The situation here is analogous and the intent of counsel and the court to so proceed is supported by the entry of a plea of not guilty after consideration and denial of the motion. Even so the denial is not exceptionable. State v. Mallett, 123 Me. 220, 122 A. 570. Although State v. Lightbody, 38 Me. 200 may be urged to the contrary, that case reached the Law Court on report and not by exceptions, and although the validity of the indictment in State v. Flemming, 66 Me. 142 was challenged by a plea concluding with prayer that the "same may be quashed," the court termed the plea as one in abatement.
Such a motion is addressed to the discretion of the court and is not exceptionable, unless abuse of authority is shown. State v. Mallett, 123 Me. 220, 122 A. 570. While it has been generally held, as previously pointed out, that no exceptions lie to the refusal of the court to quash an indictment, it would seem that perhaps there is an exception to this rule where a motion to quash is filed in cases where the respondent contends that his constitutional rights were violated.
However, the test of the statute here in question is merely that the affiant "has reason to believe and does believe," without requiring him to furnish any evidence or cause which might be interpreted as designed to comply with the constitutional provision. Defendant relies on the following cases as establishing his position: United States v. Eldredge, 5 Utah 161, 13 P. 673; Lowrey v. Gridley, 30 Conn. 450; Rose v. State, 171 Ind. 662, 87 N.E. 103, 17 Ann. Cas. 228; Winters v. State, 142 Miss. 71, 107 So. 281; Loeb v. State, 133 Miss. 883, 98 So. 449; Rosanski v. State, 106 Ohio St. 442, 140 N.E. 370, 28 A.L.R. 759; State v. Kees, 92 W. Va. 277, 114 S.E. 617, 27 A.L.R. 681; State v. Brown, 91 W. Va. 709, 114 S.E. 372; State v. Noble, 96 W. Va. 432, 123 S.E. 237; State v. Mallett, 123 Me. 220, 122 A. 570; Dupree v. State, 102 Tex. 455, 119 S.W. 301. United States v. Eldredge, supra, is not in point.
The reservation, or report, stipulates that, if the complaint, made to the municipal court and brought forward on appeal, fails to allege the commission of an offense, a nolle prosequi shall be entered; otherwise, judgment to go for the State, sentence to be imposed below. This practice is not without precedent. R. S., Chap. 136, Sec. 27; State v. Maher, $ 49 Me. 569; State v. Bohemier, 96 Me. 257; State v. Robb, 100 Me. 180; State v. Hahnel, 118 Me. 452; State v. Mallett, 123 Me. 220; State v. Small, 126 Me. 235. The defendant, a plumber, formally admits that, on one day in July, 1928, in plumbing a dwelling house in Sanford (the word, "plumbing," being inclusive of pipe for sewage, State v. Hahnel, supra), he installed other than the extra heavy cast-iron sewer pipe which a rule and regulation of the State Department of Health prescribes. Defendant also concedes, or at least does not question, the constitutional power of the Legislature, in the exercise of reserved power, to regulate plumbing by the agency of a board or department appointed for that purpose, but attacks the record on several grounds, all which converge toward the proposition that the complaint alleges no offense.
e of which are briefly reviewed herein, infra, hold, as does the case of Rose v. State (1909), 171 Ind. 662, 87 N.E. 103, 17 Ann. Cases 228, that the procedure set out in our statute and used in the case at bar complies with the constitutional requirements, and that the rights of an owner of premises searched by authority of a warrant duly issued by a magistrate upon an affidavit on information and belief are not infringed. Salley v. State (1913), 9 Ala. App. 82, 64 So. 185; Lowery v. Gridley (1862), 30 Conn. 450; Koch v. District Court (1911), 150 Iowa 151, 129 N.W. 740; State v. Doremus (1915), 137 La. 266, 68 So. 605; City of Shreveport v. Nejin (1917), 140 La. 786, 73 So. 996; State v. Nejin (1917), 140 La. 793, 74 So. 103; State v. Norris (1926), 161 La. 988, 109 So. 787; Commonwealth v. Certain Lottery Tickets (1850), 5 Cush. (Mass.) 369; State v. Hobbs (1855), 39 Me. 212; State v. Nowlan (1874), 64 Me. 531; State v. Plunkett (1874), 64 Me. 534; State v. Welch (1887), 79 Me. 99; State v. Mallett (1923), 123 Me. 220, 122 A. 570; State v. Breen (1923), 123 Me. 562, 122 A. 571; State v. Watson (1923), 133 Miss. 796, 98 So. 241; Loeb v. State (1923), 133 Miss. 883, 98 So. 449; Bufkin v. State (1923), 134 Miss. 1, 98 So. 452; City of Jackson v. Howard (1924), 135 Miss. 102, 99 So. 497; Hendricks v. State (1926), 144 Miss. 87, 109 So. 263; State v. Cobb (1925), 309 Mo. 89, 273 S.W. 736; State v. Hall (1926), 312 Mo. 425, 278 S.W. 1028; State v. Cockrum (1925), 278 S.W. (Mo.) 700; State v. Shelton (1926), 314 Mo. 333, 284 S.W. 433; Sharp v. State (1901), 61 Neb. 187, 85 N.W. 38; Watson v. State (1922), 109 Neb. 43, 189 N.W. 620; Ciano v. State (1922), 105 Ohio St. 229, 137 N.E. 11; Cochran v. State (1922), 105 Ohio St. 541, 138 N.E. 51; Rosanski v. State (1922), 106 Ohio St. 442, 140 N.E. 370; Commonwealth v. Schwartz (1923), 82 Pa. Super. 369; State v. Snow (1854), 3 R.I. 64; Zimmerman v. Town of Bedford (1922), 134 Va. 787, 115 S.E. 362; Marshall v. Commonwealth (1924), 140 Va. 541, 125 S.E. 329; Lincoln v. Smi