale in this case fell wi hin the exception, it was a matter for the accused to prove as a defense. The state was not called upon to negative the proviso. Bishop, Crim. Procedure, vol. 1, § 639; State v. Miller, 24 Conn. 522, 527; State v. Powers, 25 Conn. 48, 51; State v. Wadsworth, 30 Conn. 55, 59; Adams v. Way, 33 Conn. 419, 428. This is the general way. But were the rule otherwise the information sufficiently shows that the sale alleged did not fall within the excepted class, for the exemption from liability extended only to sales of this class made within 18 months after the act went into effect, and it is alleged that the sale complained of was made nearly three months after that period. The demurrer was therefore properly overruled. As the defendant's claims under the other exceptions depend upon the correctness of his construction of the proviso, it is unnecessary to consider them further. There is no error. In the opinion the other Judges concurred. (88 Conn. 377) MCCABE v. ARMOUR & CO. (Supreme Court of Errors of Connecticut. July 13, 1914.) 1. EASEMENTS (8 44*)-DEED-CONSTRUCTION. A deed through which defendant claimed title granted the right, in common with the grantors and others, to pass and repass along a certain passageway and court leading from C. street to the west side of the premises conveyed, bounded north by C. street, east and west by land of the Commercial Stock Company, about 9.25 feet wide, for a distance of 43.7 feet, running into an open court about 40 feet by 36 feet, and thence over, along, and across the court to the west side of the premises conveyed, etc. It appeared, however, that the grantor had no rights in a 7-foot strip next south of its building extending from the archway to the grantors' property on the east, and at the time the deed was executed such strip was occupied by permanent structures erected thereon, as it was when the grantors acquired their rights in the open court, and had continued to be so occupied up to the time of the trespasses complained of. Held, that the statement in the description giving the length of the east wall of the archway as 43.7 feet was a mere mistake of the scrivener; it appearing that the court began 43.7 feet south of C. street, and hence did not include the entire open space, but only a portion 30x33 feet excluding the 7-foot strip on the south side of the Commercial Stock Company's building east of the archway, and a strip about 9 feet adjoining the west side of defendant's building, extending the entire 40 feet from north to south. [Ed. Note. For other cases, see Easements, Cent. Dig. §§ 98-100; Dec. Dig. § 44.*] 2. EASEMENTS (§_44*)-DEED-CONSTRUCTION. Where a deed to certain property including a right of way over a court gave defendant a right of way across a specified strip to its building, but at the time the deed was executed the way in use extended across the strip just south of an ash pit where the only door opening out of defendant's building upon the strip was located, and all space to the north of it was obstructed by plaintiff's ash pit, and by the obstructions which continued to exist on the adjoining seven-foot strip belonging to another, defendant was not entitled to a right of way over the entire nine-foot strip on the west of its building not a part of the court, and hence the removal of a slab covering the pit and the use of the top of it as a platform from which to load wagons constituted a trespass. [Ed. Note.-For other cases, see Easements, Cent. Dig. §§ 98-100; Dec. Dig. § 44.*] Appeal from Superior Court, Hartford County; Marcus H. Holcomb, Judge. Action by Patrick McCabe against Armour & Company. Judgment for plaintiff, and defendant appeals. Affirmed. James E. Cooper and John H. Kirkham, both of New Britain, for appellant. John Walsh and Bernard F. Gaffney, both of New Britain, for appellee. which are owned in severalty by the plaintiff, one Dawson and the Commercial Stock Company. The plaintiff's building occupies the entire southerly side, Dawson's building Occupies the westerly side, and the Commercial Stock Company's building occupies the northerly side. These three abutting owners own in severalty the fee of the entire open space, the plaintiff owning the entire easterly portion upon which the defendant's land and building abut. The defendant owns no part of this open space, the line of the westerly face of its building being the westerly boundary of its lot. Access to this open space is had through an arched passageway 94 feet wide through the building of the Commercial Stock Company from Commercial street upon which that building and the defendant's which that building and building front on the north. At the extreme northeast corner of the open space as thus described, the plaintiff had erected upon land of which the fee was in him an ash pit about 5 feet and 4 inches wide from east to west and 6 feet long from north to south and 5 feet in height covered with a blue stone slab. The defendant removed this slab and about a foot of the brickwork and recovered the pit, and is using the top of the ash pit as a platform from which to load and unload meat in the prosecution of its business. This action is brought to recover damages for this claimed trespass and to restrain the further use of the top of the ash pit as a means of entrance to the defendant's building. The defendant's title to its land and building came to it through mesne conveyances from the plaintiff and his brother, and it is a conceded fact in the case that the defendant has a right of way, granted in the McCabe deed, to pass from Commercial street through the arched passageway and across the open space to the west side of its building in connection with the use of its property. The dispute between the parties is as to the extent of the defendant's rights in the open space west of its building. So far as appears, no claim was made to any right otherwise acquired than by this deed. The court held that the defendant did not acquire through the McCabe deed any right to do the acts which are complained of as having been done or threatened to be done. The portion of this deed upon which the defendant relies reads as follows: "Together with the right in common with the grantors and others to pass and repass on foot and with animals, vehicles and teams of all kinds, over along and upon a certain passageway and court way leading from Commercial St. to the west side of the premises herein conveyed; said passway leading from Commercial St. southerly, and is bounded north by Com THAYER, J. [1] It appears from the find-mercial St.; east and west by land of the Coming and exhibits which are a part of it that the defendant owned a lot of land in New Britain covered by a brick building which abuts westerly, in part, upon an open space about 36 by 40 feet in dimensions, which is inclosed on the other three sides by buildings mercial Stock Company, and is about nine and twenty-five one hundredths (9.25) feet wide for a distance of forty-three and seven-tenths (43.7) feet when the same opens into an open court feet and thence over, along and across said open about forty (40) feet by about thirty-six (36) court to the west side of the premises herein conveyed, with the right to the use of the same *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes 91 A.-18 for loading and unloading merchandise from and on teams and vehicles; said passways rights and rights in said court being more fully and at large set forth in a deed from the Commercial Stock Company to said grantors dated June 25, 1895, and recorded in Volume 12 (Mss.) Land Records of New Britain, page 177, and by an agreement between James L. Dawson and the grantors dated November 5th, 1897, and recorded Volume 14 (Mss.) Land Records of New Britain, page 172, to which deed and agreement reference is hereby made." But, There is no error. The other judges concurred. across the strip just south of the ash pit, where the only door opening out of the defendant's building upon this strip of land was located. All to the north of it was obstructed by the plaintiff's ash pit and by the obstructions which continue to exist upon the adjoining 7-foot strip of the Commercial Stock Company. The defendant has changed the location of its door to the north, making it necessary in order to enter the building to The defendant claimed that the "open pass over the ash pit. These and other excourt" referred to in this description includes trinsic circumstances were to be considered the entire open space 36x40 feet in dimen- in connection with the language of the deed sions within the rear walls of the four build- to reach a proper determination as to the ings mentioned. The court has found that intention of the parties expressed by the genthe open court does not occupy this entire eral language. Its construction was thus space, but occupies.only a portion of it 30x33 rather a question of fact than a question of feet in dimensions and excludes a strip about law for the court to determine. School Dis7 feet wide on the south side of the Commer-trict v. Lynch, 33 Conn. 330, 333. cial Stock Company's building east of the whether of law or of fact, we think it was archway and a strip about 9 feet adjoining correctly decided. the west side of the defendant's building and extending the entire 40 feet from north to south. The deed and agreement which are referred to in the deed from the McCabes to Armour and the map which is made a part of that deed show that the Commercial Stock Company did not convey to the McCabes any right of way or other rights in the sevenfoot strip next south of its building extend-1. ing from the archway to the McCabe property on the east. At the time the deed was given to Armour, this strip was occupied by permanent structures erected thereon, as it wat when the McCabes acquired their rights in the "open court" and has continued to be so occupied, as found by the court, up to the time of the trespasses complained of. Both the language of the deed from the Commercial Stock Company to the McCabes and the map which is made a part thereof show that the north line of the court described therein is about seven feet south of the south line of that company's building. These conclusively show as the court has found that the statement in the description giving the length of the east wall of the archway as 43.7 feet is a mere (88 Conn. 447) STATE v. PECK. (Supreme Court of Errors of Connecticut. July 13, 1914.) ATTORNEY AND CLIENT (§ 45*) DISBARMENT-GROUnds. Misconduct on the part of an attorney, who was judge of the probate court, in the course of the settlement of an estate of a deceased person in such court, justified his disbarment, since it directly involved a misuse of his professional privilege and was misconduct as a member of the bar, and moreover any misconduct, professional or nonprofessional, disclosing a moral unfitness for the enjoyment of the professional privilege, justifies disbarment. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 63; Dec. Dig. § 45.*] 2. ATTORNEY AND CLIENT (8 46*) DISBARMENT-DEFENSES-HOLDING JUDICIAL POSI TION. That an attorney sought to be disbarred was judge of the probate court did not prevent his disbarment, since the judge of the probate court need not be an attorney, and his disbarment could have no effect upon his official status. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 71; Dec. Dig. § 46.*] 3. ATTORNEY AND CLIENT (§ 52*) - DISBARMENT PROCEEDINGS - COMPLAINT - SUFFICIENCY. mistake of the scrivener and has not the importance which is given to it by counsel for the defendant. The map makes it clear that the open court begins 43.7 feet south of Commercial street, and the trial judge finds that the east side of the brick wall of the arch-ceeding to disbar an attorney must be deterThe sufficiency of the complaint in a proway is 37.2 feet. mined upon an examination of the complaint as a whole. [2] The defendant, having failed in its claim that the open court included the entire 36x40 feet included within the brick walls of the buildings, has no case unless the deed upon which it relies grants a right over the entire 9-foot strip on the west of its building now owned by the plaintiff which is not a part of the court. The deed undoubtedly gives the defendant a right of way across this strip to its building. The location of the way is not fixed by the deed as a matter of mere construction of the deed. At the time when it was given, the way in use extended [Ed. Note. For other cases, see Attorney MENT PROCEEDINGS - COMPLAINT - SUFFI- A disbarment proceeding is not a criminal prosecution, nor is it a civil action, though section 11 of the rules regulating the admission, suspension, and displacement of attorneys requires complaints for misconduct to be proceeded with as civil actions, and the complaint need not have the same technical precision of statement or conformity to recognized formalities required in criminal prosecutions ♦For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes or civil actions; it being sufficient if it is sufficiently intelligible and informing to advise the court of the matter complained of in order that it may determine whether it shall institute an inquiry and properly conduct it if instituted, and to advise the attorney of the accusation in order that he may be prepared to meet the charges. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. §§ 69, 70; Dec. Dig. § 52.*] 5. ATTORNEY AND CLIENT (§ 38*) - DISBAR MENT-GROunds. Where an attorney who was judge of the probate court procured the payment of $750 to him from the assets of an estate as compensation for pretended services as an attorney on behalf of the estate which were never rendered, and exerted his authority as such judge to secure such payment, resorted to deception and concealment in his efforts to secure such payment, and made use in his official position of threats calculated to produce the end desired, for the purpose of coercing payment, he was properly suspended from practicing law indefinitely. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 51, 61; Dec. Dig. § .38.*] 6. ATTORNEY AND CLIENT (§ 51*) - DISBARMENT-PROCEEDINGS-PARTIES ENTITLED TO PROSECUTE. Acts 1907, c. 120, authorizing the appointment of a grievance committee in each county whose duty it shall be to inquire into and present to the court offenses involving the character, professional standing, etc., of members of the bar, does not provide an exclusive mode of instituting such inquiries, and does not restrict the inherent power of the court to inquire into the conduct of its own officers on its own motion or on the complaint of any party, and hence the state's attorney could present a complaint against an attorney as authorized by section 10 of the rules of court. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 67; Dec. Dig. § 51.*] 7. ATTORNEY AND CLIENT (§ 51*) DISBARMENT-PROCEEDINGS-PARTIES ENTITLED TO PROSECUTE. The state's attorney was not disqualified to present a complaint of professional misconduct against an attorney by reason of his bitter enmity to the accused attorney or his prejudice against him, since he does not appear as a prosecuting officer and has no power to control the proceeding, and his only duty is to call the attention of the court to the alleged misconduct; the duty thereafter resting upon the court to see that the interests of justice are preserved and the rights of the accused attorney protected. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. § 67; Dec. Dig. § 51.*] 8. ATTORNEY AND CLIENT (§ 54*) DISBARMENT-PROCEEDINGS-FINDINGS. large measure of judicial discretion was to be exercised reasonably, fairly, and dispassionately. and Client, Cent. Dig. § 73; Dec. Dig. § 54.*] [Ed. Note.-For other cases, see Attorney 10. ATTORNEY AND CLIENT (§ 48*)—DISBARMENT-PROCEEDINGS - RIGHTS OF DEFEND ANT. An attorney accused of professional misconduct is entitled to notice of the charge against him, an opportunity to be heard, a fair and dispassionate investigation, and a reasonable exercise of the judicial discretion. [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. §§ 64, 65, 68; Dec. Dig. § 48.*] Appeal from Superior Court, Fairfield County; William L. Bennett, Judge. Proceeding in the name of the State against Charles H. Peck on a complaint for alleged prefessional misconduct by the defendant as an attorney at law. Facts found and judgment rendered suspending the defendant from practicing law in the courts of the state indefinitely, and he appeals. Affirmed. Robert E. De Forest, of Bridgeport, for appellant. J. Moss Ives, Special State's Atty., of Danbury, for the State. PRENTICE, C. J. [1] The acts, which in the complaint are charged as misconduct calling for the respondent's disbarment, and for which, as appears by the judgment file, he was disbarred, were all done by him in the ' course of the settlement of an estate of a deceased person in the probate court over which he presided. The misconduct alleged and made the basis of the judgment was misconduct connected with the performance of his judicial office. The claim made upon demurrer to the complaint, and renewed at the hearing, that such misconduct was not misconduct as a member of the bar, and therefore not of a kind to justify discipline as such member, is, for a double reason, wholly without foundation. In the first place, it did directly involve a misuse of the professional privilege. In the second, it disclosed a moral unfitness for the enjoyment of that privilege, and it matters not whether the disclosure came through professional channels or not. An attorney at law admitted to practice, and in the exercise of the right thus conferred to act as an officer of the court in the administration of justice, is continually accountable to it for the manner in which he exercises the privilege which has been accorded him. His admission is upon the im It was immaterial in a disbarment proceeding that the court found facts outside of the charges contained in the complaint, where its judgment was not based upon such findings, but upon matters alleged in the complaint and unquestionably sufficient to support the judg-plied condition that his continued enjoyment *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes |