People v. Gallagher

4 Mich. 244

• Court: Michigan Supreme Court
• Decided: January 15, 1856
• Status: Published

Opinions

By the Court,

Johnson, J.

The Legislature of this State, by an Act approved February 3d, 1855, prohibited the sale of spirituous and intoxicating liquors as a beverage. The defendant has been convicted under this law, and now insists that the same is unconstitutional. And this is the sole question for our consideration.

Before proceeding to the main question, it may be proper to notice a position taken by defendant’s counsel, that this law prohibits the sale of liquors for all purposes, insisting that the provisions of section fourteen of said Act, authorizing druggists, under certain restrictions, to sell these liquors for medicinal, mechanical, and sacramental purposes, are in direct conflict with an express provision of the Constitution, enjoining the Legislature from passing any law authorizing the grant of license for the sale of ardent spirits or other intoxicating liquors, and therefore, that the effect of this law, when thus construed in reference to this Constitutional provision, whatever might have been the intention of the Legislature, is an absolute and unqualified prohibition of the sale of all liquors, without reference to the uses and purposes for which they are intended.

Now, we cannot well see how the defendant can avail himself of this question, inasmuch as there is no plea or pretext on his part, that the sale for which he stands convicted was made for any of the purposes specified in said section fourteen. Nor is it by any means certain what effect such a construction would have upon the whole Act; and the inquiry is useless, because we are clearly of the opinion that no such construction can be given to said section.

Up to the time, or near the time, of the adoption of the Constitution of 18'50, the license system, so callbd, had been in force. It was to some extent a source of revenue. It was strenuously urged by the advocates of the cause of temperance, that the Government were thereby giving direct sanction to the traffic, and were in a measure responsible for the supposed public evil which resulted from the use of intoxicating drinks.

This was the evil complained of: that the Government, without any corresponding good, were sanctioning a great moral and public wrong.

The object, then, of the Constitutional Convention, was to put an end to this license system, and it can hardly be supposed that they thereby intended to restrain the Legislature from passing any law regulating the sale of ardent spirits, and, much less, that if any legislation was attempted, it could be no other than an absolute prohibition, yet one of the alternatives must be the result of such a construction, either that no restriction could be imposed, or one ábsolute in its terms.

If it was the intention that one of these conditions of things should exist, they would have been very likely to have said so, in terms incapable of misconstruction.

Nor can the provisions of section fourteen be construed into anything analogous to a license.

Any person may become a druggist; (that is, the privilege is open to all), and by complying with the provisions of that section, may sell liquor. It is not by virtue of any permission, but because the disability is not extended to persons engaged in that business.

Therefore, in the examination of this question, we must regard this law as a simple prohibition of the sale of spirituous and intoxicating liquors as a beverage; and the question is, is the law Constitutional ?

This question has been very ably and elaborately argued by counsel, and nothing which was calculated to throw any light upon the subject, or to aid us in our deliberations, has been omitted. But for ¿Ms, and the deep anxiety of the public mind, presaging so much good or evil as the result of this issue, we should not be justified in any very extended discussion of the subject; and we protest that we in no manner participate in this public feeling, or public expectation, and have endeavored to decide the question upon the law alone.

The counsel for the defendant insist that this law is in violation of the Constitution, in two points of view: 1. That it is inconsistent with the express terms of that instrument; but if not, 2. It is repugnant to fundamental ideas and principles necessarily implied in a free Eepublican Constitution.'

The main argument is founded upon the second position ; and it is not a little singular, that there has been no decision yet made, at least none has been cited, and it is believed there is none, which can be regarded as authority upon the subject.

There are, indeed, a great many elida for and against the proposition; and while on the one hand, it is contended that a general grant of Legislative power to a particular department of Government carries with it the absolute and unqualified sovereignity of the People, and, as a corrollax-y, that such sovereignity can be in all cases exercised, unless restricted by the express provisions of the Constitution; it is contended, on the other hand, that there are certain natural rights so intimately blended with our social condition, so sacred in their character, and so essential to the welfare and well-being of society, that, by their own inherent power and virtue, they become exempt from all Legislative encroachments ; that these rights are not dependent upon any written law, but are themselves the foundation of all law.

The principal objection to this proposition is the great practical difficulty of defining, with any degree of certainty, what these rights are.

How, and by whom, are they to be settled and defined. In the distribution of power, this duty belongs to some depart- • ment; if to the Legislature, then the question is settled against the defendant; if to the Judiciary, then there is this practical difficulty, that the Legislature have no criterion by which they can test the validity of their own acts, until the judicial will shall have been expressed.

We do not intend to decide this question, or to express any opinion upon the subject. We deem it unnecessary, in order to dispose of this case ; but it may not be out of place to examine the subject a little further.

No light can be thrown upon it by an examination of the English authorities. Parliament is omnipotent, and although it may pass'a law in direct violation of every right of the subject, if the language is clear, and incapable of construction, there is no Court in the Kingdom which has the power to pronounce it void. The extent of the power of the Courts is the power of construction, which they will exercise when the law is expressed in doubtful terms, and this is all that is to be understood from the language of Lord Coke in De Bonham’s case, reported in the 8 of Coke R., 118.

One of the earliest cases in this country in which this question is discussed, is the case of Calder vs. Bull (3 Dall., 386), which involved the question of the right of the Legislature of the State of Connecticut to set aside a decree of a Judge of Probate, and grant a new hearing. The Court held the Act Constitutional. Justice Chase, in his opinion, says: “I cannot subscribe to the omnipotence of a State Legislature, or that it is absolute and without control, although its authority should not be expressly restrained by the Constitution, or fundamental law of the State.” And again he says : “ The purposes for which men enter into society will determine the nature and terms of the social compact, and as they axe the foundation of Legislative power, they will decide what are the proper objects of it.

In the same case Justice Iredell, in alluding to this decision, takes a different view of it. He says : “ If then, a Government composed of Legislative, Executive and Judicial departments, were established by a Constitution which imposed no limits on the Legislative power, the consequence would inevitably be, that whatever the Legislative power chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void. It is true that some speculative jurists have held that a Legislative act against natural justice must in itself be void, but I cannot think that any Court of Justice would possess the power to declare it so.”

Chancellor Kent, in his Commentaries (1 Vol., 448), says : “ The principle in the English Government, that Parliament is omnipotent, does not prevail in the United States. Though if there be no Constitutional objection to a statute, it is with us as absolute and uncontrollable as laws flowing from the sovereign power under any other form of Government.”

In the case of Cochran vs. Van Surley (20 Wend., 382), Senator Yerplanck says : “ It is difficult, upon any general principles, to limit the omnipotence of the sovereign Legislative power by judicial interposition, except so far as the express words of a written Constitution give that authority. There are indeed many clicta, and some great authorities, holding that acts contrary to first principles of right, are void. The principle is unquestionably sound as a governing rule of a Legislature, in relation to its own acts, or even those of a preceding Legislature. It also affords a safe rule of construction for Courts, in the interpretation of laws admitting of any doubtful construction, to presume that the Legislature could not have intended an unequal or unjust operation of its statutes. Such a construction ought never to be given to Legislative language, if it be susceptible of any other more conformable to justice; but if the words be positive and without ambiguity, I can find no authority for a Court to vacate or repeal the statute on that ground alone. But it is only in express Constitutional provisions limiting Legislative power, and controlling the temporary will of a majority by a permanent and paramount law settled by the deliberate wisdom of the nation, that I can find a safe and solid ground for the authority of Courts of Justice to declare void any Legislature enactments. Any assumption of authority beyond this would be to place in the hands, of the Judiciary powers too great and too undefined, either for its own security or the protection of private rights.”

In the case of Braddee vs. Brownfield (2 Watts & Serg., 271), Sergent, J., says: “But for us to hold a law unconstitutional, it must be a plain violation of some ju-ovision contained in the Constitution. It must be an ex post facto law, or a law impairing the obligation of contracts, or manifestly in collision with some constitutional provision.

Huston, J., on the same case, remarks: “ There are high authorities for saying, there is in every Government some, where an absolute and despotic power. The exceptions to this are only such as are expressly sj)ecified in the written Constitution.”

The same doctrine is held in the case of Harvey vs. Thomas (10 Watts, 63). Gibson, C. J., says in that case: “ The most material point in the cause is that which involves the constitutionality of the statute on which the defendant’s right is founded, but it is one about which little need be said. If there is any appearance of solidity in any part of the argument, it is, that the Legislature have not power to authorize an application of another’s property to a private purpose, even on compensation made, because there is no express constitutional affirmance of such a power. But who can point out a constitutional disaffirmance of it? The clause by which it is declared that no man’s property shall be taken or applied to public use without just compensation made, is a disabling, not an enabling one, and the right would have existed without it.”

So in the case of Beauchamp vs. The State (6 Black., 299), Justice Dewey, citing the constitutional provision which confers the Legislative powers to a General Assembly consisting of a Senate and House of Representatives, says : “This is not a grant of special, limited, and enumerated powers, implying a negative of all others, as is the case of the Constitution of the United States. The legislative authority in this State is the right to exercise supreme and sovereign power, subject to no restrictions, except those imposed by our own Constitution, by the Federal Constitution, and by the laws and treaties made under it.”

So in the case of Doe ex dem. Chandler and others vs. Douglass (8 Black., 10), Perkins, J., says: “If this Act is unconstitutional, it is because it infringes some restriction upon the Legislative powers of this State, for that power is supreme, except wherein restrictions have been imposed. These restrictions are contained in the Constitution of the United States, of our own State, and in the Ordinance of Congress of 1787, for the government of the Northwest Territory.”

On the other hand, Chief Justice Marshall, in the case of Fletcher vs. Peck (6 Cranch, 87), says: “It may well be doubted whether the nature of society and government does not prescribe some limits to Legislative power.”

And in the case of Wilkinson vs. Leland (2 Pet.), Justice Story observes, “ That Government can scarcely be deemed to be free when the rights of property are left solely dependent upon the will of a Legislative body, without any restraint. The fundamental maxims of a free Government, seem to require that the rights of personal liberty and private property should be held sacred. At least, no Court of Justice in this country would be warranted in assuming that the power to violate and disregard them, a power so repugnant to the common principles of justice and civil liberty, lurked under any general grant of legislative authority, or ought to be implied by any general expression of the will of the people. The people ought not to be presumed to part with rights so vital to their security and well-being, without very strong and direct expression of such intention.”

So in the case of the Regents of the University of Maryland vs. Williams (9 Gill. & J., 365), C. J. Buchanan says: “Independent of any express restriction in the Constitution of the State, there is a fundamental principle of right and justice inherent in the nature and spirit of the social compact (in this country at least), the character and genius of our Government, the causes from which they sprang, and the purposes for which they were established, and uses alone, and restrains and sets bounds to the power of legislation, which the Legislature cannot pass without exceeding its rightful authority. It is that principle which protects the life, liberty, and property of the citizen from violation in the unjust exercise of Legislative power.”

Enough of these contracts have been cited to show how conflicting are the opinions of distinguished jurists upon this question, but they are all Mota, and have no force beyond what is due to the opinions of able Judges, and the reasons upon which they are founded. It will be observed as something peculiar, that in almost all these cases, where the doctrine has been put forth that these rights are inviolable, the Courts have upheld the particular Legislative enactments under consideration, which, admitting the principle, were of questionable validity at least. They seem to be impressed with the necessity of fortifying themselves in their conclusions, and that, although they were compelled to give force and effect to these acts, there might be such a perpetration of Legislative wrong, conflicting with these natural rights, as to challenge the exercise of their Judicial power; a power carefully kept in abeyance to meet any future contingency that might possibly happen.

We said there was no authority upon this point. We meant to be understood simply, that we have been unable to find any case where a Court has declared a statute law to be void because it conflicted with some undefined right, not secured by a written Constitution, however valuable that right may have been considered, unless, indeed, it was upon some principle of construction. And we think the language of the Judges, in the foregoing cases, is subject to some well-grounded criticism. The difficulty, as said before, seems to consist in the inability of any of the Judges who have advanced this doctrine to point out any practical distinction, by which we are to determine which of these rights the Courts will protect and uphold, and which they will leave to the mercy of what they are pleased to term inconsiderate legislation. How are they to be classified ? Are they so numerous as to be incapable of specification ? Or is it their rarity that gives them that precious importance ? If of the former, it must be admitted that the Legislatures have well performed their duty thus far. If of the latter, may we not ask, why have they not been secured by express Constitutional restrictions ? These rights, after all, however numerous and important they may be, and we are not disposed to underrate them, are, and from their very nature must be, to a more or less extent, dependent upon some large discre•tionary power, and the whole question is solved when we determine where that power exists. '

The whole sovereignty of the people is conferred upon the different departments of Government: what the Judiciary and Executive have not, would seem, from necessity, to have been granted to the other; and that other must possess all the powers of a sovereign State, except such as are withheld by the State Constitution, and such as are conceded to the General. Government. In that grant there are many powers that are not strictly Legislative, and which are essential to the administration of Government. If this department is limited as a law-making power, what is the limitation upon the exercise of those powers strictly administrative? The rights of the people are much more likely to be compromised in the exercise of this power than of the other; and where is the Constitutional check ? It must be conceded there is none.

It is said, indeed, that this department cannot cede any of their sovereignty, or, more properly speaking, the sovereignty of the people which they represent, and it may, perhaps, be said, with equal truth, that such an act would be in direct conflict with the express provisions of our Constitution. The general grant to this department of Government was for certain definite objects, which could not be effected if one session of the Legislature had the power to strip its successor oí that which is essential to its perpetuity and the effectuation of its ends and purposes.

It is urged that we have no guaranty or security for the preservation of those rights, if they are the subject of unlimited encroachments. "Whether this be so or not, 'does not settle the question of power; but unquestionably the ends and objects of a political organization are to be considered in the distribution of powers by which these ends and objects are to be effected; and conceding this to be a legitimate argument, and it seems to -be the main one upon which the defendant relies, what is its real force ? It would be pretty difficult to assign any reason why they are not as safe in the hands of one department as another. It may be true that Legislative bodies, acting from temporary impulses, without sufficient time for discussion and deliberation, are more likely to be influenced by the highly excited condition of the public mind, than Courts of law. But the elements of the two ..bodies are the same — their motives the same: each are acting for themselves and their immediate constituents, to whom they are accountable; besides, over half a century’s experience has demonstrated beyond cavil that the apprehension of evil upon this grownd, if any apprehension ever existed, is utterly unfounded. Great wrongs may undoubtedly be perpetrated by Legislative bodies, but this is only an argument against the exercise of discretionary power. It weighs nothing, for no Government can exist without the existence of that power somewhere. Unfortunately the scheme has never yet been devised by human invention by which the power to do great good has not been mingled with the power to do some evil.

The exercise of a discretionary power, broad and comprehensive enough to meet the exigencies and wants of a great Nation, must carry with it, to some extent, the elements of good and evil. It is not denied but that the Legislative department possesses this discretionary power, to a very great extent; but it is insisted that, when this power shall be improvidently exercised, it becomes the duty of the Court to declare the Act void. That is to say, that all the Acts of the Legislature while representing the sovereignty of the people as a law-making power, which, from the nature of things, must involve the power of a choice, founded upon the wants and necessities of the public, are to be reviewed and passed upon by the Judiciary before they can be considered as of binding force. And it may well be asked, by wbat authority does the Judiciary exercise this discretionary supervisory power over an independent department of Government? Certainly not by anything contained in the Constitution, nor by anything that is capable of definition, except, perhaps, in the language of one of the eminent Judges above cited, that it is derived from a fundamental principle of right and justice inherent in the nature and spirit of the social compact, and the character and genius of our Government ; this may be very satisfactory to some minds, and perhaps to all; but whether so or not, it is about as clear, definite, and satisfactory, as anything that can be given.

But, conceding 'the doctrine contended for, that there are natural rights which cannot be infringed by Legislative enactment, is the right in question one of that character? The public evils of the intemperate use of ardent spirits, which are the result of an unrestricted use of them, are denied by none. If there can be any difference of opinion upon the subject, it is as to the means best calculated to remove the evil. It is one of a public character. It extends to all classes of society, and adheres to our race with a pertinacity and fatality that would satisfy the mind of the most sceptical that the evil, at least, if not the remedy'proposed, is eongtikttional. It has long been the subject of deep and anxious study, both with the philanthropist and statesman, by what means, if any, the evil could be abated. It has been for centuries the subject of legislation, and for ages the subject for exhortation ; and, after the exhaustion of the one without any satisfactory results, the other has been resorted to. Whether that other will meet the expectation of the public mind, whether it will prove as efficacious in eradicating a great public evil ds its fond projectors have anticipated, is a matter about which we need not spend our time in speculation; upon that subject there may be a very great difference of opinion. But there is no difference of opinion about tbe magnitude of the evil. It is one worthy of the attention of the Legislature; one that peculiarly commends itself to their consideration.

And now, unless the means by which they have attempted to suppress the evil of that extraordinary character as to conflict with these great natural rights, which, for the salce of the argument, we have conceded to exist, the law must be deemed to be in force. The Legislature could scarcely have done less ; they said that intemperance was an evil; they saw that the evil was very much aggravated by the unrestricted traffic of intoxicating liquors : and for certain purposes, and to a certain extent, they prohibited that traffic, and this, it is insisted, is the exercise of an unconstitutional power. No man is deprived of his property, and no man is prohibited from using his property; and no man is prohibited from selling it, except for certain purposes ; but he is prohibited in that respect, because, by so doing, he would inflict a moral injury upon society, and, if a public evil of this character, and of this magnitude, cannot be suppressed by the simple means here resorted to by the Legislature, it may be well said that there is an end to all Legislative power. For .we understand that argument to be this: The remedy proposed conflicts with our natural rights ; these rights are undefined, ' and of course depend upon thSir character; but who is to apply the test ? Why, the Legislature in the first instance, •and if they fail to apply the true one, then it becomes the duty of the Court. Suppose that we should be of the opinion, contrary to that of the Legislature, that this evil did not justify the means resorted to for its suppression, who could not see that the power of the Legislature to pass an ordinary police law depended upon the opinion of the Judiciary as to ' whether such a law was calculated to prove beneficial to the public; or, in other words, that the validity of the law depended -upon the exercise of ,a discretionary power of the . Court; for the whole question turns upon the nature of this ■ right, namely, the unrestricted right to sell spirituous and intoxicating liquors. The Legislature has said that no man shall exercise this unrestricted right, no man shall sell liquors to be used as a beverage, because by doing so, he inflicts an injury upon the public ; but, says the defendant, irrespective of the evil, this right to sell liquors is a natural right, and you have no power to pass a law infringing that right. How does he prove it? Not by any adjudged cases; there are none: nor by any thing in the Constitution preserving to him this right; but it is to be determined by the nature and character of the right. And what is the process by which that determination is made ? Are we nicely to compare the value of this right with the injury which the exercise of it would inflict upon the public, and strike the balance ? Or are' we to compare it with other individual rights, which, by the general legislation of the country, have been made subservient to the public interests ? It will not be difficult to see that it is of no importance whether the one rule or the other is adopted ; they both resolve themselves into the same question: a question of policy; a qirestion very suitable and proper for the discussion and deliberation of a Legislative body, but one which cannot be entertained by this Court.

On the whole, we regard the adoption of this law by the Legislature, but the exercise of a power strictly Con' etitutional.

The judgment, therefore, of the Court below must be affirmed, with costs of suit.

Present, Johnson, Copeland, Martin, "Wing, Oreen, Pratt, and Douglass, J. J.