Wynehamer v. . the People

APPEALS. OF IN THE COURT CASES The Wynohamer against Wynehamer, error, People, de The against plaintiff

fendants in error. Toynbee. Mathews, People, on of The complaint against provisions prevent intemperance (Laws 1855, p. ), of the act to 340 sub- of stantially liquors destroy intoxicating possessed owned and by persons state, when within the the act took effect. liquors application possessed, so In its to such owned the act violates provision person of state constitution which declares that no shall be deprived life, liberty process without due of law. seems, by applicable only liquors imported It that had the act its terms been effect, after it took manufactured it would not have been in conflict provision the constitutional above mentioned. provisions liquor But as no discrimination is made its between owned when might took effect and that which im- afterwards be manufactured or operative ported, both, are made on the act is unconstitutional and void. provisions charged requiring party act of the a with a criminal offence act, special sessions, deprive under the tried court of him the by jury guaranteed by constitution, to a trial and are void. affirmed; People, People 567, Toynbee, 168, v. 20 Barb. v. Ibid. reversed.

Wtnehamer, the defendant in the court below entitled, was, 1855, case first at a above indicted July, sessions, Erie, court of held in and for the general county for to the selling intoxicating liquors, contrary provisions in of the statute entitled An act prevention and crime.” The indictment con temperance, pauperism counts, tained several each substance charged defendant, that the on to the 4th subsequent July, day Buffalo, 1855, at wilfully unlawfully city statute, unau sold to to the form contrary persons to the thorized law to sell liquor intoxicating jury wit, ruin, unknown, each of liquor, gill intoxicating beer, wine, without having brandy, gin, whiskey strong the cou of Erie any filed in the office clerk rty county, the county judgi undertaking approved 2d section of the act. according provisions MARCH, ALBANY, 1850. People.

Wynehamer against The that the indictment was further in each count of alleged the manufactured the so sold was not alcohol liquor by defendant, him from wine manufactured pure by grapes himself; and that sale the was not the liquor grown by authorized, nor was to sell the same any right by any given law or of the United States. The defendant treaty pleaded not and the issues were tried in the court general guilty; sessions a common the law On by duly jury empauneled. trial the counsel for the evidence gave tending people 1855, that after the the 4th and before prove day July, indictment, several bill the defendant on finding occasions had sold and different at his delivered to persons bar, Buffalo, in less than a which brandy, quantities pint, rested, drank was on his When the the premises. people counsel for the defendant the court to requested discharge defendant, the or to direct the to" render a verdict of jury not on the guilty, viz: 1. following That it was grounds, shown that offence had been committed defendant; 2. That it did not but that the appear liquor to have been sold was alleged to sell liquor, was laws or treaties given States, United nor but that it was defendant from imported by countries foreign of the United laws; pursuance States 3. That the 1st and 4th sections of the aforesaid act were respectively violation of constitutions of the United States and of this state, void; 4. That the said act was unauthorized by and in conflict with the laws and treaties of the United States and the state, constitution of this and therefore void; That 5. it was not shown but that the liquor alleged have been sold the defendant was authorized to be sold the act of the above referred to. The court overruled each of objections, decided that the case must be submitted to the and the counsel jury, for the defendant excepted. counsel for Thereupon the defend ant offered to that the prove liquor to have been alleged sold was into this state imported from a foreign countiy, APPEALS. IN THE COURT OF CASES

Wynehamer against The under and in revenue laws United pursuance States, and that duties thereon were the legal paid; from the defendant liquor- importers purchased it was in which was package imported; and at drawn from such and sold the persons package times for the witnesses proved by prosecution. facts so counsel for the admitted the truth people offered to be but to their admissibility proved, objected evidence, im on the that were irrelevant and ground evidence, material. The and court so held excluded the and the defendant’s for the counsel counsel excepted. .The defendant also offered to that the sold the liquor prove defendant was and to owned him possessed by previous on 18-55; the 3d of admit the counsel for the July, people so, ted the fact to be on to it as evidence the objected that it was' immaterial. The was sus ground objection tained, excluded, and the evidence and the defendant’s counsel At the close of the evidence the counsel excepted. for the defendant the court to direct the to requested jury defendant, the on acquit the stated at the close of grounds the evidence for the The court prosecution. declined and the defendant’s counsel The counsel for the excepted. defendant also the court to the requested that1 charge jury the must that the sold the people prove liquor defendant was the court as to intoxicating; that request charged, if it was that the defendant sold proved this was brandy, act; within the intoxicating liquor and the meaning defendant’s counsel The found again excepted. jury defendant and' the sentenced guilty; him to .court pay dollars, fine of and to be fifty committed until the same was was affirmed paid. judgment court supreme in Barbour, sitting district. eighth (See 567.) defendant sued out a writ of error. the defendant in the

Toynbee, case above enti secondly 1855, Mathews, tled, wis on the 17th July, arrested by ALBANY, MARCH, 1856.

Wynehamev against The officer of before a Brooklyn, city brought police of that without for his police city, justice any precept arrest been he him before issued. When having brought Mathews made a verified justice, writing, complaint oath, his stated that on the arrest day saw defendant at a which was complainant place speci fied, sale, sell his have Brooklyn, keep sell, wit, with intent liquors, possession, intoxicating saw the brandy champagne; complainant wit, \n defendant selling engaged liquor, brandy, violation of the act for the prevention intemperance, ; and crime the offence consisted in pauperism selling one ; and one bottle that the. glass brandy champagne had arrested the defendant and him complainant brought before the answer and to justice charge, dealt law; and that at the time and according place offence,,he, seized the said complainant, brandy with the in contained, bottles which were champagne, and had stored in them a convenient to be place, disposed th i aforesaid act. The of as by defendant asked provided on the to that the act discharged, was unconsti ground tutional, and on the further that the did ground complaint not set forth facts oufficient to constitute an offence the defendant. His was denied. He then application objected sessions, tried a court and being offered to special bail for his at the next court crimi give appearance having nal The overruled the jurisdiction. justice objection, bail, refused to take and the defendant required plead the The defendant not and there charge. guilty, pleaded was the sworn testified that the complainant hotel in in defendant the basement of Brooklyn, kept ; he, bar that the which he room on 17th of kept July, witness, saw the defendant sell and a glass brandy <rf which were bottle champagne, intoxicating liquors, defendant for in sale his bar room such kept He further testified that was im hqu!>>(cid:127)«. champagne OF IN THE COUNT CASES APPEALS.

Wynehauler against The he, witness, and that on the occasion liquor; ported aforesaid, his seized and took into the bottle possession sold, from which the defendant and the bottle brandy had of deliv he sold wras the act champagne The substance all the evidence. ering. foregoing The court found the defendant and having selling guilty sell, his intent intoxicating liquors, possession him a misde charged adjudged guilty complaint, meanor, $50, $5.87 him a fine and sentenced pay that he be until costs imprisoned proceedings, the same were exceeding fifty-six days. paid, forfeited, seized liquor court further adjudged its issued. that a warrant for destruction be On appeal defendant, was reversed supreme judgment in the second district. (See at term court a general Barb., to this court. appealed 168.) people error, in case Parker, first J. for

A. the plaintiff entitled. Sawin,

A. people. Cott, in the case enti- J. for the secondly M. Van people, tled. Lott, for the defendant.

John A. J., and T. A. John- that The by opinion Comstock, inserted, inserted, and first secondly Mitchell son first above case of Wynehamer, delivered were J.,O. that other except entitled. The opinions, Denio, cases, both were delivered his conclusions as to which states in the case of Toynbee. indie, defendant, ted was J. The Wynehammer,

Comstock, of sessions in the court common-law and convicted jury, MARCH, ALBANY, 1856. against Tlie con- in small quantities liquors

of Erie selling comity, pauper- “Act for the intemperance, to the prevention trary con- 9, The indictment crime,” 1855. ism and April passed excise, within the case any tains no bring allegations state, can be if those regarded unrepealed, laws even ofthe stand, at if can stand must conviction therefore on the was admitted all, referred to. It the statute the owner liquors defendant was that the trial effect; and law took time the and at the before on an entitled to insisted that he was acquittal his counsel others, unconstitu- the statute was that among ground, was overruled. tional and void. proposition district affirmed court in the 8th supreme conviction.: clauses, act, was in its thus determining prohibitory valid; I shall and this is the constitutional and only question consider. “the

The constitution óf this state has vested legislative however, the senate assembly, subject, power” limitations, which are of interest some very great special (art. 1, “no mem- It declared 1) importance. § or ber of this state shall be disfranchised deprived thereof, citizen secured rights privileges or the of his the law of the land unless by judgment peers.” “ 1, is further declared that no shall It person ^6) (art. life, without due liberty process deprived law; nor shall be taken for private property public without Without into use inquiring just compensation.” in the absence of extent of legislative power, special restraints, us can be and should I think the case before limitations, construction, under these force determined of which will be hereafter considered. and application whether the Act for In determining question, and crime” was an intemperance, pauperism prevention ar accurate exercise legislature, prohibited which it relates is the first re- subject perception is, then, believe, universally I admitted that when quisite. CASES IN THE COURT OF APPEALS. against The People. this law was passed used be as a intoxicating liquors, were beverage, most absolute and property unqualified sense term; and, such, as as much entitled to the pro- tection of the lands, constitution as houses or chattels of From the earliest description. have been ages they and consumed as a produced and have constituted beverage, an article of in great the commerce of the world. importance In this never, in country them was so property know, far as I for an instant state, In this questioned. they were and sold like other bought were seized property; they and sold for the legal debts; upon process, payment they were, like other goods, law; actions at subject died, when the owner their value constituted fund for the creditors, benefit of his or went kindred, to his children and to law or the will of the according deceased. They entered into the and internal state, commerce largely foreign statute, and when of this subjected operation many short, millions were value invested them. In I do not understand toit be denied that were property a sense as other which a just high possession citizen can cited, Judicial acquire. authority might does not seem where there is a contro- necessary scarcely versy. said, true,

It it is that may drinks are a intoxicating which no beneficent species property performs part moral or social political, the world. economy and, admit, even be I will demonstrated urged, with reason- able the abuses to which it is certainty, liable are so of this state can great, with its people dispense existence, not without very their only injury aggregate interests, but with absolute said, benefit. The same can be less although, perhaps, other palpable grounds, descriptions property. Intoxicating beverages means the article of admitted and of lawful only commerce in this state of this against arguments sort if directed. But can be maybe arguments allowed

ALBANY, MARCH, 1856. Wynehamcr against The the fundamental idea of then there is subvert property, safe, because is no limitation there private entirely and the absolute. discretion upon legislature, of the constitution are a waste words. mere guarantees The foundation in is not or scien- property philosophic tific nor even in benevolence suggestions speculations, or It ais philanthropy. simple intelligible proposi- tion, case, in the nature of the of no admitting, qualification, is that that which the law land property recognizes is, short, as such. an institution of and not in'science, result or morals speculations economy. These observations to me appear quite elementary, yet seem to be in order to excludethe discussion necessary, of extraneous lead us conclu- topics. They directly sion that all is alike in the characteristic invio- property If the has no to confiscate and lability. power it has no such destroy general, over property be, are, There and there particular doubtless species. may reasons of in intoxi- great the trade urgency regulating drinks, as well as in other cating articles commerce. In establishing regulations merely, legislature may morals, such views of or proceed upon policy, economy as be addressed to its discretion. The whole field discussion is when the its within open, legislature, keeping seeks to acknowledged restrain powers, regulate traffic, the ; lawfulness of general admitted but is, when the whether it can confiscate simple question arid the citizen in intoxi- destroyproperty lawfully acquired by we then are remember that all liquors, cating constitution, sacred the view of the and there- equally fore that as to its chemical scientific speculations quali- ties, abuse, mischief its have engendered by very do with the if little to inquiry. Property, protected the constitution from such that we are now legislation n operty innocently because it is considering, protected p COURT OF APPEALS. IN THE CASES against The People. Wynehamev laws, and under existing theory acquired so much as of its which even opens utility. If constitution does liquors intoxicating estimate to be made of its useful- legislative permit ness, word, with a view to its which destruction. In to the citizen in the sense of and as such belongs cannot, value, has to him a commercial be pronounced woi Lhlessor and so or of its pernicious, destroyed deprived essential attributes. Blackstone, Sir William who wrote of the laws of said: So England nearly century ago, is the of the law for great regard private property, it, no, it will not authorize the least not even violation road, for If a new the whole general good community. instance, were of a to be made through grounds it beneficial private person, might, extensively perhaps, man, but the law no or set men, public, permits to do this without the consent of the owner of the land. In vain it that the of the individual urged may good to that of the for it would be ought yield community, man, to allow or even dangerous any private any public tribunal, to be the of this common and to decide good, judge Besides, whether it be or no. expedient public good is in more interested than in the nothing essentially protection of as individual’s modeled private municipal every rights, cases, this and In similar alone law. can and does interfere and the indi- frequently compel But how does it and com- vidual acquiesce. interpose of his ? Not by absolutely subject pro- stripping pel manner, in an him a full arbitrary by giving perty, indemnity equivalent injury thereby for the sustained.” Com., 139.) Bl. (1

While commentator language English means full force of the limitation expresses imposed state in their of this legislature by people constitution, contains, nevertheless, written a vindication theories of sanctity against private property,

ALBANY, MARCH, 1856. Wynehamer against The to our own condition good, eminently applicable public ours, In a like times. theories good government public truthful, be so or even so necessity plausible, public But whether truthful as to command majorities. popular numbers whatever plausible merely, to, assented there are some absolute beyond private rights reach, their these the constitution among places property. The views thus far the substance of J expressed, assent, think must command a would nar- seem to general row the field of Do the inquiry. prohibitions penalties of the “Act for the of intemperance, prevention pauperism and crime” utmost boundaries mere pass regulation force, and their own them to police, be valid assuming executed, and and work the essential loss faithfully obeyed or destruction of the which at are aimed ? they do, then, see, If far as I can so they remains nothing except state, of the fundamental law of the provisions apply and the act must be declared unconstitutional and In void. work do this result. my judgment, they plainly know, must We be allowed to what is known all per- sons common that intelligence, are intoxicating liquors for sale and that such produced consumption beverage; has their use in been all primary principal ages countries; and that it this use which has imparted them, state, than in this more hundredths of their ninety-nine commercial must follow value. It scheme any use, which, at the destruction legislation of this aiming makes the or sale of them aas keeping beverage, any a criminal offence—which quantity by any person, them declares nuisance—which them to public subjects destruction, seizure and denies a physical legal remedy deemed, if are taken lawless force must be they robbery, sense, beneficial the owner of every deprive enjoy his ment of property. CASES IN THE COURT OE APPEAi-d. against The I

Such understand to be the character of this precisely sales law. are for only permits 2) {vide % mechanical, of wine chemical and medicinal purposes—and for sacramental use. Even this minute exception, is, as it is attended with exl conditions. raordinary special if he to sell is prohibited, pursues person proposing avocations; must lawful he one some fifteen or twenty habits; must be a man abstinent he give stringent totally bail, must have a moral character. Sales may and he good venders, but as can the authorized also made to they enumerated, of course for the sell only particular purposes other made in sales to them cannot be contemplation use. purpose and trivial as these so minute scarcely

With exceptions, scheme, fierce and the act one of to disturb the general to sell is unlawful intolerant intoxicating proscription. and, sale, sell, them for or with intent to liquors, keep with an of no it is to exception importance question, all. them at are declared They (§ public keep, 1.) declaration, nuisance and not only by 25); {§ another all is withdrawn legal express provision, protection them, them. If the owner to sell from 16.) attempts {§ if he can maintain no action for the price; him or fraud he is remediless. taken from force (§ 1C.) act are contained In other parts special provisions 5, seizure, condemnation destruction. (§§ judicial 10, 11, 6, 7, 8, 9, no means But act by 13.) Itself for the of this waits machinery. operation pro- condemnation, and the the sentence of nounces judicial is, are it such as it agencies machinery, provides the sentence. execution of to insure the Property merely motion, and, add, I crime is lost may before police an intention. an act or even On is committed without effect, to be in it was criminal the law took possession day acquired however innocently liquors, intoxicating them, and under the to sell before. It was criminal day MARCH, ALBANY, 1856. .

Wynehamer against The but therefore, was left owner no alternative their immediate destruction. (Vide §4.) therefore, seen, from the

It that aside will be exceptional stated, without been and as cases which have beverage ban of are laid under the intoxicating liquors exception, absolute and condemnation. As unqualified property, denied, them is to sell and their commercial value are, moreover, thus annihilated. devoted to They physical destruction. for destruction are agencies Special provided; these are law itself before set motion the condemns them as series of free entirely provisions said, from was on the doubt. It ambiguity argument, sale, nothstanding sweeping prohibitions them, them, owner still even might keep export so effect a total or his If partial saving property. so, were I do not see how it would affect the question under consideration. If laws contrived for the destruction void, within the state are unconstitutional and cannot be even upheld, leave be though special given to the owner to state, it remove from the and so place the reach of beyond those laws. But the suggestion founded in a of the act. From the instant misapprehension effect, it took could not intoxicating liquors be lawfully hour awith view single kept all, at exportation, kept for the medicine, except sacra- special purposes ment, or for mechanical or chemical uses. might but that would not smuggled away, fault of the law. It would be quite that an act to logical say deprive trial, constitutional, a man of his or life without a liberty because is a there that he run possibility away thus escape.

There are of this act many which were re- provisions viewed at on the length and which now argument, might a more receive notice. But the particular summary exposi- has tion which been is for the given enough present pur- the admitted pose. Pioeeeding upon that the hypothesis 3 Keen.—25 IN CASES THE COURT OF APPEALS.

"Wynehamer against thus denounced and and like subject proscribed property, inviolable, other remain, will property essentially inquiry whether the constitution does not expressly prohibit ? legislation us,

It has been urged upon .that legisla- restricted, ture is not only by \ express provisions constitution, written limitations from the implied that, nature form of our aside from all government; restrictions, to enact such laws is not special among and that the delegated powers legislature, void, as act the fundamental against principles common reason and natural liberty, against rights. has been cited to show authority, that laws High certainly, which, not although written consti specially prohibited by tutions, reason, are and subvert repugnant vested clearly invalid, and must sobe declared rights, judiciary.. (3 Dallas, In Calder and v. Chase- Judge 386), wife Bull “ said: I cannot subscribe to the of a state omnipotence or that it control, absolute and legislature, without its should not be restrained although con authority or fundamental stitution law of the state. The nature and" end of will limit the legislative power exercise of it. This fundamental flows from the nature principle of our very free that no man should governments,, be com republican to do what the laws do nor pelled require, refrain from laws acts There are acts which the permit. federal or state cannot do without their exceeding There are certain vital authority. in our free principles which will determine governments republican overrule an abuse ; apparent flagrant legislative power authorize manifest or injustice to take positive for away security personal liberty private property, for the whereof protection was established.” government “ instances,” A few adds, he will sufficeto what I explain mean; a law that action, citizen for an punishes innocent words, which, other done, an act when was in 393

ALBANY, MARCH, 1856. Wynehamer against The or which law impairs of no law—a destroys violation existing makes a law that citizens—a contracts private lawful his law that takes man a own case—a property judge from and all reason and it to B. It is justice A against gives and with such entrust a legislature powers, people it. done have it cannot be therefore they presumed innocenceinto punish cannot change guilt, legislature crime, as a or violatethe antecedent innocence right lawful Chief contract, or private private property.” Cranch, said, Justice Marshall in Fletcher v. Peck (6 135): “It doubted the nature be whether of society may does some limits to government legis prescribe lative if be where are power; prescribed, found, individual, an fairly honestly if he also seized ?” without Dash acquired,may compensation (See Kleeck, Johns., Porter, Hill, 477; v. 7 Van v. 4 146 Taylor Bronson, J.; Conn., Goshenv. 225— -per Stonington, Hosmer, per J.) that, from limita-

I entertain no doubt aside the special constitution, exercise tions of cannot which are in their nature essentially judicial powers constitution, are, distributed to These executive. other government. departments only “ is vested senate legislative power” silent, and there But where the constitution assembly. is no clear distributed to other usurpation powers I think there would great difficulty departments, to define the limits of this danger great attempting Peck, said Chief Justice Marshall v. (Fletcher power. supra): the law far the How involve giving every silent, in cases other where constitution is never power, be, been, has never can stated.” definitely perhaps difficulty; That eminent felt the but very judge danger theories, now, when was then than it alleged less apparent or inalienable reason to be founded natural righifs, and necessary government. subversive just powers CASES IN THE COUltT OF APPEALS. Wynehamer against People. The men, attract the belief of considerable classes of and when too much reverence for and law is government certainly the least of the to which our institutions are among perils I am reluctant to enter this field of exposed. upon inquiry, satisfied as am no can I that rule be laid down-in terms not the of contain mischief to germ may great society, by giving private opinion speculation license to the themselves to oppose just legitimate is it of Nor powers government. necessary push our indicated. direction There is no inquiries which it can be of reasoning demonstrated process “ the Act for the of that prevention intemperance, pau- void, and crime” theories perism upon principles constitution, also, outside the which will not of and by induction, it in an easier direct conflict with bring constitution itself. therefore, am

I to more brought, considera particular of the limitations of tion contained the fundamen power tal law: No member of this state shall be disfranchised oi of or secured to rights any deprived privileges any thereof, citizen unless the law of the land or the judg ment of his life, No shall be peers. person deprived or without due ; law nor shall liberty property, process be taken for use without com private property public just These have been m pensation.” provisions incorporated, substance, all our state into constitutions. are They simple themselves, and I do comprehensive perceive that derive additional force or they meaning by tracing their and the later fundamental Oharta origin Magna Charta, Britain. In statutes of Great were they Magna from the as restraints wrested king upon power us With restrai nts crown. imposed by people power legislature. me, doubt, admitted the mean it seems can be No To as has been of these say, suggested, ing provisions. “ law,” land,” due law process MARCH, 1856. ALBANY, against The the citizen which deprives act of legislation mean very absur- leads simple his rights, privileges mean, that no then person would constitution dity. unless the legis- his or rights, shall deprived effectuate wrong, a law to shall lature pass true restraint away. entirely would be throwing is, where constitutional of these phrases interpretation the existing citizen under are acquired by rights to take branch government there is are held contrary but where they them away; violation, then they its are forfeited or by existing but act of the an legislature, him—not from be taken itself, before the law of the judi- administration in the due for or occasion The cause of the state. depriv- cial tribunals must found of his rights the citizen supposed ing a is, or, be created least it cannot legislative at as it law aims at their destruction. Where rights pro- act which exist, the cannot are admitted say perty difference, nor will make no shall exist longer; and a tribunal are to execute a appointed although process “ “ land,” law of the If this is the due the sentence. law,” constitution, within the meaning process It under the then the legislature omnipotent. may, a law to take or same away liberty pass interpretation, cause, a life without judicial preexisting appointing , its will. to execute executive Property placed agencies in the same the constitution category liberty life. stands it is as this matter

Clear upon principle, equally Gibson, of Penn- Chief Justice well settled by authority. a similar in the clause constitution of sylvania, speaking state, it, and of the said: right property protected by “ conduct, ? law rule of What Undoubtedly preexisting or decree made not an ex occasion. rescript post facto was to exclude The convention design arbitrary power and there branch would be government; from every APPEALS, CASES IN THE COURT OF

Wynehamer against it if exclusion of decrees were to take no rescripts statute. The has effect property form law; and when the foundation security legisla it, shall in a ture overturn even sin successfully attempt instance, the of the citizen is no more.” gle liberty (Norman Heist, Bronson, v. 5 Watts And Chief Justice Serg., 193.) & “ state, Hill, of this v. Porter said: The Taylor (4 145), ‘ used, land,’ as words law of the here do not mean a statute for the That con passed purpose working wrong. struction would render the restriction absolutely nugatory, and turn this of the constitution into mere nonsense.” part “ section, then, : And seems again meaning be, that no member of the state shall be disfranchised of of his unless the matter be rights privileges, him trial had to the course adjudged against according law. of the common It must be ascertained judicially he has forfeited his or that else some one has privileges, title to the he before either of superior possesses, them can be from him. taken cannot done mere adds, he Again the words due legislation.” spealdng “ If of law:” can take process property A, B, and it to can take A and give they himself either shut in him him to death. But none of prison, up put these can be done things by mere.legislation.” Ruffin, Carolina,

Chief Justice North in a able very and elaborate the construction and judgment, involving state, of a similar clause in force the constitution of that “ ‘ lavy land,’ laid down the doctrine that the terms of the do mean an act not of the If merely general assembly. did, restriction every upon legislative authority reference,” adds, at would be “ once “In he abrogated.” infliction of and punishment divesting rights state, it has been held in this and repeatedly Union, is it believed in in state that there are every limitations the legislative notwithstanding upon words; those and that the clause itself means that such 395 1856.

ALBANY, MAllCII, against The themselves, as in acts directly punish profess, legislative citizen of his without or to persons, deprive and a decision tribunals trial before judicial upon the.laws under which determined matter of right, course, vested, mode usages according forefathers, are as derived from our not effectu- common law ‘ land,’ for those v. Hen- laws of the (Hoke ally purposes.” derson, Dev., 4 15.) Com., words, Kent says: Chancellor (2 13), 1 Charta, land,’ in in law of the as used originally Magna mean, due are understood to this reference subject, pro is, ot indictment cess of good presentment ‘ Coke, this,’ Lord the true men: says and lawful words.’ better and those larger sense exposition is, law that it means law in its of due definition process courts justice.'" cowse admi?iist?'alion (See through regula? 59; Inst., Const.,661; 10 2 Coke on also Yerger, 45-50.) Story therefore, both upon principle authority, plain, cases, in all that these constitutional safeguards, require to be law governed by investigation, specially judicial but to take con- destroy existing enacted away rights, whether, under the rule fined to the preexisting conduct, has been controversy lawfully A so lawfully possessed. proposition acquired consideration, less if deserved would have singular obvious it did not to have regard appear pre- misapprehension review, us for a decision not now before vailed examination, act branch under another pronounced R Quant, court. How. Pr. 83.) v. supreme (People then, are does brought, directly We question, “ Act for of and the prevention pauperism intemperance, crime,” sense, in a of constitutional citizens just deprive have this state of their We property intoxicating liquors? as inviolable seen that this of is already species property just of as other. That its commer- by the any operation is ; that it ; cial annihilated cannot be sold value CASES IN THE COURT OF APPEALS. against The it; unlawful to all keep legal withdrawn protection it; from and that it becomes a nuisance. Is the public owner of it within the fair of “deprived” meaning constitution ? I test, the act to this bring because particular if it can constitution, stand with this clause of the it can other. every

Now, can I form no notion of which does not property include the essential and characteristics attributes with which it clothed the laws of In a of state society. “ nature did exist at all. man property Every might then take to his use what he and retain it if he pleased, ; had sufficient but when men entered into power society, and introduced, arts and sciences were industry, property means, was various for the gained whereof securing Dic., laws were ordained.” Law Pro proper (Tomlin's Com., therefore, 2 Bl. Material are perty; 34.) objects, sense, in the true because property impressed the laws and of with certain usages society qualities, among are, fundamentally, right occupant use and them owner to and his absolute enjoy exclusively, them; of sell consists dispose power property in the artificial of these material qualities impression so, whatever removes things, impression destroys of notion themselves although things property, untouched. remain physically I find Nor can definition which does not sale, include the as well as the power disposition use and Thus Blackstone enjoyment. right private says, “ Com., The third absolute right every English- (1 138): is, that of which consists free man use, all his without acquisitions, disposal enjoyment diminution, the laws save of the land.’ control only “ Com., Kent Chancellor exclusive (2 says, 320): right follows as a natural con- using transferring property from the admission sequence perception itself.” And V alienation (p again, ALBANY, MARCH, 1856. against The People. and was incident to right, necessary

property and mutual wants.” By mutual convenience dictated by author, to an is definedas exclusive right another property to use those things, right only things, containing them, for them either exchanging dispose other them ether away any person things, giving consideration, them without or even away.” throwing Diet., These definitions are Lato tit. (Bouvier's Property.) Indeed, in accordance with the sense of mankind. general attributes, its if can define eliminated of one property sale, law, and without the placed protection incapable that the it were well should made. attempt consideration, The statute under without reference to its the seizure and destruction of intoxi- physical provisions alone, force of its liquors, by sweeps cating prohibitions state, and thus annihilates them from the commerce sale, which makes them valuable the quality of the notion of I This destructive owner. property. need, further notice of their qualified take perhaps, sacrament, other for the uses special vendibility and. the occasional and named in the act. These inci- only It is the uses of the article. dental general primary is mass of use is aimed at. which is down; conservation of an struck and the possible extremely the character of the cannot change insignificant portion law will its law. No advocate deny ingenuous intended to turn back characteristic great prohibition, masses of of commerce from the channels important pro- use, thus, prevent by suppressing perty, the act in other would be a light abuse. To regard the views its entire fraud upon policy, had it must be to have its motives which supposed origin. And in order to a full view intent spirit must add its we simple prohibition, penalties clauses, its connected and the whole other dependent all scheme and fatal one tending, forming accuracy, CASES IN THE COURT OF APPEALS. against The People. to the destruction of within property intoxicating liquors this state.

Unless, therefore, the is property liquors denied and this done, has never been altogether, or unless can be from distinguished other every species and this has not been property, the act cannot attempted, stand with the constitution. consistently The provisions of the constitution should receive a beneficent and liberal where the fundamental interpretation, of the citizen rights But, us, are concerned. in the case before its and plain obvious is No can meaning enough. person deprived of his without due of law” process legisla- ture or other a law When government. annihilates the value of and it of its attri- property, strips butes, which alone it is distinguished owner is of it deprived according plainest interpre- tation, and within the of a certainly constitutional spirit intended to shield from expressly private rights provision (cid:127) the exercise , arbitrary power. not reached this I have result without an attentive exami- nation of the have been in favor of arguments urged conclusion. Such of them as an may appear opposite on, or to been most relied most have have weight, may here be noticed. these our

Prominent attention has among suggestions, to a between the act been directed under supposed analogy and the license and excise laws of this consideration and states, is of which not other constitutionality questioned. does not exist. However difficult I think analogy define, the line of accuracy precision, may is there a broad perfectly intelligible separation, on the what one between regulation distinction plainly on the side, other. In what prohibition plainly attend the inquiry, case difficulty another great often attends investi- than judicial certainty greater nature; its The essentially judicial inquiry gations. MAIÍOH, IS56. ALBANY, Wynehamer against arises, it must be met case difficulty whenever circumstances, aid its special determined case, the In the as can be obtained. present of such lights statute we is not perceived. difficulty suggested and does limit of the utmost regulation, examining passes in is It every wear even disguise. plainly prohibitory feature, Some of in its entire and scope policy. of considered acts referred were stringency, excise great in traffic of intoxicating liqr.ors; as merely regulations or their as a sale of them beverage, none totally prohibited them, such, essential qualities denied property, of the laws. without the or them protection placed n annihilate is that the cannot It certain totally legislature and so condemn commerce any species property, to extinction. certain itself equally property kinds. can -trade in all regulate ; is denied but Neither these they necessarily propositions lead to another—that between destruction regulation somewhere, there is difficult to define with however pre- cision, therefore, in All line reasoning, separation. class, which one favor legislation belongs upholding it from is often difficult to that which because it distinguish fallacious, other, must be because it is belongs simply admitted conclusions. reasoning against constitution, The the federal provision declaring state shall laws of con- obligation impairing pass tracts, and the course of decision under that judicial pro- vision, be referred to as the distinction illustrating between which is and that remedial legislation merely, subversive intended to which be saved. rights of state laws has Under constitutionality provision examined, often been difficulty distinguishing between statutes which and those regulated remedy or has been subverted impaired great But the distinction itself has steadily been acknowledged. federal nor the maintained. Neither the state courts have m THE COURT OF CASES APPEALS. against Wynehamcr ever shrunk from the and laws which transcended inquiry; the limits of regulation merely, directly indirectly invaded the have been right, be void. uniformly adjudged could

Nor we the kindred in the case escape inquiry us, before it were attended with much although greater than we believe it to be. difficulty Does under statute consideration or does it an admit- simply regulate, destroy ted in which millions of value are species ? answered, invested As this the act must stand fall; but one answer can my judgment be given. laws, Besides the license and excise our attention has drawn enactments, been to other legislative producing result their the constitu- great injury private property, of which has been admitted or tionality adjudged. act of in 1807 Statutesat embargo congress (2 451), Large, is mentioned as one of these of I do examples legislation. not can influence analogy perceive,any present an That was all act which question. simply prevented and vessels within the limits or ships ports places of the United States” from jurisdiction sailing upon commerce. It to enterprise foreign important under what clause of federal inquire constitu- particular tion the was derived to enact such law. it That power went to the utmost of constitutional has been verge Constitution, conceded. on the universally (3 Story 163.) It is for the it that was enough present say, purpose recommended and aas measure adopted protection pro- and not of In annihilation. of Justice perty, language “It was (id., recommended Story avowedlj 161), vessels, measure of for our our seamen and our mer- safety chandise, from the from the threatening dangers belligerent words, In an other it was act of con- powers Europe.” destruction, and not of its it servation effect although bore with the interests the commer- great severity upon cial states and It did individuals. upon property not aim at the extinction of or of any species property, MARCH, 1856.

ALBANY, against The People, a theory If upon of its attributes. congress, proceeding interests urious to the was commerce all inj that foreign had and habits and the morals people, nation for it intended to an act destroy perpetually, passed vessels, prohibiting confiscating ships purpose intent to sale, them with unlawful keep their making nuisance, all, sell, them at declaring them keep then, valid, and I think a law had been and such adjudged then, be traced an having something not till might analogy us. before do with the corporations powers Statutes conferring municipal result, ultimate inflict inciden- which, execution and in their of individuals property tal consequential injury upon affords no is said the law which it remedy— —injury In of this constitutional. legislation have been adjudged can be found for the some warrant it is also kind supposed Here, fails. under consideration. again, analogy act no of this character species property. Laws proscribe result, remote and accidental it in their They may injure act, not, it shall not be allowed do like this say but they attributes, all, at the qualities at or strike exist directly consti- existence. The no it can have without which legal is, shall deprived tutional person requirement be taken for shall not and that Ms private nowhere use without compensation. just public functions of the admitted that, exercise of declared remote and mav not receive private property government, without (See consequent compensation. injury Radcliff’s Comst., 4 v. The Brooklyn, 1.95.) Executors Mayor of of of destruction buildings city authorized aldermen, in New-York, direction of mayor R. L. of (2 to conflagration order of spread prevent 368, a constitutional to as 1.813, has been referred 81), p. § of a citizen which of deprives exercise legislative power, statutes, of such to say his enough property. the com mere and are regulations thev are founded upon GASES m COURT OF APPEALS. 402 THE l’eople. against The

mon law to in a case any destroy person of immediate and overwhelming necessity prevent Com., fire 339; or ravages Kent Russell (2 pestilence. 46] New-York, Denio, v. Wend., ; &c., Mayor, id., 285; 25 Statutes of this merely 157.) description a appoint agent judge municipal emergency, direct the which acts individual performance might atdo his without all. statute "at If such peril legisla tion can it would prove anything present purpose, show that these of destruction be invoked in powers may n order to reform the morals and habits of and there society, fore that authorized agents individuals legislature, without' forth on commissionto authority, may go roving seize and all within borders destroy intoxicating liquors state, an as a plead overruling necessity justifi cation of their lawless acts. This would abe mission which and reformers have not under philanthropists yet taken, and which no certainly would judge lawyer defend. cited,

Other have been which legislation examples may at a considered together view. grouped single Laws of which detain for a limited quarantine, ships period exist; from where diseases laws coming places pestilential which forfeit the and the vessels against smuggling, goods are non-payment conveyed impost duties; laws which forfeit the tools and against gambling, committed; with which the offence is laws implements horse which it said the under horses against racing, ; used laws are forfeited selling unlawfully against liquors Indians, under which the themselves be for- liquors feited. sort have Examples supposed pecu- because, liar the force of question, application statutes of admitted for- validity, property specifically feited, is, however, and so the owner of it. There deprived sources, in all from illustration fallacy reasoning which can be readily exposed.

ALBANY, MARCH, 1856. against Th<i is, and fatal And the difficulty argument precise to, statutes referred resemblance between the that only consideration, under is in the one character and the unlike, themselves are totally prohibitions punishment. to different That the relate mostly subjects. punish- similar, or even the ment for violating prohibitions same, is whether when amounts question nothing, them, themselves, one is consti- or prohibitions Take, or the instance of tutional valid. smug- example, one doubts the No power congress prohibit gling. duties, without the goods payment importation nor, a that offender may consequently, punished fine forfeiture of the or goods, by by imprisonment. pecuniary has of this state whether But sale of or or general, property prohibit keeping now to be deter- is the species, precise particular established, is first then the owner who mined. that When fined, lose his or be violates the may property, prohibition to death. banished put imprisoned, an that admitted is certainly proposition, simple statute a constitutional offence pun- against public ; or of life ished loss money, liberty statute, another this tends to show that how prohibiting character, and similar of a different only totally things valid, itself con- and the offence its sanction or penalty, created, unable to is what I have been per- stitutionally word, statutes In to trace an between two ceive. analogy offender, them, or in the manner of enforcing punishing either the one does not advance toward step proving constitutional, or the other is contrary. to, referred and all from the statutes

The illustration to, reason of fails for another referred which can be others have been overlooked seems to significance, great It is law. assert the prohibitory those who validity itself to law say an entire misconception a viola- species which it relates hy forfeited IN THE COURT CASES OF APPEALS. against The Wynehamcr People. force It is the of its

tion simply extinguished provisions. act, In themselves. other parts prohibitions inflicted, are but the imprisonment penalties pecuniary is not as at all in of exacted forfeiture loss property to the term. is sense of It absurd quite ordinary just of that which enacts substance of a property say exist, it that no shall longer imposes species particular for violating as the of punishment forfeiture offence, the misfortune no There is except prohibition. to a title of forfeiture owner. A goods implies being valid, ; if law them, all world but good against for such has title to lose. Analogies the owner then vain. will be sought legislation men- one of the statutes which have to been In respect tioned, the sale of that which liquors intoxicating prohibits observed, are Indians, further that Indians it should be to consilii under the as considered tutelage persons inops minors, habitual the same category government, drunkards, These classes &c. particularly persons care; that the to concede governmental subjects sale of constrain or prohibit spirituous them, is it that to may regulate only admitting liquors which admission traffic any species property—an the distinction considered already sufficiently suggests between the destroy. regulate power power said, also, has of taxa- admitted been be so exercised under tion may authority legislative This is value greatly impair private property. true, but it throws no undoubtedly light upon present or unwisely, question. power may wisely justly ; but, exercised as a rests theory unjustly, power, In full received the individual compensation itself. conferred the tax benefit support govern- ment, taxa^- and other objects public utility promoted by tion, are the value return the individual supposed him as share of has been taken from his public

ALBANY, 1856. MARCH. against The a man his burden. This neither depriving sense, in a it use nor for under constitutional taking public the it of domain. be suggested, eminent Again, may right if, case, a confis- could be seen that the given plainly cation of were the and extinction a of species property statute, essential it should be unconsti- declared object tutional, under the forms of taxation. although disguised

It has been that some also for supposed legisla- authority tion of this kind is found the observation of one two States, of the court of the United judges supreme Massachusetts, delivered where the laws of license Rhode Island and New were examined in that court. Hampshire Howard, This is a mistake. (5 The 504.) quite was, involved and determined that the excise laws those states conflict did not with the authority congress commerce with countries and regulate foreign among was, course, states. was said Whatever beyond obiter as such dicta had no even reference merely, to the limitations of in" contained state legislative power constitutions. observe,

It is scarcely necessary, perhaps, views which have been it is not intended to expressed, narrow the field of discretion in legislative regulating the traffic in controlling We intoxicating liquors. only say that, in all such essential citizen legislation, right to his must be which includes preserved; sale, to'be exercised under such disposition restraints as both just regard public good private rights may suggest.

I am not insensible to the delicacy importance we assume in an act of duty overruling legislature, believed so many men to afford the intelligent good best and admitted evils in remedy great but we society; cannot that the function forget to us intrusted highest that of maintaining fundamental law. And inflexibly do, as I that the act believing, transcends the prohibitory 3 Kern.—26 OASES IN THE COUNT OF APPEALS.

Wynehamer against limits of constitutional t must be legislative power, to be void. adjudged judgments court and <xuit of supreme must, therefore,

sessions be reversed. was instituted under J. This A. proceeding Johnson, S. of the act for prevention intemperance, provisions and crime. The sections particularly pauperism these, as do relate it are omitting.such substantially parts sheriff, : shall be the this case duty not bear every sheriff, constable, sheriff, marshal or under policeman, deputy he shall see whom to arrest actually engaged any person commission, in violation of the 1st section offence any this.act, sec in violation of .said and to seize all liquor kept offence, such tion, of the commission of time and at the place contained, in which same is the vessels with together to such before any forthwith convey person magistrate dealt, town, to be to same according of the city in and vessels so seized some store .to the liquor of as hereinafter to be provided. convenient disposed place, n whom arrest officer any It .shall be every duty (cid:127) section, made, to make com under shall be and seizure arrested, and to oath prosecute on against person plaint 1855, and execution.” (Laws judgment complaint.to “ which, 340, All vessels liquors p. §12.) contained, which shall have found.and been seized.in been, for arrested who shall haVe of any person possession and not claimed section 1st any. violating provision shall, of such conviction other person person, upon by any offence, forfeited.” When be1 (§ 13.) any of such adjudged act shall be under. seized any liquor provision act, forfeited, of.the it section any adjudged provided the determination shall be of the magistrate (after the duty issue a is become forthwith to warrant final) commanding to The officer whcm the be destroyed. liquor it make a be dehvered destroy shall warrant ALBANY, MARCH, 1856.

Wynehamer against The destruction, is to be an execution and then return of contained the liquor. (§ L0.) issued to sell the vessels city county judge, justice, police Every justice peace, and, in all cities other officers New-York), (certain judge recorder, court, has is a recorder’s where there hear and determine punish charges, to issue process, act, hold and to courts under the special all offences for The section offences. the trial of such sessions for proceeds: shall not be sessions required court of Such special before examination of take the brought any person act, but shall under the of an offence proceed charge can be notified.” thereafter as the trial as soon complainant cause, is for not exceeding given Power good adjourn, issue, after, and not At time of days. joining twenty in which case the either demand trial by jury, party cause a to be summoned and is to jury empan magistrate neled, criminal cases courts of as in other sessions. special shall who have been convicted of No person (§5.) act, offence who shall be against any provision in the sale or con liquors, engaged keeping intoxicating act, shall be to act as a trary competent juror upon trial under of the act. (§ any provision 16.) Upon act, under the trial of of the sale of any complaint proof shall be sufficient to sustain an averment of an liquor sale, unlawful and shall be delivery proof prima, facie of sale. evidence A violation of (§17.) any provision of the 1st section is made a misdemeanor. The guilty is to forfeit all him in violation of liquors party kept by section, and is $50 to be further a fine of punished by second, offence; the first for $100 for a fine of for the third and thirty days’ subse imprisonment; every offence, $100, a fine not less than nor more quent than $250, three, for not less than nor by imprisonment than six months. The defendant more likewise to pay act; and in all costs fees default of provided pay fine, fees, thereof, ment of costs or any .any part IN THE COURT OF APPEALS. CASES against The People.

Wynehamcr is to be committed until the same are the defendant paid less than one dollar amount day per unpaid.’ which is the Such machinery legal process (§4.) act, who violates the any person according prohi is to of the 1st section be bition brought punishment, takes the form of a when proceeding personal prose not less cution. Other stringent extraordinary are when the prosecution methods procedure provided destruction. alone to directed liquor against procure.its however, these, we have in this case no cause to With ourselves. occupy itself, clause which these proceed- prohibitory founded, section. constitutes the 1st Omitting

ings after which will be from certain prohibition, exceptions noticed, shall not liquor intoxicating wards provides sold, sale, be sold, or with intent to or be kept kept whatsoever; it shall not be in any place any person with intent be nor given away, away, kept given whatsoever, in a in no dwelling-house, except any place tavern, store, boarding- grocery, shop, part or room for dancing, or gambling, victualing-house, house kind is amusement or recreation of or other public shall not be or that it any place kept deposited kept; whatsoever, in such as is above dwelling-house except described, in a church or sacramental or for purposes place chemical, where in a either some place worship; art, mechanical, the use of or medicinal liquor, requiring business, or while in as a branch of on carried regular another, from one or stored place actual transportation of its desti- to its warehouse in a reaching place prior section, same an in this liquor nation.' By exception as a medicine away by physicians pursuing given business, or for sacramental as a of medicine pur- practice that it shall The section concludes provision poses. which in this state ia to sell to not liquor, apply States. law or United treaty given by any ALBANY, MARCH, 1856. against The 3, 2 and

By answering persons description, doing §§ therein, the acts and the oaths be taking prescribed may sale, licensed to for and sell intoxicating liquor keep mechanical, alcohol for chemical or medicinal purposes, 22, wine for sacramental use. the act is not By § be construed to the sale of in cider quantities prevent less ten nor not than the manufac- gallons; prevent alcohol, turer of or of wine from pure grapes grown him, or from from alcohol or by selling keeping wine, nor the from liquor importer foreign keeping in the same or selling original packages any pei> the act to sell such nor son authorized liquors; pro- sale, or nor hibit the manufacture keeping selling kind, essences, fluids of burning any perfumery, drugs, varnishes, nor other article which in may composed other if alcohol or liquors, spirituous adapted part in of this act. use as a or evasion beverage, contain, substance, The clauses foregoing prohibi- act, tion of the with the which its effect. exceptions qualify Two other to be necessary quoted, provisions it, bear which the owner of has in rights upon liquor and the modes which he assert those rights. “ 16, first is the close of and declares at that no person § shall maintain an action to recover the or value possession him, sold or which shall any intoxicating liquor kept taken, detained or other purchased, injured by any per- son, unless he shall that such was sold accord- liquor prove act, was ing lawfully kept provisions 25, him.” The other clause is at the end of owned § all violation liquor provides kept provision of the act shall be deemed and is declared to be a hereby nuisance.” public whether this act within the authority

conferred of this state people legislature, whether it is conflict with the restraints have constitution the law- people imposed upon COURT OF APPEALS. IN THE OASES against The People. is, us. is the case before 'It making power, presented to the decision of the not absolutely necessary perhaps, this in its should broadest that we question cause pass usual for the of the not been courts United It has aspect. law, of constitutional when to consider questions States them could be case before on disposed particular no doubt that this is I other have grounds. practice of the delicate a wise consideration nature grounded upon which courts exercise of the justice authority declaring void, as acts of the conflict legislative being power however, rests the constitution. in the practice, therefore be discretion departed judges, when interests seem that from course. require public much has is not unknown to us that existed controversy this to the that the constitutionality respect divided in whole body community opinion upon it; that these different are maintained with opinions great them, who ardor those entertain very important interests, both the solution public private, depend upon shall at our receive hands. The which ques- court, has at been different tion supreme presented terms, resulted, decisions have so conflicting general officer, nor can what no any public say person, private This state his premises. things only duty but, from us to my allows ordinary practice, depart consider and makes our imperative duty judgment, involved. questions finally dispose state, is exercised all over this In people them, it be whether executive derived from legislative, it, or it can have conferred have legal “ they or judicial; have entrusted To existence. legislature they state,” the words their grant legislative power 3, In same instrument art. declare. I.)§ (Cons., have com- all the to whom they have agents imposed upon restrictions, certain government, mitted powers which, intrinsic people, original power ALBANY, MARCH, 1856.

Wynehamer against People. limit the exercise of of Some these authority. restrictions are, terms, the ; others, imposed upon legislative power restrictive and executive equally upon legislative authority, are in form of declarations of expressed rights to belonging the people. other/,

In is my judgment, legislative to no power subject In control. exist, there must every organized society some where, an ultimate what power determining the interest which of the exercised, been requires, power people having review, to no the decision is save the subject whole of the no human society. action does body Upon part law more or the more directly than in operate legitimately which are as „ to actions hostile to the regarded respect pub- actions, to such lie welfare. In where no constitu respect is limit is upon legislative power, tional imposed legislation make to such laws lies at the The right very supreme. entrusted, to be of society, ought foundation think, entrusted, law-making power. Ias forbidden, shall be actions neces what as to determination discretion, in view all to exercised the involves sarily time, which, at operating upon circumstances Of questions, legislature welfare people. which is in imme people, exercises which them, knows which both their communication diate needs, ultimate I am judge. and their desires (cid:127) I am not to question power. solely speaking review, under or of their laws wisdom judge in the exercise of Sitting abstract justice. reasonableness limited strictly answering mere power, judicial law, has not been entrusted is the what the question, be, I have to' it authority what ought with saying allow and to disallow of legislation, the justice weigh that which the to turn. Certainly, scale find I shall to be made law required of the people and welfare interest enacted, within the and was scope was proper inhibition exists constitutional if no power, legislative APPEALS. CASES IN THE COURT OF Wynehnmcr against The all, at it must go is to of such a If a court judge has acted. field which the the same upon over It must consider the occasion of the the existence of evil, the suitableness A exer remedy. person is neither to cising original judicial capacity apply nor to a of it. He justice, discretionary goes application hand, and discretion at second justice only through work, medium of some He is to neither superiors. upon other, his of the one nor fixed opinion rule, and of which he has not the making, singly solely a to the action shall case.” Whether given application whether loss of and under what penalty, prohibited, life, fine, an must infinite or of depend upon liberty, facts, evil and the consideration of variety upon occasion to is to action occasions or people. likely to determine a court of sitting has What justice, machinery a ? with which investigate questions- to the and I can add strength nothing subject, Upon that, as the which I true which regard clearness with legal stated Sena and duties judges, view powers Wend., v. Van 381) in (20 Cochran Surlay tor Verplanck, to limit difficult, any general principles, It is upon of the sovereign legislative power by judicial omnipotence as the words of a so far express written except interposition, are, indeed, There that authority. many constitution give contrary authorities, that acts dicta, some holding great void. first principle principles sound, rule of a legislature governing unquestionably acts, of a or even those own to its preceding relation courts, of construction for a safe rule It affords legislature. doubtful con admitting any laws interpretation have, could struction, that the jto presume of its statutes. intended an unjust operation unequal to be never given legislative Such a construction ought more other conform if it be susceptible language, but if the words without positive able to justice; ALBANY, MARCH, 1856.

Wyuehamer against for a court can find to vacate or I authority ambiguity, it is on that alone. But statute a ground only repeal constitutional limiting provisions, legislative power express will majority and controlling temporary by per law, settled deliberate wis manent paramount nation, can find a that I safe solid dom ground of courts of for the to declare void authority justice enactment.” legislative evils of

From drunkenness have early pretty period attention. instances of attracted Frequent legis- legislative are to be found among English lation on subject laws. With these and with the colonial examples, and our own of our government restraining constant practice license, I in small feel quantities except by sales liquor can be how it maintained that the understand it difficult not a subject liquors of intoxicating use take can constitutionally place prevent inju- legislation and morals of the if health it is a people; ries all, I at do not know where is legislation subject proper in the fixed rule any to be found (unless constitution) by to that can undertake the court absolute say a which pro- a of as would be of the use liquors, beverage, hibition beyond Nor do I find in the con- legislature. the authority which can to restrain the applied anything stitution of such law. the or affect validity Certainly passage “ that no shall be the declaration neither person deprived law,” life, without due of or or process liberty other, this state shall no member of be disfranchised that or secured to rights or any privileges any deprived thereof, of the land unless or citizen judg- would have such a of his ment any application peers,” stands to drink higher liquor upon law. The right than the to do other which the many things ground welfare, finds tc the and can contrary public legislature words, those be secured under unless general scarcely upon tie would the hands of that grounds completely legisla- THE CASES IN COURT OE APPEALS. Wyuehamer against ture from all interference with the conduct men. nearly But the have not seen to fit their legislation put form. into this have not the use They directly prohibited as a but have liquors about beverage, attempted bring view, the result which had in substan- by forbidding the traffic in for other than tially liquors, except purposes enforced, This if would have a clear drinking. prohibition, drink, use as a because tendency prevent liquors it would render the themof such procurement any pur- nearly unless the seller should violate the pose impossible, Indeed, law. in which could be ways liquors only pro- cured without an infraction of by purchase by person, one, the law some the construction upon put act, the terms of the would be prosecution present upon them, either to manufacture from an perhaps buy If importer, original packages importation. law went no further than to impose pro- sales, hibition alike all the inhabitants upon operating state, it, I should find it difficult to its say force, own mere of his liberty deprived person pro- within the constitution. Such law meaning perty, would diminish value of the almost clearly property, nay, value, useless, it of and render'it within this nearly deprive traffic, for which state for it was purposes mostly but it would touch the nor would it acquired, thing, term in its property, considering legal destroy sense, those men acquired descriptive rights and which and over constitute notion of things, legal property.

It is obvious the end which the quite view, had in that to have been the of assuming prevention of the be attained evils direct and also may by drinking by instance, measures. For indirect intoxication prohibiting means; would ideone at all would be prohibiting drinking another, remote; one more the sale for degree prohibiting is still more remote. So be car- legislation drinking may MARCH,

ALBANY, 1856. Wynehamer against The view; from the and farther directly on farther object ned the sale for as prohibiting purpose; by prohibiting ol of manufacture; even existence liquor; prohibiting be can which liquors procured. of those from even things n Now, is entirely legitimate though general purpose direct and though within the of authority, legislative scope be freo of that end for the attainment might legislation that measures no means follows from by yet objection, view, end in conducive though operating remotely, not violate the restraints the constitution. may bills of declaratory history origin purpose, Kent, his Com stated Chancellor rights admirably Com., 24, that the After mentaries Kent's stating p. (2 1). § be resolved into the absolute individuals may right rights security; right liberty; personal personal he “These acquire says: enjoy property; have been considered and declared rights justly frequently natural, of this to be inherent and country, people inalienable.” After how and how strenu showing early ancestors, were asserted our colonial he ously says, “ constitutions, formation several state states, had become it was in after the colonies independent collect, declare, instances most thought digest proper manner, definite and in the abstract in a shape precise maxims, most essential and elementary propositions and the to civil natural articles liberty rights appertaining of mankind.” (Id., 7.) our But the necessity representative republics has been codes questioned; these frequently declaratory its all creation inasmuch government, parts, of it is filled their every department people, will, their according chosen appointed agents, duly for maladministration. and made responsible hand, observed, that no violation of those on the one gross which are understood and clearly rights absolute private is to reason of mankind the common settled by appre- IN COURT OF THE OASES APPEALS. against The affairs; in headed course of and as to ordinary public turbulence, instances of faction and and the extraordinary and violence which corruption they necessarily engender, can checks be relied on as under parchment affording, circumstances, effectual to protection liberty. public fled, When the has and truth and spirit liberty justice are can be sacrificed disregarded, under private rights easily hand, the forms of law. theOn other there is due weight to the consideration that a bill of is of real in rights efficacy the excesses of controlling It serves party spirit. guide and enlighten and to render it more public opinion; quick to detect and more resolute to resist to disturb attempts more right. than requires hardiness private ordinary of character down audacity trample principles our ancestors with reverence; cultivated which we education; our imbibed which recommend early them- selves of the world judgment their truth and by and which are simplicity; before the constantly placed eyes people, force accompanied imposing of a constitutional sanction. solemnity Bills of rights freemen, of the muniments of their part title showing Com., Kent's (2 protection.” 8.) cited, the bill of clauses before rights, together with the trials, provisions contain respect jury substance 29 of provisions chap. Charta. Magna These clauses have received a always liberal large favor interpretation private rights against power. “ land,” law expression, by interpreted Lord Coke to mean due course and by by process Ins., law” and this last (2 afterwards 46); expression to mean indictment or expounded presentment good men, manner, and lawful where such deeds be done in due Ins., writ at the common law. In original (2 50.) Tay Hill, v. lor Porter and in v. Conner Coms. (4 Embury (3 140), considered 511), these words was Bron meaning J., court, Jewett, J., son in supreme ^ 417 1856.

ALBANY, MARCH, People. against Wynehamev The least, that, due court, at the agree opinion mere trial, not a a of law” judicial imports process a law. of the will of declaration by passing legislative held, further, in both courts as those holding They agreed use for could be taken that public though private property it could uses for not yet compensation, public upon just all, in nor at neither an act of not be taken legislation, himself, or, manner; Bronson other Judge expressed Porter, to v. with reference the case of speaking Taylor question of the of the constitutionality presented “ road, when one man’s land to make taking private another, that the I the of mean to wants say man The him in the cannot aid making acquisition.” doctrine, substance, in the same as to the authority in was affirmed court in v. Powers legislature, Bergen Seld., an act of where the arose (2 358), not the trustees sale lands legislature authorizing the trust. No authorized will necessity creating or in the statute either act legislature appeared it, other aside from either on or account infancy who had vested contin persons incapacity living estate, that act interests and the court held gent was within the legislature, powers delegated no title. In and that the sale in of it conferred pursuance court, Jewett, who case Judge gave opinion cites with Judge language Story, approbation “ Peters, The funda who Wilkinsonv. Leland says (2 657), mental maxims of a free seem require government oí should liberty lights personal private property in this sacred. At least no court of held justice country that the violate would be warranted assuming power common them—a so disregard repugnant under and civil liberty—lurked justice principles to be general from, ought grant legislative authority, implied of the will of any general expressions people. not to be rights ought presumed part people IN OASES THE COURT OF APPEALS. YYyneliamcragainst' so vital to their without security well-being, very strong and direct such an intention.” The expressions same words, construction was to these again given due process law,” Edwards, Denio JJ., giving opinion Kern., this court Westerveltv. I do (2 nob Gregg 202). us, these refer to cases as that now before deciding only to show that without without due judicial investigation, law,” of no act of can a man legislation process deprive his and that in of civil cases an act of the property, alone is to take from a man legislature wholly inoperative his property.

An of admirable the doctrine as constitutional statement the both in the to legislature, power punishment offences, of is in the of creation contained opinion Sanford, Cow., in Chancellor Barker v. The (3 People 686): “ The in of crimes of legislature power punishment is or a -to limited do special grant, authority any par ' act ticular to manner. It is a thing, any particular ‘ state,’mentioned of this of legislative part power the. the first sentence of the constitution. It is sovereign order, a state laws for the of to maintain social power due It is a take life and of crimes. punishment power both, and all of when the sacrifice is liberty, rights to the of order and safety necessary peace, community. is vested and as This.general authority legislature; is of one of the most their its due exercise ample poYvers, an is is of their duties. When offender highest among he of the exercise most of the of imprisoned, deprived death, ; aof citizen and when he suffers all his rights rights are have extinguished. legislature power prescribe or death as the of offence. imprisonment punishment any .The of a citizen thus to the rights subject power state crimes; of and the restrictions of punishment this, the constitution all the upon upon general powers nment, are, that no citizen shall be govei deprived or the judgment bis the law of the land unless rights, MARCH, 1856. ALBANY, Wynehamev against The life, shall deprived his person peers; ’" “ law.’ due without process liberty thus committed over crimes the state power crime; without a definition without legislature or to to be adopted, of. any description punishment con direction and without rejected, is, then, a power produce cerning punishments. a criminal means; a to establish end power by adequate crimes, sanctions; a to define code with competent laws, in the discretion of the prescribe punishments no crime is defined in the consti But though legislature. tution, forbidden no species punishment specially there are numerous regulations legislature, yet which must as restrictions constitution operate The whole constitution must be general power. supported, its and all and rules must reconciled into concord. powers law a to A which should declare it crime exercise any constitution, of as the of fundamental right ‘right or the free exercise of would suffrage religious worship, an rule and would therefore of system, infringe express crimes. not be within the over Particular general power would also encroach rules and rights punishments the constitution. established by Though legislature to have an undoubted power prescribe capital punishment, a and other to punishments produce disability enjoy constitutional a mere of rights, yet deprivation rights would, even as a cases punishment, many repugnant to rules and established. rights rights expressly Many and intended to be fundamental and invio expressed, plainly all law a lable in circumstances. A criminal enacting offence, should, a forfeit for his of light punishment constitution, and a trial would contravene jury, be allowed in the form of this could not deprivation secured as thus universal of other punishment. Any right, inviolable, must general against equally prevail select and to punishments. legislature prescribe power CASES IN THE COURT OF APPEALS. against These all; are secured to rights criminals as well as to others; and a punishment, consisting solely depri vation of such a would be an right, evident infringement of constitution; and all which do not punishments sub vert such rules constitution, rights are within the and choice of the legislative scope power.” then, offences, has to create legislature, and to declare in what cases the of life, loss of consequences of of shall be attached to the liberty property, commission “ offences, of ascertained due they being process law” to have been committed. But the form of this decla- “ life, ration shall be right, person deprived liberty law,” without due process necessarily that the cannot make the mere imports existence secured the occasion of rights depriving person them, the forms which even due belong pro- if this, cess of law.” For it does not necessarily import then the is absolute. legislative power for a trial

To ascertain whether a man inis provide then, of either of these as a rights, con enjoyment is in it, that he sequence finding enjoyment it, him of what is forbidden doing indirectly deprive just to be done reduces constitutional directly, provision instance, who, For a law that man after nullity. live, shall continue to shall be fifty years, age pun fine, ished or would be imprisonment beyond by power so, be would that legislature. ground life, he cannot be of or without liberty deprived of to live and due that not be right process of for was the declaration living right put punished of interference. legislative Upon beyond power it a crime for same a law which should make men principle, houses, in, rent, would sell their fall either to live same within the legislative authority. prohibition upon then, to offences to be There attempted may, respect arise being created bj legislation, question capable ALBANY, 1856. MARCH, Wyneliamer against The considered courts of whether the forbidden justice, thing is an essential of either of those secured part rights, private bo essential cannot that without it exist at all. right nature, is Such a of the most delicate undoubtedly as well to the as to wide looking authority legislation, the intrinsic between the exercise difficulty distinguishing the manner of existing regulate clearly these and the of an exercise absolute enjoying rights them. A directly prohibited power infringe upon court of well hesitate before such a justice may question, is bound to meet it when similar A yet presented. case of has arisen in the courts of difficulty the United1 States, in to the of the states respect acknowledged power contracts, remedies for the enforcement of regulate to them the constitution of the power prohibited States, United law the impairing by con obligation tracts. There the and the run so remedy obligation into other, each draw a line between them seems almost has been duty and it impossible; yet has performed, that, been held be altered though remedy may state that a substantial and reasonable legislature, yet mode enforcement, in the courseof ordinary regular justice, must to the the breach of the given party injured by contract. The cases stated and examined in Morsev. Kern., The rule indefinite, Gould (1 281). necessarily rules so blend conflicting together practice, an no other than indefinite rule is The same sort possible. question presented respect infringement by of men’s and the legislation rights, private regulation them, and their The -substantial enjoyment. cannot offence, its is not an destroyed; enjoyment and legisla tion' make an cannot offence. At the same time the mode sense, in its broadest enjoyment, subject legis lation, it be affected though very injuriously, provided Now, substantial is left. right to respect liquors, can doubt on that the 3d lawyer were July they prooerty, 3 Kern.—27 IN OF OASES THE COURT

Z22 APPEALS. Wynehamer against arti the owner the same as other in which had right nor that since that time they cle property, personal as come under the and that remain they property, affords which constitution property. protection or at least the or use in some way, disposition power oí enters into notion legal every right keep preserve, does not of sale alone To destroy power property. it takes indeed though destroy property, physically its and for chief value from that which it it gives quality I am not desirable. Still which its mainly possession not, under that the legislature may say prepared constitution, to the extent which take sale away But act general prohibition contemplates. sale, quantity, person irrespective purpose, it, in a even keep except coupled prohibition store, &c., where no and in dwelling-house, kept, places on, arts where certain and trades are carried the legal existence, law the constitution as designate is in broken and the my property, judgment up, private if is as effected as itself were Injury thing completely taken away. physically condition, not it a

The constitution does make on which its is extended to that owner shall its protection also own owned who on dwelling-house. They liquor the 3d did own who or could not July, procure were, the use of a or other dwelling-house excepted place, without act done on their made of a mis- guilty part, forfeiture, demeanor, fine and unless punishable by which, was the same destroyed recognized it to remain where it to be Allowing happened property. offence, was an and there was no constituted way escape sell, except by destroying property; (cid:127) to sell was taken even to licensed again, away. persons this is no overstatement That may appear case, law. With I will restate shortly provisions before are forbidden granted, trifling liquors exceptions F, MARCH,

ALB Aft 1856. against The People. sold, sold, or with intent to be or to be to be given kept in a intent to be or given away, except away, kept tavern, amuse- store or where no dwelling-house, place save ment is or to be or anywhere deposited kept; kept sacramental or in a church for in such a dwelling-house, chemical, mechanical a or some where purposes, place business, while or art is on as or medicinal carried another, or stored actual from one place transportation its its of destination. a warehouse reaching place prior constitute In addition to these which together prohibitions, law with this scheme dealing-by species pro- single to them is declared to be a liquor contrary kept perty, it, nuisance, it from and for an or taking injury away action, owner, unless he he can maintain no proves “ him;” and as this and owned was it lawfully kept other in all lawfulness is made to among things, depend, sell, cases the non-existence of an intent to and in some upon cases the non-existence of an intent to it give away, upon burthen of out these nearly making negatives impossible This scheme is thrown owners. taken together, is a scheme not of regulation, my judgment, legal which, other, destruction of as much as was property, any under the of the constitution. It does not in protection officer, come short of law its effect authorizing any one, Between directly destroy 'iquor. directly destruction, and the owner that he telling authorizing also, fined, if he does shall be and his destroyed property himself, the action of the law destroy anticipate stand, If such a law as to can I cannot liquors distinguish. as to ; he made other the same provisions words, those and if such be the legislature, life, no shall be deprived liberty person law,” of a ivithout due longer deserving process their the muniments of freemen, showing among place title protection.” IN THE COURT OF CASES APPEALS.

Wynehamer against There is no doubt in the result to seeming anomaly come, which have that I mere should rights property stand in the of criminal The way solution legislation. only be to found in the consideration that it difficulty framed, not have to the convention who or to occured constitution, that, who in one people adopted act,'an the same article had legislative before always been as be useful regarded property, might recognized itself, for some in nor evil unless purposes, dangerous drink, used as a of sale some and the capable people, hands one who subject property every lawfully it, and that interests acquired be yet, public might deemed to that the owner should lawful neither require it, it, it, sell his in intent nor irrespective selling keep it, of his in intent unless he could irrespective keeping pro- cure a in, mere to it on dwelling-house of fine keep pain n and forfeiture. Had such a imprisonment contingency them, occurred to it is that altogether would probable they it, have either provided by narrowing protection which the constitution extends to equally life and if deemed that liberty, they expedient, possibly for such by providing legislation. expressly section, A The the first taken prohibitions together, form are scheme and to enforced they single therefore, in the same cannot judgment, my penalties, which had at *least to been upheld, respect no while there was acquired against acquisi- prohibition The tion such future acquisition legisla-' property. control, I am not ture might, disposed my opinion, future have such that could acquisi- deny they subjected But in this act to the this act tions prohibitions imposes. ' extend The made no discrimination. have they provisions to all meant extend clearly liquors. were make out the offence proof according part lipuors that statute, to show were after acquired fact became nor is the they operative, prohibitions ALBANY, MARGE, 1856. against under

were defence the statute. acquired any previously it, on the only way defending against ground have declared void. Laws in question, by asking relation to civil sometimes held to be uncon- rights stitutional, in so far as affect the of certain rights per- sons, and valid to others. This is done respect mainly courts will not construe ground them to relate such cases as the had not to act offences, To statutes criminal upon. creating a rule of construction not to be and I ought cannot find applied, trace of its ever been It is having applied. to the administration of criminal highest importance justice, that acts crimes should be certain in their creating terms in their and it would be in plain no small application; courts that should be called unseemly in degree upon, law, the criminal an act administering adjudge creating at one time and at offences valid another time void. It must, think, enacted, it I stand as has been or not stand at therefore, In all. the 1st section my judgment, act it, in clauses founded question, penal ought declared void. to be trial, as to next is

The condemna process tion, forfeiture which the act punishment, introduces. much whether the I doubt clause of the bill that rights, life, shall be no person deprived liberty due without a trial process necessarily imports jury does, then, all If it unless all due civil process. part out of provision, perview proceedings Hill, v. to be in Porter were not (4 thought Taylor they Coms., it seems diffi v. Connor (3 511), Embury 140), in which on what equity proceedings, cult say grounds unusual, men and which are often is quite trial jury can sustained. right jury deprived If sections of the bill other rights. secured trial cases, others can all then the in hardly it gives portion them, For, it is that at with it. on stand looking apparent APPEALS. m THE COURT OF CASES Wynehamer against had continued where were intended to be trials jury existed, in which and that cases were jury contemplated con to the did not exist. I incline trials not would Commentaries, in his which Chancellor Kent gives struction “ law definition of due the better and larger process is, in its administration that it means law through regular Kent, it is not courts of But necessary, justice.” (2 13.) because this question, my pronounce upon opinion, 1, constitution, trial viz: The first of art. 2 of part § used shall in all cases which it has heretofore been jury forever,” broad and efficacious remain inviolate enough “ in in which it. The all cases secure enough expression, used,” it has been does limit heretofore generic. used, mere it been instances which had extends to such new and like cases as afterwards arise. might instance, For felonies were triable I do not only by jury. doubt that all new felonies must be tried in that way, 6, section; force of this that by provides § otherwise held to answer for infamous one shall capital crime, on indictment or of grand presentment jury, except terms, not, in does trial of the issue on the require jury it, does as well in new dictment. other section require old, as in class of cases felonies because they belong which, constitution, a trial in at the of the such adoption case, that, we find was used. to this principle Applying least, of the excise 1830 at misdemeanors violation from by in at all not triable sessions laws were courts special S., 682, S., 711, 25; R. 2 R. courts (1 1), *§ § sessions, terminer, which were courts or of general oyer common to the course of law. And proceeding according moreover, even cases of offences ses special where sions had the defendant might always, jurisdiction, oy bail, 1830, at to himself a least after secure giving right trial does not at all affect the other courts. It by jury was not at an earlier trial this argument jury say, period enlarge a the law to cases. The course of ALBANY, MARCH, 1856. against The People.

Wyneliamer was trial given restrict it. When not to jury right, private cases, because bestowed was time in such first for the influences, its to extend desired protecting was new constitution jury adopted, when afterwards accustomed, received it was then trial, where in cases are law. Writings organic sanction protection made; and time when to thé to be construed cannot, 1846, clause, heretofore,” means before in this 1777, confined carried back to its to limit meaning, which, were triable by at earlier cases period, to the jury- that offences act

This prosecuted personally provides offender, which he is and for punishable against fine, shall be forfeiture sometimes by imprisonment, either numerous inferior tried one of magistrates, men, all, six with very at a without by jury jury 1855, 231, 5, 16.) (Laws chap. qualifications. §§ peculiar trial. is not what the constitution means ( This Cruger jury be, Railroad, Kern., within R. That must v. Hudson 190.) constitution, men. The terms of of twelve jury fhe idea that the inconsistent magis act entirely bail, at let the defendant to to answer another is to trate is not take Its is that he criminal court. direction defendant, but is examination immediately proceed trial, and he is to and from his to a give judgment, judgment act, can, an lies. He only proceed according appeal innocence guilt determining purpose upon accused, and could not constitutionally him; was the whole which made conferred provision, trials, and kind of not for the with view to this pur only elsewhere, answer must fall. the offender to holding pose follows, that the act conferred jurisdiction upon defendant, and that the magistrate try judgment court, of the must be that of reversing justice, supreme affirmed. IN THE OE CASES COURT APPEALS.

WynehMner against J. The which lies at the threshold of question Selden, case, this and which should determined'in advance of every other, is whether the act for the prevention intemperance, crime, and considered in reference to pauperism its object, the means to secure that and its adopted object, alleged effect in a amount of virtually annihilating large void, is as without the It being legislative pale power. claimed, restrictions, 1. That of any positive irrespective of natural and set bounds to «principles equity justice of the which are transcended power this legislature, law; and 2. it is That in conflict with the express provi- sions of the constitution.

In examining subject, speculative opinions regard act, xto the wisdom or the beneficial results likely it, flow from can have with a whatever to do ques nothing tion which abstract depends upon govern principles law; mental which cannot be moulded to meet principles or interests of views a . any portion people. not of but of expediency, power. itself, state within

Every sovereign absolute possesses, that, and unlimited isIt true as legislative power. .govern- is instituted for beneficent ment purposes promote welfare of the it has no moral to enact governed, right to reason and which is law justice. plainly repugnant ethics, to the science of But this belongs political principle arbiter, There is no the state that of law. beyond Whatever, .itself, what to determine legislation just. therefore, state, aof is so the ultimate declared by must, there can be no view appeal, union of functions to be taken right. just constitutes, laws of necessity, making deciding upon While, therefore, the absolute legislative power. laws state may, sovereign tyrannical pass arbitrary self-evident,, This is its cannot be denied. legal power whole, course, of a state as needs I speak, proof. ALBANY,MARCH, 1856. against

where all its are concentrated in the hands of the powers at or of one or more of its members. large, people It follows that if a or to form society wishing people, an should three create the organized government, simply essential executive departments, whole vesting power one, third, another, and the legislative judicial as the three combined all the would departments possess in their collective powers belong people could make law capacity, legislative department made, which the themselves could have people arbitrary otherwise; unless, under such a distribution of the govern- mental some is vested in the powers, authority judiciary, of the laws. pass upon propriety justice it is But evident that this is a anot legislative judicial exercised, It is to be in the first instance necessarily power. least, at when the law is constitutes passed, obviously the most essential portion duty legislature itself. To the same vested in the suppose power judiciary, tfends to confound distinction between the two depart- Besides, latter, ments. when exercised it becomes and thus sub- supervisory appellate power, virtually clear, therefore, of all versive legislation. my judg- ment, that in a natural and distribution of simple perfectly it is not within the governmental powers, province void, act of the judiciary pronounce any however, this ia artificial may, acquire through .of those distribution means of the law. powers, by organic look, then, 1, Let us at our state constitution. Section 3, art. declares that of this state legislative power means, shall be vested in a senate and This assembly.” course, the whole The words are legislative power. general unlimited; is reserved. It was decided nothing Seld., court, in the case of Barto v. Himrod (4 483), had with all their people parted legislation, 7, case for in art. 12. single except provided § (cid:127) IN THE OF CASES COURT APPEALS. 430

AYynehamer People. against Tlie then, could has been shown that the as it people Why, law, is not the equally unjust, legislature make just because, in the constitu- other clauses ? It is absolute noticed, tion, this a absolute hereafter to be portion Not, true, it is to the has been transferred judiciary. power terms; the result but the constitution direct being themselves, with before the legislation people parting When, therefore, is law. their paramount power, this, conflicts law legislature passed judi- them, as it acts between does between the ciary pronounces and the law of two successive legislatures, paramount pre- seen that in this mode a restriction vails. It will be effected, is without the legislature confounding power as distinction the two between departments, judi- exercise its continues to only judicial ciary appropriate functions. determine, then,

To the extent of law-making power, we have to look constitution. only provisions has, have, limit and can no other than such is there that there exists and the doctrine in the prescribed; some loose and undefined to annul judiciary vague, power “ is because in its natural contrary judgment with the first conflict equity justice,” principles never, think, be maintained. I and can government, when the am aware that some eminent judges, n wasnot before them, in the have belief existence expressed believe, ever, has I of such a no court assumed power; an to declare enactment void on explicit (cid:127) that ground. Blackstone, Commentaries, in his after referring some other on this doctrine advanced writers subject, “ that acts of are reason” void parliament contrary says. “ if the will But enact a to be parliament positively thing unreasonable, done which I know of no power forms of the constitution that is vested with ordinary it; control examples usually alleged

ALBANY, MARCH, 1856. Wynehamer against The do none of them rule sense of the prove of this support unreasonable, statute main when the object to set the it; for were at liberty reject judges whichwould subversive above the legislative, judicial power Com., Christian, in his all Bl. 91.) (1 government.” When signifi says: commentary upon passage, manifest, that less than of cation of a statute is no authority its note to can ‘restrain (See BL) operation.” parliament authorities, true, reference to the British it have These constitution; of relate to those our own but the following Lieber, and Self- in his work on Civil Liberty country. “ Government, have the state says legislatures rule, to all that seems for as a do necessary right, general welfare, and is not He the general speciallyprohibited.” 15, Mr. Justice (See chap. suggests exceptions. § 25.) Dall., Iredell, where in the case of Calder v. Bull (3 386), considered, uses the was following incidentally then, “If, of language: government, emphatic composed were estab executive and legislative, judicial departments, no limits a constitution which on lished by legis imposed be, that lative would consequence inevitably power, to enact chose be law whatever would legislative power enacted, could never and the fully judicial power interpose Church, Connecticut, of Justice void.” Chief pronounce also, in The Housatonic the case of The v. Bridgeport Cityof R., his views Railroad Conn. Company(15 expresses 475), not often be difficulty thus: There any great may natural nor are what determining justice, principles that which theorists what tend undermine may would the social com fundamental to be the principles suppose who acknowledge those precepts pact, especially these of revealed yet principles and religion; obligations to the undoubted are not application always easy action; human know we varied forms infinitely make can more safely which no other municipal power as a court, than the legislature; application IN OASES THE COURT OF APPEALS. Wynehamer against People, conclusions, we dissent from its although might wedis yet claim them for no other reason than disregard unreasonable, we consider them might impolitic I with the learned chief that this "unjust.” agree justice, laws what power determining expedient just, which must somewhere, necessity lodged safely which its reposed returns legislature, so the elections frequently into the hands of the through as in the people, judiciary. remedy unjust legisla tion, law, it does not conflict with provided organic ballot-box; at the and I know of no the consti provision tution nor fundamental government principle authorizes the when defeated at the minority, polls, an issue of a involving propriety appeal aid invoke its reverse the decision of judiciary majority nullify legislative power.

This me to the consideration of secónd brings the ground", whole, it is which claimed that the as a is void upon viz: that .it is inconsistent with the letter or of-the spirit The, of the state constitution. express provisions particular clauses with which it to conflict are those which alleged “ 1. That of member this state shall be dis- provide: or franchised of or any rights deprived privileges thereof, land secured to citizen unless the law of the by any or 2. That no shall the of his person judgment peers.” “ life, of without due liberty deprived property, pro- cess of law.” clauses,

The first of these which had its in origin Magna is, a, as it embodiesthe most essential brief Chart guarantees the exercise of which instru arbitrary power against used, there ment Its when contained. plain, meaning, we consider that it was the result of a which had struggle lasted for more than a between English century people and the who had the laws and Norman kings, supplanted Saxons, and established in their customs Anglo place at of royalty. English yeomanry, prerogatives 433 ALBANY, MARCH, 1856. against The People. terms, inserted, meant whose instance this clause was by ' “ land,” To or common law. law of the the ancient Saxon it, other would render construction put any. in his ,At clause utterly unmeaning. English period ' “ law exercised and if king tory, legislative power; land” was meant law might king of. enact, the was a But the was meaning provision nullity. clear rendered more of this article paraphrase Charta, which was inserted in a statute subsequent Magna to the securing privileges reign people, passed “ III., clause, in which the law of the Edward land or the his was judgment peers,” changed “ words, without to answer due being brought process This shows that the law.” change object provision least, was, at interpose judicial part department as barrier the other government against aggressions by Hence, courts and both commentators in departments. clauses, form, held that these either have this country trial, before can citizen he secure every judicial life, Henderson, v. liberty property. (Hoke deprived Porter, 59; Dev., 1; 10 v. Jones Perry, Yerger, Taylor 4 v. Conner, Coms.,511; Com., 2 140; 3 Kent Hill, v. Embury Cons., on the Com. 13; 1783.) § Story then, class the statute question, deprive Does law?” their without due citizens of process use, is the enjoy any person possess, Property term, of thing. although frequently dispose itself, in strictness means thing only applied Dic.; in to relation it. Law owner (Bouvier’s rights Com.,138; A man Webster's bemay deprived 1 Bl. Dic.) chattel, therefore, in a without its of his being property or taken from his or seized destroyed, possession. physically .it, his in to annihilates his subverts regard Whatever rights, follows,"that in it. a law which should It provide property in article in which a any regard CASES IN THE COURT OF APPEALS. Wynehamer against used, it should neither be sold or recognized, nor kept state, whatsoever this would within fall any place directly inhibition; within the letter of the constitutional as it would the most effectual manner possible deprive owner of his withotit property, interposition any court the use or whatever. any process

It be said that the constitutional may ques- provision cannot, tion in the nature of to a case where things, apply a law enacted for beneficent purposes operates directly its and thus se end subject, accomplishes per view; that, case, in such a it is impossible interpose any execution; action between enactment and its judicial and that the clause can to cases where there is only apply be some manual interference with the or rights person But there is no such limitation in property. the consti- ; tution and the few it contains should not guarantees be curtailed narrow or refined any process interpretation. Such construction would virtually nullify provision, as the most ends oppressive tyrannical accom- from plished by individual simply withdrawing rights of law. All vested protection rights franchises would be constitution, far so as the state placed by interpretation, concerned, at the entirely To mercy legislature. value, clause, therefore, it must give be understood to mean that no form of person-shall deprived, by any action, life, or of either legislation governmental liberty as the of some except consequence property, judicial pro- follows, conducted. ceeding, legally appropriately which, force, a law its own inherent extinguishes extinction, their without rights compels whatever, comes in conflict with the legal process directly constitution.

Does the act in do this ? I shall consider sections, to the first four objections which embrace pro- act, features with the hibitory penalties specific themselves, violation, annexed its have no MARCH, ALBANY, 1856. against made to the those subsequent connection with

necessary the owners If these four sections virtually sections. deprive without of their legal pro- liquors property, spirituous cess, void, the constitution if they my interpretation is sound.

(cid:127) the value of It is not sufficient that pro- they impair this because destroys so ever great degree, perty his the owner keep, It leaves to right unimpaired right. not therefore article. It does use and dispose All him regulations right deprive property. interests, trade, more or with a view to may public do not come value less impair inhibition, unless within the constitutional they virtually in which those take rights property away destroy consists; for all substantial must be destruction pur- colorable total. Not that merely preservation poses minute interest would the act. A some trivial uphold saved, must be and the substantial right property provi- sions must be such as be considered intended may fairly rather than subvert destroy regulate property. then, What, is the of the first general object scope four sections the act? the sale of Plainly prohibit mechanical, for all chemical and intoxicating liquors except sale, medicinal and to limit their for those purposes, pur- ato class of Is there poses, particular persons. anything which, out, these if carried would objects properly transcend the limits of ? I think not. legislative power legislature, my judgment, possess pre- where, whom, scribe and the places persons pur- sold, for be which liquors may provided poses spirituous does not that under color of this it virtually deprive doing them. far as the of his So owner places made, this whom sales where and the may persons the excise laws than not more act stringent perhaps is in the The increase of rigor pur- which supercedes. But now sold. liquors poses CASES IN THE COURT OF APPEALS. n Wynehamer against People. “ mechanical, for chemicaland medicinal

privilege selling not, think, I so trivial as to purposes” regarded justly as colorable. The merely for the chemical consumption considerable, mechanical arts must be and that for found, medicinal will be I still purposes apprehend, Besides, as greater. the law would to check the operate manufacture and the stock hand liquors, on importation would, if have been permitted, for ultimately required pur- deemed If, then, law itself poses legitimate. law had hand, suffered the on when it liquors went into effect, to be absorbed the three gradually privileged uses, the features contained in the prohibitory first- four think, not, sections would I have conflicted with the con- stitution. there

But is one in the 1st section the act provision which, section, when taken with in"connection can- 4th not, think, I be reconciled with views of any just legislative declares, substance, first, That in section power. liquors, afterwards shall intoxicating except provided, sold, neither be or sold, sale or with intent to be kept whatsoever; nor be or place given away, kept intent to be but in a given away, dwel- anywhere private These ling-house. provisions, although they abrogate sale, do not from prohibit liquors being kept, them; entertained of nor do design provided selling their used the owner. far So being prohibit with the section not conflict But it constitution. pro- ceeds : nor shall it be or what- kept deposited anyplace soever, described, in such as above or dwelling-house .except or a church for sacramental place worship, purposes, chemical, mechanical, where either some or or or a place art, the use of medicinal is carried on as liquor, requiring business; while in actual branch regular transpor- another, warehouse, in a tation from one stored place clause its destination.” last reaching place prior is not as to the intent with which qualified by provision

ALBANY, MARCH, 1856. Wynehamev against The anis absolute liquors against kept. prohibition their being kept anywhere excepted places, use, the owner no intention either to have although may sell or them and the 4th section declares a give away; misdemeanor, violation of this clause to be a a imposes dollars for the first offence. penalty fifty what, law, Now under this is the condition of a person law on hand on the when the day having liquors spirituous takes effect? These owner rights liquors, them, are and as such entitled to the protection property, What, then, is the owner to do ? If he of the constitution. misdemeanor; it is a a because does he is guilty nothing, out of the act to violation of the liquors anywhere, keep to intent of without reference excepted places, sell, Unless, therefore, to he obtains owner. he must one of places, deposits liquor excepted it, as a or be liable to indictment destroy punishment alternative; Mm it does criminal. The act reduces to this him of his even to those not to liquors permit dispose authorized to sell. In this it inconsistent with respect itself. It admits the value of such for certain liquors pur- for their sale those poses, yet very purposes. prohibits If that the has not the it be conceded legislature a law a or other officerto these to directing destroy pass sheriff them, wherever he can find without any liquors, process whatever, under then the provision constitutionality think, cannot, maintained; consideration I because there can be no material difference between an directing himself officer owner to them destroy directing words, it, between in so that the do nor enacting, many them, and Mm in a situation latter shall destroy placing him to as a conviction subjects punishment he is it unless does it. How criminal deprive, possible than to man more of his enact that a effectually misdemeanor, deemed and be liable he shall be guilty he This is keeps precisely penalty, purpose? if 3 Kern.—28 CASES IN THE COÜRT OF ARREARS. against

Wynehamcr done, what the lias in substance since the only doors of left to the owner are escape open entirely illusory. are, himself, 3, either to under sections 2 and They qualify sell, or to his in one of the liquor deposit excepted places. first, As to the he not be able to obtain the necessary or to make oath that he does not use security, intoxicating as a The law does make such use a liquor beverage. crime, does the constitution nor withdraw its protection man, then, of it. Such consequence although disposed and not to sell for submit to unauthorized pur- his even for cannot save those pose, purposes law itself sanctions. which the be said that he remove the to one of may liquors may instances, This be done in some the might excepted places. Some men in small own quantities. dwelling-houses, have access do not. Some to mechanical and some might establishments, and some would not. or manufacturing ' has no to the destruction But the legislature power compel smallest of without a the of even quantity liquor previous The idea of all condemnation. the depositing judicial effect, hand, when the law took in those on excepted liquor that the is owners illusory. suggestion plainly places, their save so. property exportation equally might to of the legislature class right compel Admitting state, their out of the remove we to property citizens of article, know, that an sale which judicially, cannot and which declared a nuisance in our own is prohibited, an admitted as article of state, merchandise into would other. therefore, While, I do constitutionality law, and con- prohibitory fully objects of the general sale of legislature prohibit cede power mechanical, all chemical and for liquors, except intoxicating admit that it has the I cannot right medicinal purposes, ] destruction, is, as and unconditional immediate their compel this done law. guaranties substantially think ALBANY, MARCH, 1856.

Wynehamer against The affords, as which the constitution rights property me, in satisfied are slender this case have investigations my bést, at I am so entirely unwilling interpret them. nullify in this There one other connection argument, case, branch of the which I will It is said that notice here. has the conceded to authorize the legislature cases, destruction of certain for private property, instance, interests; as, great public protection fires blowing during up buildings destroying infected articles times of and that the legisla- pestilence, ture is the sole exigency necessarily judge public call for the exercise The answer power. is, that the not in these authorize does cases legislature that inherent destruction of regulates property; simply and inalienable which exists individual every right destruction. his life his from immediate protect when do not surrender This is a which individuals state, which cannot be taken social enter into the they do not such cases them. The acts of the from inde- not exist which would confer destruction any right them, method aim some to introduce pendent able Senator the exercise of the the into (See opinion right. Den., Sherman, New-York, It in Russellv. 461.) Mayorof state, far as in so has never been decided this yet judicially aware, statutes of this am whom I officers upon to kind to confer destroy buildings, prevent purport power fires, be in exercising would spread justified exercised in case where it could properly power not. statute; and it well doubted may independent or force of can add to the extent whether legislature natural right. laws, force the enactment of

Again, quarantine liberty which not is destroyed personal only property restrained, exertion, of the same is body politic, individuals. which power possessed self-preservation CASES IN THE COURT OF APPEALS. against The Their rests justification immediate and imminent health, to life and which are enacted to avert. danger we admit the truth and all If force of the reasoning upon based, the statute before us is it will still be impos- sible to it within the of this As well bring range power. that, an individual because he has a might argue right destruction, his life or from immediate he protect property has therefore to resort to measure he deem may remote and guard necessary against dangers. contingent therefore, clear, It is that no drawn from these argument and kindred enactments can be of in determin- any weight here. ing

The conclusion to which I am thus brought necessarily of the first subversive four sections of the law in their form. For when of an act is present although, only part unconstitutional, and from part entirely separable the court will limit its condemnation remaining portion, constitution, which conflicts with the this part yet where, case, in cannot be done as in a section single matter, in relation acts same several subject sentence, forbidden, in one another connected section all these acts are declared to be indiscriminately crimes, and one common is annexed to each. The penalty void, same cannot be both valid and as would be provision if it be held that the the case should penalties imposed by of the acts 4- could be enforced part prohibited § 1 and not as to others. § has be said that not the may although, to annihilate existing rights property

article, make it nevertheless unlawful to may acquire future; therefore enact that all rights article, in a thereafter acquired, rights particular null, be and that the article itself shall be shall destroyed; that as to and hence law enforced all present effect, shown to existed law took have when the rights ALBANY, MARCH, 1856.

Wynehamer against The make to of the But conceding act, law, which cannot operates a present support article in the all of indiscriminately rights upon property were to when without the time question, regard as to To hold law valid pro- acquired. operative effect, as to it took and void rights after acquired perty recurrence tend the constant would existing, previously its constitutionality, of the as to before the courts the law. and to condemnation judgments repeated on There are serious to this grounds public objections the different between that collisions requires policy, as brief as as few and should be government departments framed, on the was so part If the law proof possible. that his involved defendant rights property effect, be con- before the act took could case had existed itself, under the act this strued into defence objection Such But it otherwise. would removed. clearly the defendant or would have no tendency exempt proof his from the by calling penalties except it unconstitutional. Thus the court upon pronounce „ would be over over to declare courts again required void, both same valid legislative provisions applicable instances, classes to different of cases. This has been some ; but doubtful tolerated in civil cases propriety, purely believe, never, I and criminal respect penal legisla- tion. It is not liable to the only objection already suggested, into action the ultimate repeated calling judicial power acts of co-ordinate branch validity passing upon but it would iend government, directly encourage If in a legislation. single legislature may experimental constitution, encroach ad libitum without provision upon effect than to call other courts to its limit operation within the to cases all nearly purview legislative power, motive for for constitutional careful regard legis- lation would be burden removed an onerous imposed is, courts. The rule on general subject vpon EN" COURT OF THE APPEALS. CASES agaimt Wynehamcr constitution, is in law conflict the where part residue, from that the so is entirely separable part without reference law can be enforced other portions will con- it, be unconstitutional there the part only indivisible, is the But where demned. legislative provision has, case, as in- this to be discrimination the necessary trial, can so that the invaded be the rights only made at the against validity judgments protected repeated class, law, be cases which it there may although void. The wholly might apply, provision properly therefore, must be revised discrimina- proper can be enforced. made before it tion but a additional arising I shall notice single point upon to enforce its which the law; designed that portion which contains Section 17 important provisions penalties. act; under the made every prosecution applicable revised, law be it desirable and if is to undoubtedly section this court should be views of that the upon is, in my known. opinion, arising upon the law than other which any pre- importance greater (cid:127) clauses of the sents, to test the value those as it goes which our constitution rights security upon personal that, section The second branch rest. provides upon an under the act for unlawful trial any complaint defendant shall not permitted sale of be liquor, jus- which under 2d section it is tify, (the way only pos- sale, which, unless he sible to shall: 1. Admit justify), clause, is converted into evidence previous primafacie innocence, e., 2. to his Swear i. his belief as guilt; the use which the intended to make of the purchaser liquor; and 3. State the reasons which his belief was founded. 6, Can reconciled with that clause provision § constitution, art. 1 of that “in provides whatever, trial, in court accused shall party counsel,” allowed to and defend in and with appear person section, same taken in connection with the provision MARCH, ALBANY. 1856.

Wynehamev People. against The “ life, or no shall be liberty property, that deprived person is what value this of law ?” Of without due process “ defend,” can if the clog legislature right appear which it with conditions and restrictions substantially man shall constitution says, every right? nullify “ have defend.” says, you right defend, first admit yourself guilty you prima provided facie In Greenev. these be reconciled? Car. provisions Brigg R., Curtis, J., Curtis provisions 311), speaking (1 “ Island, shall of Rhode that the constitution person unless, life, or by judgment deprived liberty property, “ land,” : The his the law of the says exposition peers Charta, words, as well as stand of these Magna they been, constitutions, has that require American 6 law,’ is and in this necessarily implied due process to"answer and contest and included the charge, right it from it unless discharged the consequent right “ follows,, : He adds It is subsequently proved.” from answering law which should the accused preclude he first secu unless should give charge, contesting $200, sureties, to with sufficient sum two rity costs, him to should condem all fines and pay forfeiture, unheard, with this if he failed to fine and comply him his would liberty requisition, deprive and uncon land, an but arbitrary not the law The condi exertion of stitutional legislative power.” act, defence, our 17 of tions § imposed upon than that condemned onerous and embarrassing are far more it if he is right, learned this justice passage; the section objection. to sustain against impossible clause of another clear that conflicts equally constitution, 6, art. 1 of the the constitution. Section to be shall be that no declares compelled person statute, of this himself.” Section witness against defendant, de shall not into your you go says innocence, fence, swear to unless will only your you THE CASES IN COURT OF APPEALS. Wynehamer against The make a witness to to all the yourself testify circum This, stances of case. for all substantial purposes, him to be a himself. It is against witness compelling doing which it was the precisely against of the consti object him, tution to viz: protect his conscience under searching the constraint6of an oath. There is no difference between ,f sworn, a man to be compelling bis assuming guilt ; he refuses because his refusal has same effect precisely he as if was sworn and testified to own his it convicts guilt; Indeed, him. as provision virtually compulsory, there could abe more effectual of scarcely way compelling a man sworn than to that unless consent say, you you shall convicted as a criminal. The punished section, is, in therefore this viola respect, my judgment, plain tion of constitution. But a of still interest arises greater first point upon “ 17, that, of

branch of the trial provides any § upon act, commenced under of this provision complaint proof sale of shall an aver- of the be sufficient to sustain liquor sale, of an unlawful shall be ment delivery proof are evidence of sale.” There two classes of prima,facie which this cases seve- upon provision operates great the act does the safe Although rity. prohibit keeping or the .in- liquor giving spirituous away private this clause the mere is made dwelling, yet by delivery prima sale, an evidence of unlawful without as to exception facie place. therefore, one, can in his own house No give glass friend, wine to a without thereby affording prima facie him a to convict of misdemeanor. Other evidence portions of the act respect purport sanctity private ; citizen but domicil of the its innermost recesses pene- are. trated this and acts of mere kindness or provision, into converted courtesy proofs guilt. the section

But another class operation onerous; I mean the class of licensed vendors. equally and 3 authorize Sections certain sell, expressly persons 1856.

ALBANY, MARCH, Wynehamer against The not to who are violate security give ample required act, and force the clause in yet, by ques provision tion, sale make affords evidence every prima facie convict them. The act the innocence presumes against b, own selected and vill not this its agen presump permit tion to be rebutted until such consents to make agent himslf a witness the case. This raises the vital provision as to the value of that clause in the constitution question, which secures to man with crime a trial every charged “due of law.” The most process important guarantees individual which our constitution affords are concen seen, trated As we have single phrase. already “ law,” due first in a expression, process appeared lN words, statute of Edward III. as a paraphrase “by land,” terree, the law of the ; Charta per Magna legem from that to this both forms of day have been expression held to refer to the common from distinguished enactment. Sir Matthew Hale statutory The com says: called, mon law is eminence, terree, sometimes lex by way as in the statute of Charta where cer Magna (chap. 29), the common law is tainly intended those principally by words, terree, aut as per legem by appears exposition statutes, in thereof several in subsequent particularly the statute of 28 Edward III. which is an but (ch. 3), exposi tion of that statute.” Hale’s Hist. Com. explanation (1 Law, also, Lord in his 128.) Coke commentary upon Magna Charta, Ins., the same construction the words. puts upon (2 45, The in this have held the same. courts 50.) country Ruffin, Chief Justice of this clause in the constitu speaking Carolina, in tion of North the case of v. Hoke Henderson Dev., that “such acts as in says (4 legislative 1), profess themselves or to directly punish persons, deprive citizen of his without trial before the judicial tribunals, and a decision the matter of as deter right, upon vested, under mined the laws which it according course, mode and of the common as derived from usage OASES IN THE COURT OF APPEALS.

Wyneliamer against forefathers, our are not laws of the land for these effectually To the same effect is the purposes.” language Judge Bronson, Hill, in where, v. Porter Taylor (4 140), speak- 1, 7, 1821, art. of the ing constitution of he § says: section, then, be, seems to meaning member disfranchised, of the state shall be deprived of his unless the rights matter privileges, shall bo him, trial had adjudged against the course according of the common law.” correct,

If and it is interpretation sustained as well the clause in by history by judicial authority, was intended to secure to citizen the benefit of those every rules common law which udicial trials are j regu lated, and to them the reach of place beyond legislative are, indeed, subversion. into the They virtually incorporated itself, and constitution made thereby part para Trials, therefore, at mount law. least such as are criminal, conducted, are to be their1essential features, regulated statutes, law. not but common This the constitution how far the guarantees. Precisely may go, modes and I shall forms changing judicial proceeding, define; but I have no hesitation in attempt saying that fundamental rule cannot subvert justice man shall which holds that every innocent presumed will until he is This rule be found guilty. proved specifi constitutions, into of our state many cally incorporated constitution, which, of those rules our and is one into the due brief significant phrase, compressed law.” process that, this rule ? It be reconciled with

Can provides § act, proof of a under the sale of every upon prosecution sale, an unlawful and sustain an averment shall liquor aof sale. evidence shall be of delivery prima proof facie the would at common law is legal presumption plain act. the Where that declared the reverse of directly by innocence, this act would the common law pro- presume 1856. ALBANY, MARCH, Wynehamer against The of a triar Either the judicial sumes guarantee guilt. law, is a the of the common to course nullity, according further, to I am void. But go prepared provision rules of evidence fundamental that all hold those and to which, have been in in this country, generally England administration of essential to the due deemed justice, enforced court been acted every which have upon centuries, are the constitution law for of common placed rules are but the the reach of legislation. They beyond truth, which reason investigation applies not fol- in their nature If does of course unchangeable. are, as that to what low determine they judi- applicable and not a cial legislative power, proceedings, judicial due still must be included they necessarily phrase, not the true of law.” If this be interpretation process constitution; if addition to the legislature, declaring criminal, shall be can also what acts and- what intentions evidence, dictate to courts and change juries shall which convict or acquit, legal upon presumptions ; and the there is no barrier legislative despotism separa- govern- tion legislative judicial departments ment, and of a trial accord- trial jury, guarantee common have all failed to course of the ing to individual afford substantial rights. security that, unable, therefore, to I am resist conviction 17, transcended the has both branches § its the constitu- and trenched limits power, just tional judiciary. province should affirmed. court The judgment supreme assumed J. first ground appel- Hubbard, was, the sale of on the lant’s counsel argument qf than the in a less quantity package liquor imported of the act under was provisions contrary importation This was convicted. clearly which the defendant law I take of the In the tenable view position. IN OF THE COURT APPEALS. CASES against The Wynebamer case, not essential that it is this this very proposition as at much But has been considered length. point interest as fully question general argued, presents the federal and state the relative respects jurisdiction articles, will I including liquors, government imported over init consider place. is the defendant’s counsel

It contended contained of the act in 1st section exception embraces all of its imported liquor specie, irrespective condition, whether the hands of the third or importer clause reads as follows: This persons. excepting section shall sell apply liquor, this state is law or of the United given by any treaty In States.” its character the act general highly penal, rule, and should be construed But this intended strictly. citizen, of the or liberty protection property not be so as to narrow should applied ordinary import used, cases, to the exclusion of words or description which, or to common according persons, accep tation, Wheat., would within them. The office (5 76.) statutes, all construction or whether interpretation remedial, maxims, in the its penal application Seld., ascertain the mind or intention of the law makers. (1 562; id., Effect should be if given, 9.) possible, every used; if word doubt exists to the real intention reference, to should be had legislature, dispel ambiguity, statute, its body great object policy. is also a cardinal maxim of to so construe interpretation statute, of a if words as to rather than possible, uphold it; constructions, defeat if of two hostile susceptible it that which will sustain and effectuate its give object. maxims, of these In the it cannot be light difficult to ascertain the design exception to. The referred not the language most phraseology still the intention is perspicuous, quite apparent. construction contended for the defendant’s counsel 1856. MARCH,

ALBANY, against The People. it contained simply read as though the clause make would words, shall not this section apply imported intended this broad excep- Had legislature liquor,” have tion, would reasonable to it but suppose all thus this mode of avoiding used expression, simple The mode of as to intention. expression speculation was intended that evinces qualification clearly adopted clause, in connection the whole annexed. to be Considering have of I liquor, with the well settled right importer sale, shield that right doubt the designed impliedly in the importer importation, package and to liquor under the laws exempt has congress, far as law so necessary from the only operation specie harmonizes with construction This that right. protect to cut off which was completely the policy state, whether traffic, within all beverage, liquor measure, indeed, to a futile It would be or not. imported to im- entire the domestic immunity give proscribe se, ele would an act would be Such liquor. ported fdo itself, than diminish the increase rather defeat and vastly should not be Such folly imputed evils intemperance. to the legislature. therefore, it is

In exception, determining scope and extent of the nature right ascertain the necessary has no his He sell right, importation. of the importer it has been law or treaty; any express grounded upon out of his an he has right, growing pay- held that implied duties, and cannot ment of right directly It was so state law. or taken away by infringed in the case of Brown v. The State Maryland, adjudged Wheat., in the license (12 subsequent 419), approved decisions, case, How., in 5 504. These pronounced land, whose province tribunal peculiar highest laws, and to federal constitution define to expound state federal and between the sovereignties, the boundary a law for the no state can «ass purpose establish IN CASES THE COURT OF APPEALS. Wyneliamer against license, otherwise, taxation or an directly affecting merchandise while in the hands of the import foreign nor of sale in the importer, impair original package A state law this direct effect importation. having invades the domain of in its of congress regulations foreign commerce.

itBut is if the act in assumes to urged question retail, the sale of within prohibit the liquors imported state, interior of the it conflicts with the of revenue laws is, The that the congress. lessens argument prohibition article, thus, the value of the discourages importation, as a tends diminish the consequence, of revenue. quantum admitted, This is but the consequence too argument proves much; out, carried it would forbid the legitimately state laws, from otherwise, for taxation or enacting any operating of all as the result property imported descriptions, must to some extent the affect of But quantity imports. this, aside from question answered perfectly decisions court of the United States supreme above Mass., cited. Thurlowv. The State ( Fletcher v. The State of Island, Fierce v. The State Rhode New Hampshire, of of How., Those cases arose under the license of laws 504.) the several states. The two first decide the question precise under consideration. hold that the They distinctly power of commerce extends fur regulating no congress foreign the interior than ther into state is essential to render duties, effective in the collection that for it embraces the article it while purpose imported remains in the hands of and until he exercises importer, e ; of sale that as Ms as soon the article loses right implied sold, as an its distinctive character broken or import, up with the it then mass mingles general property becomes a of state state and Here is a subject authority. federal and state well defined between boundary jurisdic tions, all The act in as question, respects importations. to, all alluded refrains from expressly exception MARCH,

ALBANY, 1856. against The People. laws of with the congress interference operation stated, above of sale of the importer I am tó the considering. is not obnoxious hence objection relates to to be considered next pro- question law, and its character vindicatory provisions hibitory at the as it liquor rights respects existing time the act took effect. This legis- purely law. is needless to fundamental under the lative power, concern with the wisdom the courts have say the beneficent enactment accomplish expediency of this ends indicated the title. policy government, foundation, its vindicates neces- from certainly political sale laws of stringent circumscribing sity economy doubt of the I entertain no constitu- liquors. spirituous the the tional of legislature prohibit entirely competency state, commerce, as a within the laws liquor beverage, by If, the in their of the judgment operation. prospective it, the welfare the future required public legislature, pro- duction, of manufacture or acquisition liquor might of the state in all The matters sovereign prohibited. power health, the the order good good, pertaining public is Laws intended to morals of the omnipotent. people, are welfare of within society legislative promote discretion, be the of and cannot just subject judicial animadversion, is when it seen that constitu- except have tional of been invaded. guarantees private property character, is, in its of necessity, police despotic power state; indi- commensurate with the sovereignty constitutional vidual rights beyond express property, limits, it must its exercise. And in yield emergencies, be exercised to the destruction of without owner, even without the formality compensation a is that this legal investigation. principle upon established; a health and laws are building quarantine ; a is blown to arrest a town conflagration up populous articles; is that the market of infectious purged public IN" THE OASES COURT OF APPEALS. Wynehamer against board, merchandise on infested with is ship cast pestilence, into nuisances are abated. It deep, public which demands the destruction, public exigency summary the maxim that is the safety society paramount law. It is the application personal right principle I know of no self-preservation limits body politic. to the exercise vested in the power police the restrictions contained in the written constitution. except branches, Under our with co-ordinate system government, each within its and all their independent sphere, deriving source, from common the fundamental one power’s other, cannot exercise a over the as it supremacy except finds its for it in warrant that law. The judiciary possesses over acts aside authority legitimate legislature, from the constitutional even grant; authority manner, exercised in an indirect when its powers to, to law effect; into appealed cany statutory then as it the individual only respects rights or person.

It is said that this idea of the omnipotency legis lature, restrictions, aside from constitutional express all It is conceded that emanates fallacy. from power and that the written constitution clothes the people, legis all lature with But the possesses. grant in that instrument is all of the general, legislative power ; of is the state what this is not can power precisely, limitations, not well be defined. Aside from the it express is all believed embrace the common law which power had would have the fundamental legislature possessed remained, of the law as unwritten law England, part This is means an of the state. no alarming proposition. The declaration of of forming guarantee rights, personal constitution, of in the first article liberty property intent, to its full when construed is according spirit the citizen unauthorized against quite ample protect encroachments all legislature; protect against MARCH, 1856. ALBANY, against The character, laws and laws of kindred which have sumptuary not the for their I am public good object. opposed z to set bounds to judiciary authority, attempting legislative a statute invalid fanciful declaring upon any theory law or higher first of natural outside principles limitation, constitution. If the is courts there may imply which, no bound discretion, to implication judicial except must the courts above tr.e and also the place legislature constitution itself. This is hostile to the theory The constitution is the for the government. standard only courts co determine the question validity. statutory

There is no constitutional restriction the sale or traffic regulation drinks, whether intoxicating existing rights affecting or not. As a scheme of liquor property regulation, of the limitation of the sale or is a traffic matter degree is, discretion. The fault of the law that legislative present does to be a scheme of There profess regulation. discrimination between at owned attempted liquor time the law took effect and I afterwards. acquired have reflected with much attention to see whether the discrimination, instance, courts could not make the as fact,' case, to be ascertained in a but I given have encountered the insurmountable that the difficulty, intended that there be should no such legislature plainly defence a trial distinction. Ho on could be admitted on for the reason that it would ground, against manifest act. the intent of the statute policy alone which the courts are authorized to execute. must, therefore, feature law prohibitory at in the state the time all extending liquor

regarded will, words, I in few took effect. In this act aspect as it vested views of its my unconstitutionality respects give under rights liquor, the-organic the citizen of his without forbids being deprived property is the law due of That law. liquor recognized by process 3 Keen.—29 CASES IN THE COURT OF APPEALS.

Wynehamer against that the constitution knows no distinction in as property, kinds, all of of rights its property guarantees of the law to be tested the same as the constitutionality to some other and better it related species though perhaps of is not The constitution surrounds questioned. property, the same as other inviolability liquor, room, think, There can be no I species property. difference of as to the due opinion meaning phrase, law,” as used in the It constitution. means an process case, aIn criminal an ordinary judicial proceeding. arraign- ment, trial, witnesses, formal a complaint, confronting conviction aWhen forfeiture regular judgment. is made a as in this property part punishment, case, would, effect, its it deprive judgment embracing of his the offender constitutional method. property think for the a I it declare for- legislature, competent an feiture of which offender have in liquor, possession, if as a mode the law was punishment; constitutional, other I should respects uphold judg- ment of forfeiture in this case as But the entirely proper. of the law which authorizes seizure and destruc- portion tion where or conviction of the liquor, prosecution owner not I should not hesitate to contemplated, pronounce void, as thus the citizen property destroyed deprived it is not of without law. It nor can process pretended, be, it which is not se a nuisance can be per alone, annihilated force of statute by proceeding in rem for the of a offence. ia punishment personal Liquor se, anot nuisance nor can it be made so per simple declaration. It does not stand legislative category of common nuisances which of themselves endanger welfare or is its use and abuse as a safety society. it its offensive character. beverage gives Otherwise it is therefore, In inoffensive. can- entirely my judgment, misuse, not be confiscated to its prevent except through the owner in against personam. prosecution MARCH, ALBANY, 1856.

Wynehamer People. against The is that this law does not assume to But it said deprive liquor; that the is allowed one of his owner any it, to retain use of the unmolested custody personal his is true that the owner to according pleasure. not be molested this he it in keeps enjoyment, provided his if fortunate to a domicil. dwelling-house, enough possess I a fair construction of the law he is apprehend forbidden, a from it under severe else- penalty, keeping where, for mechanical other uses, except specified innocent of intent sell. I examined have although care, of the law 1st section see if it could not in such make construed manner as to in any keeping a criminal when accom- place, dwelling-house, only except with an intent to sell. But the section cannot be panied so Tne construed. is too clear admit of a language doubt as to the intention of the legislature. keeping or ain or deposit place, except dwelling-house, place where some is trade business carried on its requiring use, the 4th section of the act prohibited, This, a crime. a most keeping deposit certainly, must have the effect to ren- extraordinary provision, a criminal so der who was unfortunate to have person on hand in a forbidden at liquor quantity place effect, took time the law he had no intent to although violate the law A thus circumstanced by selling. person one of two alternatives to avoid would have criminality, the law took effect to either before remove the just liquor or to a mechanical and other dwelling-house, shop uses, or his it with own hand. I can destroy prescribed credit that the law to designed have scarcely legislature effect; but no other construction can be put 1st section of the we are bound language that tne intended what judicially, suppose, their words import law does even countenance the exportation after took effect. The liquor law plain design IN OF OASES THE APPEALS. COURT against The itself,

seems to have to cut been off the to insure liquor its destruction, it, the of and author- by circumscribing keeping seizure, its in if & forbidden or with a izing kept place sale, criminal within intent to sell. The entire of the right least, this, at state in my, judgment,, prohibited, the it owned consists error law as liquor respects when the law into If had been went there any operation. instance, of sale within the to a state right preserved, vendor, licensed minor of it would although importance, sufficient, have been to have the law perhaps, impressed awith character and saved of its regulation, validity. the of all sale in

But abolition of the state right equiva- lent to is a of of substantial the owner his deprivation The of sale is of the essense of right property. very pro- ; of article merchandise it is its chief charac- perty ; teristic its take vendible the article is away quality As to merchandise of practically destroyed. applied this effect can be seen. if Even description, judicially law allowed that would be of- such minor exportation, as not to save the law from the of effec- importance charge owner his tually depriving property liquor. It is value after entire domestic market is trifling closed it. against therefore, Unable,

I am avoid conclusion invalid,' 1st section of law is inas- prohibition discrimination, as it much makes no nor allows the courts to make but extends to all liquor, any, irrespective that, of its time the domestic or acquisition; closing market, in effect the owner state substantially deprives effect, before the law took his vested acquired liquor. therein, due without law. process right the trial before defendant At offered police justice, court his before a crimi- bail for higher having appearance an for the court It was error to refuse to nal jurisdiction. the defendant had it. I am well satisfied receive to be tried common law constitutional right jury 1856. ALBANY, MARCH, against The People. men, allowed that to end he should have been twelve bail a tribunal where such a before jury give appear is secured of trial could be obtained. This right by jury constitution, trial 1, art. 2 of reads: $ used, shall which it has all cases in been heretofore jury in a used The term cases is remain inviolate forever.” classes, sense; it embraces individual grades generic cases, make class. The as except up particular was to intent constitution right amply preserve of" as it at the time its was adoption. enjoyed misdemeanors, of felonies bail existed in all cases without distinction as was intended to be any preserved time the existed at the the constitution whether offence statute. There or was created by took effect subsequently as the for such distinction any ground principle, other, as the one case as the is as right important 6 arti- be the same. same Section may punishment cle to limit the of the constitution does assume operation from section forbids That 2. legislature simply § offender, an law which with an enacting by charged crime, in other words a be held felony, may infamous answer, it is said indictment. By implication, upon except mode of trial all cases may prescribe No such be of misdemeanors. should implication indulged trial an take grant great away express privilege .to secured another section. It a common law may jury, by that, this be under the legislature may implication, provide a a misdemeanor before court of ses- trial of for the special nevertheless, sions, with without jury, subject, bail to secure the the accused give advantages right In view the two at common law. sections of a jury harmonious, and do not conflict. arc respect said, such a right jury perhaps, not an absolute under the misdemeanors was trial in right was that it when the constitution adopted; law existing bail within hours was conditioned twenty-four giving upon m GASES THE COURTOF APPEALS. Wynehamer against condition, however, after This does not arraignment;. affect accused, itself: it is the misfortune of the if his right him, himself of the from condi- poverty prevents availing tion. The and the constitution secures its right perfect, condition, exercise cannot be taken act. away any legislative therefore,

I am that the opinion, judgment court to be affirmed. ought supreme The trial all cases in which J. by jury, Mitchell, used, has shall remain been heretofore inviolate forever.” 1, art. (Const. of 1846, 2.)§ means common law men.

This twelve It had jury allow a been usual from 1824 to defendant on a trial, misdemeanors, to elect whether he would even not, he tried bail within jury provided gave hours after being required by magistrate twenty-four bail, If do so. he omitted to he was to be tried give sessions, at but then of six men. justices special by jury was before the on 17th of brought justice Toynbee on the same to be tried day July, objected sessions, to bail and offered at the give appear special criminal next This the court having jurisdiction. justice him He thus refused a of trial refused. a common right in law in a case which it had been used before 1846. jury

That was to the constitution. contrary term, district, in another

At it was held general that in the constitution was from con- provision copied 1821, and of stitution and that the word hereto- constitutions, fore” means the same in as those on the that revised laws in their principle although changed phra- held to be in not their seology generally changed did and that before 1824 trial not exist meaning, jury in such cases. This mode a con- interpreting not not stitution should when favor of but adopted,, in and when the terms used have against naturally liberty, MARCH, ALBANY; 1856.

Wynehamer against The for the reason was sufficient and there different meaning, that different use meaning. defendant should in. favor

The judgment affirmed. fol- at the these I C. J. In cases have arrived

Denio, conclusions: lowing conside- the act under That the several

(1.) provisions in annihilate and ration do effect destroy rights at the which the citizens of this state possessed, property This, effect, in time it took liquors. my intoxicating be done cannot provision opinion, consistently shall be which declares that no the constitution person life, or due without process deprived liberty of law. is, for the Although my opinion, competent

(2.) a.n embraced act containing pass provisions statute, to in this intoxicating liquors operate only upon manufactured, or the act referred hereafter be imported and that does not discriminate between existing property created, but hereafter be which acquired operates all without such any respect equally upon to. does distinction referred defence recognize any distinction, and the courts cannot entertain that based upon defence the statute in without holding in its most material unconstitutional practical operation. am, therefore, the act cannot be sustained I opinion future existing regard property. construction of The fair I necessary .think

(3.) an offender to act subjects alleged part sessions, him the a court of deprives trial before special does not allow such accused The act of trial jury. by the case to the .and thus transfer bail general to give person are of class must have The offences sessions. the time a trial at means of jury been by punished In cases where a trial had jury was constitution adopted. IN OASES THE COURT OF APPEALS. Wynchamer against used, been theretofore declared the constitution that by it shall remain inviolate forever. therefore, am,

I in favor of pronouncing judgment case, reversal in the in first mentioned and of affirmance the other. (cid:127) T. A. J. in error plaintiff Johnson, (Dissenting.)

was indicted of Erie grand jury county, charged sold in small having liquor intoxicating quantities, contrary 9th, 1855, to the act of provisions prohibitory April and was tried and convicted the offence at a court of- sessions. It was the trial that had he on proved upon occasions, several between the 4th of of that year July indictment, time delivered, sold and at his bar in. than, Buffalo, to various in less persons, brandy, quantities ' one which was drank his As the pint, upon' premises. in error had no license to sell in that manner and plaintiff for that the acts were such been' have purpose, proved state, statute, in misdemeanors this subjecting conviction, offender to indictment and in the manner case, in this ever since the excise adopted act of certainly to the time when the act in took up effect question seen, therefore, It is to be whether such acts are still crimi- character, whether, nal in their statute, under the present feature, the criminal so long uniformly stamped upon hitherto, them has been taken away.

The indictment selling contrary.to. provisions Statutes; act, of this and not of the Revised provisions violated, act unless this has been in conviction view is erroneous. (cid:127) two

Only arise questions case. 1st. properly Was so sold liquor error plaintiff subject in the 1st section act prohibition ? 2d. Has the to enact valid the traffic prohibit to the extent to which intoxicating liquors, prohibition to be carried sought act ?

ALBANY, MARCH, 1856. against The Wynehamcr which it is claimed the in ground upon liquor the act of question, was consequently exempt selling, act, is, from the that it was operation liquor was from a in imported foreign country, pursuance States, laws and treaties of the United and the duty it that the regularly paid upon importer: plaintiff in error it from the in the purchased importer, original and drew it from such when it was package, sold package as facts, of. These which the complained error plaintiff trial, offered to on the were admitted on the prove part but the evidence was to on public prosecutor; objected that, immaterial, was irrelevant ground and the evidence and the consideration of the facts conceded were excluded the court on that Under these circum- ground. stances, was this in the liquor subject prohibition act, at the time of the sales or was it question, ? exempt last clause of the 1st section as follows: This which, section shall not to sell liquor, apply right state, law or of the United given by any treaty States.”

Doubtless, did the 1st section not to that apply liquor it, while hands of the and before he had sold importer the facts as were admitted to exist. But assuming they attached, did the which thus far follow it into exemption, error, the hands of the so to authorize plaintiff sales him ? Is ? This meaning must provision think, I whether the laws or depend, treaties of the United follow States from property imported countries, after it has from the hands of foreign passed state, to citizens of this and confer importer any rights it which do not attach to other privileges upon state, in this not, If do the terms imported. do not to sell at the time exception and in apply; manner was not law or given by any treaty States. United That these laws and treaties do not thus follow after it has from the hands of passed

462 IN CASES THE COCJRTOF APPEALS.

Wynehamer against The and become of the mass of importer part property state, established. v. State The (Brown conclusively Wheat., How., ; 419 5 Maryland, 504.)

The obvious was not to confer .the design provision exclusive over give right foreign privilege to avoid all collision between domestic liquor, simply state and federal- continues authority. exemption continues. But the article has while the where right passed from under federal and no from jurisdiction, right source is ceases. The any longer given, exemption sale, must be at the time of the or the sold right given liquor is, think, is not This I exempt. plain reading clause, and that such was the intention of the legislature no one can doubt. If we could wholo ignore reasonably act, exclude from view its scope spirit face, as declared its look design, only clause, we the construction to wording might give it contended for the learned counsel for the plaintiff error. But this all would violate rule's for the interpreta- tion of statutes. If the language susceptible interpre- tation in of an declared enact- harmony object ment, courts are bound it that give interpretation. They can a construction which will convict the only give legisla- ture of in cases where the absurdity folly, language is so clear as to leave no alternative. employed therefore, Without whether there is inquire stopping, had, law or which at some time and any existing treaty circumstances, under other given another. person to sell the it is clear that neither liquor question, could have conferred to make any right upon plaintiff convicted, sales of which he was does exception him. not-help arises, then whether the has question tp make a sale valid law prohibiting for the for which it

of this had been description, purposes most is a before commonly purchased.

ALBANY, MARCH, 1850. against The People. first, into the nature to an and leads inquiry, power simply, in a state government and extent law-making power United States. within the sove-

Each state perfect undoubtedly complete to matters itself, and in all in all cases respect reignty states sove- naturally pertaining powers not, or necessary impli- have grant by express reignties In cation, the been conferred general government. upon conferred the govern- the general respect powers upon States, the states of the United the constitution ment by in laws can enact no valid and subordinate are powers, constitution, with or laws with that constitutionally conflict under the or treaties made proper enacted by congress, authority. for the counsel is assumed the learned

The position error, and in law of state limiting any plaintiff or sales of restricting imported property, prohibiting from the inasmuch remote immediate or importer, purchaser would tend to discourage as it naturally might in authority derogation importation, prevent under which importations the general government authorized, But the conflict of void. authority and therefore carried to has never been the two between jurisdictions settled extent, in this and the law decisively respect Chief Justice case above cited. other way cases, : license These in his says Taney, opinion the retail or domestic traffic state laws act altogether upon borders. act within their article They respective commerce, it has the line after become foreign passed mass of in the state. These of the general part indeed, laws and diminish the discourage may, imports which ardent would otherwise But bring. price spirits receive, a state is bound the sale although permit of merchandise which article con- importer, any authorizes to it is not bound to furnish gress imported, it, nor from the a market to abstain law passage IN OF CASES THE COURT APPEALS. against it deem or advisable to necessary guard may citizens, health or morals of its sucli law although or diminish the discourage importation profits impor- ter, or the revenue And lessen government general and internal traffic in the retail ardent if state deems citizens, calculated to to its produce spirits injurious idleness, I see vice constitu- debauchery, nothing it from tion of the United States prevent regulating traffic, from if altogether,- restraining prohibiting for, it thinks doctrine contended if well proper.” founded, the state of all would deprive regulate it, use or transfer of such or to tax and tend state of all subversion government. claimed, also, act question impairs is, therefore, contracts, and conflict with obligation the constitution United States. however, see, how this act is difficult to the impairs in which was force when the of contract act

obligation effect, it can or what have took bearing possible upon must The case rest contracts. undoubtedly upon ques- constitution, under the state of irre- tion legislative power, of federal of all The questions authority. spective power is and laws to make sove- necessarily inherently general acts, first idea of to obliging power. reign acts, idea of involves the forbearance as to sovereignty us, this is its With the constitu- origin. power lodged by and tion with the senate and it exists in assembly, those as as it did or bodies could exist fully sovereign made, whom the was constitution in those people except where its exercise is cases limited and restricted some limitation the instrument clearly itself. implied express limited, it can be exercised Where only power subject with the limitation. In those to and accordance cases it is limited But where the constitution sovereignty. imposes restriction, and the to exercised is not sought power

ALBANY, MARCH, 1856. against The People. exists it without general government, possessed then, see, limitation, I can restriction. aught only and are of those who the discretion possess appointed it, of human action or use within the boundaries capacity. as a is to be And the constitution grant whether regarded and or the mere acknowledgment. recognition power, bodies, the result as inherent those of its existence For, and the entire it is carries same. if grant, plenary, to make laws for the govern- legislative power, state, to be enforced those who granted ment upon derived, it is a sovereign it. However power, superior nature, mere and the rules which its delegated apply do not to it. Clothed with and secondary powers apply devolves duty necessarily corresponding power, acts what determining compati- of all and welfare classes citizens with ble safety not, and what acts are so far and what prejudicial it criminal. acts declare become Such injurious crime, criminal, fix and forbid and grade Some criminal acts measure punishment. appropriate life, some that of with the forfeiture punishes all others with civil political rights, liberty and the infliction forfeiture penalties only. of one real It authorizes the personal property person, will, his his without consent alienated against another, in satisfaction and transferred obligations and broken. levies contributions unperformed promises man’s for the the form of taxes every m property, upon to make and con- of improvements government, support and All this convenience ducive prosperity. general common, exercise of legislative is but the ordinary power. is to make all duties and clearest necessary its first ofOne evils, and to and admitted laws, to existing pre remedy character for this And "this their recurrence. vent in is the statute question. object CASES m THE COURT OF APPEALS. against The That evils, and crime are intemperance, pauperism deal, which the none government necessarily compelled bodies, will In the deny. judgment legislative by enacted, which this statute was one of all these source great evils was traffic in great, oppressive dangerous in their this So has intoxicating liquors. injurious, opinion, traffic restrictions, become under in its conse- existing quences it upon community, ought subjected to still more extensive restrictions rigorous prohi- bitions, and with additional features of crimi- impressed If the had the a nality. to enact law to end, this choose the means best accomplish it; unless, calculated to it effect was vested in necessarily indeed, the usé such means is forbidden the constitu- by tion. And is the this most relied point apparently the learned counsel for the in error. plaintiff is, that no traffic article which the law position be, as it regards however can be property, injurious may law such subjected regulations restrictions as in it, measure great without conflict destroy coming 6, constitution, with that art. 1 provision § life, declares that shall be person liberty deprived is, without due law.” property, argument process as of trade value of an article is au it essential element of and that to the extent property, to which the restriction diminishes its value prohibition to the same extent the owner is purposes, deprived his neither the nor the title although possession that, with; of such owner is interfered any respect act, this accomplished operation independent words, trial or due other without of any judgment, law. Is not strained and unwarrantable process the consti- construction and of this application provision tution ? is. This has no application Clearly provision whatever to case where the market value of property passed diminished a statute incidentally operation MARCH, ALBANY, 1856. against The in itself different and a

for an entirely object, purpose title, in the and which affects legitimate, posses- respect sion, of the owner. Such use or personal enjoyment all the would legisla- construction regulations by prohibit ture, com- and all restrictions trade internal upon state; above it would of traffic merce place and render other it every right, independent “ in ordi- is there used its the government. Deprived” of, sense, and relates divesting nary simply popular away forfeiting, alienating, taking applies property. it to life liberty, the same sense that does property other. the sale of and no Prohibiting property, except license, of a and for certain under and specified pursuance is of it. The in no sense pro- depriving person purposes, divesture, in no to hinder and tends hibition prevent is of his it. When to enforce deprived person respect law,” itself, as we due thing process property know, All title taken his with the rights all legal away. and transferred it are extinguished, entirely respect n to another. The very language corpus therefore, the limitation or the upon power, subject, its exercise permitted, condition explain and character of the nature define deprivation exactly incident every species intended. legal rights regulation, absence any specific property, be said that numerous; reason and can with any indeed, or, some entire extinction of mere abridgment, of his owner of these rights, deprives constitution, the article where sense of the especially ? as before itself and the title remain legal thing indeed, does, directly other act provide provisions, forfeiture and the owner his for property depriving unlawful an where it but that is destructionj kept a trial and That and after provision judgment. purpose, consideration. under has no the question bearing upon the owner is taken from destroyed, When m THE CASES OF COURl1 APPEALS. against The People. act, he is then of it virtue of the not before. by deprived It the same might urged, precisely pertinency x force, actions, that a statute which certain vicious prohibits criminal,

and declares them of their deprives persons is therefore in liberty, constitution. derogation The constitutional referred to was intended to provision enactments, from confiscation protect property by legislative seizure, destruction, and from forfeiture and without trial and conviction modes of ordinary judicial proceeding. There is no that the in error in this case presence plaintiff was not convicted due course and law. process

There can be no that doubt is intoxicating liquor pro- chattel, use, It is an article of perty. consumption commerce, and is in the strictest legal act, sense. constitutional But order to show that the force, its own inherent and' independent authority courts, confers or the magistrates deprives insist, his owner of isit arewe property, necessary determine, asked to that the is not the arti- legal property itself, cle in some consists of its qualities incidents. is that the in its ven- urged legal property principally value, dible and consists in its commercial quality, mainly in the the owners receive in for if money might exchange market; in the in this sense the owner is deprived of it whenever tends lessen its current market legislation - value. in its whether chattel sub- inquiry, corporeal

stance and or whether the entity legal pro- does not in some consist incident or which the perty attaches, law confers is one more appropriate schools than the courts. Constitutions and laws general subtleties, not founded in and can never be them. If we ourselves to safely permit interpreted obvious, fact, from the depart general thing pro- and enter this field of into which we are speculation perty, invited, thus our we shall be way danger losing great MARCH,

ALBANY, .469 1856. against Wvnehamer ourselves grave and involving uncertain in its paths, statute which forbids that a person of holding absurdity it renders and use and an article consumption, selling his and for own use him to it consump for necessary keep to or consumed tion, it others be used to instead of selling him, him it from takes deprives away really by"them, It be found constitution. will impos- of it contrary is, court, final to as its authority for this extensive sible true in law which is so make a essentially proposition fact. untrue.in palpably we the

But should the that adopt fallacy exchangeable is the and that is value of the chattel this legal property, what the constitution was to how would designed protect, statute in ? is in that affect the this case There nothing act on the terms of the the or value subject price; fact, one, the if it be that its has been to reduce operation market or value of is the liquors, subject price evidence, and must be There established is not by proof. case, word one or subject proof upon way is not a the other. fact of which we can take judicial courts, notice; evidence, for the without see cannot whether the act has or been will be to enhance of tendency diminish the to value the stocks on when hand the act truism, took effect. it either in Certainly law or in that a restriction the sale economy, of an political upon diminishes its all article value under circum- exchangeable it for stances." If still sold some may purposes, well be to result enhance value. That would may in a the future But for degree great depend supply. to assume the fact that the this court act has had or that the effect to will have reduce the market destroy prices action, article as the basis of its or value without it, evidence whatever to declare the support proceed on void would be a ground, statute proceeding out It would be parallel judicial history. precedent statute, mere arbitrary instead of a judicial repeal 3 Keen.—30 m THE OF APPEALS. CASES COURT against

Wyneliamer on ascertained facts and the law of the founded judgment land. we to

Even were go extraordinary unprece dented boxnd length holding government- a markel or at least leave some market for provide open noxious or deleterious article which enter into every commerce, and in which the owner has property by been has duty performed, respect liquors, by citizen act. authorized question. Every expressly for and obtain license to sell his own liquors, apply act, uses and purposes permitted by by complying with the conditions. And these conditions are scarcely more than those the former excise stringent imposed by aws; this, and besides to remains untouched. right export therefore, cannot, me, as it seems to with entire candor and fairness be contended that element of any single pro- has been the act alone. perty destroyed by But in the constitution has no such judgment mean- my and is in neither its or ing, language spirit susceptible such It looked to the title any and interpretation. only substance, of the and was never intended possession a restraint so legislative fatal to place upon entirely and its usefulness as the construction authority contended for-would establish. not Courts ought extend certainly constitution, construction, a strained provisions which, for the traffic shielding fostering purpose is of such legislature, judgment productive would, sound, if serious evils. The same argument prove our former excise laws laws, all unconstitutional. Those true, traffic, were confined to the retail quantities than five But was the traffic less from gallons. of the consumers of the article great majority always will be while it were and exists. always supplied Every that branch of the traffic was restriction calculated, therefore, to affect interests far num- greatest ber of And so far individuals. has the yet, principle

ALBANY, MARCH, 1856. against The People. .Wynehamer trade, in this department restriction prohibition, heretofore, one ried ca: probably been uniformly has the state entire hundred five population sell liquor, had the glass spirituous ever five below gallons, any person other quantity * whatever. any purpose absolute, as an exercise what now claimed one to sell whatever property, by inalienable right far, authorized, traf- has thus respects not specially fic, branch and held to be a crime. Over this declared been hitherto has assumed of the traffic government entire and exclusive control. No exercised authority all, it at without license could one engage special as the acknowledging government right. .source excluded, were and natural if All others rigidly right, in name be more than to mere traffic ir. there regard between individuals in a civilized and organized No was entitled to entirely extinguished. society, person a license without certain moral and possessing prescribed other on the face certified of the license. qualifications, when conferred limited granted, permission, only which could not be exceeded rights partial privileges, the holder without of his forfeiture by privilege to A under his crime. amenability grocer, punishment license, could sell to to He could only persons carry away. not sell allow it to be drank his liquor upon premises. license, The tavern on the under his could keeper, contrary, a not sell to to He could sell to person carry away. only drank be his house or his few upon premises. Very traffic, could ever one branch of this engage persons to drank at the sale. time of To enable a selling license, to obtain this he must to species propose person tavern; a the commissioners must be satisfied that he keep character, and was moral of sufficient was good ability ; an inn had or tavern he accom- necessary keep travelers, a and that abso- modations to entertain was tavern IN CASES THE COURT OF APPEAL9. against The People. for the actual lately necessary accommodation of travelers at the where it was to be In place addition to all kept. this, he was a required bond to give an keep orderly house, and not to suffercertain in it. If he trusted practices one for more $1.25, than the sum any liquor unless he was a in his house or a actually lodger traveler not resid town, in the same or he could ing city recover action. All void, securities taken for it were was he liable to forfeit double the amount thus to be attempted secured. All a license as well as persons (those having were from others) absolutely prohibited selling giving Indian, state, to an in this away quantity to person and described the overseer of the designated of a poor drunkard, an town as after notice served habitual overseer, clerk, or to or member of the agent family short, thus In it will be seen that in designated. person has the been more nothing power government exercised, from the steadily than in uniformly beginning, about, and hedging restrictions and placing guards, prohibi- tions traffic to the exclusion intoxicating liquors, that, too, of all natural mere for the rights, purpose as far as evils practicable, preventing, very sought the act in has question. prevented Congress uniformly the same in reference exercised to the traffic in the power territories the United States.

It was admitted on the the learned fully argument by defendant, counsel for the that the restrict legislature might and control the traffic to the extent to which it had exer- act, cised the before that all former acts on power acts. were valid constitutional This concession, this subject well be made in exercise of might respect and the under pursuit policy by constitution from the every origin government and which was under the colonial practiced present, gov- revolution, for at half a ernment least before the century seems to me to cover the whole ground controversy,

ALBANY, MARCH, 1856. against The that the brief It will be seen from above summary in with identical kind that heretofore exercised was act, in differs exercised in this degree. only passing which the former policy upon legislation principle was founded has extended. more. The been Nothing distinction, constitution in creates no certainly regard exercise of between the different branches legislative powers, traffic; and who shall the whole traffic is say any more from and control than legislative exempt supervision ? It in the retail traffic the constitu- part legislature may not, who sell and who and for tionally what say may may and what class of objects sales purposes, persons made, not be may the whole- may lawfully why sale ? There is no differencein principle. “ Questions of Marshall, Chief Justice power,” says Brown v. The Stale do not Maryland {supra), depend to which it be exercised. If it may degree all, it exercised at must be exercised at the will of those in whose hands it is which will placed.” principle authorize sale' of four prohibition gallons, any five, less in a than will quantity single authorize bargain, sale less than a hundred prohibition-of gallons, thousand, and, time, indeed, or a at one sale whatever. The extent is not of policy expediency, It becomes a not of the existence of question, principle. it, to exercise or the but of the right "degree power, exercise; which its interests and this require public discretion, a matter of necessarily legislative courts to do. .too have nothing plain argument, sell is as that the four sacred as the gallons right to sell however and can be other large, quantity, right- or taken And the owner is more abridged fully away. of his one case than in the no more deprived If, therefore, other, measure and it be degree. except on former statutes were valid conceded subject that this act is enactments, to contend unconstitu- folly CASES IN THE COURT OF APPEALS. Wynehamer against tional, and to insist absolute individual to the right transmission of from one to another as property paramount of to government. authority

A distinction has been to be drawn between attempted restrict, to of and the regulation, by way power power distinction-, one, if But this there be is alto- prohibit. too narrow and uncertain serve as the test gether exercise of a like that of laws for the rightful power making of a state. The to restrict and right government regulate that of includes In reference to this prohibition. right state, the entire commerce of the government regulate, branches, details, its in all varied and almost endless and to be as one entire or whole. regarded Viewed subject, this more larger its comprehensive light, regulation, sense, means than strictest less some nothing prohibiting branches, or others to be carried portions permitting before; on as some abridging taking away rights before enjoyed, privileges conferring continuing others, as the good require. argument public force, to have some more if would seem the traffic in this constituted entire commerce species property state it could be shown that it had been annihilated. entirely so far it whole involves

This controversy, is narrowed down to struggle right principle, traffic, in individual to whatever the law adjudges discretion, at his of consequences, irrespective to control and restrict over government right limits with the within welfare compatible public in considera- beyond merged security. Everything This the owner traffic in right tions expediency. ^ was, since the institution his never society, It is of the control government. independent right surrendered government, by necessarily every and becomes into one its when he enters one society which does A possess members. government ALBANY, MARCH, 1856. People

Wynehamer against The in its internal . to all needful to make respect regulations it as commerce, such restrictions to upon trade and impose all, to and even for the good be deemed necessary which traffic and any entirely particular suppress prohibit and in its tendencies is found to be injurious demoralizing that is must lack and consequences, government. to oí element necessary essential sovereignty, indispensably it render accomplishing object capable primary instituted, that of which security, governments affording all interests all and redress to classes protection therefore, If, their conditions of within limits. persons was, claimed, act as is a naked question pro- act, traffic in this hibitory suppressing species not, which it is altogether, clearly presump- that deemed would be it was tion legislature welfare, and for the I of no know necessary public power which could it was abrogate except If its be made enacted. could validity any depend the fact that the traffic degree upon productive crime, attributed to evils it—intemperance, pauperism —one denied or fact which questioned any scarcely The con- has been established that fact legislature. is final this of fact clusion of the legislature upon all and all as and conclusive courts long upon persons, remains And the the statute unrepealed. proposition does itself not government protect possess citizens, to it owes as a and its whom primary protection such a duty, against consequences paramount traffic, itself, monstrous, the traffic by prohibiting very at the all strikes foundation of government. is, maxim that will of is the general land, and demands law obedience. perfect supreme here, rule does not obtain fully Although with a written constitution restrictions government placing “ if there be no constitutional legislative upon yet power, statute, us as and uncon- it is with absolute objection OF GASES IN THE GOURT APPEALS. against The People. troll able as laws from the under flowing sovereign power Com., form other Kent's government.” (1 441.) courts,

It is claimed that of constitutional independent limitations have annul legislative power, void, whenever, statutes and them in their judg- pronounce ment, are in conflict with the fundamental principles tend individual government oppression, conflict with of the constitu- although any provision the state. I tion of the United States or of know no courts, such and they vested should never power to it. The limitations upon legislative attempt usurp are written the fundamental and that is the power which all standard exercised questions by by power must be tried. To this extent legislature courts, one for as the con- legitimate adjudication by struction of the fundamental law falls within necessarily their does this Nor involve the province. philosophical writers, insisted some absurdity inferior upon by because, the acts of the power annulling superior; our theory government, powerless when it to the limits the con- attempts pass by prescribed extent, constitution, stitution. To this under written and exercised power may safely properly by and, courts, indeed, its exercise often becomes necessary the encroachments of and to prevent power, rights protect shielded the constitution. by courts,

But, this, such a exercised beyond power, would a mere veto or No such dispensing power. power constitution, is conferred nor does pertain functions. Lord ain judicial recent case Campbell, (Wood Watts, B., 457, ward v. E. 75 C. L. R.), emphatically & disclaims on the of jurisdiction part English courts as that exercised our courts in this habitually respect. Indeed, constitution, without a written it has no foundation to stand upon.

ALBANY, MARCH, 1856. against The People. courts, when the time ever come instead Should and will, sustaining enforcing legislative promptly it, and forward to thwart defeat and assume to become its limits to exercise other than those prescribe prescribed constitution; substitute their discretion restraints; notions constitutional and to expediency void declare enactments for want of to such stan- conformity when, ; acts, dards to defeat shall habi- unpalatable resort to subtleties and and strained refinements tually constructions to them into conflict the consti- bring tution, the end of all as just salutary judicial authority, well men, will not be remote. legislative, When chafing statutes, under the restraints of particular prompted interest, them passion, appetite partizanship disregard defiance, their set at once authority begin expect from courts instead of immunity protection, punish- ment, lost, will have its claim judiciary only confidence, but the respect enforcing general laws. Courts can sustain their own and only authority and and efficiency by vigilantly sus- fearlessly upholding enactments, in all cases where legislative taining they and in limi- constitutional clearly derogation plainly have a far more tations. certain and reliable people mere over-strin- protection against security impolitic, afford, than can or uncalled-for courts ever gent legislation in their reserved and bien- changing, annually ; of their the nially, legislative representatives sovereignty all and to that final and ultimate tribunal should such errors referred for correction. mistakes legislation therefore, constitution, As either there nothing, States, state or of United which takes this away such to make limits the rights legislature regulations to the traffic the citizens of regard amongst property state, restrictions and such impose prohibitions as it shall deem upon necessary good, public act, so far as it restricts and the sale of intoxica- prohibits IN OF APPEALS. THE COURT CASES against The People.

Wyneliamer drinks, valid, constitutional must be act, ting pronounced obedience from citizen of the state. entitled to every were discussed Several other argu- questions upon ment, no have they bearing portion case, the act notice which to this it is applies unnecessary them here.

I am should conviction accordingly opinion be affirmed. indicted, was J. (Dissenting.) Wynehamer Mitchell,

tried a common such law found by jury guilty; as exists in in this case can be raised objection Toynbee’s in this case are: questions only arising properly 1st. allowable under the Whether only remedy pro- law is before the ? sessions hibitory by complaint special the 1st section of the act allows 2d. Whether one to every retail, sell and in less than liquors imported packages or, those in were ? allows the sale of imported and in such liquors only by imported persons quantities state, as the United States controlling compels to allow? and is a state whether that sale importer, ? 3d. Whether the original packages prohibition to sell owned a man before and intoxicating liquors effect, when that law took authorized except persons medicinal, chemical, that act to or for buy, manufacturing uses, or sacramental is such a violation of the unconstitutional, as to be although law with a view passed prevent intemperance, pau- and crime ? perism

As to the 1st. The is the sessions tribunal general to all authorized misdemeanors and ciimes not try punish- able with death or in the state for life. imprisonment prison 208, S.,R. This to all crimes (2 5.) applies (except § the made the whether so before cases), especially excepted after, Revised or and the was Statutes whether to that court or not. This act decía?es the given specially MARCH,

ALBANY, 1866. against The People. misdemeanor, and be a to it to offenceof selling contrary sessions. it to the under the does not restrict remedy special : it is this of the 20th section saves The close jurisdiction; misdemeanors relative to The existing provisions act,, offences, shall this and to offences created by apply Sec- the inconsistent therewith." same are where except into is to declares it the tion inquire duty grand juries indict- act; that makes the offence all offencesagainst to the 2d. the able. As I Strong, reasoning Judge adopt Barb., 207, 208, 209, conclusion, his in 20 that the the clause in the allow effect of 1st section to saving only to sell he which importer original packages to sell only liquor, right imported; law or of the United also States. by any treaty (See given 234, 235, id., It never could have been the 236.) design act to allow all be sold to all liquors by imported in all while it the sale of quantities, prohibited persons domestic most law. The intention liquors stringent and is law is discovered of a criminal to be govern, law; it is the whole not to be extended although reading not terms. to cases within its As equity supposed I conclusion of Justice the 3d. reasoning adopt 234, 233, 235, Barb., 232, Rockwell, seethe in 20 236 (and McLean, R., 589, 5 How. U. S. Justice opinion 590). sale of has the forbid right undisputed legislature (which may large quantities prescribe), liquors except licensed, in certain are to be who certain persons drank in certain to forbid it to be places. places, value and much enjoyment Such laws very impair wpuld use it in to such wish persons property valid, not because are they different impair way. They in a only slight value property enjoyment call a of this lavv which the regulation, opponents degree, with a view to but because impair passed but in the exercise degree, prevent plain pauperism duty IN THE OF OASES COURT APPEALS. against Wynehamer crime. In the exercise of this last the value cer- power, tain diminished to some incidentally persons that result take cannot or the away right duty to exercise its to crime in the legislature prevent effectual; that be most have it deemed way may they crime, in order to to use of necessary, prevent prohibit any certain for certain This liquors except purposes. they do.

If, as is could not argued, prohibit or sale of on hand when the was liquors, law keeping passed, the sale of as such be thereafter may prohibit might would this, it be the acquired, courts as duty cases, cases, other discriminate between the two and to of the law void as were uncon- only pronounce parts been, believed, stitutional. Such has it is the uniform occur; could heretofore. No it would practice difficulty of the district the business draw-the indictment attorney law; as so the case within the valid bring parts would, otherwise would A it be demurrable. rule contrary believed, novel If the equally dangerous. and the innocent acts are blended in the together guilty law, the can them. I am of court easily separate opinion that the in this case should be affirmed. judgment shown, been has (Dissenting.) Johnson, A.

T. J. think, in I the case of v. all we People, the moment leave agree, liquors, imported they hands of the have the line of com- importer, passed foreign merce and federal and become authority, exclusively subject control; state and that when are regulations they condition, the once into this brought right only attaches, far as flows from so government, laws, from state derived not then wholly 1st section of the act. within I have exception case, also think attempted successfully, that the demonstrate sole legislature, being exclu MARCH,

ALBANY, 1856. against The People. state, virtue of its has in the sive law-making power office, nature and constitution from the government, very with the and is regulating, duty charged power, and even altogether any restricting, controlling prohibiting in which is found to be traffic in demoralizing any property interests, its to its effects the community, injurious upon not, and oi to the that there burthensome government; either in the constitution of United States or that of state, this limitation or restriction the exercise of which is in conflict with the power respect act, of this far as it the sale so of intoxi- provisions prohibits cating liquors.

The of traffic or the transmission of as an right property, absolute"inalienable which has one never existed right, instituted, since were and can exist never governments under has government. government always regulated and controlled it to the full extent its required, judgment, necessities, interests the whole public history will show. Government legislation clearly possesses which it does not many powers habitually frequently exercise, and forth to evils or only puts remedy particular to meet occasional But it must have exigencies. necessarily the same to traffic or branch right prohibit any particular of traffic which it finds or deems and to declare injurious, criminal,, that it has declare criminal the prohibit conduct and men in other injurious practices respects. Otherwise, the and its transmission would right be held life Our superior liberty. “ statutes concerning acquisition, enjoyment S., transmission of real and R. (1 personal” 717), “ of trade in cases” certain regulation (id., 528), of real estate” proof recording conveyances (id., revenue, excise, all acts 755), relating usury, champerty, like, lotteries and the abound, with which our statute books have their sole foundation in this right. IN THE COUltT OE CASES APPEALS.

Wynehamer against so, This it follows being that the occasion inevitably exercise necessity embodied power statute is a matter of wholly and dis- legislative judgment cretion, intervenes, where no constitutional restriction other has government any right interfere, at least after the executive sanction has been If the shall determine that-the occasion given. has arisen or that the exists exercise of. a for the necessity more extended and it has than hitherto stringent power exercised, who shall decide ? other What contrary tribunal is clothed with to entertain an and power appeal reverse such determination ? The veto given power executive is the has constitution only authority pro- vided, and that must be exercised before has legislation statutes, into then and is conclusive. ripened necessarily bestows Whoever reflection the nature slightest upon office, and character of the will see that courts can judicial entertain no such on their question; any attempt part it, to take and to draw it within their cognizance juris- diction, would be a clear invasion of the legislative province and a of legislative power. usurpation

The of a conflict toe between spectacle representatives and the legislative judicial sovereignty people character, of this other respecting clear, undoubted, would, than constitutional at grounds, at this be once novel and day, alarming. Every legislative act, is to be test of the when -questioned, brought constitution, if is not there for- exercised terms, clear and bidden necessary implica- express discretion, tion, but are bound to courts have no pronounce to declare enact- it valid. The courts legislative right void, constitution, ments, is one which derogation this exercised in too steadily long country has.been however, is, It one of doubted or now questioned. all and ia and most delicate of conservative powers, highest exercised the acts of the branch never to superior against MARCH, 1356.

ALBANY, against The in doubtful and cases. questionable sovereignty ibi being naturally superior, legislative department to have been exer- is always rightfully authority presumed is to until the con- cised. And presumption prevail made has been has been deter- trary clearly appear, mined the courts. case, which arise in this from only questions differing to, in the case before referred relate to the

those considered sessions, court of authority jurisdiction special convicted, before whom the defendant was tried and of seizure and destruction of the contraband pro- perty. to consider.

These I very briefly propose appears, case, the, from the that when defendant was arrested and he tried before brought objected being justice sessions, court of and offered to bail to give appear special at the next court criminal having jurisdiction. objec- overruled, denied, tion was to bail and the give right defendant was to to trial before the go compelled special erred in sessions. It is claimed that the court to refusing was, think, take bail. The court I to right refusing take bail. The act and was undoubtedly contemplates trial, to effect a and henve the designed speedy justices other officers authorized to issue a under the act process to hold courts of sesssions required imperatively special hear to and determine and to to trial as charges, proceed notified, soon as the can be unless for complainant good Hence, cause shown an shall be adjournment granted. also, the before a given privilege persons brought magis- trate, Statutes, in the cases in the Revised prescribed court, bail to at- another a thus giving appear avoiding sessions, trial before the is not special given persons of for the offences created this aci. Under complained the Revised Statutes the of the court of ses- right special sions to a for of the offences therein try person speci- fied is of such to be so given, subject request person

484 IN TÜE OF APPEALS. CASES COURT against The People. tried, bail or to failure or for his refusal give tweucy-four after But hours being required by magistrate. court, act, this is no such under subject as conditions. this well as the others On point, case, Justice, Wells, v. I fully agree People Barb., Fisher (20 652). that if

It is contended the true construction act, is, in this in violation of constitutional respect, in which that “the trial in all cases ii by jury, provision ” used, has been shall remain inviolate forever heretofore conceded here referred to is a common jury law This a oí twelve men. act allows jury only jury sessions, six before a court of and this clearly special terms, intended the constitution. jury used,” constitution, heretofore mean as used before constitution. v. The existing adoption (Cruger Co., 198, J.; Kern., River Railroad Hudson Johnson per Hill, v. The Duffy People, 78.) Trials offences of this have been grade uniformly had, authorized before the long adoption present constitution, and indeed under all our constitu- previous tions, without the use of a awith six. jury, jury only It was held the court for the correction oi expressly errors, cited, in the case last that a statute which author ized convict magistrate person being disorderly- which included the of sentence and commit- person, constitutional, to ment was it did not jail, although give of trial And in that case the right jury. by power to confer courts of sessions the legislature upon special offences, to below right try without grade felony, indictment and without a is jury, fully- recognized sanctioned. It is that the to a argued have trial right by common law was secured to one jury every charged a misdemeanor Statutes, under the of the Revised provisions them to bail for at allowing give appearance higher And court. hence the inference is to be drawn- sought

ALBANY, MARCH, 1856. against Wyneliamer case, been has never taken that the away right used, and that the has been consequently, always legislature will be had no to take it in these cases. It right away however, seen, the Revised Statutes although by sessions to jurisdiction try punish special conditions, certain trial made to right subject no means there secured in all cases. If a jury person court, is unable to furnish bail at another it is appear him, court notwithstand- duty try his or desire demand to be tried elsewhere. This is as ing amuch if violation his it one secured right, constitution, as the statute had in terms forbidden though to take bail. magistrate

But it is a question to confer power legislature courts, these and that can jurisdiction upon be made never the consent or depend upon request accused, tried, to be his person fur- ability nish bail to at another court. is a appear privilege cases, given by legislature have might been withheld. The determine courts, before what with or without a offencesof this jury, tried, is, think, character shall be I undoubted. This view answers the other that a trial and objection, conviction before such court is not due of law. process The case shows that the offence was committed aof who seized presence policeman, the bottle thereupon sold, so and the bottle of champagne its con- brandy tents from which the sold to be drank had quantity been therefore, taken. The to search for right, liquors, supposed to be for unlawful suspected does kept purposes, arise in case. The court before which the defendant was tried that the was adjudged liquor unlawfully kept, forfeited, was and that and issued a warrant for its destruction.

It is contended that no can be of his person deprived in this manner. If the trial and conviction are property 3 Kern.—31 IN CASES THE COURT OF APPEALS. against The law, due course of it is difficult see what upon can rest. The this

foundation objection power to authorize or impose, by way penalty, sentence, forfeiture, judicial kept upon property law, at used to be cannot sought contrary is the lowest grade seriously questioned. day offences form of against punishment exercised,. without has been too steadily ques- long tion, now doubt. Instances of the to be involved must be familiar exercise of this too to every lawyer to need citation. the officer was lawful. act seizure clearly pre- act was the officer’s unlawful flagrant open

sence, have been a and inexcusable and would gross his had he it. The on overlooked breach duty part officer, the seizure an under section authorizes I2th circumstances, warrant, without he taken before ' (cid:127) this case. as was done in a magistrate, were, therefore, in and sentence The conviction my judg- ment, in lawful and and the all judgment respects proper, he court should reversed. of the supreme J., favor of also written delivered opinion Weight, case of He in the Wynehamer. affirming judgment A. delivered T. concurred dissenting opinions J. Johnson, cases, these court passed

On deciding affirmed the following propositions: act, in its That operation upon

1. prohibitory in the hands of existing liquors intoxicating effect, is a the act took viola- within this state when person in the constitution of this state which tion provision life, shall be liberty declares deprived person law.” That the various due without process in tbc contained and penalties provisions, prohibitions ALBANY, MARCH, 1856. against The People. in such liquors,

act do destroy property substantially of the constitutional and the terms violation spirit provision. discriminate the act does not inasmuch as

2. That as a it took effect when such existing liquors between thereafter be acquired by such as importation and might or warrant manufacture, not countenance and does to, referred it cannot be distinction defence based whether liquor, existing sustained respect effect or act took acquired subsequently; at the time the that it would be were of all the opinion although judges such an act as the one for the legislature pass competent the forms as to some of consideration pro- under (except such act should be to enforce provided plainly ceeding it), on as to the which it and distinctly prospective should operate. in a court of That the criminal

3. special proceeding sessions, said act unconstitutional authorized by the accused is because void thereby deprived trial consti- by jury, guaranteed by tution. A.

Denio, J., Johnson, Comstock, C. S. Selden Hubbard, JJ., concurred foregoing propositions. J., second, dissented from the first and

Mitchell, concurred the third.

T. A. JJ., Wright, Johnson dissented from all of them.

All Wright T. A. judges, except Johnson, Mitchell, were in favor of reversing judgment court, and of the supreme court of sessions in the general case of Wynehamer. CASES IN THE COURT OF APPEALS. against Joel.

Reubens All the T. A. Johnson judges, were except Wright, court, the of the favor affirming judgment supreme reversed which that court of the sessions the special of Toynbee. case

Judgment accordingly. Joel and others. against Reubens simple an against cannot maintain the contract creditor action debtor A disposing of assignee, assigned to restrain the latter from his fraudulent paid. assignment void, property, and declared and his debt to have the plaintiff action, judgment-creditor au must be a To sustain assignor.1 fraudulent Where, during pendency judgment against of an action to recover dispose debtor, his or is about to remove he threatens creditors, by 219 to defraud court of the Code intent his authorized § doing. him from so restrain made, authorized, transfer has been the court is But where fraudulent simple-contract by his against creditor in an action debtor vendee, property. disposing restrain the latter from fraudulent ’ equity, at law and suits in under The distinction between actions the Code pointed Procedure, out J. discussed Selden, Joel, 530, v. Duer affirmed. Neustadt commenced court superior city Action Alfred, York, 1853, Joel, Louis and Flora against New H. The states the defend- Leeds. Henry complaint York, Louis, in New and as ants, Alfred were copartners, notes, two promissory such executed to plaintiff them of him. out, for merchandise purchased are set were, each, their over notes were for $200 the full amount due; and the averred that terms, complaint the makers plaintiff. was owing thereof defendants, states, Alfred and further complaint merchants, a short business Louis, had been doing who Stryker, 45. Rinchey v. Ibid. Durant, v. 18 N. 496. Andrews Y. See 2.8

Case Details

Case Name: Wynehamer v. . the People

Court Name: New York Court of Appeals

Date Published: Mar 5, 1856

Citation: 12 How. Pr. 238

Court Abbreviation: NY