The opinion of the Court was delivered by
Mr. Justice Gary.
This is a proceeding in habeas corpus, in which Martin Keeler petitions this Court to be discharged from imprisonment in the State penitentiary. He was arrested under a warrant charging him with violation of what is called the dispensary act. He waived preliminary examination, and gave bond for his appearance at Court. A search warrant was issued against the said Martin Keeler, and certain intoxicating liquors were found, whereupon Mr. Solicitor Bellenger made application, in writing, for a restraining order against said Martin Keeler, which was granted by his Honor, Judge Watts. Thereafter a rule was issued against said defendant, to show cause why he should not be attached for contempt of Court in violating said restraining order, but this rule was discharged b}r his Honor, Judge Watts. Subsequently, however, his Honor, Judge Buchanan, after hearing affidavits and argument of counsel for the State and the defendant, adjudged the said defendant guilty of contempt of Court, in violating the restraining order aforesaid, and sentenced the defendant to pay a fine of $200, and to imprisonment in the State penitentiary for ninety days.
[542]*542The proceedings under which the defendant was fined and imprisoned arose under section 22 of the dispensary-act, which section will be set out in the report of the case. The defendant, in his petition, presents to this Court several grounds for his discharge from imprisonment, some of which the Court has not the power to consider in habeas corpus proceedings.
1 The defendant has been adjudged guilty of contempt of Court, and imprisoned therefor; this Court will, therefore, not release the defendant from imprisonment unless the proceedings in which he was adjudged guilty of contempt of Court are null and void., in whole or in part. The proceeding by habeas corpus is not a substitute for the right of appeal, and there are questions which, although' they could properly be reviewed on appeal, cannot be considered in habeas corpus proceedings. This limitation upon the power of the Court, in habeas corpus proceedings, is clearly expressed by Mr. Justice Harlan in Andrews v. Swartz, 156 U. S., 272, where he speaks of “the well established rule, that a prisoner, under conviction and sentence of another Court, will not be discharged on habeas corpus, unless the Court that passed the sentence was so far without jurisdiction that its proceedings must be regarded as void,” citing Ex parte Seibold, 100 U. S., 375; In re Wood, 140 U. S., 287, 11 Sup. Ct., 738; In re Shibuya Jugiro, 140 U. S., 297, 11 Sup. Ct., 770; Pepke v. Cronan, 155 U. S., 100, 15 Sup. Ct., 34.
2 [543]*5433 [542]*542We will now consider the question whether the proceedings under which the petitioner was imprisoned are null and void, either .in whole or in part. The authorities sustain the following propositions of law: First. That the legislature has the power to declare places where liquor is sold contrary to law to be common nuisances, and to provide for their abatement. Mugler v. Kansas, 123 U. S., 623; Kidd v. Pearson, 128 U. S., 1; Lawton v. Steele, 152 U. S., 133. Second. That the legislature has the right to provide remedies, summary in [543]*543their nature, to prevent and abate such nuisances. Third. That these summary remedies are not rendered unconstitutional by reason of the fact that the}'' deprive the defendant of those rights.under the Constitution to which ordinarily he is entitled. Fourth. That to justify such summary proceedings it must appear: first, that the interests of the public generally require these stringent remedies; and, second, that they are reasonably necessary to accomplish the purposes for which they were enacted. Fifth. That in determining if such remedies are reasonable, the Court will consider the value and nature of the property involved in the nuisance, and the difficulty of its suppression. The granting of the restraining order to prevent the defendant from carrying on a business, which the legislature has declared a common nuisance, is a part of the summary proceedings provided by the legislature against such nuisances. The defendant is, therefore, not entitled to invoke the provisions of the Constitution as to the right of trial by jury in a case of this nature. In the case of Eilenberker v. Dist. Ct. of Plymouth County, 134 U. S., 31, Mr. Justice Miller, for the Court, says: “If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors, which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a Court, whether at common law or in chancery, may be called into operation -by a legislative body for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the Constitution of the United States to this form of proceeding, or to the Court in which this remedy shall be had. Certainly, it seems to us to be quite as wise to use the processes of the law and the powers of the Court to prevent the evil as to punish the offense as a crime after it has been committed. We think it was within the power of the Court of Plymouth County to issue the [544]*544writs of injunction in these cases, and that the disobedience to them by the plaintiffs in error, subjected them to the proceedings for contempt, which were had before that Court.” Mr. Justice Brown, speaking for the Court, in Lawton v. Steele, 152 U. S., 133, says: “It (the police power) is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that a State may order * * * the prohibition of gambling houses, and places where intoxicating liquors are sold. Beyond this, however, the State may interfere, whenever the public interests demand it, and, in this particular, a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. Barbier v. Connolly, 113 U. S., 27, 5 Sup. Ct., 357; Kidd v. Pearson, 128 U. S., 1, 9 Sup. Ct., 6. To justify the State in thus interposing its authority in behalf of the public, it must appear, firsts that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.” Again, “While the legislature has no right, arbitrarily, to declare that to be a nuisance which is, clearly, not so, a good deal must be left to its discretion in that regard; and, if the object to be accomplished is conducive to the public interests, it may .exercise a large liberty of choice in the means employed,” citing numerous authorities.
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The opinion of the Court was delivered by
Mr. Justice Gary.
This is a proceeding in habeas corpus, in which Martin Keeler petitions this Court to be discharged from imprisonment in the State penitentiary. He was arrested under a warrant charging him with violation of what is called the dispensary act. He waived preliminary examination, and gave bond for his appearance at Court. A search warrant was issued against the said Martin Keeler, and certain intoxicating liquors were found, whereupon Mr. Solicitor Bellenger made application, in writing, for a restraining order against said Martin Keeler, which was granted by his Honor, Judge Watts. Thereafter a rule was issued against said defendant, to show cause why he should not be attached for contempt of Court in violating said restraining order, but this rule was discharged b}r his Honor, Judge Watts. Subsequently, however, his Honor, Judge Buchanan, after hearing affidavits and argument of counsel for the State and the defendant, adjudged the said defendant guilty of contempt of Court, in violating the restraining order aforesaid, and sentenced the defendant to pay a fine of $200, and to imprisonment in the State penitentiary for ninety days.
[542]*542The proceedings under which the defendant was fined and imprisoned arose under section 22 of the dispensary-act, which section will be set out in the report of the case. The defendant, in his petition, presents to this Court several grounds for his discharge from imprisonment, some of which the Court has not the power to consider in habeas corpus proceedings.
1 The defendant has been adjudged guilty of contempt of Court, and imprisoned therefor; this Court will, therefore, not release the defendant from imprisonment unless the proceedings in which he was adjudged guilty of contempt of Court are null and void., in whole or in part. The proceeding by habeas corpus is not a substitute for the right of appeal, and there are questions which, although' they could properly be reviewed on appeal, cannot be considered in habeas corpus proceedings. This limitation upon the power of the Court, in habeas corpus proceedings, is clearly expressed by Mr. Justice Harlan in Andrews v. Swartz, 156 U. S., 272, where he speaks of “the well established rule, that a prisoner, under conviction and sentence of another Court, will not be discharged on habeas corpus, unless the Court that passed the sentence was so far without jurisdiction that its proceedings must be regarded as void,” citing Ex parte Seibold, 100 U. S., 375; In re Wood, 140 U. S., 287, 11 Sup. Ct., 738; In re Shibuya Jugiro, 140 U. S., 297, 11 Sup. Ct., 770; Pepke v. Cronan, 155 U. S., 100, 15 Sup. Ct., 34.
2 [543]*5433 [542]*542We will now consider the question whether the proceedings under which the petitioner was imprisoned are null and void, either .in whole or in part. The authorities sustain the following propositions of law: First. That the legislature has the power to declare places where liquor is sold contrary to law to be common nuisances, and to provide for their abatement. Mugler v. Kansas, 123 U. S., 623; Kidd v. Pearson, 128 U. S., 1; Lawton v. Steele, 152 U. S., 133. Second. That the legislature has the right to provide remedies, summary in [543]*543their nature, to prevent and abate such nuisances. Third. That these summary remedies are not rendered unconstitutional by reason of the fact that the}'' deprive the defendant of those rights.under the Constitution to which ordinarily he is entitled. Fourth. That to justify such summary proceedings it must appear: first, that the interests of the public generally require these stringent remedies; and, second, that they are reasonably necessary to accomplish the purposes for which they were enacted. Fifth. That in determining if such remedies are reasonable, the Court will consider the value and nature of the property involved in the nuisance, and the difficulty of its suppression. The granting of the restraining order to prevent the defendant from carrying on a business, which the legislature has declared a common nuisance, is a part of the summary proceedings provided by the legislature against such nuisances. The defendant is, therefore, not entitled to invoke the provisions of the Constitution as to the right of trial by jury in a case of this nature. In the case of Eilenberker v. Dist. Ct. of Plymouth County, 134 U. S., 31, Mr. Justice Miller, for the Court, says: “If the objection to the statute is that it authorizes a proceeding in the nature of a suit in equity to suppress the manufacture and sale of intoxicating liquors, which are by law prohibited, and to abate the nuisance which the statute declares such acts to be, wherever carried on, we respond that, so far as at present advised, it appears to us that all the powers of a Court, whether at common law or in chancery, may be called into operation -by a legislative body for the purpose of suppressing this objectionable traffic; and we know of no hindrance in the Constitution of the United States to this form of proceeding, or to the Court in which this remedy shall be had. Certainly, it seems to us to be quite as wise to use the processes of the law and the powers of the Court to prevent the evil as to punish the offense as a crime after it has been committed. We think it was within the power of the Court of Plymouth County to issue the [544]*544writs of injunction in these cases, and that the disobedience to them by the plaintiffs in error, subjected them to the proceedings for contempt, which were had before that Court.” Mr. Justice Brown, speaking for the Court, in Lawton v. Steele, 152 U. S., 133, says: “It (the police power) is universally conceded to include everything essential to the public safety, health, and morals, and to justify the destruction or abatement, by summary proceedings, of whatever may be regarded as a public nuisance. Under this power it has been held that a State may order * * * the prohibition of gambling houses, and places where intoxicating liquors are sold. Beyond this, however, the State may interfere, whenever the public interests demand it, and, in this particular, a large discretion is necessarily vested in the legislature to determine, not only what the interests of the public require, but what measures are necessary for the protection of such interests. Barbier v. Connolly, 113 U. S., 27, 5 Sup. Ct., 357; Kidd v. Pearson, 128 U. S., 1, 9 Sup. Ct., 6. To justify the State in thus interposing its authority in behalf of the public, it must appear, firsts that the interests of the public generally, as distinguished from those of a particular class, require such interference; and, second, that the means are reasonably necessary for the accomplishment of the purpose, and not unduly oppressive upon individuals.” Again, “While the legislature has no right, arbitrarily, to declare that to be a nuisance which is, clearly, not so, a good deal must be left to its discretion in that regard; and, if the object to be accomplished is conducive to the public interests, it may .exercise a large liberty of choice in the means employed,” citing numerous authorities. Again, “The object of the law is undoubtedly a beneficent one, and the State ought not to be hampered in its enforcement by the application of constitutional provisions, which are intended for the protection of substantial rights of property. It is evident that the efficiency of this statute would be very seriously impaired by requiring every net illegally used to be carefully taken from the water, carried [545]*545before a court or magistrate, notice of the seizure to be given by publication, and regular judicial proceedings to be institnted for its condemnation. There is not a State in the Union which has not a constitutional provision entitling persons charged with crime to a trial by jury, and yet, from time immemorial, the practice has been to try persons charged with petty offenses before a police magistrate, who not' only passed upon the question of guilt, but metes out the proper punishment. This has never been treated as an infraction of the Constitution, though, technically, a person may, in this way, be deprived of his liberty without the intervention of a jury. Callan v. Wilson, 127 U. S., 540, 8 Sup. Ct., 1301, and cases cited. So, the summary abatement of nuisances, without judicial process or proceeding, was well known to the common law long prior to the adoption of the Constitution, and it has never been supposed that the constitutional provision in question in this case was intended to interfere with established principles in that regard. Nor is a person, whose property is seized under the act in question, without his legal remedy. If, in fact, his property has been' used in violation of the act, he has no just reason to complain; if not, he may replevy his nets from the officer seizing them, or, if they have been destroyed, may have his action for their value. In such cases the burden would be upon the defendant to prove a justification under the statute. As was said by the Supreme Court of New Jersey, in a similar case (Print Works v. Lawrence, 21 N. J. Law, 248-259): 'The party is not, in point of fact, deprived of a trial by jury. The evidence necessary to sustain the defense is changed. Even if the party were deprived of a trial by jury, the statute is not, therefore, necessarily unconstitutional.”’ The dispensary act is not violative of any of the requirements hereinbefore mentioned.
[546]*5464 [545]*545It is also contended that the sentence is obnoxious to section 38 of art. 1 of the Constitution of 1868. The punishment provided in section 22 of the dispensary [546]*546act, for violation of the restraining order therein mentioned, is a fine of not less than $200 nor more than $1,000, and by imprisonment in the State penitentiary not less than ninety days nor more than one year. Section 88, art. 1, of the Constitution of 1868 provides that: “Excessive fines shall not be imposed, nor cruel and unusual punishment inflicted,” &c. In our opinion, the fine imposed on the defendant was not excessive, nor the punishment inflicted cruel and unusual.
It is the judgment of this Court, that the petition be dismissed.