text:
    Connecticut Mutual Life Insurance Company vs. New York and New Haven Railroad Company.
    At the common law a party is not liable civiliter for the destruction of human life, whatever the nature of the consequences may he, or however clearly such a wrong may involve pecuniary damage.
    Where one person has contract relations with another, an injury to the latter which affects disastrously those relations, does not constitute a legal injury to the former.
    Where an insurer has been compelled to pay the insurance on the life of a person, whose death has been caused by the unlawful act of a third person, and where there is no privity of contract between the insurer and the wrong doer, and no direct obligation of the latter to the former growing out of the relation of the wrong doer to the insured, by contract or otherwise; though the loss of the insurer is due to the acts of the wrong doer, yet as those acts affect the insurer only through his artificial relation of contractor with the insured, the loss is a remote and indirect consequence of the act of the wrong doer, and no action therefor can be sustained against him by the insurer. Therefore, where the defendants, a railroad company, by their negligence had caused the death of A, a passenger on their road, and the plaintiffs, a life insurance company, had been compelled in consequence to pay the amount of an insurance upon the life of A, previously made by them ; in an action brought by the latter company against the railroad company to recover the amount so paid, it was held, that the wrong complained of, was not the subject of a suit at law, for reasons appertaining both to the peculiar nature of the wrong, and to the manner in which its consequences were brought home to the party claiming redress.
    The principle upon which «in any case an insurer is permitted to recover against a party, whose wrongful act has caused the loss which the insurer has been compelled to pay, is not based upon the idea of a direct legal right of the insurer against the wrong doer, but upon the equitable doctrine of subrogation, under which such insurer succeeds to, and is entitled to a cession of, all the means of redress held by the party indemnified, against the party whose act has occasioned the loss. And the insurer can enforce this right only in the name of the insured.
    This was an action on the case, brought by the Connecticut Mutual Life Insurance Company, against the New York and New Haven Railroad Company, demanding three thousand dollars damages.
    The declaration embraced three counts. The first count contained an allegation, that on the 20th day of March 1850, the defendants, for the consideration of eighty-three dollars and fifty cents, executed and delivered to Samuel Beach of Bridgeport,- a policy of insurance upon his life, for two thousand dollars. After setting out the policy, and alleging that the defendants, on the 6th day of May 1853, were the owners of a railroad running from the city of New Haven to the city of Bridgeport, and thence westerly towards thecity of New York, and were accustomed to convey passengers over said road for hire, and that on said 6th day of May 1853, said Beach, at the special instance and request of the defendants, was a passenger in the defendants’ cars to be therein for certain hire and reward safely carried from said city of New York to said city of Bridgeport, proceeded as follows : “ and thereupon it became and was the duty of the defendants to exercise and use all proper care, skill and diligence, that said Beach should be so safely and securely carried and conveyed from said city of New York to said city of Bridgeport; but the defendants disregarding their duty in this behalf, did not, nor would exercise ail due and proper care, skill and diligence that the said Beach should be so safely and securely carried and conveyed as aforesaid; but on the contrary thereof, so carelessly, unskillfully and negligently behaved and conducted themselves in the premises, that while said train, with the said Beach therein, was passing and being propelled upon, over and along the defendants said road, viz : on the said 6th day of May, A. D. 1853, in the town of Norwalk aforesaid, a part of said train with the said Beach therein, was with great force and violence precipitated and plunged into a certain stream there situated, known by the name of Norwalk river, and immersed and covered in and by the waters thereof, and so with the said Beach therein, for a long time, viz : for two hours or more next thereafter, continued so immersed and covered; by means of all which the said Beach was greatly bruised, wounded, and injured, and then and there died and lost his life.
    Whereby and by reason of all which, the plaintiffs then and there became liable and compelled to pay, and did on the 27th day of August A. D. 1853, pay to Mary Beach, then administratrix on the estate of the said Samuel Beach, the sum of two thousand dollars, being the amount or sum which the plaintiffs were then and there compelled, by reason of the death of the said Beach, so caused by the negligent acts of the defendants as aforesaid, to pay as aforesaid, upon said contract or policy of insurance.”
    The other counts contained no allegations different from those of the first, which it is important to state.
    To the declaration the defendants pleaded in bar, that they, being wholly ignorant of the making of said policy of insurance, or of any payment thereon by the plaintiffs, as alleged in their declaration, paid to the administratrix on the estate of said deceased, the sum of five thousand dollars, which she accepted in full satisfaction' and discharge of the defendants» from all claims, demands, and rights of action, which the deceased or said administratrix had, for injuries received by the deceased while a passenger over said road, or which his estate or said administratrix had, on account of said injuries and the death of the said Samuel resulting therefrom.
    To this plea the plaintiffs demurred, and the questions of law arising upon the demurrer were reserved for the advice of this court,

      Himgerford and W. D. Shipman, for the plaintiffs.
    1. The defendants were liable to Samuel Beach, during his life time, in either of two forms of action, viz.: 1. In assumpsit, for breach of their contract to carry him safely from New York to Bridgeport. 2. In case, for injuries caused by their negligence. Both of these rights of action survived to his administratrix, either of which she could have prosecuted. The former survived at common law, and the latter by our statute of 1848.
    2. If at the time of the accident, Samuel Beach had had the property of the plaintiffs with him, the same being lawfully on the defendants’ road, which property had been destroyed by the same act that destroyed the life of Beach, the defendants would have been liable to the plaintiffs, for the value of the property so destroyed. Not indeed, on the ground of a breach of contract, but by reason of a “ breach of duty irrespective of any contract.” Marshall v. The York New Castle and Berwick R. Co., 7 Eng. L. & E. R., 519, 522.
      Collett v. London and N. W. R. Co., 6 Eng. L. & E., 305, 308. Phil. and Reading R. R. Company v. Derby, 14 How., 468, 485. Farwell v. Boston and Worcester R. R. Co., 4 Met. R., 49, 55.
    3. If Samuel Beach had had his own or another’s property with him at the time of the accident, the same being lawfully on the defendants’ road, the safe transportation of which having been insured by the plaintiffs, they being authorized to make such contracts of insurance, and such property had been destroyed by the negligence of the defendants; on payment of the value of the property thus destroyed to the insured, the plaintiffs would be entitled to recover the amount thereof of the defendants. Hart v. Western R. R. Corporation, 13 Met. R., 99 and cases there cited. Mason v. Sainsbury, 3 Doug. R., 61. (26 E. C. L., 36.) Clark v. Hundred of Blything, 2 Barn. & Cress., 254. (9 E. C. L. 77.)
    4. By the settled policy and express provisions of the law, and by the terms of their charter, the plaintiffs were authorized to insure the lives of individuals, against all contingencies and hazards whatever; those which might arise from being transported from one place to another, as well as others; and in pursuance thereof they insured the life of Samuel Beach. When killed, he was lawfully on the defendants’ road. His life was, for the time being, lawfully and with the consent of the defendants, placed in their custody, and by their negligence destroyed, by which the plaintiffs have been compelled to pay the sum named in their policy.
    5. This suit is rightfully brought in the name of the plaintiffs. It could not have been brought in the name of the assured, because the same act which produced the event insured against, terminated the natural life of the assured. It could not have been brought in the name of the administratrix, because no right of action for the death of Samuel Beach ever survived to her.
    6. The damages in this action are neither remote nor contingent, but immediate, direct, and certain. Allison v. McCune, 15 Ohio R., 726. Yates v. Joyce, 11 John R., 136. Adams v. Paige, 7 Pick. R., 542. Jones v. Van Zandt, 2
      McLean’s R., 596. Smith v. Tonstall, Carthew, 3. Mason v. Sainsbwry, 3 Doug., 61. Clark v. The Hundred of Blything, 2 Barn. & Cress., 254. Martinez v. Gerber, 3 Man. & Gran., 88. (42 E. C. L., 55.) Newbury v. Conn. and Pass. Rivers R. R. Co., 25 Verm. R., 377. Lowell v. Boston and Lowell R. R. Co., 23 Pick. R., 24,
    7. The objection stated by Lord Ellenborough in the 1st of Campbell, and cited by Metcalf, J. in Carey v. Berkshire R. R. Co., 1 Cush., 475, that the death of a human being can not be the ground of a civil action for damages, does not apply to the present case. This action is not for damages generally, for Beach’s death per se, as such. The ground of that rule of the common law (if indeed there be any such rule,) is that no man can be compensated for the loss of his own life ; neither can his family or friends be indemnified, either in a legal or popular sense, for the severing of the ties of nature, or for the loss of the society and aid of the deceased, or for the anguish of mind that flows from his death.
    8. The discharge set up in the defendants’ plea is no bar to a recovery, because, 1. The administratrix had no right of action for the death of the intestate, none having survived or accrued to her, and of course she could discharge none. Whatever the defendants have paid her is for injuries to the deceased during his lifetime. 2. This contract not beiug one of indemnity, the defendants could not indemnify the deceased or his estate, and thereby discharge the liability of the plaintiffs to pay the amount stipulated in the policy. The payment set up in the discharge, would be no bar to a suit on the policy, and by parity of reasoning jt can be no answer to the plaintiffs’ claim in this suit.

      Baldwin, for the defendants.
    The defendants say that the matters alleged in the declaration, furnish no cause of action against them in favor of the plaintiffs, for,
    1. No right of theirs, and no duty toward them, was violated by the defendants. There was no privity of contract or otherwise, between the defendants and the insurance company.
    2. By the common law, no action was sustainable for damages by reason of the death of any person. Baker v. Bolton, 1 Camp., 493. Carey v. Berkshire R. R. Co., 1 Cush., 475. Such an action now can be sustained only by parties to whom it is given by statute. Those are the personal representations of the deceased.
    3. Whenever an action can be sustained by one person, for consequential damage resulting from a personal injury done to another, it must be by reason of some natural or legal relation existing between the plaintiff and the party injured. Anthony v. Slaid, 11 Met., 290.
    Where no such relation exists, but the loss is incurred by reason of some special contract, as by a contractor for the support of town paupers, who has been subjected to increased expense, by a battery committed upon a pauper, the injury is too remote to sustain an action.
    There is no case in which the insurers, either of life or property, have ever been holden to be entitled to recover of a wrong doer, consequential damages sustained by them as insurers.
    If the injurious act was done willfully, with the intent to injure the plaintiff, that would present a different question. Here the loss or damage complained of by the plaintiffs, is neither the natural, legal, or intended consequence of the act done. See Longmeid and wife v. Holliday, 6 Eng. L. & Eq., 563.
    The railroad company must pay to the persons injured or his representatives the full amount of his damages. They are entitled to no deduction on account of the insurance ; for there is no privity between the wrong doer and the insurer. As between the insurer and the assured, there may be an equitable claim in the case of an insurance on property, to a subrogation of the insurer to the rights of the assured against the wrong doer. But he has no remedy in any other mode. Yates v. Whyte, 4 Bing. N. C., 272. (33 Eng. C. L., 349.)
    In Mason v. Salisbury, 3 Doug., 60, it is expressly holden that the insurer, having paid the assured, can not sue the tort feasor in his own name. And the same doctrine is affirmed by Parke J., in Yates v. Whyte, above referred to; and in the case of Quebec Fire Ins. Co. v. St. Louis, 22 Eng. L. & Eq., 73, and in the case of the Propeller Monticello, 17 How., 154.
    The consequence of any other doctrine would be most pernicious. The defendants have made full satisfaction for the injury to the representatives of the deceased, and have no concern with any equities which may exist between them and the insurers, of which they had no knowledge or notice.
   Storrs, J.

The defendants, a railroad company, are charged with having negligently occasioned the death of-one Hr. Beach, by which event the plaintiffs, a life insurance company, have been compelled to pay to his representatives, the amount of an insurance effected upon his life; of which amount a recovery is sought in this action. A plea in bar sets forth a payment to the administratrix of the deceased of the damages for which' the defendants’ negligence had rendered them legally liable, and also a discharge by her. This plea and the demurrer thereto require no examination, as they are immaterial in the view which we take of the declaration.

It is clear from the declaration, that a pecuniary injury has been sustained by the plaintiffs, in consequence of the unlawful conduct of the defendants. If the injury thus set forth be actionable, or an injury in a legal sense, there must be a recovery. But we are of the opinion, that the wrong complained of is not the proper subject of a suit at law, both for reasons appertaining to the peculiar nature of the injury, and to the manner in which its consequences are brought home to the party claiming redress.

The act complained of is the producing of death. We are at once met with the inquiry, whether under the common law system, a party is liable, civiliter, for the destruction of human life, whatever the nature of the consequences may be, or however clearly such a wrong may involve pecuniary damage.

The whole history of the common law of England discloses no recognition of such a liability, although instances of pecuniary loss resulting from death, designedly or negligently produced by human agency, must have been almost without number. In one or two cases the suggestion of such a liability has been summarily contradicted by courts, with such a meagreness or total absence of argument, as almost to give the contradiction the semblance of an obiter dictum. Lord Ellenborough, (Baker v. Bolton, 1 Camp., 493,) said briefly, when a husband sought to recover damages against a wrong doer who had caused his wife’s'death, for the loss of her society and of the benefit of her services, that in a civil court the death of a human being can not be complained of as an injury.

It is manifestly not one reason but many, which lie at the basis of the common law rule. Considerations of the most varied and grave character would present themselves to the minds of any court, even although the matter should be.submitted to them as an original question, to dissuade them from entertaining any action, sounding in damages and seeking a recovery on account of the destruction of life. Should damages be demanded in right of the deceased, for the injury to him, in the name of his representative, a right would clearly be claimed tby the mere representative, which, from the nature of things, could never have inhered in the principal for one instant of time. No contract even could be made, recognizing such a right, and providing for a compensation for the loss of one’s life. The contract of insurance upon lives was tolerated, not on the ground that death was a proper subject of pecuniary remuneration, but as a mere wager, which might, if lawful, as all wagers once were, depend as well upon the duration of life as upon any other contingency. Or, if a suit should be brought to recover for the mental suffering, loss of society, comfort, support and protection resulting from the death of another person, we should see at once, so intertwined is the web of human affection, interest, and relationship, that the author of his death, however slight or accidental his default, would be responsible in numberless actions brought on behalf of wives, children, friends, brothers, sisters and dependents of all degrees, to say-nothing for the present of creditors, and for an injury of such incalculable extent, writers on jurisprudence, perhaps without strict accuracy, have assigned the awful magnitude of the wrong as the reason why neither court nor jury have ever been trusted by the law with the function of estimating it. The experiment of seeking legal redress for the consequences of death from the wrong doer has sometimes been tried ; always in cases where the pecuniary consequences of the injury were so clearly traceable as to make a right to compensation very like a logical necessity ; as for instance, where a husband has lost his wife, to all whose manual services he was entitled; (1 Camp., 493;) and where a father had been deprived of his child, all whose labor with all its avails belonged exclusively to his parent. (Carey v. Berkshire R. R. Co., 1 Cush., 475.) But such actions, if countenanced, would furnish no sound apology for a limitation of the principle which they involved, and when tested by argument, have invariably been discouraged. The case of Ford v. Monroe, 20 Wend., 210, is not only an anomaly on the score of principle, but anomalous by reason of the fact that a question so momentous as the right to treat death as an actionable injury, was overlooked both by counsel and the court, in every stage of the case.

Modern legislation, for reasons connected with the public good, has in special cases, and for the benefit of particular persons, and to a limited amount, created a liability for injuries resulting in death, when caused by misconduct of a certain specified character. But so far is this from being a recognition of any common law right or principle, that the extremely artificial quality of such enactments furnishes the highest proof that they substantially create a public offence, with the sanctions of a suitable penalty, which is to be appropriated, as is just, for the benefit of those who in ordinary cases would be the greatest pecuniary sufferers by the death of the deceased.

We have no inclination to abrogate the common law doetrine, that the.death of a human being, whatever may be its consequences in a pecuniary or in any other aspect, is not an actionable injury.

' The other branch.of our enquiry, relating to the manner in which the injury complained of was brought home to the party claiming to have suffered by it, concerns principles of great practical interest and novel in their present application. The plaintiffs sustain no relation to the authors of the wrong other than that of mere contractors with the party injured ; and their contract liability is the medium through which the injury is brought home to them. " They justly say, that their loss is in fact distinctly traceable and solely due to the misconduct of the defendants; that the death of Dr. Beach, caused by the defendants, in a legal sense determined the only contingency out of which their liability grew, and brought upon them the consequences of that liability, which through the defendants’ unlawful acts, had now become fixed. Still the question remains, notwithstanding this precise exhibition of cause and effect, whether these consequences, of which the deceased was primarily the subject, and which affected the plaintiffs only because they had put themselves into the position of contractors with him, were in a legal view brought home to the plaintiffs, directly or indirectly. The completeness of the proof of connection between the acts of the defendants and the loss of the plaintiffs, does not vary, although it may tend to confuse, the aspects of the case. The single question is, whether a plaintiff can successfully claim a legal injury to himself from another, because the latter has injured a third person in such a manner that-the plaintiffs’ contract liabilities are thereby affected; An individual slanders a merchant and ruins his business; is the wrong doer liable to all the persons, who, in consequence of their relations by contract to the bankrupt, can be clearly shown to have been damnified by the bankruptcy ? Can a fire insurance company, who have been subjected to loss by the burning of a building, resort to the responsible author of the injury, who had no design of affecting their interest, in their own name and right?/Such are the complications of human affairs, so endless and far-reaching the mutual promises of man to man, in business and in matters of money and property, that rarely is a death produced by human agency, which does not affect the pecuniary interest of those to whom the deceased was bound by contract. "To open the door of legal redress to wrongs received through the mere voluntary and factitious relation of a contractor with the immediate subject of the injury, would be to encourage collusion and extravagant contracts between men, by which the death of either through the involuntary default of others, might be made a source of splendid profits to the other, and would also invite a system of litigation more portentous than our jurisprudence has yet known. So self-evident is the principle that an injury thus suffered is indirectly brought home to the party seeking compensation for it, that courts have rarely been called upon to promulgate such a doctrine; The case however, of Anthony v. Staid, 11 Metc., 290, referred to at the bar, is in point. A contractor for the support of paupers had been subjected to extra expense by means of a beating which one of those paupers had received, and he sought from the assailant a recovery of the expenditure. But the court held that the damage was remote and indirect; having been sustained not by means of any natural or legal relation between the plaintiff and the party injured, but by means of the special contract by which he had undertaken to support the town paupers.

The case, however, would present a different aspect, if by virtue of the contract between the railroad company and the 1 [deceased, a direct relation was established between the forImer and the insurers. If the contract for the transportation [of Dr. Beach safely, either in its terms, or through its necesjsary legal incidents, or by fair inference as to the intent of *the parties, devolved upon the railroad company, a duty . towards the present plaintiffs, the latter might sue for a violation of that duty. An obligation thus imposed will not always require a suit for its breach to be brought by a party to the contract; an independent right of action resides in the party to whom the duty was to be performed. In this respeet there is no difference between an obligation imposed by law and by contract. Where the duty of keeping a highway is lodged in a certain quarter by statute, the way is to be kept in repair for the public, for every body, and when any person is injured by its defects, the breach of duty is to him, and he has an action for the violation of his right. If a stage coach proprietor agrees with a master to carry his servant, and injures the latter on the road, he is liable directly to the servant; for although undertaken at the request of and by agreement with another, the duty was directly to the party injured. (Longmeid and ux v. Holliday, 6 Eng. Law & Eq. R., 563.) But it is evident that the present case can not be brought within the principle of such decisions. It would be unfair to argue, that when two parties make a contract, they design to provide for an obligation to any other persons than themselves and those named expressly therein, or to such as are naturally within the direct scope of the duties and obligations prescribed by the agreement. On this point it is enough to say, that when an agreement is entered into, neither party contemplates the requirement from the other, of a duty towards all the persons to whom he may have a relation by numberless private contracts, and who may therefore be affected by the breach of the other’s undertakings. We can not find that any public law charged the present defendants with any duty to the plaintiffs regarding Dr. Beach’s life; nor can we see that Dr. Beach exacted, either expressly or by reasonable intendment, any obligation from the defendants towards the insurers of his life, when he contracted for his transportation to New York./"Had the life of Dr. Beach been taken with intent to injure the plaintiffs through their contract liability, a different question would arise, inasmuch as every man owes a duty to every other not intentionally to injure him.

We decide, that in the absence of any privity of contract; between the plaintiffs and defendants, and of any direct ob-j ligation of the latter to the former growing out of the contract or relation between the insured and the defendants, the loss of the plaintiffs, although due to the acts of the railroad company, being brought home to the insurers only through their artificial relation of contractors with the party who was the immediate subject of the.wrong done by the railroad company, was a remote and indirect consequence of the misconduct of the defendants, and not actionable.

Since the determination of this case we have observed a decision recently made in Maine, (Rockingham M. F. Ins. Co. v. Bosher, 39 Maine R., 253,) fully confirming the legal theory which we have advanced. The suit was brought against a party who had willfully fired a store, by the insurance company, who had paid the consequent loss, and in their own name. The court dismissed the action on demurrer ; taking the same view of the common law doctrine which we have expressed, relative to the indirect and remote manner in which the interests of the insurer were prejudiced by the misconduct of the wrong doer.

'< The cases in which insurers have been permitted to re4 cover against the authors of these losses, are not in contravention of these principles. They have recovered, not by color of their own legal right, but under a general doctrine of equity jurisprudence, commonly known as the doctrine of subrogation, applicable to all cases, wherein a party, who j has indemnified another in pursuance of his obligation so to! do, succeeds to, and is entitled to a cession of, all the means of redress held by the party indemnified against the party who! has occasioned the loss. In some instances the doctrine has' been carried so far, that an insurer has been permitted to recover from the insured such compensation as the latter has subsequently obtained from the wrong doer; as if the money paid by the tort feasor, under such circumstances, was really paid for the use of the insurer. By virtue of this doctrine, there is no doubt of the right of an insurer, who has paid a loss, to use the name of the insured, in order to obtain redress from the author of the wrong ; a right to be exercised for the benefit of the party equitably entitled to its benefits, not to be enforced by its possessor in his own name, but by him as the successor to the remedies of the person whom he has indemnified. Having no independent claim on the wrong doer, he might be successfully met by the superior equities of the wrong doer, such for instance, as a payment to the party directly injured, without notice of the insurer’s claim to be subrogated. Nothing can be plainer than that an indirect liability of this kind is an argument rather against the claim of a direct responsibility of the wrong doer, than a suggestion in its favor. The views taken by courts in recognizing the insurer’s right of subrogation, tend to sustain the principle which we now maintain. [See case of Propeller Monticello, 17 How R., 154. Mason v. Sainsbury, 26 E. C. L. R., 36. Yates v. White, 33 E. C. L. R., 349. Quebec Fire Ins. Co. v. St. Louis, 22 Eng. Law & Eq. Rep., 73. Hart v. W. R. R. Co., 13 Met., 99.]

We advise the superior court to render judgment for the defendants.

In this opinion, the other judges, Waite and Hinman, concurred.

Judgment for defendants.


source: Caselaw Access Project

author: Waite, C. J.

license: Public Domain

text:
    The State vs. Brennan’s Liquors.
    The acts of an officer de facto, performed colore officii, are valid so far as the public or third persons having an interest in such acts are concerned, and their validity can not be indirectly called in question in a suit to which he is not a party.
    Where spirituous liquors, alleged in a complaint to have been kept by the defendants in violation of the statute, entitled “ an act for the suppression of intemperance,” were seized under a warrant directed to a constable and the defendant pleaded in bar, that the person by whom the warrant was served, although chosen a constable, had never executed a bond for the faithful discharge of the duties of his office; it was held, that the plea was insufficient, and that the matter would also have been insufficient if pleaded in abatement.
    It is not necessary to the validity of a search warrant issued under the provisions of said act, that it should limit the service to the day time.
    Where a complaint alleged, that a ceriain quantity of spirituous liquors, to wit, ten gallons of brandy, ten gallons of rum &c., at a certain place, was kept by B. and intended by him to be sold in violation of said act, and by virtue of the warrant which recited the complaint, the officer seized a hogshead containing thirty gallons of rum, and a barrel containing eighteen gallons of rum; it was held, that the specification of the kinds and quantities of the liquors under the videlicet was intendedjas a description of them, and not to limit their quantities, and that the authority of the officer was not limited to the quantity specified in the complaint.
    Where, after a seizure of the liquor under the provisions of the statute, a citation was issued by the magistrate, to the defendant andko all others interested, to appear and show cause why the liquor should not be forfeited, which citation, after setting out briefly the substance of the complaint, the warrant and the seizure, stated, that it was alleged in the complaint that the liquor in question was owned and kept by “ some person ” without specifying any person by name, and the defendant appeared before the justice, and was heard, and afterwards appealed the cause to the superior court, and there pleaded in bar to the suit; it was held, 1. That by the service of such citation the defendant received reasonable notice to appear and be heard. 2. That he could not at that stage of the case avail himself of any defect in the notice;
    The provisions of said act, relating to proceedings in rem to effect the forfeiture and destruction of spirituous liquors, kept for illegal sale, are constitutional and valid.
    The provision of said act, that the justice, if he shall find the liquor was kept in violation of said act, shall render judgment that the liquor and the vessels which contained it be forfeited, is not, by giving to the justice jurisdiction over property to an unlimited amount, repugnant to the constitution of this state, as impairing the right of trial by jury, inasmuch as the right of appeal is allowed to the claimant in every case.
    It is no valid objection to the constitutionality of said act, that the defendant, before an appeal is allowed, is required by it to give bond to prosecute his appeal to effect, in such amount as the justice may order, and that the justice has the power to prevent an appeal by requiring a bond of an exorbitant amount, inasmuch as it is not to be supposed that any such abuse of authority will be practiced, especially as the bond is required only to secure the payment of costs.
    Nor is the provision of said act, that the liquor forfeited shall be delivered to the agent of the town to be destroyed or sold for the benefit of the town, a violation of the constitutional provision, that “ the property of no person shall be taken for public use without just compensation therefor.”
    The provisions of said act with r.egard to the exclusive sale of liquors by the towns, through agents appointed for that purpose, are not invalid, as giving to the towns a monopoly of such sale.
    This was a complaint made by three residents of the town of Cheshire, to a justice of the peace, pursuant to the provisions of the act of 1854, entitled, “ an act for the suppression of intemperance,” alledging that certain spirituous liquors were owned and kept by Martin Brennan upon his premises, for the purpose of being sold in violation of the statute.
    Upon this complaint the magistrate issued his warrant for the seizure of the liquors and the vessels containing them. By virtue of this warrant, Jesse L. Nichols, acting as a constable of the town of Cheshire, searched the premises and seized one hogshead containing about thirty gallons of rum, one barrel with eighteen gallons of rum, and several small vessels containing spirituous liquors, and took them into his possession.
    Brennan having been duly notified, appeared, and the magistrate upon a hearing of the parties, adjudged the liquors and the vessels containing them to be forfeited, and that Brennan pay the costs of prosecution.
    From this judgment Brennan appealed to the superior court, and there pleaded that the attorney for the state, of having and maintaining the complaint, ought to be barred, because Jesse L. Nichols, by whom the warrant was served, although chosen a constable by the town of Cheshire, had never executed a bond with surety to the acceptance of the selectmen, in accordance with the requirements of the statute of 1854, entitled “an act relating to constables.”
    To this plea there was a demurrer, and the superior court for the county of New Haven, at the October term, 1855, reserved the questions of law arising upon the record for the advice of this court. Various details of the record, as to the proceedings before the magistrate, the validity of which was made the subject of discussion before the court, sufficiently appear from the opinion of the court.

      Foster and Harrison, for the state.
    1. The officer who seized the liquor in question, was at least a constable defacto. Hence his right to act as constable can not be questioned in this case. Plymouth v. Painter, 17 Conn. R., 585. Monson v. Hunt, 17 Conn. R., 566, 573, 574. Douglass v. Wichwire, 19 Conn. R., 489, 492. Nason v. Dillingham, 15 Mass., 170. Bucknam v. Ruggles, 15 Mass., 180. Fowler v. Beebe, 9 Mass., 231. People v. Hopson, 1 Denio., 574.
    2. If he were not constable at all, either de jure or de facto, that ground of defence (if pleadable at all) would be pleadable only in abatement. It can not now be pleaded even in abatement, much less in bar. Wickwire v. The State, 19 Conn. R., 477. Smith v. The State, 19 Conn. R., 493, 498, 499.
    3. The statute applicable to the case is not unconstitutional. 12 Wheat., 419. 5 How. U. S., 504. Beers v. Beers, 4 Conn. R., 535. Colt v. Eves, 12 Conn. R., 253. Fisher v. McGirr, 1 Gray, 1.
    4. Judgment of forfeiture should be rendered and the orders necessarily following such judgment according to secs. 13 and 14 of the statute, should be made. State v. Wickwire, 19 Conn. R., 477.

      Doolittle, for the defendant.
    1. This search and seizure process being “ in invitum ” all the prerequisites of the statute are to be complied with- strictly. Mitchell v. Kirtland, 7 Conn. R., 231. Hobart v. Frisbie, 5 Conn. R., 592. Packer v. Rule's lessee, 9 Cranch, 64.
    These liquors have never been seized by a proper legal officer in conformity with the statute. Stat. Ed. 1854, 823. It is admitted that the constable who made the seizure, had not given the bond which the statute demands “ shall ” be given “ before " a constable enters upon the duties of his office. Stat. Ed. 1854, 161.
    This being' a proceeding in rem, the court must find the fact that it has been seized by a proper officer, before it can proceed to its condemnation.
    2. The process itself is fatally defective and in violation of the constitution of this state. Art. 1, §§ 8, 9, 12. 1. The 'search is not limited by the warrant to the day time. 2 Hale P. C., 113, 114. Stone v. Dana, 5 Met., 99. 1 Sw. Dig., 495. The officer was authorized to seize only ten gallons of rum, the rest must be restored. 1 Chit. C. L., 66. 2. There is no allegation in the citation as to “the person” entertaining a criminal intent other than “ some person.” 3. Although the complaint is required to name some person as the owner or keeper, yet if the court finds that it was kept by “ any person ” with a criminal intent, it becomes the duty of the court to condemn it. So that the liquors may be forfeited if kept by a person not named in the complaint, of whom the defendant may have no knowledge. 1 Gray R., 1. 1 Curtis R., 311.
    3. The statute on which the complaint is founded, violates the constitutional provisions in relation to trial by jury. It confers upon a justice power to order the destruction of property of unlimited value. 1 Gray R., 1.
    Whether the defendant can obtain a trial by jury depends upon the discretion of a justice who may fix the bond as he pleases. 1 Curt,, 311. 12 How. U. S., 277.
    It does not destroy property, but takes it for public use without compensation and provides that the town agent may sell it.
    A town agent is created a tribunal to determine upon the fact whether the liquor seized is a nuisance or not, without the right of appeal.
    4. The law deprives the owners of liquors of their property, without legal process, and therefore is unconstitutional and void.
    Although the “ constitutionality ” of the general objects of the act may not be questioned, the legislature has no right to compel the “immediate and unconditional” destruction of liquors. 12 How., 239. 11 How., 344.
    It is not competent for the government to give to the towns the monopoly of the sale of liquors. Am. Saw. Rea:., Vol. 4, p. 348.
   Waite, C. J.

Two questions have been made by the defendant in the present case. The first relates to the sufficiency of his plea, and the second to the constitutionality of the statute under which the prosecution was commenced.

1. It is admitted in the plea, that Nichols, who served the warrant, as a constable of the town of Cheshire, was duly appointed a constable by the town, and it is not denied but that he had been duly sworn, and possessed every qualification necessary to enable him to perform the duties of that office, except that of having given bond in pursuance of the requirement of a recent statute.

He therefore, in serving the process as a constable, acted colore officii, and was an officer defacto. Now the principle recognized and established by recent and repeated decisions of this court, is, that the acts of an officer de facto are valid, so far as the public and third persons who have an interest in them are concerned, and their validity can not be directly called in question, in a suit in which the officer is not a party. It is enough that he acts under color of an appointment by that body which alone has the power to make it. And this we have said is too well settled to be any longer a debatable point. The town of Plymouth v. Painter, 17 Conn. R., 585. Monson v. Hunt, 17 Conn. R., 566. Douglass v. Wickwire, 19 Conn. R., 489. Smith v. The State, 19 Conn. R., 493.

The constable is no party to the present proceeding, and having been duly appointed a constable by the town which alone had the power to make the appointment, and having served the warrant in his official character, the validity of his qualifications can not now be called in question by the defendant.

It is said that the plea is bad in another respect, that the matters therein stated should have been pleaded in abatement, and not in bar of the prosecution. But we deem it wholly unnecessary to consider that question, as we are fully satisfied, that however pleaded, they are insufficient either to bar or abate the prosecution.

2. The next enquiry relates to the constitutional power of the legislature to pass laws restraining the sale of intoxicating liquors, and the means that may be adopted to prevent such sale.

Upon this subject much has been said and written, but upon the present occasion, we do not consider it necessary to go into any extended examination of that subject, or do more than briefly consider the objections which have been urged by the defendant’s counsel in the present case, against the validity of the law upon which the prosecution is founded, and the proceedings of the complainants under it.

1. In the first place, it is said the search is not limited by the warrant to the day time. There is no pretence that the search was not made at a proper time, and the presumption is, that the officer will execute his precept at a proper time, and in a proper manner, although it contain no special direction to that effect. Thus, if an attachment in a civil case is issued against the person of another, it is not to be presumed that the officer will make the arrest on the sabbath, or without his jurisdiction, although there may be nothing in the warrant restraining the service to any particular time or place.

2. It is said the officer had no power to seize more than ten gallons of rum.

The complaint states that, at a certain place, a quantity of spirituous or intoxicating liquors, to wit, ten gallons of brandy, ten gallons of rum, &c., a more particular description of which is to the complainants unknown, is owned and kept by Martin Brennan, and is intended by him to be sold in violation of the statute. The warrant recites the complaint and then directs the officer do search the place and seize the liquors. By virtue of this warrant the officer seized a hogshead containing thirty gallons of rum, and a barrel containing eighteen gallons.

The specification of the kinds and quantities of the liquors, given under the videlicit, was intended as a description of them and not to limit their quantities. The warrant required the officer to search for and seize a quantity of intoxicating liquor kept by Brennan, and intended by him for sale, containing ten gallons of rum, &c., but did not restrict him to a seizure of that precise quantity. Had the officer been directed to seize a certain hogshead of rum containing ten gallons, it would hardly be contended that, if the hogshead contained more than that quantity, he could not seize the whole contents.

3. In the next place it is said that there is no allegation in the citation, as to the person entertaining a criminal intent other than “ some person.” An objection to the form of a citation comes very late from a party, after he has appeared, been heard, appealed the case to the superior court, and there pleaded in bar of the suit.

In the complaint it is alledged that the liquor was owned and kept by Brennan with intent to sell the same in violation of the statute. After the seizure had been made under that complaint, a citation setting out briefly the substance of the complaint, the warrant, the seizure, and the place of seizure, is issued, requiring Brennan and all others interested, to appear at a specified time and place, and show cause, if any they had, why the liquor should not be adjudged forfeited. It is true the citation states that it was alledged in the complaint that the liquor was owned and kept by “ some person” with intent that it should be sold contrary to law. The service of that citation gave the defendant reasonable notice. At any rate he can not in the present stage of the case, avail himself of any defect in the notice.

4. Again it is said that if the court finds that the liquor was kept by “ any person ” with a criminal intent, it may decree a forfeiture.

The proceeding in this ease is a proceeding in rem. The statute provides that liquor unlawfully kept for sale, shall be deemed a nuisance. The object is to have it seized and destroyed as such. After the liquor has been seized, and thus brought within the jurisdiction of the magistrate, he is to appoint a time and place for the hearing, and give notice to the person in whose possession it was found, and all other persons interested, by serving a written notice upon him, and setting up another upon the public sign-post, for a period of at least two weeks, for them to appear, if they see cause, and defend. And any person may appear and be made a party dependant.

After such notice has been given, the magistrate is to proceed and hear the parties, and if upon the evidence he finds that theo liquor was kept by any person for the purpose of being sold in violation of the statute, he may decree a forfeiture.

It is to be presumed that the magistrate will discharge the duty conferred upon him properly; that he will not decree a forfeiture, if the party in interest is not before the court, without giving him due notice to appear; or if it should appear that the person having it, with intent to sell, was a mere trespasser, and the true owner was chargeable with no fault or neglect. It might as well be said, that in no case should criminal jurisdiction be conferred upon a single magistrate, as he might abuse the power conferred upon him, and convict without sufficient evidence. The remedy which the law has provided in such cases, is by an appeal, or a writ of error.

5. Next it is said that the statute violates that provision in the constitution, which says, that “the right of trial by jury shall remain inviolate,” inasmuch as it gives the justice jurisdiction over property of an unlimited amount. But it allows the claimant the right of appeal in all cases. And it has been decided by this court, that a statute enlarging the jurisdiction of justices of the peace, in civil cases, is not in violation of that clause in the constitution, so long as the right of appeal remains : and that preserves the right of trial by jury inviolate, within the words and fair intendment of the constitution. Beers v. Beers, 4 Conn. R., 535.

6. It is further said that the justice may in effect prevent an appeal, by requiring a bond of an exorbitant amount. The same objection might with equal propriety be urged against the statute increasing the jurisdiction of justices in civil cases. Such an abuse of authority is not to be supposed. The mere circumstance that a court of justice may unlawfully pervert a statute is no argument to prove that it is unconstitutional. Besides the bond is only required to secure the payment of the costs in the case. It ought to be of sufficient amount for that purpose, and all beyond is immaterial.

7. Again it is claimed that the statute violates another clause in the constitution, which says that “ the private property of no person shall be taken for public use without compensation therefor; ” that it authorises the taking of private property for the benefit of the town. The same objection might, with the same propriety, be urged against almost every penal statute, as the law requires all fines, forfeitures and penalties, unless otherwise expressly disposed of, to be paid either into the state or town treasury.

Thus a person convicted of the crime of drunkenness, is subject to a fine payable into the town treasury. In one sense it may be said, his money, if the fine is paid, is taken for public use, but not within the meaning of that clause of the constitution. The fine is imposed not because the public want his money, but as a punishment for his offence, and the disposition of it does not affect the validity of the law subjecting him to the punishment.

So, in the case under consideration, the law imposes the forfeiture of the liquors, not for the benefit of the town, but as a punishment for keeping them for an unlawful purpose. Forfeitures have frequently been imposed by laws of congress as well as by other laws of this state, none of which have ever been adjudged unconstitutional.

By the laws of Congress goods imported into this country in violation of the revenue laws, and intoxicating liquors carried into Indian territories, to be there sold in violation of law, may be seized and forfeited. So in this state under certain circumstances, race horses, and animals used in circus exhibitions, are liable to forfeiture.

“ We have no doubt” say the supreme court of Massachusetts, “ that it is competent for the legislature to declare the possession of certain articles of property, either absolutely or when held in particular places, and under particular circumstances, to be unlawful, because they would be injurious, dangerous or noxious; and, by due process of law, by proceedings in rem,to provide both for the abatement of the nuisance, and the punishment of the offender, by the seizure and confiscation of the property, by the removal, sale, or destruction of the noxious articles.” Fisher v. McGirr and others, 1 Gray, 27.

Many acts considered lawful at common law, for reasons of policy, or the preservation of public morals, have been prohibited by statute, as theatrical exhibitions, selling lottery tickets, and the emission of bills of credit to be used as currency by a private individual without authority from the legislature.

Even the keeping of spirituous liquors for the owners use; is not prohibited. It is the keeping with intent to sell, in violation of the statute, which renders the act unlawful.

It is finally said that the public have no right to monopolize the sale of ardent spirits. The object of the legislature in authorizing a sale by a public agent for certain purposes, was not to raise a revenue for the town, but to accommodate certain persons with spirits for particular uses, and at the same time to guard against the evils resulting from án indiscriminate sale by all persons and for all purposes.

Several other considerations have been urged by the defendant, some of which have already been sufficiently answered, and the residue in our opinion do not require any further remarks.

We have thus considered the several objections that have been urged against the validity of the law upon which the present proceeding is founded. The object of the legislature in passing it, was to aid in the suppression of intemperance, pauperism and crime; evils which impose very heavy and onerous burdens upon the public. The expenses attending the prosecution of crimes, the support of criminals, and the maintenance of paupers are very great; and no one can doubt but that, to a very great extent they have been caused by the multitude of tippling shops with which our community has been heretofore infested.

The measures best calculated to prevent those evils, and preserve a healthy tone of morals in the community, are subjects proper for the consideration of the legislature. Courts of justice have nothing to do with them, other than to discharge their legitimate duties in carrying into execution such laws as the legislature may establish, unless indeed they find that the legislature in making a particular law, has disregarded the restraints imposed upon it by the constitution of this state, or of. the United States. That they have power to declare such a law unconstitutional and void, is not denied. But at the same time, it is a power to be exercised with caution, and in no doubtful case.

From the best examination we have been able to give this case', we are unable to say, that for any of the reasons that have been assigned, the legislature, in passing the law in question, transcended any of its legitimate powers.

And we are the more confirmed in our opinion, by the very recent decision of the supreme court of the state of Vermont, in which they held that a law of that state, in all of its essential features almost identical with ours, was not unconstitutional or void. Lincoln v. Smith and others, 27 Verm. R., 328. Bennett, Justice, who delivered the opinion of the court, after carefully reviewing in a very able manner the various objections urged against the law, pronounced it valid.

It is true, the Chief Justice of that court was of opinion, that one clause in the statute as originally passed, according to his construction of it, was unconstitutional, inasmuch as it authorized the magistrate, without a hearing and without evidence, to impose a fine upon the owner of the liquors seized, if he failed to appear and show by satisfactory evidence that they were not intended for sale in violation of the statute. But the other judges did not so understand the law, and the legislature, subsequently, for the purpose of removing all objections, repealed that clause, leaving the law as it now stands, so far as relates to the constitutional objections, the same as ours.

We therefore advise the superior court to adjudge the defendants’ plea insufficient, and dispose of the liquors seized in conformity with the directions given in the statute.

In this opinion, the other judges, Stokes and Hinman, concurred.

Plea insufficient.

Liquors to be condemned.


author: Storrs, J.

text:
    The State vs. Wheeler.
    The ninth section of the act for the suppression of intemperance, which provides that no person under the penalties therein prescribed, shall own or keep any spirituous or intoxicating liquor with intent to sell the same in violation of that act, is not invalid, as conflicting with any provision of the constitution of the United States, or of the constitution of this state, or as opposed to natural right and the fundamental principles of civil liberty.
    KTor is the validity of said ninth section affected by the possible invalidity of the eleventh section of said act, which provides that all liquor, intended by the owner or keeper thereof to be sold in violation of said act, shall, with the vessels in which it is contained, be forfeited to the town wherein it is kept; for the former section has not that dependence on the latter which is necessary to such a result.
    The rule in such case is, that the unconstitutionality of one part of a statute, will not render another part of it invalid, unless the parts which are respectively constitutional and unconstitutional, are so mutually connected with, and dependent on each other, as to warrant a belief that the legislature intended them as a whole, and would not have enacted the part which is constitutional independently.
    But said eleventh section is also constitutional and valid.
    This was a complaint preferred by a grand juror of the town of New Haven, to a justice of the peace, against Stephen Wheeler, for keeping spirituous liquors with intent to sell the same in violation of the statute of 1854, entitled “ an act for the suppression of intemperance.”
    A trial was had before the justice, and the defendant found guilty. From this decision he appealed to the superior court, and the cause was tried at the term of said court holden at New Haven, in September 1855.
    Upon the trial the defendants’ counsel requested the court to instruct the jury that the statute upon which the information was founded was unconstitutional and void. The court did not comply with this request, but did instruct them that the section of the act upon which the information was founded, prohibiting the keeping of spirituous liquors with intent to sell the same contrary to the provisions of said act, was constitutional and valid. The court did not express any opinion upon other sections of the act. The jury having returned a verdict against the defendant, he filed a motion for a new trial, which motion was reserved for the advice of this court.

      Flagg, in support of the motion.
    The act upon which the information is based, transcends the authority of the legislature; is an abuse of power; and opposed to the principles of the constitution of the United States, and the constitution of Connecticut; and is therefore void.
    1. The ninth section which is counted on in the information is pars integra of the whole act. In which view it is unconstitutional.
    2. This section is per se unconstitutional.
    These positions are from necessity so blended, that authorities applicable to one, reach both.
    Constitution of Conn., preamble; also, Art. I. §§1,8,9, 11,21. 1 Black. Com., 138. 2 Sullivan, 270, 271.
    It nullifies the laws and constitution of United States by prohibiting virtually the sale of imported liquors.
    It deprives a man of his property without due course of law, presuming his guilt, and requiring him to prove a negative in defense.
    (Opinion Choate, &c., pam., 136.) Proof by presumption, &c., untenable. Opinion of Wood, pp. 75, 76.
    It creates a monopoly that makes it void. The supreme court and court of appeals of New York, have decided that a law of the same character in that state is unconstitutional.

      Foster (State Attorney) and Candee, against the motion.
    1. The statute on which this prosecution is brought is not unconstitutional 12 Wheat., 419. 5 How. U. S., 504. 1 Gray, 1. 4 Conn. R., 535. 12 Conn. R., 253.
    2. It is well settled that only such parts of a statute, as are unconstitutional are void. The other parts of the statute continue in force. 1 Gray, 21.
    3. If the court should be of opinion that parts of the act on which this prosecution is based are void, no claim of the kind can apply to the ninth section, that section being one of regulation of sale, a power, the right of which is acknowledged by the authorities above quoted, and which has been unquestioned from the earliest history of our state.
   Storrs, J.

The information in this case is founded

on the ninth section of the act for the suppression of intemperance. (Rev. Stat., 821.) That section provides that no person under the penalties therein prescribed, shall own or keep any spirituous or intoxicating liquor, or any mixed liquor of which a part is spirituous or intoxicating, with intent to sell the same in violation of that act. The only question before us is, whether that provision is constitutional.

If the legislature has, in this act, transcended its constitutional powers, in its interdiction of the sale of liquors, the owning or keeping of which for the purpose of such sale is prohibited by the provision in question, it might justly be claimed that the" provision is unconstitutional; for we see no ground on which a prohibition of the owning or keeping of an article for the purpose of a sale, which the legislature had no rightful power to prevent, could be upheld. A right to sell an article necessarily includes a right to own or keep it for that purpose, because without owning or keeping it, that purpose could not be accomplished; and a right to do a thing implies a right to do that without which it can not be done. But if, on the other hand, the legislature has gone no further than it had a constitutional right to do, in prohibiting sales of liquors, it is equally clear that the provision in question is obnoxious to no constitutional objection. A right to prohibit or regulate traffic in a particular article, involves the right to prevent or regulate that traffic by prohibiting the keeping of that article for the purpose of carrying on such traffic contrary to such prohibition, and therefore the right to prohibit the keeping of spirits for the purpose of selling them is no more restricted than the right to prohibit or regulate their sale. This principle is too simple and obvious to require argument. It is the one on which that great class of legislation rests, which prohibits the possession of things, which, although not in their nature necessarily hurtful, may be used and are kept, for the purpose of doing acts which are immoral, injurious or illegal. The provision now in question stands on the same ground as laws of that description, the validity of which has no where ever been questioned. If necessary, it would be easy to show that the ‘ power of the legislature is not restricted to prohibiting the keeping of such articles as may be and are designed to be used for the purpose of effectuating a criminal intention, but that it may rightfully prohibit and regulate, as it deems fit, the possession or use of such articles as it may consider to be injurious or dangerous. The enquiry, therefore, now presented is, whether the legislature in this act, has exceeded its constitutional powers in relation to the character of the sales of liquor which it has undertaken to prohibit or regulate; or, in other words, whether the prohibition in the act embraces any cases of sales with which the legislature had no right to interfere.

The following summary of the sections of this act which relate to the sale of spirituous and intoxicating liquors, will show the exact extent to which it is prohibited and regulated.

Sections 1, and 8, prohibit the manufacture and sale of such liquors except as afterwards provided.

Section 2, excludes from the operation of the act, the sale by the maker at any one time of not less than five gallons of cider or wine, made in this state from fruit grown or gathered by him, and which is sold to be, and is, taken away at one time.

Section 3, excludes also from its operation the sale by the importer of foreign spirits or intoxicating liquors imported under and in accordance with the laws of the United States, and remaining in the original casks or packages, and so disposed of and sold in quantities not less than that in which those laws require such liquor to be imported.

Sections 5 and 6, provide for the appointment by the selectmen of any town, of a limited number of persons as agents of such town, for the purchase and sale of spirituous and intoxicating liquors within such town, for sacramental, medicinal, chemical and mechanical uses, require those persons to give security for their observance of the laws relating to their agency and the sales of liquors, and prescribe the various details of the duties of such agents, which it is unnecessary to particularize.

Section 4, empowers the commissioners of any county to authorize any person to manufacture such liquors, and sell the same to the said town agents.

Section 7, prohibits any person from manufacturing in violation of the act, any liquors which are spirituous or intoxicating in whole or part.

The penalties prescribed for a violation of these prohibitory sections, including that the validity of which is now in question, are of a personal character only, as distinguished from a forfeiture of the liquor made, kept or sold.

Viewing these provisions by themselves, and independently of the succeeding sections by which liquor intended by the owner or keeper thereof to be sold in violation of the act) is subjected to forfeiture, to which we shall advert hereafter, we are clearly of opinion that they are constitutional. Their validity must depend on the enquiry whether they are repugnant to the constitution of the United States, or of this state, as we are aware of no other ground on which they can be pronounced void.

In regard to the constitution of the United States, the only claim is, that they conflict with that clause which confers upon Congress the power to regulate commerce with foreign nations and among the several states. (Art. 1, sect. 8.) But the decisions of the supreme court of the United States in McCollough v. Maryland, (4 Wheat., 316,) Brown v. Maryland, (12 Wheat., 453,) and what are termed the license cases, (5 Howard, 574,) which are authoritative on this subject, furnish a full and explicit answer to this objection. The point decided in Brown v. Maryland, as stated, and with great precision, by Ch. J. Taney, in 5th Howard, 574, is, that an article authorized by a law of Congress to be imported, continues to be a part of the foreign commerce of the country, while it remains in the hands of the importer for sale in the original bale, package or vessel in which it was imported; that the authority given to import necessarily carries with it a right to sell the imported article in the form and shape in which it was imported; and that no state either by direct assessment or by requiring a license from the importer before he is permitted to sell, can impose any burden upon him or the property imported, beyond what the law of Congress itself imposes; but that when the original package is broken up for use or for retail by the importer, and also when the commodity has passed from his hands into the hands of a purchaser, it ceases to be an import, or a part of foreign commerce, and becomes subject to the laws of the state, and may be taxed for state purposes, and the sale regulated by the state, like any other property. This, he says, he understands to be substantially the decision in that case, drawing the line between foreign commerce, which is subject to the regulation of Congress, and internal or domestic commerce, which belongs- to the states, and over which Congress can exercise no control.

In the license cases it was determined that the laws of Massachusetts prohibiting any person from selling spirituous liquors in less quantity than twenty-eight gallons, without a license to be granted by certain state officers, and providing that such licenses should not be granted where, in their opinion, the public good did not require them to be granted; that laws of Rhode Island, prohibiting the sale of such liquor in a less quantity than ten gallons, although the liquor sold was foreign liquor duly imported and was bought of the importer ; and that laws of New Hampshire, imposing similar restrictions upon domestic liquor sent from one state to another, and sold in the original cask, were neither of them objectionable as infringing the constitution of the United States.

These decisions most clearly show, that the exception contained in the third section of the act now in question, obviates every objection that can be made to it on the ground that it is repugnant to the constitution of the United States or the laws passed under its authority.

The right of the United States government to protect imports, while they remain such, as arising from its power to regulate commerce, and of a state to regulate or restrict, according to its own sense of propriety, the sale of foreign goods, as a police power, essential to its sovereignty, independence, peace and security, are both fully recognized in these cases. The only question, and one on which there was some diversity of opinion, was, as to the time when imports ceased to be under the protection of the general government, and became subject to state legislation like all other property. We have stated the decision on that point.

The competency of a state, in the exercise of its legislative power, to enact such police laws, restricted, if at all, only to the extent indicated by these decisions, was admitted by all the judges, and by several of them very pointedly declared. In the license cases, Ch. J. Taney said: “ Although a state is bound to receive and permit the sale by the importer of any article of merchandize which Congress authorizes to be importéd, it is not bound to furnish a market for it, nor to abstain from the passage of any law which it may deem necessary or advisable, to guard the health or morals of its citizens, although such law may discourage importation, or diminish the profits of the importer, or lessen the revenue of the general government. And 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 see nothing in the constitution of the United States to prevent it from restraining the traffic, or from prohibiting it altogether, if it thinks proper.” Mr. Justice McLean said : The acknowledged police power of a state extends often to the destruction of property. The state may regulate the sale of foreign spirits, and such regulation is valid though it reduce the quantity of spirits consumed. A license may be required to sell foreign articles, when those of domestic manufacture are sold without one ; and if the foreign article be injurious to the health or morals of the community, a state may, in the exercise of that great and conservative police power which lies at the foundation of its prosperity, prohibit the sale of it.” Mr. Justice Grier said: “ The true question presented by these cases, and one which I am not disposed to evade, is, whether the states have a right to prohibit the sale and consumption of an article of commerce which they believe to be pernicious in its effects, and the cause of disease, pauperism and crime. It is not necessary for the sake of justifying the state legislation now under consideration, to array the appalling statistics of misery, pauperism and crime, which have their origin in the use or abuse of ardent spirits. The police power, which is exclusively in the states, is alone competent to the correction of these great evils, and all measures of restraint or prohibition necessary to effect the purpose are within the scope of that authority.”

Such being the extent of the general legislative power of a state, we come to the enquiry, whether the legislature of this state, in enacting the provisions which we are now considering, have violated any of the provisions of our state constitution. This point is briefly disposed of by the remark, that we find nothing whatever in that instrument, which either expressly or impliedly restricts, or even touches upon, the exercise of the power of the legislature, in relation to the subject we are examining.

This absence of constitutional restraint in this respect upon the power of the legislature, disposes of the cases recently decided by the court of appeals of the state of New York, which have been cited by the defendant. Those cases are wholly inapplicable to the present, as they were expressly decided on the ground, that the legislative act there in question conflicted with certain specific restrictions imposed on the legislature by the constitution of that state, and on that ground exclusively.

^The defendant insists that we should pronounce the law now in question to be void, on the ground that it is opposed to natural right, and the fundamental principles of civil liberty. We are by no means prepared to accede to the doctrine involved in this’ claim, that, under a written constitution like ours, in which the three great departments of government, the executive, legislative and judicial, are confided to distinct bodies of magistracy, the powers of each of which are expressly confined to its own proper department, and in which the powers of each are unlimited in its appropriate sphere, except so far as they are abridged by the constitution itself, it is competent for the judicial department to deprive the legislature of powers which they are not restricted from exercising by that instrument. It would seem to be sufficient to prevent us from thus interposing, that the power exercised by the legislature is properly legislative in its character, which is unquestionably the case with respect to the law we have been considering, and that the constitution contains no restriction upon its exercise in regard to the subject of it. There is, however, no occasion to pursue this topic!) The law in question is, in our opinion, obnoxious to no objection, which could be derived from the establishment of the doctrine advanced by the defendant. It is not different in its character, although it may be more stringent in some of its provisions, from those numerous laws which have been passed in almost all civilized communities, and in ours from the earliest settlement of our state, regulating the traffic in spirituous liquors, and which are based on the power possessed by every sovereign state, to provide by law, as it shall deem fit, for the health, morals, peace and general welfare of the state; and which, whatever may have been thought of their expediency, have been invariably sustained as being within the competency of the legislature to enact.

/ The eleventh section of the act we are considering, declares that all liquor, intended by the owner or keeper thereof, to be sold in violation of that act, shall, with the vessels in which it is contained, be forfeited to the town wherein it is kept, and several succeeding sections prescribe the manner in which such forfeiture shall be enforced. The defendant claims that these sections are unconstitutional in various respects, and hence insists that the provision of the ninth section, the validity of which is now in question, is therefore also invalid. There are two decisive answers to this claim. In the first place this court has recently held in the case of The State v. Brennan’s Liquors, (ante p. 278,) that neither of those sections in relation to the forfeiture of liquors so owned or kept, nor any of their provisions, is obnoxious to any constitutional-objection; and, in the second place, if their invalidity on that ground were conceded to the fullest extent claimed by the defendant, the validity of the provision now in question would not be thereby affected.

It is an established principle that a statute may be unconstitutional, or otherwise invalid, as to some of its provisions, and good as to others. Fisher v. McGirr, 1 Gray, 1. 24 Pick., 361. 4 Met., 288. 2 Blackf., 10. The rule on this subject is, that the unconstitdtionality of one part of a statute will not render another part of it invalid, unless, to adopt the language of Ch. J. Shaw, in Warren v. Mayor and Aldermen of Charleston, (2 Gray, 98,) the parts which are respectively constitutional and unconstitutional, are so mutually connected with and dependent on each other, as conditions, considerations, or compensations for each other, as to warrant a belief that the legislature intended them as a whole, and that if all could not be carried into effect, the legislature would not pass the residue independently ; in which case, if some parts are unconstitutional, all the provisions which are thus dependent, conditional, or connected must fall with them. It is quite clear that the provision on which the present information is founded, is, in its nature, wholly independent and disconnected from those which relate to the forfeiture of liquors, and therefore falls within the. general rule, and not within the limitation of it which is thus laid down ; and therefore that if that provision is within the scope of legitimate legislation, it is as valid, although those which provide for such forfeiture, were objectionable, as if it had been enacted by a separate statute. The reason of the rule, that the validity of one part of an act is not necessarily affected by the invalidity of another part, is very clearly stated by Ch. J. Shaw in the case just mentioned, and in illustration of it, after recognizing the rule as one of which there is no doubt, he says : It has been so decided in the case of Fisher v. Mc Girr and al., in which it was held that all that part of the act of 1852, respecting the manufacture and sale of spirituous liquors on the terms and in the manner there provided, was unconstitutional, and yet we are every term rendering judgment against persons for selling spirituous liquors contrary to the other provisions of the-same statute.”

The defendant claims, that that part of the ninth section on which this information is brought, is invalid by reason of the unconstitutionality of the provision in that section, that proof of the finding of the liquor specified therein in the possession of the accused, in any place, (with an exception not necessary to be stated,) shall be presumptive evidence of their being kept for sale contrary to that section, on the trial of complaints for its violation. It is claimed that this provision conflicts with the ninth section of the declaration of rights in our state constitution. The answers to this objection are the same as those given to that which we have just considered. We have recently held, in the case of State v. Cunningham, (ante p. 195,) that the validity of that provision is not affected by that section. And if it were annulled by it, the only effect would be that that provision alone would be rendered thereby void, while the preceding enactment, on which this information is founded, would remain in full force. There is no such necessary connexion or dependence between them that the latter would fall with the former. If that provision were destroyed, the only consequence would be, that it would be necessary to support the information by common law testimony.

A new trial therefore is not advised.

In this opinion, the other judges, Waite and Hinman, concurred.

A new trial not granted.