source: Caselaw Access Project

author: Ay the Court, Greene, J.

license: Public Domain

text:
    Supreme Court, Erie General Term.
    September, 1855.

      Green, Bowen and Mullett, Justices.
    James G. Wynehamer, Pl’ff in error vs. The People, &c., Def’ts in error.
    Bills of exceptions in criminal cases were unknown to the common law. They are given by statute, and their office is to bring up for review questions of law decided at the trial. They are limited to exceptions taken on the trial of the mUin issue, and are not available as fo decisions made on the trial of preliminary, or collateral questions.
    Decisions made on a motion to quash an indictment on the grounds of- irregularity in organizing the grand jury, and on the trial of an issue joined on a challenge to the array of jurors, are not reviewable on a bill of exceptions.
    The last clause of the first section of the act, entitled “ an act for the prevention of intemperance, pauperism and crime,” passed April 9, 1855, does not exempt imported liquors from the operation of that act, after they have passed from the ownership of the importer.
    The provisions of the first section of the act prohibiting the sale of intoxicating liquors, are not in contravention of that clause of the constitution of this state, which declares, that “ no person shall be deprived of life, liberty and property without due process of law.”
    This case was brought up on a writ of error to the Court of Sessions of Erie county. The indictment was as follows:

      State of New York, County of Erie, ss:

    The jurors of the people of the state of New York, in and for the body of the county of Erie, upon their oaths present, that James G. Wynehamer, on the fifth day of July, in the year one thousand eight hundred and fifty-five, at the city of Buffalo, in the county aforesaid, without having any lawful authority, willfully and unlawfully did sell to some person unauthorized by law to sell intoxicating liquor, to the jurors aforesaid unknown, intoxicating liquor, to wit: one gill of rum, one gill of brandy, one gill of whisky, one gill of gin, one gill of wine, one gill of strong beer, one gill of cordial—the said intoxicating liquor then and there not being alcohol manufactured by the said James G. Wynehamer, or pure wine manufactured by the said James G. Wynehamer from grapes grown by him, without having filed in the office of the clerk of the county of Erie, any undertaking approved by the county judge of the county of Erie, according to the provision of the second section of an act of the legislature of the state of New York, entitled “An act for the prevention of intemperance, pauperism and crime,” passed April 9th, 1855; and the sale of which said intoxicating liquor, in the manner aforesaid, then and there not being authorized by any law or treaty of the United States; and no right then and there to sell the aforesaid intoxicating liquor, then and there being given by any law or treaty of the United States; and contrary to the form of the statute in such case made and provided, and' against the peace of the people of the state of New York, and their dignity..
    And the jurors aforesaid, upon their oaths aforesaid, do further present, that the said James G. Wynehamer on the sixth day of July, in the year last aforesaid, at the city and in the county aforesaid, without any lawful authority willfully and unlawfully did sell to some person unauthorized by law to sell intoxicating liquor, to the jurors unknown, intoxicating liquor, to wit: one gill of rum, one gill of brandy, one gill of whisky, one gill of gin, one gill of' wine, one gill of strong beer, one gill of cordial—the said intoxicating liquor then and there not being alcohol manufactured by the said James G. Wynehamer, or pure wine manufactured by the said James G. Wynehamer, from grapes grown by him; without having filed in the office of the clerk of the county of Erie, any undertaking, approved by the county judge of said county, according to the provisions of the second section of an act of the legislature of the state of New York, entitled “An act for the prevention of intemperance, pauperism and crime,” passed April 9th, 1855; and the sale of which said intoxicating liquor, in the manner aforesaid, was not then and there authorized by any law or treaty of the United States, • and no right then and there to sell the aforesaid intoxicating liquor, then and there being given by any law or treaty of the United States, contrary to the form of the statute in such cases made and provided, and against the peace of the people of the state of New York, and their dignity.
    And the jurors aforesaid, upon their oath aforesaid, do further present, that the said James G, Wynehamer on the seventh day of July, in the year one thousand eight hundred and fifty-five, at the city and in the county aforesaid, without any lawful authority, willfully and unlawfully did sell to some person unauthorized by law to sell intoxicating liquor, to the jurors aforesaid unknown, intoxicating liquor, to wit: one gill of rum, one gill of brandy, one gill of whiskey, one gill of gin, one gill of wine, one gill of strong beer, one gill of cordial—the said intoxicating liquor then and there not being alcohol manufactured by the said James G. Wynehamer, or pure wine manufactured by the said James G. Wynehamer, from grapes grown by him, without having filed in the office of the clerk of the county of Erie, any undertaking, approved by the county judge of Said county, according to the provisions of the second section of an act of the legislature of the state of New York, entitled “ An act for the prevention of intemperance, pauperism and crime,” passed April 9th, 1855; and the sale of which said intoxicating liquor then and there not being authorized by any law or treaty of the United States, and no right then and there to sell the aforesaid intoxicating liquor, then and there being given by any law or treaty of the United States, contrary to the form of the statute in such case made and provided, and against the peace of the people of the state of New York and their dignity.
    Albert Sawin, District attorney.

    The defendant pleaded not guilty.
    The cause came on for trial in the Court of Sessions, on the 20th July, 1856.
    The counsel for the defendant moved to quash the indictment because, among other things, of irregularity in impanneling and organizing the grand jury who found the indictment. After hearing the motion argued by counsel, the court denied the motion, to which decision the counsel for the defendant excepted.
    A challenge to the array of jurors was then interposed as follows: “ and hereupon the said James G. Wynehamer, challenges the array of the said panel because he saith six days notice of the drawing of said jury was not given in the manner required by law. That no sheriff or county judge was present at the drawing of said jury. That such jurors were not summoned by the sheriff six days before the first day of court. That no list of jurors drawn was made or certified by the clerk, or delivered to the sheriff as required by law. That the officers who summoned said jurors have not made any proper or legal return, nor is there any proper return of lists of jurors delivered to the sheriff to summon. That the' return of the lists of jurors delivered to him to be summoned does not specify the jurors summoned, nor the manner in which each was notified. That some of said jurors were summoned by Alvah P. Hamilton, who was not duly authorized or empowered to summon jurors, and this he is ready to verify, wherefore he prayeth judgment that the panel may be quashed.”
    To which challenge the following plea was interposed.
    “ The said people, by Albert Sawin, district attorney, to the above, challenge answers and says, that none of the matters therein set forth are true and therefore he prays said challenge go for naught.”
    The counsel for both parties agree that the issue of fact joined on said challenge should be tried by the court, and the counsel for the prosecution proceeded to examine witnesses in support of the challenge. After hearing the evidence, the court decided the challenge was not well taken, to which decision the defendant’s counsel excepted.
    A jury was then impanneled, and the counsel for the people introduced evidence tending to show, that on several times and occasions, between the fourth and fourteen days of July, 1855, the defendant sold and delivered to several persons, in quantities less than one pint, brandy, at his bar in Buffalo, which was drank on his premises.
    After the prosecution had rested the case, the counsel for the defendant requested the court, either to discharge the defendant, or to direct the jury to find a verdict of not guilty, on the following grounds.
    1st. That it does not appear that any offence has been committed by the defendant.
    2nd. That the charge in the indictment was not proved.
    3rd. That it does not appear but that the liquor alleged to have been sold, was liquor the right to sell which was given by laws or treaties of the United States.
    4th. It does not appear but the liquor sold was imported into this country by defendant, from foreign countries in pursuance of the United States laws.
    5th. That the first section of the act entitled “ An act for cue prevention of intemperance, pauperism and crime,” is in violation of the constitution of this state and of the United States, and is void.
    6th. That the fourth section of said act is likewise contrary to said constitution and is void.
    7th. That the whole act is also unauthorized by and in conflict with the laws and treaties of the United States and the con stitution of the state of New York, and is void.
    8th. That it does not appear but that the liquor sold by the defendant, if any, was authorized to be sold by the statute above referred to.
    The court overruled each of the objections, and the defend ant’s counsel excepted.
    The defendant’s counsel then offered to prove that the liquor sold by him was imported into this state from foreign countries, under and in pursuance of the revenue laws of the United States, and that the legal duties had been paid thereon, that the defendant purchased said liquor from the importers in the imported packages, and that the same was drawn from such packages and sold to the persons, and at the times proved by the witnesses for the people.

      The .counsel for the people objected to this evidence as immaterial. The court sustained the objection and excluded the evidence, .and the defendant’s counsel excepted.
    The defendant’s counsel then offered to prove that the liquor sold by him was owned by him on and before the third day of July, 1855.
    The counsel for the people objected to this evidence ás im. material, the court sustained the objection and the defendant’s counsel excepted.
    The evidence being closed, the counsel for the defendant asked the court to direct the jury to acquit .the defendant, on each and all the grounds before stated by him. The court refused so to charge, and the defendant’s counsel excepted.
    The jury found the defendant guilty., and judgment being rendered on such verdict by the court, the defendant sued out a writ of error to this court.

      F. J. Fithian, for plaintiff in error.

      A. Sawin (Dist. Attorney,) for the people.
   Ay the Court, Greene, J.

All of the exceptions taken by the defendant to the .rulings of the court below, on the motion to quash the indictment for irregularity, and on the trial of the issue joined on the challenge to the array are improperly incorporated in the bill pf exceptions. Bills of exceptions in .criminal cases were unknown to the common law. The right to a bill of exceptions in such a case is given by statute. Its office is to bring up for review questions of law made and decided on the trial. But the statutes which give .the right, limit it to exceptions taken on the trial of the main issue. It is not extended to such as are taken on the trial of preliminary or collateral questions, (2 R. S. 736, S. 21; The People v. Freeman, 4 Denio, 21, per Beardsley, J.) It will therefore be -unnecessary -to examine the various questions raised by those exceptions, a.s pur conclusion .on them either way could not affect the result. The same answer must be given to many of the .questions suggested by the exceptions taken on the trial of the main issue and discussed on the argument. The facts proved on the trial do not raise the questions, and any opinion which we might express upon them would be the mere result of a gratuitous speculation upon questions in which the defendant has no legal interest.

The indictment was for selling brandy (not being liquor, the sale of which was authorized by the laws of the United States) to persons not authorized to sell liquor by the act under which the indictment was found. The prosecutor proved several sales by the defendant of brandy at his bar in quantities less than one pint, which liquor was drank on his premises. The defendant offered to prove that the brandy sold by him was imported from foreign countries under the revenue laws of the United States, that the duties had been paid thereon, that he purchased it from the importer in the packages in which it was imported, and that it was drawn from the packages and sold by him, as proved on the trial. The evidence was rejected as immaterial and the defendant excepted. He also offered to prove that the liquor in question was owned by him on and before the third day of July, 1855. This evidence was rejected on the same ground, and the defendant excepted.

Two questions of law arise on these facts and exceptions: 1st. What is the extent of the prohibition upon the sale of liquor contained in the first section of the act as it is qualified by the second and other sections, and 2d. Is that prohibition a valid legislative act.

That part of the first section that bears upon these questions is in these word«: “Intoxicating liquor exceptas hereinafter provided shall not be sold * * * * by any person for himself or any other person in any place whatsoever.” Then follows divers provisions prohibiting the giving away or keeping such liquor in certain specified places, which provisions, as they have no bearing upon the questions above stated, require no examination. The last clause of the section is in these words: “ This section shall not apply to liquor the right to sell which is given by any law or treaty of the United States.”

The second section provides that certain persons on complying with its provisions “ may keep for sale and may sell intoxicating liquor and alcohol for mechanical, chemical or medicinal purposes, or wine for sacramental use.” The twenty-second section contains several provisions in relation to the construction of the act, and among others a provision that nothing in the act shall be construed so as to prevent “ the importer of foreign liquors from keeping or selling the same in the original packages to any person authorized by the act to sell such liquors.” These provisions embody all the prohibitions and exceptions material to the questions under consideration contained in this act.

It will be observed that this act contains no provisions excepting any liquor specifically from the operation of the prohibitory clause. The exception in the first section relates to liquor the right to sell which is given by any law or treaty of the United States.” No law or treaty of the United States has been cited, and I am not aware that any exists, expressly giving the right to sell any specific liquor. But there are divers laws and treaties providing and stipulating for the admission of foreign liquors into the United States upon certain terms prescribed by such laws and treaties. These laws and treaties were created and entered into in pursuance of the power conferred upon congress by the constitution of the United States “ to regulate commerce with foreign nations and among the several states and with the Indian tribes.” {Art. I, §8.) In the case of Brown v. The State of Maryland (12 Wheat.) it was held by the Supreme Court of the United States that, an act of that state requiring importers to take out a license to sell imported merchandise was repugnant to the provisions of the constitution of the United States, prohibiting the states from laying duties upon imports. Chief Justice Marshall in. the same case held that an importer of foreign merchandise who had imported the same under the revenue laws of the United States acquired a right under such laws to sell the imported article in the state and condition in which it was imported, that the law of Maryland was a regulation of foreign commerce and as such was in conflict with the revenue laws of the United States. Justice Thompson dissented from the positions taken by the chief justice, and insisted upon the right of the state to levy the license tax as a legitimate exercise both of its power of taxation and its power to regulate its own internal trade, holding that the importer acquired no right under the laws of the United States to sell the imported article independent of state regulation. In the cases of Pierce v. The State of New Hampshire, Thurlow v. The State of Massachusetts, and Fletcher v. The State of Rhode Island, commonly known as the “ license cases,” (5 How. S. C. R., p. 1,) the question as to the right of the states to regulate and prohibit the sale of liquors, the importation of which was authorized by the laws of the United States, was brought' before the same court. The statute of Massachusetts under which one of the cases originated made it unlawful for any person to sell intoxicating liquor without a license, in quantities less than twenty-eight gallons. The law also contained an express provision that the selectmen in whom the power to grant licenses was vested, should not be compelled to grant any licenses. The statute of New Hampshire prohibited the sale of liquor in that state in any quantity without a license. The law of Rhode Island contained provisions similar to those contained in the law of Massachusetts. The defendants were indicted and convicted in the state courts for violations of these laws, and the judgments being affirmed by the Supreme Courts of the states respectively, were carried by writs of error to the Supreme Court of the United States. In that court it was contended on the authority of Brown v. Maryland, that the laws of Massachusetts and Rhode Island were void on the ground that the laws of the United States authorized the importation of the liquor sold by the defendants in those cages (which liquor had been actually imported) and that the state laws were in conflict with those of the United States. The liquor sold by the defendant in the New Hampshire case was imported from Massachusetts and it was contended that the law of that state was repugnant. to the provision of the constitution authorizing congress to regulate commerce among the states.

But the court held that the laws of the states must be con- ’ strued as applying exclusively to the domestic trade in liquor, that they had no application to imported liquor in the hands of importers, that they did not interfere with his right to sell in the original packages as laid down in Brown v. Maryland, and were not for that reason in conflict with the laws of the "United States under which the liquor was imported. In the New Hampshire case it was held that the state law was a regulation of commerce “ among the states within the meaning of the constitution and so within the power of congress. But the law was sustained on the ground that the power of congress and the state legislature were concurrent and that as congress had passed no law regulating commerce among the states the state law was valid until congress passed some law conflicting with the provisions of the state law. Chief Justice Taney in these cases reiterated the doctrine laid down by Chief Justice Marshall in Brown v. Maryland and held that the right to sell imported liquor derived from the United States was confined to the importer and to liquor in the casks or packages in which it was imported and that when it passed from his hands it ceased to be an import and became subject to state regulation. It will be remembered that the law of Massachusetts prohibited sales in less quantities than twenty-eight gallons and that the law of congress authorized the importation of the same liquor in quantities of fifteen gallons and that the law could be sustained upon no other ground than that assumed by the chief justice consistently with the rule asserted by the majority of the court, in Brown v. Maryland. In the license cases, Justices Daniel, Woodbury, and Grier dissented from the doctrine laid down by the chief justice and by Chief Justice Marshall in Brown v. Maryland asserting the right of the importer under the law's of the United States to sell imported merchandize uncontrolled by state regulation. The soundness of this rule is questioned by those learned justices and Brown v. Maryland was not regarded as an cmthority for the rule.

The question was not directly involved in either case and it may be doubted whether it is not still open to discussion upon principle. But it will be perceived that the right to sell imported liquor given by the laws of the United States under the broadest rule laid down by a majority of the court in the cases cited’ is subject to two important qualifications. 1st. That it remains in the hands of the importer, and 2d. That it shall be sold in the condition in which its importation is authorized, that all sales by other persons or in any other quantity or condition than that in which it is imported are subject like the sales of all other property to such regulations as may b; prescribed in state laws.

The question then arises as to the true construction of the exception contained in the first section of the prohibitory act. The plaintiff in error contends that it extends to all liquors in specie, the right to sell which under any circumstances is given by the laws of the United States. The repugnancy of .this construction to the entire policy of the act as manifested by its provisions, is too plain to escape observation and if the language of the exception will fairly admit of two constructions it should receive that which will best harmonize all the provisions of the act. The object of this clause, whatever the effect of its construction may be, is rendered plain by a reference to the subject matters to-which it relates. It was assumed by the legislature that a right to sell certain liquor was given by the laws of the United States. We have seen that this right considered in its utmost extent as defined by the court whose province it is to give a construction to those laws is neither géneral as to persons nor in its application to the property to which' the laws in question relate. The right on the contrary is limited to certain persons and qualified by the status of the property. While it is in the hands of the importer, and in the condition in which it was imported, the laws under which he has imported it, give him a right to sell it in that condition. This is the extent of the right. When he parts with the property, or changes its condition, his right and all right to sell it, derived from those laws, ceases. It is no longer the right to sell which is given by the ffaw.s of the United States. The object of this exception in the first section clearly was by preserving the right secured by the laws of the United States to avoid collision with those laws, and the'gen: eral exception of certain liquors in specie, from the operation of the first section which is claimed from a literal reading of the clause in question should be controlled by the limitations as to persons and the qualifications as to the status of the property which are annexed to the right of sale given by the laws of the United States, so that the provisions of the first section will not apply to imported liquor still in the hands of the importer and in the casks, bottles or packages in which it was imported; The propriety of this construction ig rendered plain by a reference to the language of the 22d section already quoted. This clause whatever its purp.ose, or hpwever unnecessarily inserted may be resorted to on this question of construction as evidence of the intention of the legislature, fhe second section as we have seen, provided that certain persons, on the conditions therein prescribed might sell liquor for certain purposes. Importers were not mentioned in this section, nor was it necessary under any construction of section first according to the rule laid down in the license cases that iipporters should be mentioned in that section., but the legislature apparently as a matter of precaution inserted the clause last cited in the twenty-second section. It refers to the same subject matters qs the last clause of section first, and may be pro: perly read in connection with it, and when these, two clauses are read together in the light of all the provisions of the act, I think the true construction of the first section is reasonably plain. It follows that the liquor sold by the defendant was not exempted from the operation of that section. The evidence offered by him to prove that it had been imported was therefore immaterial and was properly rejected. The only remaining question is as to the validity of the prohibition. It is claimed by the defendant that the prohibition is repugnant to the provisions. of the sixth section of the first article of the constitution and therefore void. That part of the section in question to which the prohibition is supposed to be repugnant is in these words: “No person ***** shall be deprived of life, liberty, or property, without due process of law; nor shall private property be taken for public use without just compensation.”

I do' not understand that it is claimed that this provision of the act violates the prohibition contained in the last clause of that part of the section above quoted. It certainly can not be maintained that this part of the act provides for the taking of property in any sense of the term. But it is claimed that this prohibition of the sale of liquor does in effect deprive the o ivner of his property in it. The argument is that the right to sell and traffic in property is incident to and inseparable from the title, that such right is one of the chief elements of its value and that a law prohibiting the exercise of this right virtually deprives the owner of his property. That liquor is property, that the right to sell property is one of its recognized legal incidents and that “ due process of law ” which the constitution prescribes as the only condition upon which the owner vf property can be deprived of it, means a trial and judgment in a regular judicial proceeding are propositions too well established to admit of argument or require the support of authority. But that the right to sell and use property at the will of the owner is absolute and subject to no restraint can not be maintainéd and will hardly be asserted. The rights and interests of individuals are, to some extent at least, subordinate to those of the public and must yield to them in cases of conflict. It is the acknowledged province of legislation to prescribe by law such rules concerning the title to property and its sale and use as will, in the judgment of the legislature, most effectually secure to the owner the enjoyment of these rights on the one hand and on the other protect the public from injuries that may result from the exercise of them. This power however is subject to the restraints imposed by the constitution through which in this state the legislature derives its powers. We have then only to compare the provision heretofore cited of the'first section of the prohibitory act with the above provision of the constitution-, and from such comparison to determine whether there is any conflict between the law and the constitution. The provision of the first section as qualified by the second section so far as the sale of liquor is concerned is in. substance that intoxicating liquor except for mechanical, chemical or medicinal purposes shall not be sold, &c. The provision of the constitution is that no man shall he deprived of his property without due process of law. The question is, does this prohibition deprive the owner of liquor of that property? It does not deprive him of the possession or use of it; but while it remains in the state, subject to the law, it undoubtedly diminishes its value; and hence it is agreed, that the; owner is to that extent virtually deprived of it. Substantially the same prohibition as that contained in our present constitution, has existed in all our constitutions since the organization of the state government; and under each of these constitutions laws were passed imposing restraints, to a greater or less extent, upon the sale of liquor. The validity of those laws has never, to my knowledge, been questioned. But the difference, it is urged, between those laws and the present law is, that those laws merely regulated, while this prohibits such sale. It remains to be seen whether there is any difference in principle between the two cases when they are regarded-with reference to the objection now under consideration. The only cases cited, in which this question has been considered by this court, are those of The People v. Berberrich, and The People v. Toynbee, decided at a general term in the second district, by Justices Brown, Strong and Rockwell. A prosecution was commenced in each case before a magistrate, upon a charge of selling, and having with intent to sell, intoxicating liquor. Both defendants were convicted, and in Toynbee’s case afine was imposed pursuant to the statute, and a judgment of forfeiture, directing the destruction of the liquor, was rendered, from which judgment the defendant appealed to this court. ' Berberrich’s case was removed by certiorari before sentence. An objection was taken before the magistrate in Toynbee’s case, to the sufficiency of the complaint, and also to the jurisdiction of the magistrate to proceed to try the case after the defendant had offered to give bail to answer to an indictment; and, as I understand the opinion of Justice Brown, the last objection was taken in Berberrich’s case. Justice Strong held both objections good-, and my recollection of Justice Rockwell’s opinion (which I have not now before me) is, that he concurred with Justice Strong as to the validity of the above objections, and concurred in the judgment on that ground alone. Justice Brown held that the last objection was not well taken, but held that the first section of the law, so far as it prohibits .the sale of liquor, the sections or provisions which provide for its seizure and destruction, and several other provisions under which (as I understand the facts from the several opinions) no ques tions were raised in the cases, were unconstitutional. Justice Strong concurred in this opinion as to the unconstitutionality of the prohibitory clause of the first section, and the judgments were reversed. Both of the learned justices placed their opinion upon the ground that the prohibition of the sale of liquor was virtually depriving the owner of his property in it. Justice Strong says: “ The protection of any. species of property must necessarily extend to its essential and definitive characteristics, especially those which constitute its main value.

* * * One of the essential characteristics of property is its vendibleness, especially for the principal use to which it can be appropriated. * * That the manner of selling it may be regulated, so long as the right is essentially, preserved, there can be no doubt. * * * Upon the whole, my conclusion is, that the right of property extends not only to its corpus, but to ordinary and essential characteristics, of which the' right of sale is one, and that it can be controlled only so far as to prevent abuse, without destroying such characteristics.” The learned justice, speaking of our former excise laws, thus states the difference between the present statute and those laws: “ They were, however, by no means prohibitory of the right; every man was at liberty to sell in quantities exceeding five gallons, and a selected class, in any quantity.” In conclusion, the learned justice says: “I* consider the statute in cuestión as mainly prohibiting the sale of intoxicating liquor as a beverage, and destructive of its principal value; and with that impression, I must adjudge it to be null and void to that extent.” Justice Brown, speaking of the character of the act, says: “ If its office is one of mere regulation, to prescribe by whom and to whom- and at what places liquors in certain quantities may be sold, then it does no more than the excise law which it is thought to supersede; and although prejudicial to existing interests, and may subject certain classes to some privations ' and inconvenience, it is nevertheless a law of binding obligation, which the people must obey and the tribunals of justice enforce.” Speaking of the written limitations upon legislative power, contained in our state constitution,” the learned justice adds: “ They were intended to save absolute inherent rights from the power of legislative acts which interrupt their enjoyment or impair their value. * * * There can be no property, in the legal and proper sense of the term, where neither the owner or the person who represents the owner has the power of the sale and disposition. That which can not be used,-enjoyed or sold, is not property; and to take away all or any of these incidents, is in effect to deprive the owner of his property.”

Both of the learned justices from whose opinions I have quoted, concede the power- of the legislature to regulate the manner of selling,” and to prescribe by whom liquors in certain quantities may be sold.” Upon what principle, consistent with this constitutional provision, if it is applicable at all to this species of legislation, can the legislature, in the language of one of the learned justices, prescribe “ by whom,” liquors in certain quantities may be sold, or in the language of the other learned justice, designate a “ selected class” to sell in such quantities, while it prohibits others from doing the same thing. Those who do not happen to be thus “ prescribed” who do not- belong to the “ selected class,” and-who may happen to-own liquor in quantities less than those in which all are authorized to sell, would be as effectually “ deprived of their property” under such a law, as those who own larger quantities are so deprived by this law.- It is no answer to say that such a law would affect but few persons and a limited amount of property, nor that its object is to regulate “ only so far as to prevent abuse.” The protection óf this constitutional provision, in its' letter and spirit, extends in equal measure to each individual, and the aggregate population of the state, and to all property, whether its value is meaSure'd by mills or millions. It matters not whether a few or many are deprived of their properly, or whether the amount of which they áre deprived be small' or great, whether a person- is deprived of an inconsiderable portion or all of his property. The constitutional prohibition is not fractional, but an unit, indivisible and absolute. It regards the character of the act, and not the extent of its consequences. If the act is prohibited; no consideration of consequences can change its character, nór can it be palliated by the purpose which prompted it, however laudable: If, therefore, a law, which in its operation diminishes the value of property, can be regarded as depriving the owner of it, no law that produces that effect can be sustained. The argunient under consideration, when followed to its logical consequences, will not, and can not be satisfied with the overthrow of the law in question. Many of our police and sanitary, and all of our commercial regulations, our quarantine and usury laws, must share the same fate. Their effect upon property is the Same, the difference is only in degree; and if this constitutional provision applies to any such laws, it necessarily prohibits all. For the attempted distinction between the “ essential characteristics” of property and any of its incidents or qualities which are regarded as elements of its value, whether they “ constitute its main value,” or only a small part of it; and between laws which subject” “ certain classes to some privations,” and laws which affect all classes; and involve great privations, there is do foundation in the constitution; whose protection and' prohibition áre general, nor, I respectfully submit in reason, which rejects distinctions- when it fails to perceive differences. ' The validity of such laws rests upon no restricted construction of this constitutional provision, but upon a principle of the common law, older than constitutions, coeval with the earliest civilized ideas of property. That principle is, that every man shall so use and enjoy his own, as not to injure another, and especially that the use which he makes of his property shall not work a public evil. This is another incident to the right of property as inseparable from the title as the right of sale, or any other right of enjoyment annexed to it. The legislature which exercises the sovereign power of the state is clothed with the power and charged with the duty of promoting its prosperity, by regulating its internal commerce, and holding o.ut suitable encouragement to the industry of its citizens, of preserving the public peace, by preventing and punishing crime, and guarding the health and morals of the people, by such laws and regulations as in its judgment may seem likely to promote these objects. Subject only to the limitations prescribed by the constitution, the powers of the legislature for these purposes are unlimited. In the choice of the means its discretion is plenary. If, in its judgment, the trade in any article is incompatible with, or dangerous to any of these objects of its protection, that trade may be regulated, restricted or prohibited in the discretion of the legislature. It is admitted that the sale may be controlled, but it is claimed that it can be done “ only so far” “ as to prevent abuse.” According to this proposition, if abuse should be found inseparable from, or so generally attendant upon the exercise of the right, as to render the permission of the one, and the prevention of the other impracticable, the right to prohibit would necessarily follow.- Whether this abuse is so intimately connected with this traffic is a question of fact, proper for the consideration of the legislature, in the exercise of its direction, to ascertain the necessity and determine the extent of its action; but this is an inquiry which the court can not entertain in considering a question of power. The foregoing propositions can not be more clearly illustrated or more powerfully enforced than they are in the language of Chief Justice Marshall, in Brown v. Maryland. In reply to the argument of the counsel for the state, in favor of the power there claimed, to lay duties on imports, or to require importers to procure licenses from the state to sell their imports, in which it was urged that the states would not be likely to impose such terms as to discourage or diminish importation, the chief justice said—“ It is obvious that the same power which imposes a light duty can impose a heavy one, one which amounts to prohibition. Questions of power do not depend on the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed. * * * The question is, where does the power reside, not how far will it be probably abused. The power claimed by the state is, in its nature, in conflict with that given to congress, and the greater or less extent in which it may be exercised, does not enter into the inquiry concerning its existence.”

The law of this state, which was superseded by the act in question, was probably as favorable an illustration of the exercise of the regulating power as could be instanced. I understand both of the learned justices, whose opinions are above quoted, to concede the validity of its provisions. And yet a slight consideration of its practical effect will show that the alleged “ absolute and inherent rights” of the owners of this property did not escape the obnoxious effect attributed to the law in question, but that on the contrary it interrupted their enjoyment and impaired “ their value.” It prohibited all but a selected class” from selling in less quantities than five gallons, and thus not only “ interrupted,” but destroyed the right to that extent. It circumscribed the market, and decreased the demand for the article to a certain extent, and thus “ impaired its value ” to the same extent. Similar illustrations might be drawn from our quarantine and health laws, and the police and other regulations of municipal oorporations. But I propose to pursue the history of legislation on this subject, and to examine briefly some of the adjudications upon the laws of other states. By the law of Massachusetts, under which one of the license cases arose, all persons were prohibited frpm selling liquors in quantities less than twenty eight gallons, without a license, and the act contained a provision that the commissioners of excise should in no case be compelled to grant a license. This law it will be seen exercised the power of regulation to an extent approaching very nearly to practical prohibition. The law of Rhode Island, under which another of those cases arose, contained a provision similar to that of the Massachusetts law, fixing the minimum quantity that might be sold Wrfhoui a license, at ten gallons. The law of NeW Hampshire went still' further, and prohibited all sales without a license. There was no provision iri the law tinder which licenses to any extent could be prooured as a matter of right.' The power of granting arid refusing licenses was to be exerciSed in the discretion' of the officers, designated for that purpose. It will be seen that absolute prohibition might result from the operation of this láw. That this was the design of the law, arid the effect of its operatiori iri a great majority of cases, no one can doubt. Thrit rill of these laws contained uhustiaIIy stringent restrictions upon the sale of liquor 5 that they seriously interrupted the' enjoyment rind impaired' the value of the right of stile, no one will deny; but whether the right, iri the lariguage of Justice Sfrohg, was even “ essentially preserved ” by the New Hampshire law, might well be doubted. As was natural, these laws encotintered sturdy opposition from" the interests so seriously affected by them. They were subjected to the rh'ost searching judicial Scrutiny, and their validity was'affirmed by the Stipreme" Courts of the respective states. The constitution of each of those states contained the same prohibition against depriving citizens of their property, without due process of law,” as is relied on in this case; and yet it is a remarkable fact,that in all the discussions which' these cases underwent iri' the state courts, this objection was not suggested: The qtiesti'oh, as We have seen, which was argued iri the Supreme Court Of the United States Was, whether those laws" wefe iri coriflict with thosé of congress, regulating comriierce. The questionrioW uridrir consideration" could" not arise iri that cbtirt, and' for that reason the decided opinions* of the ohief justice rind" other members of the court, in favor of the right of the states to prohibit entirely the domestic traffic in liquor, can not be regarded as authority in the strict sense of the term on this point. But the construe? tion by that court of the state laws, which in their terms comprehended all liquors, limiting their application to the domestic trade for the purpose of maintaining the validity of those laws, shows the high sense entertained by that court ot the importance of preserving in its utmost latitude the power of the states to control by restrictions or prohibitions its domestic trade. A legislative recognition of the same principle equally significant, is found in the excise laws passed by congress in 1794 and 1813, each of which contained a proviso that n.q license t¿ sell liquor should be granted under the law to any person who was prohibited from selling by the laws of any state.

Another instance of the exercise of this power of regulation to the extent of absolute prohibition is furnished by the embargo law passed by congress in 1807, which prohibited all importation and exportation to or from, any foreign country. The laws were by their terms unlimited as to the time qf their duration and were maintained in full force for nearly two years. It was objected to them that the constitutional power to regulate commerce under which the law was passed did not authorize congress to destroy commerce as those acts confessedly did. The question was raised in the District Court of the United States, for the district of Massachusetts jn the case of the United States v. The Brigantine William, (2 Hall’s Law Journal, 253,) in which a libel was filed to enforce a forfeiture of the vessel for being engaged in the exportation of merchandise in violation of those laws. It was argued in behalf of the claimant that the acts of congress were utterly void; that there was not only an entire want of power in the constitution to prohibit commerce, but that the act was in direct violation of the grant of power to regulate, which necessarily implied the duty of preserving the thing to be regulated. The court held the law to be constitutional. Davis, district judge, in an elaborate opinion, examined the question in all its bearings. In. discussing the questions as to the nature and extent of legislative power, and the restrictions upon it which could be enforced by the judiciary, the learned judge said, “affirmative provisions and express restrictions contained in the constitution are sufficiently definite to render decisions, probably in all cases, satisfactory, and the interference of the judiciary with the legislature, to use the language of the constitution, would be reduced to ‘ cases ’ easily to be understood, and in which the superior commanding will of the people, who established the instrument, would be clearly and peremptorily expressed. To extend the censorial power further, and especially to extend it to the degree contended for in the objections under' consideration, would be found extremely difficult, if not impracticable in execution. To determine where the legitimate exercise of discretion ends, and usurpation begins, would be a task most delicate and arduous. Before a court can determine whether a given act of congress, bearing relation to a power with which it is vested, be a legitimate exercise of that power or transcend it, the degree of legislative discretion admissible in the case must first be determined. Legal discretion is limited. * * * * Political discretion has a far wider range. It embraces, combines, and considers all circumstances, events and projects, foreign or domestic, that can affect the national interests. Legal discretion has not the means of ascertaining the grounds upon which political discretion may have proceeded. It seems admitted that necessity might justify the acts in question. But how shall legal discussion determine that political discretion, surveying the vast concerns comm it led to its trust, and the movements of conflicting nations, has not perceived such necessity.” Speaking of the objects for which this power may be exercised, the learned judge said, “ the mode of its management is a consideration of great delicacy and importance, but the national right or power, under the constitution, to adapt regulations of commerce to other purposes than the mere advancement of commerce, appears to me unquestionable.” The late Justice Story, in commenting upon this provision of the constitution, and in the same connection on the embargo laws, and the question involved in the case just cited, says: “ No one can reasonably doubt that the laying of an embargo, suspending commerce for a limited period, is within the scope of the constitution. But the question of difficulty was, whether congress, under the power to regulate commerce with foreign nations, could constitutionally suspend and interdict it, wholly, for an unlimited period, that is by a permanent act, having no limitation as to duration, either of the act or of the embargo.

* * * An appeal was made to the judiciary upon the question, and it having been settled to be constitutional the decision was acquiesced in, though the measure bore with almost unexampled severity upon the eastern states, and its ruinous effects can still be traced along their extensive sea-board.

* * * * Non-intercourse and embargo laws are within the range of legislative discretion; and if congress have the power for purposes of safety of preparation or counteraction, to suspend commercial intercourse with foreign nations, they are not limited as to duration, any more than as to the manner and extent of the measure.”

The effect of these laws upon private property was far more extensive and destructive than any that can possibly result from the law in question. The right to export property, designed and valuable only for that purpose, was one of those essential and definitive characteristics which constituted its main value.” The prohibition was “ destructive of its principal value," and property of the value of many millions was rendered worthless by their operation. The constitution of the United States contains the same restrictions upon the legislative power of congress that is imposed by the constitution of our state upon its legislature, that no man shall be deprived of his property without due process of law. But in all the opposition which the embargo laws encountered, the objection that they violated this provision of the constitution occurred to none of its astute and able opponents.

The case of The William is a direct authority for the proposition that the national government, under the constitutional grant of power to regulate commerce, may restrict it in its discretion, that such restriction may he carried to the extent of absolute prohibition, and that this power is not restricted to measures exclusively beneficial to commerce, but that it may be exercised as an instrument for other purposes of general policy and interest. These propositions may, in my opinion, be rested with equal safety upon the authority of this case, and the conclusive reasoning by which it is sustained. The powers of congress are enumerated in the constitution, and are expressly restricted to those so enumerated. The power in question is limited to commerce with foreign nations, and among the states. That the same power over internal commerce is reserved in all its amplitude by the several states, is not questioned, and that a state, by virtue of its powers of original sovereignty, which are merely limited by specific restrictions and not enumerated in its constitution, may, in the absence of such restrictions, exercise the same control over its domestic commerce, as that exercised by congress over' foreign com-, merce, and for the same purposes, can not be doubted.

In view of this long-continued and uniform course of legist lation, based upon the concurring authority of the general government and the several states, sanctioned by general acqui* escence, and vindicated by judicial authority, whenever ques* tioned, accompanied as such legislation has uniformly been, by cotemporaneous constitutional restrictions, identical with the restriction now invoked against this law, the question as to a conflict between the law, in the respect now under consideration, and the constitution, must be regarded as settled.

The prohibition in this act, as I have remarked, does not affect the possession of the property. It does not interfere with the right of sale, except within the state, and notwithstanding-this prohibition, those interested in this property may manufae= ture and export it for sale elsewhere. I. say notwithstanding this prohibition, I am aware that there are provisions in this act which were perhaps designed, and which may possibly be construed to prevent this. The provision that it shall not be kept in any place, except a dwelling house or church, has been cited with others, supposed to evince a destructive purpose towards this property, which are alleged to be plainly repugnant to the constitutional rights of the citizen. But the defendant has not been prosecuted, nor has his property been proceeded against under these provisions. When he is indicted for keeping liquor, in violation of this act, or proceedings are instituted to enforce a forfeiture of his liquor, for any such cause different questions will be presented. With those questions we have nothing to do in this case. When they are legally presented for our consideration, the parties interested in them will be entitled to the deliberate and unbiased judgment of the court upon them. But to secure this, it is not only- proper, but indispensable, that the parties interested, instead of the court, should be first heard. The legislature have said that the defendant shall not sell intoxicating liquor in this state. He has chosen to disregard that injunction, and has been convicted of an offence against the law. He disputes the right of the legislature to pass the law, and this question we are called upon to decide, nothing more. With the questions as to the wisdom, policy and propriety of the law which were discussed with so much zeal by the defendant’s counsel at the bar, we have nothing to do. Those are questions addressed exclusively to the discretion of the legislature. This is a mere question of power. If the power which the legislature has assumed to exercise exists, and the law is plain, the duty of the judge and the citizen is the same, that of simple obedience. To both alike it speaks the language of command, and not of persuasion. I know of no principle recognized" by the constitution, or resulting from any sound theory of government, which requires or authorizes the judiciary to interfere between the legislature and the people to shield the latter from the consequences of an improvident or capricious use, or even a positive abuse of legislative power. The remedy for such abuses, if they exist, is in other hands. It rests with the people, who in their constitution, have established the only restrictions upon legislative power that can be judicially recognized or practically enforced, except by those in whom the ultimate powers of sovereignty reside.

The judgment of the Court of Sessions should be affirmed.


author: By the Court, Welles, J.

text:
    Supreme Court. Monroe General Term,
    December, 1855.

      Selden, Johnson and Welles, Justices.
    The People vs. John Fisher.
    By the 5th section of the act “ to prevent intemperance, pauperism and crime,” passed April 9, 1855, the several officers therein mentioned are invested with the same powers, in relation to offences under that act, with which Justices of the Peace are clothed in criminal cases, and are each required to hold courts of Special Sessions for the trial of offences under that act, with the same powers in reference to such offences as courts of Special Sessions possessed, in regard to cases within their jurisdiction, as they were constituted when the act was passed.
    Where a person charged with a violation of that act is brought before one of the magistrates mentioned in such 5th section, it is the duty of such magistrate to hold a court of Special Sessions and to try the person charged, as soon as the complainant can be notified, and the person charged has not the right to give bail to appear before the next criminal court at which there shall be a grand jury.
    This provision of the act is not in contravention of the state constitution, which declares that “ the trial by jury ” in all cases in which it has been heretofore used shall remain inviolate forever.
    The words “trial by jury” in the state constitution mean a irial by a common law jury of twelve men.
    The expression in the state constitution, “ the trial by jury,” refers as well to other incidents of the trial, as to the number of men necessary to constitute a jury, and implies an indictment by a grand jury and in a court of record with common law jurisdiction, m
    Certiorari to the county judge of Monroe county.
    On the 9th day of August, 1855, the appellant was brought before S. W. D. Moore, Esq., police justice of the city of Rochester, upon a warrant issued by said justice, charged with a violation of the act entitled “ an act for the prevention of intemperance, pauperism and crime,” passed April 9th, 1855. On being brought before the justice, he offered to give bail at the next criminal court having cognizance of the offence. The justice was satisfied with the responsibility of the bail so offered, but refused to receive it or to take any bail. Thereupon, on the 11th day of August, 1855, the appellant presented his petition to H. Humphrey, Esq., county judge, &c., and obtained the allowance of a writ of habeas corpus in order to be let to bail and be discharged from custody.
    On the same day the officer made a return to said writ, and the same was traversed by the affidavit of the appellant and the issue was joined thereon.
    On this issue evidence was taken to contradict the return. After hearing the case and arguments of counsel, the county judge decided not to let the defendant to bail, and ordered him remanded into the custody of the police constable, to be tried before a court of Special Sessions.
    On the 17th day of August, 1855, the defendant sued out a writ of certiorari, removing the proceeding and adjudication of the county judge into this court to be reviewed.

      Henry Hunter for the defendant.

      J. W. Stebbins for the people.
   By the Court, Welles, J.

The fifth section of the act entitled "an act to prevent intemperance, pauperism and crime,” passed April 9th, 1855, is in the following words:—

§ 5. Every justice of the peace, police justice, county judge, city judge, and in addition, in the city of New York, the recorder, each justice of the marine court, and the justices of the district courts, and in all cities where there is a recorder’s court, the recorder, shall have power to issue process, to hear and determine charges, and punish for all offences arising under any of the provisions of this act; and they are each hereby authorized and required to hold courts of Special Sessions for the trial of such offences, and under this act, to do all other acts and exercise the same authority that may be done or exercised by justices of the peace in criminal cases, and by courts of Special Sessions as the same are now constituted; and the.term magistrate, as used in this act, shall be deemed to.refer to and include each officer named in this section. Such court of Special Sessions shall not be required to take the examination of any person brought before it upon charge of an offence under this act, but shall proceed to trial'as-soon thereafter as. the complainant can be .notified; and for good cause shown he may adjourn.from-time to time, not-exceeding twenty days. At the time of joining issue and-not after, either party may demand a trial by jury, in which case the magistrate shall issue a venire and cause a jury to be summoned and empanneled, as in other criminal cases in courts of Special Sessions. The -complainant may appear upon such trial upon behalf of the people, and- prosecute the same with or without counsel. He may also prosecute the same in all the courts to which, as hereinafter provided, appeal may be taken by attorney, or he may apply to the district attorney, whose duty it shall be upon such application to appear- and conduct said appeal from the judgment thereon. The same costs and disbursements shall be allowed against the defendant upon such appeal as are now allowed in civil actions, to those courts to which appeal may be taken according to the provisions of this act. In all cases, if the district attorney shall appear and conduct the trial or appeal, or both, the cost, if- any, shall go to him.for his individual use; in other cases to the complainant; and in default of- the payment of the whole or any part thereof the defendant may be committed to the same extent as provided in the fourth section of this act.

By this-section the several officers therein- enumerated are invested with- the same powers -in relation to offences under the act-of which it constitutes a part, with which justices of the peace are clothed in criminal cases, and are required to hold courts of Special Sessions for the trial of offences under the same act, with the same powers in reference to such offences ' as courts of-Special Sessions possessed as they were constituted' when the act was passed, in reference to the cases within their lurisdiction.

By the Revised Statutes the power of courts of Special Sessions are confined to cases where the party charged with an offence requests to be tried before them, or, where he shall not so request, but shall after being required, omit for twenty-four hours to give bail for his appearance at the next criminal court having jurisdiction, &c., (2 R. S., 711, §§ 5 and 3.) But the section of the prohibitory act referred to, does not, as the Revised Statutes do, restrict the power of the courts of Special Sessions to cases where the party charged either requests to be tried by such court or omits to give bail. It certainly does not do so in terms, nor, as I think, by just or fair implication; but on the contrary it seems to ctintemplaté that the justice or other officer before whom the person charged shall be brought by virtue of the process, shall proceed at once to the trial of the charge.

Power is expressly conferred upon the officers mentioned to issue process, to hear and determine charges and punish all offences against the provisions of the act, and for that purpose they are each authorized and required to hold courts of Special Sessions for the trial of such offences. Such court is not required to take the examination of any person brought before it upon charge of an offence, “ and shall proceed to trial as soon thereafter as the complainant can he notified.” The section then proceeds to give directions respecting adjournments, and provides for a jury on the demand of either party, if applied for at the joining of issue. It then concludes with some regulations and provisions respecting appeals from judgments of the courts of Special Sessions provided for in the 8th section of the act, and the costs in such appeals.

It will be perceived, not only that the magistrate has conferred upon him the power to try the person charged, but that he is imperatively required to hold a court of Special Sessions, and proceed to the trial as soon as the complainant can be notified. Neither his power or duty to try is made to depend upon the defendant’s request to be tried, his omission to give bail or any other condition. That the power of courts of Special Sessions, in the cases provided for in the Revised Statutes, is thus limited and dependent, and-in the act under consideration, acts which, before its passage, were innocent to the eye of the law, are made misdemeanors, their punishment defined, these tribunals erected and provided expressly for their trial and punishment, with directions concerning their manner of proceeding, and no mention made of any such condition or restriction of their powers, is strong evidence to my mind that none such were intended to be imposed. Instead of the conditions provided in the Revised Statutes, these courts, in cases arising under this act, are directed to proceed at once to the trial of the persons charged with a violation of its provisions.

It is contended, however, in behalf of the appellant, that if the intention of the act was to compel the person arrested by virtue of the process issued by a magistrate, to be tried before a court of Special Sessions, without the right on his part to be released from custody upon giving bail to appear at the sessions, the act is so far in contravention of § 2, of art. 1 of the constitution, which declares that “ the trial by jury, in all cases where it has been heretofore used, shall remain inviolate forever.” I entertain no doubt that by the words “ trial by jury” as there mentioned, was intended a common law jury, which consists of twelve men. But I am satisfied it was not intended to apply to a case like the present.

Section six of the same article provides that “ no person shall be held to answer for a capital, or otherwise infamous crime (except in cases of impeachment and in cases of militia when in actual service, and the land and naval forces in time of war, or which the state may keep with the consent of congress in time of peace; and in cases of petit larceny under the regulation of the legislature,) unless on presentment or indictment of a grand jury,” &c.

The framers of the' constitution have here declared that persons charged with capital or otherwise infamous crimes, shall not, with certain exceptions, be held to answer therefor, except by indictment or presentment of a grand jury, clearly, as it seems to me, leaving all other cases' under the regulation of the legislature.

Persons charged with crimes not capital or otherwise infamous, may therefore be held to answer without being first indicted or presented by a grand jury, as the legislature shall provide.

But it is said that in whatever court the person charged may be tried, and whether with or without being presented by a grand jury, he is, in any event, entitled to have his guilt or innocence determined by a jury of twelve men.

The several written constitutions of this state, those of 1777, of 1821, and of 1846, contain substantially the same provisions as those above referred to. By section four of the act declaring the powers and duties of justices of the peace, passed April 13th, 1813, (2 R. S. 507,) petit larceny, misdemeanor, breach of the peace, or other criminal offence under the degree of grand larceny, was triable by a court of Special Sessions, and that without any jury whatever. This continued until 1824, when the legislature so far modified it as to give the party accused the right to be tried by a jury of six men. {Laws of 1824, ch. 238, -§ 47.) By the Revised Statutes, the causes triable by courts of Special Sessions are mentioned and are contained in eight specifications, all being below the degree of grand larceny, and none of them being what would be denominated infamous, in the sense of the constitution, except petit larceny. (2 R. S. 711, § 11.)

The section of the constitution which it is claimed secures to the appellant a trial by jury of twelve men, uses the expres sion “the trial by jury” Phis refers as well to all other incidents of the trial as to the number of men necessary to constitute the jury. It means, as I think, such a trial as is contemplated by section six, for persons charged with capital or otherwise infamous offences, which must be upon presentment or indictment of a grand jury, and .in a court of record with common law jurisdiction.

I think it is apparent from several considerations:

1. A common law jury trial can only be had in a cour- of common law jurisdiction, both as regards the character of the court, and its mode of procedure. It is not true that simply making the jury to consist of twelve men, constitute s common law jury trial.

2. Section 6th excepts from its operation petit larceny, which at common law was felony, and infamous in its character. The statute of 1813,' and the Revised Statutes referred to, expressly authorized courts of Special Sessions to try for that offence, which was never held to be in contravention of the constitution, (Murphy v. The People, 2d Cow. R. 815; The People v. Goodwin, 5th Wend. R. 251.)

3. The 2d and 6th sections referred to, are parts of the same articles of the constitution, and are in pari materia; the latter, securing to all persons charged with infamous crimes excepting as aforesaid, a trial after due presentment or indictment by a grand jury, leaving the trial of all cases of misdemeanor on the footing of petit larceny to be provided for by the legislature by a jury of six, twelve or any other number, or without a jury.

4. No jury trial in criminal cases was ever known to the common law, but such as followed upon ndictment in a common law court, after the accused was in custody, had been arraigned and had plead to the indictment.

5. This construction makes the two Sections harmonious and sensible. The legislature may decláre criminal, acts which before were innocent, as in case of the statute under consideration. How can it be said that in such cases a jury trial has been heretofore used? Section two is expressly limited to cases in which the trial by jury" has been heretofore used. In cases of acts made criminal by a statute passed after the adoption of the constitution, no trial either with or without a jury has been used. But if an act is made a felony by statute and thereby becomes infamous in its character, as in the cases of of the statute to prevent abduction of females for purposes of prostitution, and to prevent seduction, section sixth secures to the person charged with its violation a trial by jury, after due presentment by a grand jury.

6. Section two only requires a trial by jury, in cases where it has been heretofore used. This can not mean, cases where it might or might not be required, for then no misdemeanor could be tried by the Special Session, as every person charged with any crime was liable to be indicted therefor by the grand jury, and then a trial by jury was the only one which could follow. The only practicable interpretation is to exclude * from its operation those cases where it was compelent to try by a court of Special Sessions, and where such trials had been in use. By the revised laws of 1813, before cited, all offences under the degree of grand larceny might be tried in those courts, and that law continued in force until 1830, when the Revised Statutes limited the jurisdiction of courts of Special Sessions to certain specified cases. The constitution has been twice revised since 1813,, and the provisions on the subject have been continued substantially the same as they were before 1813. It would be singular, not to say absurd, if the organic law is to vary in its principles, and the objects to which it relates, at every or any change of legislation. It should be interpreted in this respect in the same way as if there had been no revision since 1777. The fact that the same thing has been twice asserted since that time in the same solemn manner, certainly ought not to change the interpretation, justly applicable to it originally, but on the contrary, should confirm such interpretation.

For the foregoing reasons, I am of the opinion that the decision of the county judge was correct and should be .affirmed.

Selden and Johnson, justices, concurred. Ordered accord-

        ) Sed vide The People v. Toynbee, in the Court of Appeals infra.


author: By the Court, James, J.

text:
    Supreme Court. Saratoga General Term,
    December, 1855.

      C. L. Allen James and Bockes, Justices.
    The People vs. Frank Quant.
    The legislature of this state has the power to enact a law prohibiting the sale of intoxicating liquors, and to provide penalties for its violation.
    The act of April 9, 1855, so far as it prohibits the sale"of intoxicating liquors, imposes penalties for its violation and provides for their enforcement, is not in conflict with the constitution of the United States or of this state. Foreign liquor, after it has passed beyond the hands of the importer, or after the original package has been broken for use or sale, is not exempted from the operation of the statute by the last clause of the first section of the act.
    Those sections of the old excise law, which prohibited the sale of all liquors in quantities less than five gallons without license, are not repealed by the act of 1855, but still remain in force.
    The facts of this case are sufficiently stated in the opinion of the court.

      D. P. Corey, for the people.

      James Finlayson, for the defendant.
   By the Court, James, J.

The defendant, Quant, was arrested and brought before a justice of the peace of Montgomery county, charged with a violation of the first section of the act passed April 9th, 1855, entitled “ an act for the prevention of intemperance, pauperism and crime.” A motion was made to quash the warrant of arrest, for irregularity, which was denied. A complaint was then exhibited against the defendant, charging him with selling intoxicating liquors; keeping them with intent to sell; giving away such liquors, and keeping them with intent to give away, &c. The defendant took issue upon ' the complaint, and the cause proceeded to trial before a justice, as a court of Special Sessions, wuth a jury. The fact of selling gin, whiskey and beer, at various times, to be drank in his house, and of keeping it for the purpose of sale, was clearly and distinctly proved; the jury found the defendant guilty, and the court adjudged him to pay a fine of $50 and costs. From that conviction and sentence this appeal is brought.

The important questions which arise on'this appeal are the constitutionality of the prohibitory feature of the act of April, 1855; whether foreign liquors are exempted from its operation, and whether any portion of the old excise law is still in force.

If the prohibitory feature of the act of 1855 be unconstitutional, it must be by reason of its conflict with some provision of the constitution of this state or the United States. To a correct appreciation of this question, it is important that the difference in character between the state and national constitutions should be understood and remembered. The constitution of the United States consists only of powers delegated by the states and by the people of the states; and powers not thus delegated, or necessarily implied, or prohibited by it to the states, are reserved by it to the states respectively, or to the people thereof. (10th amendment U. S. Con.) The right to regulate commerce with foreign nations was one of the powers delegated.

First.—So far as the constitution of the United States is concerned, I consider the question conclusively settled by the cases in the 5th How. U. S. Rep., p. 504 and subsequent pages. Those cases seem to cover the whole ground. One of those cases involved the constitutionality of the liquor law of New Hampshire, which entirely prohibited sales. These cases were twice argued by able counsel, and each judge delivered his own opinion, and the decision was unanimous that the law was constitutional, and that it was legitimately within the province of the legislature to enact it. The chief justice in his opinion, said, “ The power of congress over commerce does not extend further than the regulation of it with foreign nations and among the several states; that beyond these limits the states have never surrendered their power over trade and commerce, and may still exercise it, free from any controlling power on the part of the general government. Every state, therefore, may regulate its own internal traffic, according to its own judgment, and upon its own views of the interest and well being of its citizens.” Again, “If any .state deems the retail and internal traffic in ardent spirits injurious to its citizens, and calculated to ¡produce idleness, vice or debauchery, I can see nothing in the constitution of the United States to prevent it from regulating and restraining the traffic, or from prohibiting it altogether, if it thinks proper. Of the wisdom of this policy it is not my province or my purpose to speak. Upon that subject each state must decide for itself. I speak only of the restriction which' the constitution and laws of the United States:have imposed upon the states.” (See also 7 How. U. S. Rep., 283; 11 Pet., 102; 1 Kent. Com., 391.)

Second.—Does the prohibitory feature of the .said act of April, 1855, conflict with any provision of the state constitution? This question may properly be classed under two heads. 1st. The power of the legislature. 2d. The restriction of the constitution.

1st. As to the .power of the legislature. The constitution of this state is not a grant of power. It was created by the people in their sovereign character, and is a restriction upon the powers which the legislature would otherwise possess by the common law were there no constitution. The acts of that body within the restrictions imposed by that instrument, “ are as absolute and uncontrollable as the laws flowing from the sovereign power under any other form of government. (1 Kent. Com., 448.) This is a representative government, and when the representatives of the people, in their legislative capacity, enact a statute, it is the sovereign will declared by the" proper authority of a legally constituted government. Such act, unless in conflict with the constitution, is the law of the state, binding upon the citizens and the courts. In Cochran v. Van Surlay, (20 Wend. 381,) Senator Verplanck remarks, “ it is difficult upon any general principles to limit the omnipotence of the sovereign legislative power by judicial interpretation, except so far as the express words of a written constitution give that authority. There are indeed many dicto,.and some great authorities holding that' acts contrary to the first principles of right are void. The principle is unquestionably sound as the governing rule of a legislature in. relation to its own acts, or even those of a preceding legislature. * * * But I can find no authority for a court to vacate or repeal a statute on that ground alone.”

In 5 How. U. S. Rep. above cited, Mr. Justice McLean says: In all matters of government and especially of police, a wide discretion is necessary. It is not susceptible of an exact limitation, but must be exercised under the changing exigencies of society. In the progress of population, of wealth and civilization, new and vicious indulgences spring up, which require restraints that can only be imposed by the legislative power. When this power shall be exerted, how far it shall be carried, and when it shall cease, must mainly depend upon the evil to be remedied. To guard the health, morals and safety of the community, is one duty of government; to that end the laws of a state may prohibit the sale of property and even authorize its destruction.” “ The lawgiver,” says Chancellor Kent, has the right to prescribe the mode and manner of using property, so far as may be necessary to prevent the abuse of the right, to the injury or annoyance of others, or the public. The government may, by. general regulations, interdict such uses of property as. would create nuisances, and become dangerous to the lives, or health, or peace, or comfort of its citizens.”

And in an opinion, by one of the ablest-lawyers of this state, written to defeat the operation of this law, the. principle was conceded “ that the state legislature in its sovereign capacity may regulate property, and under this head may restrict and control its use, regulate the mode of sale, and even prohibit its use altogether. They may also direct its destruction at once and absolutely. But all this must, be done, and can only be done, for some legitimate ulterior purpose within legislative competency.- They may do all this, when necessary, for the preservation of life or health, of religion or morality. But in a free country, where property is protected under a paramount fundamental law, the necessity must clearly exist.” He there hinges his opinion on the question, whether the legislature or the court is ultimately to determine this necessity? He holds that the power rests with the court. In that I think him mistaken. The judiciary have no power or authority to declare void an act of the legislature solemnly passed, either on an assumed ground of natural equity or want of probable cause. (20 Wend. 381.) The courts can only declare an act of the legislature void, when it conflicts with the constitution. Any principle which would allow the judiciary to go further, and judge of the necessity for legislative enactments, and as they should deem them necessary or unnecessary,, declare them valid or invalid, would place the people, in their representative capacity, subordinate to the judiciary, and the courts higher than the constitution. I can not subscribe to any such monstrous theory. The legislature must be its own judge of the necessity for such laws as it shall enact; there the power is reposed by the common law, recognized and sanctioned by the constitution, and unless its acts trench upon the provisions of that instrument, they become the law of the state, and are beyond the reach of judicial repeal. (De Camp v. Eveland, 19 Barb. 83, 93; Hartwell v. Armstrong, 19 Barb. 168-9.) If the legislature proved unequal to the trust, or violate the confidence reposed in them, the means of correction is to be found in our periodical elections. (19 Barb. 83.)

2d. Does that part of the present act under consideration, conflict with the constitution of the state? The ground of objection is thus stated by counsel: “ This law destroys the second and sixth sections of article first of the state constitution, under which the rights and privileges of the citizen are secured, as well as his life, liberty and property,” and for other considerations the court are referred to that numerous catalogue of extrajudicial opinions, which have, since the passage of this law, been circulated in every portion of the state.

The second section of article I of the constitution, is as follows: “The trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever.” Surely the principle of prohibition in no particular interferes with the right of trial by jury; and the right of trial by a common law jury of twelve men, by virtue of the constitution, never existed to persons guilty of offences below the grade of grand larceny, as I have endeavored to show in another case decided this same term.

That part of section six to which reference is made is as follows: “ No person shall be held to answer for a capital or otherwise infamous crime unless on presentment .or indictment by a grand jury; nor shall he be compelled in any criminal case to be a witness against himself; nor be deprived of life, liberty or property without due process of law.” It will be perceived that no part of this section has any application to the question presented by this appeal. That part of the act prohibiting the sale of intoxicating liquor, and providing penalties for its violation, creates no infamous crime ” as defined by our statutes; compels no one to be a witness against himself; nor deprives any one of life, liberty or property without due process of law. If other parts of the act conflict with this or any other section of the constitution, it will not affect the valididy of those provisions free from such objections. (Fisher v. McGin, 1 Gray, Mass. Rep. 21.) By this, however, I do not mean to concede that any portion of the provisions of the act of April, 1855, are in conflict with the constitution. I only mean to be understood as confining myself strictly to the questions legitimately before the court.

One of the main arguments urged against this law is, that liquor is property, and as such, entitled to protection under the last clause of the section of the constitution above cited. That intoxicating liquor is property is freely conceded; it is so recognized throughout the act. The right to acquire, hold and traffic in property is recognized as a natural right, and when acquired is entitled to claim and receive protection from the law. Life, liberty and property, although entitled to protection, are each liable to forfeiture for a violation of the law. Thus, “ If a man commit murder he forfeits his life; if he commit felony he forfeits his liberty; if he commit a misdemeanor he forfeits his property, by way of a fine.” But this can only be done by due process of law. And what is due process of law? Law is a rule of action prescribed by a superior and which an inferior is bound to obey;” and process of law is the mode of proceeding in the several courts prescribed by the law-making power.There is process by the common law, and process by the statute law. In the act of April, 1855, the mode of proceeding is provided by the law itself, and is by process of statute law. If the act, or any portion of it, is otherwise constitutional, the violators of such act or portion may be deprived of their property under its provisions, and it will be by due process of law.

Prohibiting the sale of liquor as a beverage does not destroy it as property. Its sale for mechanical,.chemical and medicinal purposes is allowed by the act. It is true, that limiting and restricting the purposes for which liquor may be sold, may depreciate its price in-the market; still,.as property, it is physically untouched, and as useful as ever, for all other purposes. Although unconstitutional to pass laws depriving a citizen of his property, a law, the tendency of which is to reduce the price of a certain species- of property in the market, will not for that reason be declared unconstitutional.

I have not been able, from the light afforded me by the counsel for the defendant, even-with the aid of the numerous opinions to which the court were cited, to find the-first section or clause in the constitution of this state, which, by word or implication, restrains the legislature from passing laws regulating or prohibiting the traffic in intoxicating liquors, and providing penalties for its violation; nor have I been able to discover that the prohibitory clause of the act under consideration conflicts with any of the provisions of that instrument.

Third.—It is next insisted -that the conviction was wrong, because it was not proved that the liquor sold or given away was ’ not liquor the right to sell which in this state is given by. any law' or treaty of the United States.” I had supposed the law well settled that “ in an action for a penalty given by statute, it was not necessary for the prosecutor to disprove any qualification; that in such case the onus probandi lay upon the defendant ” It was so held in Potter v. Deyo, (19 Wend. 361,) and the principle recognized in Smith v. Joyce, (12 Barb. R. 21, 26.) I regard such still to he the law; and in this case, if the liquor sold was for any reason privileged, the burden of establishing that privilege rested with the defendant.

But I deny that foreign liquor, when sold by any other than the importer in the original package; is by the act exempted from the operation of this law. The first section prohibits the sale of all intoxicating liquor except as provided by said act, and closes with these words: This section shall not apply to liquor the right to sell which in this state is given by any law or treaty of the United States.” It is under this clause that foreign liquor is claimed to be exempt. There is no express law or treaty of the United States which gives the right to sell liquor in this state. The right to sell is only claimed as incident to the right to import; and the United States Supreme Court held, that as the right to regulate commerce with foreign nations is vested solely in congress, and as under that right congress admits the importation of foreign liquor in packages, that while such importation continues in the hands of the importer, in the form and shape in which, it was introduced, it continues a part of the foreign commerce of the country, and that the authority to import necessarily carried with it the.right to sell in the form and shape in which it was imported; but when, the original package was broken up. for use or retail by the importer, or had passed from his hands into the hands of a purchaser, it ceased, to be an import, and became subject to: the laws of the state... This is all the law, or treaty, of the United States on the subject. This clause of section first was added to avoid conflict with this, decision. But it is argued that' the right to sell by the importer, even though it be in the original package* being conceded,, it ia liquor the right to sell which is. given, and that being once exempted from the operation of the law, it so continues, no. matr ter through how many changes it may afterwards pass. If such construction comported with the intent of the legislature, and fulfilled the purposes sought to be accomplished by the act, it might be adopted without doing violence to the language of that particular clause of the act. But it is apparent that such construótion would be entirely foreign to the intent of the legislature, and operate to defeat the very object and purposes of the statute. In the construction of the statutes the intention of the maker is to govern, although such construction may seem contrary to the letter of the statute. (1 Pet. Rep., 64; 2 id. 662; 15 J. R. 358; 3 Cowen’s R. 89; 1 Seld. 562.) So in statutes penal, as well as others, an interpretation must never be adopted that will defeat the purposes of the act if it will admit of any other reasonable construction. (1 Seld. 562; 9 Wheat. 381.) Penal statutes are to be construed strictly, but not against the manifest intent of the legislature. (2 J. R. 379; 2 Cow. Rep. 410; 5 Wheat. 76; 8 Pick. 370.) If the general meaning and objects of a statute should be inconsistent with .he literal import of any particular clause or section, such clause or section should be construed according to the spirit of the act, if the intent of the legislature be clear and manifest (1 Pick. 248; 10 id. 235; 20 id. 267.) Remedial statutes are to be so construed, if possible, as to suppress the mischief and advance the remedy. (1 Ham,. 206, 385,481.) Many other authorities might be cited to the same effect. Whether or not the language used in the last clause of section first was the most clear and explicit that could have been adopted to enunciate the intent of the legislature, it is not now important to inquire. The intent is so apparent from the whole act taken together, that it can only be mistaken by the willfully blind. If the usual mode of construing statutes is adopted for the construction of this act, foreign liquors, after they cease to be “ a part of the foreign commerce,” are no more exempted from its operations than are liquors manufactured within the state.

Fourth.—It was further insisted that “ the legislature had no power to prohibit the pursuit of any of the common avocations of life, or of any of the ordinary means of obtaining a livelihood.” I have already said all that is necessary of legislative power. Before the passage of this act, the «ale of intoxicating liquor, in quantities less than five gallons, unless the vendor had a license, was prohibited by'law; and it is difficult to distinguish the difference between prohibition in the present law and the principle which lay at the foundation of the old excise law. The difference I apprehend is only in degree. Licenses to sell as a beverage are now prohibited altogether, while under the old law such licenses were permitted and a commission created which might issue them; but the commissioners were not bound to license. (1 Hill’s Rep., 655.) They might refuse, and sometimes did, refuse; and when they did so, prohibition under five gallons was as complete within their jurisdiction as now. By the present act, the legislature has assumed to itself the discretion formerly vested in the board of excise, and said no license shall be granted. Prohibition was a prominent feature of the old law, and yet it was never, for that reason, deemed unconstitutional. It is true, the old law did not interfere with the traffic in quantities above five gallons, but that does not affect the principle. If it was constitutional for the legislature to prohibit the traffic in quantities less than five gallons, it most assuredly is in quantities over five gallons. The power existing, it may be exercised at such times and in such manner as the legislature shall see fit.

But supposing the act of 1855 void; the old excise law would then be left in full force. The defendant is shown to have sold gin, beer, and whiskey at different times to be drank in his house. This he had no right to do under that law, without a license, and it is not pretended that he any such license. In such event he would be liable under the old law for a greater penalty than was imposed by this conviction, although entitled to a discharge from this particular proceeding. According to my understanding, certain sections of the old law still continue in force, notwithstanding the validity of the "new statute. The act of April, 1855, only repeals those acts and parts of acts inconsistent therewith. Those provisions of the old law which prohibit the sale of intoxicating liquor without a license, are in no particular inconsistent with the present act, and therefore by the well-established rules of construction, they are not repealed. In the language of Justice Edmonds, “ the several statutes operating upon the same subject being in pari materia are to be read together ,as one law, and they say no man shall sell without license, and no man shall have a license.”

Several points preliminary to the principal questions were made by the. defendant, none of which I deem well taken.

My conclusions from these premises are, that the legislature of this state has the power to enact laws prohibiting the sale of intoxicating liquors, and to provide penalties for their violation:

That the act of April 9, 1855, so far as. it prohibits the sale of intoxicating liquors, imposes penalties for its violation, and provides for their enforcement, is not in conflict with'any article or section of the constitution of the United States or of this state:

That foreign liquor, after it has passed beyond the hands of the importer, or the original package is broken for use or sale, so that it ceases to be foreign commerce, is not exempted from the operation of the statute by the last clause, of section one:

That those sections of the old excise law, which prohibited the sale of all liquors in quantities less than, five gallons without a license, are not repealed by the present act, but still, remain in force.

The conviction and sentence of the Special Sessions should be affirmed.