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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.

less it is marked as indicated. Prior to this [Ed. Note.-For other cases, see Indictment enactment the sale of food in unmarked packand Information, Cent. Dig. $§ 293–298; Dec. ages was not unlawful. Chapter 255 of the Dig. § 111.*]

Public Acts of 1907, to the penalties of which Appeal from Criminal Court of Common violators of the act now in question are Pleas, Fairfield County;

County; John J. Walsh, made subject, makes it unlawful to sell or Judge.

offer for sale adulterated or misbranded Thomas H. McGee was convicted of violat- package foods, but it does not require that ing Pub. Acts 1911, C. 134, and appeals, as- foods sold in packages be marked or branded. signing as errors the court's action in over- If branded they must be correctly branded, ruling a demurrer to the information, in re- and the act makes it clear hat to state upon fusing to charge as requested, in charging the package in terms of weight or measure that on the agreed facts the state is entitled any other than the correct weight or measure to a verdict, and in overruling defendants of the contents of the package is "misbrandobjection to the imposition of any penalty, ing.” That is, the correct net quantity of and in imposing a fine of $50. Affirmed. the contents must be stated if the package is

marked or "branded." That statute was Ralph 0. Wells, of Hartford, for appellant. Frederick W. Huxford, Pros. Atty., of Stam- aimed at “misbranding,” where the food

packages were in fact marked or branded. ford, for appellee.

The purpose of the present act was to pre

vent the sale of food in packages unless the THAYER, J. [1] The defendant was con- net quantity of the contents of the package victed in the criminal court of common pleas is marked thereon. Considering the condiupon an information which charged him wih tion of the law at the time the act was passed having sold, on March 8, 1913, food in pack- this is entirely clear. To effectuate this purage form, namely, one can of tomatoes, with pose the offering of such foods for sale, unout the net quantity of the contents of the marked as to the quantity, was included in package being plainly and conspicuously the penalty. marked upon the outside of the package. Section 3 of the act, after providing exThe information was founded upon the pro- pressly that it shall take effect from its pasvisions of chapter 134 of the Public Acts of sage, adds the provision upon which the de1911, which, so far as material to this case, fendant relies to support his claim. He says reads as follows:

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 conage

* * * shall be subject to the penalties provided in chapter 255 of the Public Acts of struction, and should be followed unless it 1907.

leads to results which it is clear that the "Sec. 3. This act shall take effect from its Legislature in enacting the statute did not passage but no penalty shall be enforced for any violation of the provisions of section one intend. If followed it leads to the result arising from the sale of food prenared and in claimed by the defendant and the prohibition closed in package form prior to eighteen months of the act applied only to the sale of food after the passage of this act. Approved July which should be prepared and inclosed in 11, 1911."

packages after January 11, 1913, 18 months There was a demurrer to the information after the passage of the act: That is, the which was overruled, after which the case act did not prohibit the sale at any time of was submitted to the jury upon an agreed unbranded package foods which existed in statement of facts with an instruction that if packages at the time the act was passed, or they found the facts as stipulated to be true which should be prepared and inclosed in their verdict should be for the state. All the packages within 18 months thereafter. This facts alleged in the complaint were admitted means that during the period of 18 months by the stipulation and also the additional fact after the act was passed there could be no that the can of tomatoes described in the sales of food in unmarked packages which information had been prepared and inclosed would subject the seller to the penalties prein the can prior to January 11, 1913. The scribed by the act. This is repugnant to the defendant's claim is that by reason of the plainly expressed intent of the act. Had provisions of section 3 of the act he could this been intended section 3 should have not properly be convicted or sentenced upon read: these facts, the tomatoes having been pre

"This act shall not take effect until eighteen pared and inclosed in the can prior to 18 months after its passage and shall not apply to months after the passage of the act. The sales of foods prepared and inclosed in packquestion of the proper construction to be ages prior to the time when it takes effect." placed upon the statute is thus raised.

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

it must be presumed that the Legislature by closed in package form" refer and were inthe explicit language of the first clause of tended to refer to foods as inclosed at the section 3 intended the act to immediately time the statute in question was enacted. affect some sales at least, included in the This construction renders the defendant's general prohibition of section 1 of the act. claim that the final clause of section 3 modiWe must look through the whole statute to fies the words "prepared and inclosed" undetermine its proper construction and the tenable. Had the word "now" preceded proper construction of its parts.

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 sec ion 3 and to the first section of the act, their sale from the immediate operation of for under that construction the sale at any the statute. It might lead to public in- time after the act was passed of any foods convenience to prevent the immediate sale of which were prepared and inclosed in unthese, because time would be required for marked packages after the passage of the act merchants and packers to restock with new subjects the seller to the penalties provided, goods properly marked of the character ordi- and the sale after January 11, 1913, of food narily carried by them, or to properly mark in such packages, whenever inclosed therein, the goods which were on hand. As such renders the seller liable. The defendant, adgoods had been prepared and inclosed when mittedly, sold such an unmarked package of their sale, unmarked, was lawful, it would food on March 8, 1913, as alleged in the inbe proper to except from the provisions of forma’ion, and it follows from our constructhe act, for a reasonable time, the sale of tion of the statute that he was properly consuch unmarked packages. No good reason victed and sentenced. is apparent for allowing the owners of such [2] The claim upon the demurrer was that packages and others during this time to stock the information is insufficient because it does up with other unmarked foods to be sold with not state when the tomatoes sold were preout penalty afterwards for an indefinite peri- pared and inclosed in the package, and negaod until wholly disposed of. This would vio- tives the proviso. This was not necessary. late the plain intent of the enacting clause. The proviso does not enter into the descripIt is not conceivable that the Legislature in- tion of the offense. The information counts tended this when it said that the act should upon the general prohibition of section 1 of take effect from its passage. What it intend- the statute. The proviso in the subsequent ed was that the act should have effect as to section merely excepts a case from that prosales of unbranded package foods thereafter hibition. If the sale in this case fell wi hin prepared and inclosed, but that the sale of the exception, it was a matter for the accused such package foods prepared and inclosed at to prove as a defense. The state was not the time. the act took effect should not, for called upon to negative the proviso. Bishop, 18 months after its passage subject the seller Crim. Procedure, vol. 1, $ 639; State v. Miller, to the penalties provided by the act. While 24 Conn. 522, 527; State v. Powers, 25 Conn. the language is not felicitously chosen to ex- 48, 51; State v. Wadsworth, 30 Conn. 55, 59; press this intent we think that it is readily Adams v. Way, 33 Conn. 419, 428. This is susceptible of that meaning. It is the only the general way. But were the rule otherconstruction of the whole act which gives ef- wise the information sufficiently shows that fect to all of its language and gives the act the sale alleged did not fall within the exan immediate effect after its passage as its cepted class, for the exemption from liability language requires; unless it be said that the extended only to sales of this class made proviso relates only to sales of foods and within 18 months after the act went into leaves the act to operate upon the offering of effect, and it is alleged that the sale comthem for sale. Such a construction would be plained of was made nearly three months preposterous. It would render the defendant after that period. The demurrer was thereguilty and punishable for offering the goods fore properly overruled. for sale at any time after the passage of the As the defendant's claims under the other act, while for the actual sale of them he exceptions depend upon the correctness of would be immune from punishment. We his construction of the proviso, it is unnecescannot impute to the Legislature an intent sary to consider them further. to accomplish such a result.

There is no error. We think that the words "prepared and in In the opinion the other Judges concurred.

(88 Conn. 377)

which are owned in severalty by the plainMcCABE V. ARMOUR & CO.

tiff, one Dawson and the Commercial Stock (Supreme Court of Errors of Connecticut. Company. The plaintiff's building occupies July 13, 1914.)

the entire southerly side, Dawson's building 1. EASEMENTS (8 44*)-DEED-CONSTRUCTION. occupies the westerly side, and the Commercial

A deed through which defendant claimed Stock Company's building occupies the northtitle granted the right, in common with the erly side. These three abutting owners own grantors and others, to pass and repass along a certain passageway and court leading from in severalty the fee of the entire open space, C. street to the west side of the premises con- the plaintiff owning the entire easterly porveyed, bounded north by C. street, east and tion upon which the defendant's land and west by land of the Commercial Stock Company, about 9.25 feet wide, for a distance of building abut. The defendant owns no part 43.7 feet, running into an open court about of this open space, the line of the westerly 40 feet by 36 feet, and thence over, along, and face of its building being the westerly bounacross the court to the west side of the prem: dary of its lot. Access to this open space is ises conveyed, etc. the grantor had no rights in a 7-foot strip next had through an arched passageway 944 feet south of its building extending from the arch-wide through the building of the Commercial way to the grantors' property on the east, and Stock Company from Commercial street upon at the time the deed was executed such strip was occupied by permanent structures erected which that building and the defendant's thereon, as it was when the grantors acquired building front on the north. At the extreme their rights in the open court, and had contin-northeast corner of the open space as thus ued to be so occupied up to the time of the described, the plaintiff had erected upon land trespasses complained of. Held, that the statement in the description giving the length of of which the fee was in him an ash pit about the east wall of the archway as 43.7 feet was a 5 feet and 4 inches wide from east to west mere mistake of the scrivener; it appearing and 6 feet long from north to south and 5 that the court began 43.7 feet south of C. feet in height covered with a blue stone slab. street, and hence did not include the entire open space, but only a portion 30x33 feet ex- The defendant removed this slab and about cluding the 7-foot strip on the south side of a foot of the brickwork and recovered the the Commercial Stock Company's building east pit, and is using the top of the ash pit as a of the archway, and a strip about 9 feet adjoining the west side of defendant's building, platform from which to load and unload extending the entire 40 feet from north to meat in the prosecution of its business. This south,

action is brought to recover damages for this [Ed. Note. For other cases, see Easements, claimed trespass and to restrain the further Cent. Dig. S8 98–100; Dec. Dig. § 44.*]

use of the top of the ash pit as a means of 2. EASEMENTS (8 44*)—DEED-CONSTRUCTION. entrance to the defendant's building. The

Where a deed to certain property including a right of way over a court gave defendant a defendant's title to its land and building right of way across a specified strip to its came to it through mesne conveyances from building, but at the time the deed was executed the plaintiff and his brother, and it is a conthe way in use extended across the strip just south of an ash pit where the only door open- ceded fact in the case that the defendant has ing out of defendant's building upon the strip a right of way, granted in the McCabe deed, was located, and all space to the north of it to pass from Commercial street through the was obstructed by plaintiff's ash pit, and by arched passageway and across the open space the obstructions which continued to exist on the adjoining seven-foot strip belonging to an to the west side of its building in connection other, defendant was not entitled to a right of with the use of its property. The dispute beway over the entire nine-foot strip on the west tween the parties is as to the extent of the of its building not a part of the court, and hence the removal of a slab covering the pit defendant's rights in the open space west of and the use of the top of it as a platform from its building. So far as appears, no claim was which to load wagons constituted a trespass. made to any right otherwise acquired than

[Ed. Note.-For other cases, see Easements, by this deed. The court held that the deCent. Dig. S8 98–100; Dec. Dig. § 44.* ]

fendant did not acquire through the McCabe Appeal from Superior Court, Hartford deed any right to do the acts which are comCounty ; Marcus H. Holcomb, Judge.

plained of as having been done or threatened Action by Patrick McCabe against Armour to be done. The portion of this deed upon & Company. Judgment for plaintiff, and de- which the defendant relies reads as follows: fendant appeals. Affirmed.

“Together with the right in common with the James E. Cooper and John H. Kirkham, and with animals, vehicles and teams of all

grantors and others to pass and repass on foot both of New Britain, for appellant. John kinds, over along and upon a certain passageWalsh and Bernard F. Gaffney, both of New way and court way leading from Commercial

St. to the west side of the premises herein conBritain, for appellee.

veyed; said passway leading from Commercial

St. southerly, and is bounded north by ComTHAYER, 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 mercial Stock Company, and is about nine

and

twenty-five one hundredths (9.25) feet wide for the defendant owned a lot of land in New a distance of forty-three and seven-tenths (43.7) Britain covered by a brick building which feet when the same opens into an open court abuts westerly, in part, upon an open space about forty (40) feet by about thirty-six (36) about 36 by 40 feet in dimensions, which is court to the west side of the premises herein

feet and thence over, along and across said open inclosed on the other three sides by buildings 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 across the strip just south of the ash pite and on teams and vehicles; said passways where the only door opening out of the derights and rights in said court being more fully and at large set forth in a deed from the com- fendant's building upon this strip of land mercial Stock Company to said grantors dated was located. All to the north of it was obJune 25, 1895, and recorded in Volume 12 structed by the plaintiff's ash pit and by the (Mss.) Land Records of New Britain, page 177, obstructions which continue to exist upon the and by an agreement between James L. Dawson and the grantors dated November 5th, 1897, and adjoining 7-foot strip of the Commercial recorded Volume 14 (Mss.) Land Records of Stock Company. The defendant has changed New Britain, page 172, to which, deed and the location of its door to the north, making agreenient reference is hereby made."

it necessary in order to enter the building to The defendant claimed that the "open court” referred to in this description includes trinsic circumstances were to be considered court” referred to in this description includes pass over the ash pit. These and other exthe 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. But, 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

There is no error. The other judges conextending the entire 40 feet from north to

curred, south. The deed and agreement which are referred to in the deed from the McCabes to

(88 Conn. 447) Armour and the map which is made a part

STATE v. PECK. of that deed show that the Commercial Stock

(Supreme Court of Errors of Connecticut. Company did not convey to the McCabes any

July 13, 1914.) right of way or other rights in the seven

DISBARfoot strip next south of its building extend - 1. ATTORNEY AND CLIENT (8 45*)

MENT-GROUNDS. ing from the archway to the McCabe proper

Misconduct on the part of an attorney, who ty on the east. At the time the deed was was judge of the probate court, in the course given to Armour, this strip was occupied by of the settlement of an estate of a deceased permanent structures erected thereon, as it person in such court, justified his disbarment,

since it directly involved a misuse of his profeswa: when the McCabes acquired their rights in sional privilege and was misconduct as a memthe "open court" and has continued to be so ber of the bar, and moreover any misconduct, occupied, as found by the court, up to the time professional or nonprofessional, disclosing a of the trespasses complained of. Both the lan- fessional privilege, justifies disbarment.

moral unfitness for the enjoyment of the proguage of the deed from the Commercial Stock

[Ed. Note.-For other cases, see Attorney Company to the McCabes and the map which and Client, Cent. Dig. $ 63; Dec. Dig. $ 45.*] is made a part thereof show that the north 2. ATTORNEY AND CLIENT (§ 46*) DISBARline of the court described therein is about MENT-DEFENSES-HOLDING JUDICIAL POSI

TION. seven feet south of the south line of that

That an attorney sought to be disbarred company's building. These conclusively show. was judge of the probate court did not preas the court has found that the statement in vent his disbarment, since the judge of the the description giving the length of the east probate court need not be an attorney, and his wall of the archway as 43.7 feet is a mere disbarment could have no effect upon' his offi

. mistake of the scrivener and has not the im

[Ed. Note.-For other cases, see Attorney and portance which is given to it by counsel for Client, Cent. Dig. § 71; Dec. Dig. § 46.*] the defendant. The map makes it clear that 3. ATTORNEY AND CLIENT (8 52*) – DISBARthe open court begins 43.7 feet south of Com MENT PROCEEDINGS - COMPLAINT — BUFFImercial street, and the trial judge finds that

CIENCY. the east side of the brick wall of the arch- ceeding to disbar an attorney must be deter

The sufficiency of the complaint in a proway is 37.2 feet.

mined upon an examination of the complaint as [2] The defendant, having failed in its a whole. claim that the open court included the entire

[Ed. Note.-For_other cases, see Attorney 36x40 feet included within the brick walls and Client, Cent. Dig. $$ 69, 70; Dec. Dig.

52.*] of the buildings, has no case unless the deed 4. ATTORNEY AND CLIENT (8 52*) – DISBARupon which it relies grants a right over the

PROCEEDINGS — COMPLAINT SUFFIentire 9-foot strip on the west of its building CIENCY. now owned by the plaintiff which is not a

A disbarment proceeding is not a criminal part of the court. The deed undoubtedly | lion 11 of 'the rules regulating the admission,

prosecution, nor is it a civil action, though secgives the defendant a right of way across suspension, and displacement of attorneys rethis strip to its building. The location of the quires complaints for misconduct to be proway is not fixed by the deed as a matter of ceeded with as civil actions, and the commere construction of the deed. At the time cision of statement or conformity to recognized

plaint need not have the same technical prewhen it was given, the way in use extended formalities required in criminal prosecutions

MENT

•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 suf- | large measure of judicial discretion was to be ficiently intelligible and informing to advise exercised reasonably, fairly, and dispassionately. the court of the matter complained of in order that it may determine whether it shall institute and Client, Cent. Dig. g 73; Dec. Dig. § 54.*]

[Ed. Note.--For other cases, see Attorney an inquiry and properly conduct it if instituted, and to advise the attorney of the accusation 10. ATTORNEY AND CLIENT ($ 48*)-DISBARin order that he may be prepared to meet the MENT — PROCEEDINGS – RIGHTS OF DEFENDcharges.

ANT. [Ed. Note.-For other cases, see Attorney and An attorney accused of professional misClient, Cent. Dig. $$ 69, 70; Dec. Dig. $ 52.*] conduct is entitled to notice of the charge 5. ATTORNEY AND CLIENT (8 38*)

- DISBAR against him, an opportunity to be heard, a MENT—GROUNDS.

fair and dispassionate investigation, and a reaWhere an attorney who was judge of the sonable exercise of the judicial discretion. probate court procured the payment of $750 [Ed. Note.-For other cases, see Attorney to him from the assets of an estate as com- and Client, Cent. Dig. $$ 64, 65, 68; Dec. Dig. pensation for pretended services as an attorney 48.*] on behalf of the estate which were never rendered, and exerted his authority as such judge Appeal from Superior Court, Fairfield to secure such payment, resorted to deception County; William L. Bennett, Judge. and concealment in his efforts to secure such

Proceeding in the name of the State against payment, and made use in his official position of threats calculated to produce the end de- Charles H. Peck on a complaint for alleged sired, for the purpose of coercing payment, he prefessional misconduct by the defendant as was properly suspended from practicing law an attorney at law. Facts found and judg. indefinitely.

ment [Ed. Note.-For_other cases, see Attorney

rendered suspending the defendant and Client, Cent. Dig. 88 51, 61; Dec. Dig. $ from practicing law in the courts of the state .38.*]

indefinitely, and he appeals. Affirmed. 6. ATTORNEY AND CLIENT (8 51*) DISBAR

Robert E. De Forest, of Bridgeport, for MENT-PROCEEDINGS-PARTIES ENTITLED TO PROSECUTE.

appellant. J. Moss Ives, Special State's Acts 1907, c. 120, authorizing the appoint- Atty., of Danbury, for the State. ment of a grievance committee in each county whose duty it shall be to inquire into and present to the court offenses involving the char PRENTICE, C. J. [1] The acts, which in acter, professional standing, etc., of members the complaint are charged as misconduct callof the bar, does not provide an exclusive mode of instituting such inquiries, and does not re-ing for the respondent's disbarment, and for strict the inherent power of the court to in- which, as appears by the judgment file, he quire into the conduct of its own officers on its was disbarred, were all done by him in the own motion or on the complaint of any party, course of the settlement of an estate of a and hence the state's attorney could present a complaint against an attorney as authorized by deceased person in the probate court over section 10 of the rules of court.

which he presided. The misconduct alleged [Ed. Note. For other cases, see Attorney and made the basis of the judgment was misand Client, Cent. Dig. 8 67; Dec. Dig. $ 51.*]

conduct connected with the performance of 7. ATTORNEY AND CLIENT (8 51*). - DISBAR his judicial office. The claim made upon de

MENT-PROCEEDINGS-PARTIES ENTITLED TO
PROSECUTE.

murrer to the complaint, and renewed at the The state's attorney was not disqualified to hearing, that such misconduct was not mispresent a complaint of professional misconduct conduct as a member of the bar, and thereagainst an attorney by reason of his bitter enmity to the accused attorney or his prejudice fore not of a kind to justify discipline as against him, since he does not appear as a such member, is, for a double reason, wholly prosecuting officer and has no power to con- without foundation. In the first place, it did trol the proceeding, and his only duty is to directly involve a misuse of the professional call the attention of the court to the alleged misconduct; the duty thereafter resting upon privilege. In the second, it disclosed a moral the court to see that the interests of justice unfitness for the enjoyment of that privilege, are preserved and the rights of the accused and it matters not whether the disclosure attorney protected.

came through professional channels or not. [Ed. Note.-For other cases, see Attorney and Client, Cent. Dig. § 67; Dec. Dig. $ 51.*]

An attorney at law admitted to practice, 8. ATTORNEY AND CLIENT ($ 54*) DISBAR

and in the exercise of the right thus conMENT-PROCEEDINGS-FINDINGS.

ferred to act as an officer of the court in the It was immaterial in a disbarment proceed- administration of justice, is continually acing that the court found facts outside of the countable to it for the manner in which he charges contained in the complaint, where its judgment was not based upon such findings, but exercises the privilege which has been acupon matters alleged in the complaint and un- corded him. His admission is upon the imquestionably sufficient to support the judg-plied condition that his continued enjoyment ment.

of the right conferred is dependent upon his [Ed. Note. For other cases, see Attorney and Client, Cent. Dig. & 73; Dec. Dig. § 54.*1 remaining a fit and safe person to exercise it,

so that when he, by misconduct in any capac9. ATTORNEY AND CLIENT (8 54*) DISBARMENT PROCEEDINGS-SCOPE OF INQUIRY.

ity, discloses that he has become or is an The question for determination in a dis- unfit or unsafe person to be intrusted with barment proceeding was whether the defendant the responsibilities and obligations of an atqualities of character and uprightness was a fit torney, his right to continue in the enjoyperson to longer exercise the functions of an ment of his professional privilege may and attorney, and is determining this question a lought to be declared forfeited. As important *For other cases see same topic and section NUMBER in Dec. Dig. & Am. Dig. Key-No. Series & Rep'r Indexes

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