S. B. Strong, J.
This cause [The People v. Toynbee] comes before us on an appeal by the defendant from a judgment rendered against him by a police justice of the city of Brooklyn, for the alleged violation of the statute for the “ prevention of intemperance, pauperism and crime,” commonly called the prohibitory act. The complaint was preferred before the justice by a policeman, pursuant to the 12th section of the statute. It stated, [206]*206in substance, that on the 17th of July, 1855, the defendant sold, and kept for sale, and had in his possession with intent to sell, in Montague street in the third ward of said city, intoxicating liquors, to wit, brandy and champagne, in violation of the said statute ; and that said offense consisted in selling one glass of brandy and one bottle of champagne. When the defendant was brought before the justice, his counsel moved that he should be discharged, on the grounds that it did not appear by the complaint that any crime or offense whatever had been committed; and that the act under which the'prosecution had been instituted is unconstitutional and void. The motion was denied. The defendant then said that he did not request to be tried by a court of special sessions, but that he objected thereto, and offered to give bail to appear at the next court having criminal jurisdiction. The justice overruled the objection, declined to receive such bail, and required the defendant to plead to the charge. The defendant thereupon pleaded not guilty. A trial was immediately had before the justice, without a jury; the defendant was convicted, and sentenced to pay a fine of $50 and the costs; and it was adjudged that the intoxicating liquor should be forfeited.
The defendant’s counsel objected before the justice that the complaint was defective, because it did not aver that the liquors alleged to have been sold were not liquors, the right to sell which in this state is given by any law or treaty of the United States. If such an averment was necessary, the justice should have dismissed the complaint by reason of the omission. The statute does not direct what the complaint shall contain, and that is, of course, left to the rules of the common law. The complaint is a substitute for an indictment, so far as it relates to substance, and requires, at least, as much particularity—'indeed the authorities say more. Mr. Chitty, in his approved work on criminal law, (vol. 1, p. 281, 2,) says, “ It is a general rule that all indictments, upon statutes, especially the most penal, must state all the circumstances which constitute the definition of the offense in the act, so as to bring the defendant precisely within it.” “ And [he adds] not even the fullest description of the offense, [207]*207were it even in the terms of a legal definition, would be sufficient without keeping close to the expressions of the statute.” In the case of The People v. Allen, (5 Denio, 79,) Beardsley, C. J., says, 11 an indictment upon a statute must state all such facts and circumstances as constitute the statute offense, so as to bring the party indicted precisely within the provisions of the statute. If the statute is confined to certain classes of persons, or to acts done at some particular time or place, the indictment must show that the party indicted, and the time and place [where and] when the alleged criminal acts were perpetrated, were such as to bring the supposed offense directly within the statute.” There can be no doubt as to the principle; it is reasonable and proper, and is not controverted by any respectable authority. The first section of the statute under consideration enacts that intoxicating liquors, except as thereinafter provided, shall not be sold or kept for sale, or with intent to be sold, by any person for himself or any other person, in any place whatsoever. These expressions are certainly very hroad and comprehensive, and they are not so restricted by their reference to subsequent exceptions, as to make any negation of such as are included in other sections a necessary part of the description of any alleged prohibition. (Popham, 93, 4. Hawkins, b. 2, ch. 25, § 113.) The last clause of the first section, however, declares expressly that the section itself shall not apply to liquor, the right to sell which in this state is given by any law or treaty of the United States. The statute does not forbid the sale of all intoxicating liquors. A large class certainly is exempt from the prohibition. It is not necessary that I should consider, in discussing this point, how far the qualification extends, but it is material to the decision of another point involved in this case, and I may as well express my opinion about it here.
The question which has been agitated upon this point is, whether the exception refers to foreign liquors only while in the hands of the importers, and contained in the original cask or vessel, when, according to the decisions of the supreme court of the United States, the right of sale is given by congressional legislation, or to such liquors at all times and in whatever con[208]*208dition they may be; in other words, whether it refers to the liquors themselves or to their status. It must be admitted that the language is susceptible (and I think equally susceptible) of either interpretation. In these cases the rules of construction are different, according to the character of the statutes—whether they are purely remedial or penal. The former is entitled to a liberal, while the latter is confined to a strict construction. A statute is purely remedial when it, furnishes additional means of redress to an existing wrong. In criminal cases it applies to something that is already malum in se or malum prohibitum. It is then creative of the remedy only. As all are in favor of the due punishment of acknowledged crime, we readily admit that statutes designed for that purpose are entitled to a favorable construction. But it is otherwise when the statute creates a new offense. It is then an innovation, often an encroachment upon previous rights, and its correctness or justice is not always conceded, or generally admitted. The rule is, therefore, very properly, that such a statute should be construed strictly; that nothing should be deemed a crime under it but what is clearly and unequivocally defined. No man should be .punished for an act (previously lawful) under a new statute, unless it clearly announces to him, beyond any reasonable doubt, that it is criminal. Now the statute under consideration is creating a new offense. True, it was a misdemeanor before, to sell strong or spirituous liquors or wines, in quantities less than five gallons, without a license. But the offense under the revised statutes was only a part of what was rendered a crime under the prohibitory act, and as the latter is integral; it is in effect new, and must be so considered. Applying the principle of construction I have endeavored to illustrate to the qualifying clause of the first section, and taking that by itself, the prohibition would not extend to imported liquors at all. But there is another rule in giving a construction to an expression in a statute equally indicative of two varied meanings, and that is, that the whole enactment must be considered, and if one of the interpretations is consonant to the other provisions and the main scope and design of the act, and the other not, that which is consistent shall prevail. It is not [209]*209then a question of strict or liberal construction, but the preponderance produces reasonable certainty. How, no one, who reads the act in question, and considers its object, can hesitate a moment in coming to the conclusion that the legislature intended to prohibit, mainly, the sale of imported liquors as a beverage. Indeed, the statute would be wholly ineffectual if it did not go to that extent. Instead of being an extension it would be a relaxation of the old system. I think, therefore, that the true way of reading the first section, is as a prohibition of the sale of intoxicating liquors, not vendible beyond state legislation, in their existing condition, according to the decisions of the supreme court of the United States. But to whatever extent the vendible liquors may go, their express exemption qualifies the description of those included in the prohibition. Men may still sell intoxicating liquors—all that is charged in the complaint— and yet not be guilty of any offense. It is undoubtedly true that when a statute contains provisos and exceptions, in distinct clauses, it is not necessary to state in an indictment that the defendant does not come within the exception, or negative the provisos it contains. The reason given is, that these are matters of defense, which it is necessary that the accused should aver and prove. But that principle does not apply where, as in this case, the enacting section declares that it is inapplicable to the excepted matters. The statute does not, then, constitute them the subjects of offense ; and it is not necessary for the accused to aver or prove any defense until there is proof that he is guilty of what is condemned. In the case of Rex v. Jarvis, cited in a note to Rex v. Stone, (1 East, 639,) Lord Mansfield said that where exceptions are in the enacting part of the law, it must appear in the charge that the defendant does not fall within any of them. And Foster, J., who was an eminent criminal lawyer, remarked that “ where negatives are descriptive of the offense, then they must be set forth.”
The rules which I have stated are applicable to indictments which are preferred by a grand jury, and where the accused may have the benefit of a fair and deliberate trial by jury. But a greater degree of strictness is required in summary proceedings [210]*210before an inferior jurisdiction, which does not afford to the defendants those advantages that the common course of law allows them. In such cases Mr. Chitty says, (vol. 1, p. 234,) it is necessary to show by negative averments that the defendants are not within any of the provisos or exceptions of the statute. It does not cure the difficulty that the defendant is charged with having sold liquors contrary to the form of the statute. That will not aid a defective description of the offense. Nor can the defect be cured by evidence. The evidence must be confined to the charge, and the accused cannot be required to answer any complaint except that which sets out an offense conformably to the rules of law. My conclusion upon this point is, that the complaint was radically defective, and that a conviction upon it cannot stand.
The next objection to the proceeding before the justice is, that by refusing the defendant’s tender of bail for his appearance at the next court having criminal jurisdiction, there was in effect denied to him the constitutional right to be tried by a competent jury. The result of the denial was, that if the defendant had been tried by a jury it must necessarily have been before one consisting of six persons, out of twelve to be summoned by the constable.
The jurors for our courts of special sessions are generally taken from the immediate neighborhood, and are liable to be influenced ; and their verdict is sometimes controlled by the bias created by a public accusation for the commission of a crime in their own vicinity. They are ordinarily selected too by an officer who has had an agency in the preliminary steps against the accused, and who as is sometimes the case with police officers, may be anxious to procure his conviction. Whereas, the jurors in our higher courts of criminal jurisdiction are designated by responsible town officers ; their names are deposited in a box kept by the county clerk, and are drawn by him in the presence of some of the county officers, and they are taken from the whole county. These measures are taken for the purpose of having intelligent and impartial jurors, and they are generally effectual. Besides, it is a matter of some importance [211]*211to the accused whether his character, his liberty and his property are made dependent upon the verdict of twelve or of six men. Innocent men have sometimes escaped from the worst of punishment by the voice of a single juror; and in such cases the larger number of course affords the greater protection. It is true, too, that the chance of escape of the guilty is increased by the same means. But in the administration of justice it is at least as essential to protect the innocent as to punish the guilty. The right claimed by the defendant is an important one, and if his claim was well founded, the subsequent proceedings should not have been had, and the judgment resulting from them against the accused was void.
On looking over the entire statute, it seems to me that the provisions relative to the trials under it indicate an intent to confine them to the special-sessions. The magistrate who issues the original process constitutes the court; they are identical. The fifth section provides that such court shall not be required' to take the examination of the accused, but shall proceed to trial as soon as the complainant can be notified. The provisions of the act relative to appeals apply exclusively to judgments in the courts of special sessions, and are mostly inapplicable to trials before the general sessions, or oyer and terminer. Many of them are very important. The right of appeal is given to the complainant as well as the defendant. If the defendant appeals, he is required to give a satisfactory bond that he will not, during the pendency of the appeal, violate any of the provisions of the statute. The ordinary power of amendment, of the appellate court, is considerably increased, and any judgment or verdict against evidence may be reversed on appeal, as (in the words of the statute) 11 in civil actions.” It is not material to inquire here whether verdicts against evidence in civil actions can be reversed on appeal. I am considering the provision simply as indicative of the intention of the legislature. Now if it was designed by constituting offenses under the act misdemeanors, to confer the right to try the accused in the courts of general sessions and oyer and terminer, the legislature would, I think, have made the provisions relative to appeals applicable [212]*212to those courts also, otherwise their work would have been but half done. There are other provisions in the statute indicating a design that all trials under it should be had in the special sessions, and not any to the contrary. The rule in these cases is, that when the statute creates a new offense, and particularly describes a method of trial and a punishment adequate to the offense for its violation, the complainants, whether the public or individuals, are confined to the remedies expressly given in such statute.
I am, therefore, inclined to agree with the justice in the conclusion to which he arrived, that so far as 'the statute went, he could not be required to take the proffered bail. But the more important question arises whether the (in effect) denial of the privilege claimed by the defendant is not violative of the constitutional right of trial by jury. If it be so, the enactment, so far as it relates to compulsory trials in the courts of special sessions, is void.
The constitution of this state which went into operation in 1847, ordains, (article 1, § 2,) that the trial by jury in all cases in which it has been heretofore used, should remain inviolate forever. The language is strong and evinces the importance which was justly attached to the privilege. The terms used in the constitution must be applied according to their meaning at common law, unless a different interpretation is clearly indicated. There is no evidence of any different intent in reference to this provision, nor can any be inferred. A jury, by the rules of the common law, must consist of twelve men. It was therefore very properly remarked by Johnson, J., in Cruger v. The Hudson River Rail Road Company, (2 Ker. R. 198,) that the constitutional provision which I have quoted, imports a jury of 12 men, whose verdict must be unanimous. In reference to the cases to which it refers, and whether they include the subsequently created cases, I will quote from an opinion in the case of Wood v. The City of Brooklyn, (14 Barb. 432,) because it expresses my present sentiments on this subject. “ This provision relates to classes and of course includes the individual cases which they comprise. In no other way can constitutional enactments preserve that continued efficacy which is so [213]*213essential for the public good. Whenever, therefore, a new case is added to a class it becomes subject to its rules. A crime newly created is subject to any constitutional regulations relative to the class of crimes generally. The constitutional provision refers to usage, and that must control and define its application. It is a matter of public notoriety that accusations for crimes have generally been tried before a jury. If there have been exceptions they have not been sufficiently numerous to affect the general usage. The introduction of a new subject into a class renders it amenable to its general rules, not to its exceptions, unless there is something peculiar calling for that application. To allow the legislature to except from the operation of a constitutional provision by direct enactment, a matter clearly falling within its meaning, would sanction a fraud upon the organic law, and might in the end destroy its obligation.” These remarks were originally applied to penalties, but in the quotation I have substituted crimes to which they are alike applicable. The sentiments were expressed by me, in 1852, and I cite them with the greater satisfaction as they have recently received the concurrence of three of my brethren. The same principle was applied by Chancellor Walworth to the crime of murder in the .case of The People v. Enoch, decided by the court for the correction of errors. (18 Wend. 159.) In his opinion in that case he made the following remark: “ Malice was implied in many cases at the common law where it was evident that the offenders could not have had any intention to destroy human life, merely on the ground that the homicide was committed while the person who did the act was engaged in the commission of some other felony, or in an attempt to commit some offense of that grade. This principle is still retained in the law of homicide, and it necessarily follows, from the principle itself, that as often as the legislature creates new felonies, or raises offenses which were only misdemeanors at the common law to the grade of felony, a new class of murder is created”— (it would probably have been more accurate to have said the previously existing class was enlarged)—“ by the application of this principle to the case of a killing of a human being, by a [214]*214person who is engaged in the perpetration of a newly created felony. The court and jury in such cases immediately apply the common laxo principle, and the killing is adjudged to be murder or manslaughter, according to the nature and quality of the crime that the offender was perpetrating at the time the homicide was committed.” There could not be a stronger case to illustrate the rule that newly created crimes are subject to the incidents of the class into which they are introduced, without any express provision to that effect in the statute. By the terms of the prohibitory act the offense imputed to the defendant was characterized as a misdemeanor. The usage in criminal cases prevailing immediately before, and at the time of the adoption of the constitution, and to which it refers, was undoubtedly conformable to the provisions of the revised statutes which had been in operation since 1830. (2 R. S. 711, § 2, 3.) Pursuant to those provisions persons accused of misdemeanors had the right in all cases, to give bail for their appearance at the next court, having criminal jurisdiction, which must be either the general sessions or oyer and terminer, and in their doing so, or, what was equivalent, making an offer to that effect which was refused, a court of special sessions could proceed no further. That, in effect, secured to the accused at their option the right to be tried by a jury of twelve men, and to be exempt from punishment except by their unanimous verdict. That right was denied to the defendant in the case under consideration. If the prohibitory act called for such denial it contravened the constitutional ordinance and was so far void ; or if it impliedly permitted the continuance of the privilege it should have been accorded to the defendant on his demand. So that qaacunque via data, this objection is fatal to the conviction.
The only remaining question which I deem it proper to consider, is : Whether the act in question, so far as it purports to prohibit the sale of intoxicating liquors to be used as a beverage, is valid. The objection urged against that feature of the act is, that it is an exercise of despotic power, calling for an unconstitutional interference with the rights of property. All civilized nations agree in asserting the rights of property, and [215]*215holding them sacred, as essential to the prosperity and happiness of man. Sir William Blackstone says, (2 Com. 2,) that “there is nothing which so generally strikes the imagination and engages the affections of mankind as the right of property, or that sole and despotic dominion which a man claims and exercises over the external things of the world, in total exclusion of the right of any other individual in the universe and Chancellor Kent well remarks, (2 Com. 319,) that “ the sense of property is graciously bestowed on mankind for the purpose of rearing them from sloth and stimulating them to action ; and so long as the right of acquisition is exercised in conformity with the social relations and the moral obligations which spring from them, it ought to be sacredly protected. The natural and actual sense of property pervades the foundations of social improvement. It leads to the cultivation of the earth, the institution of government, the establishment of justice, the acquisition of the comforts of life, the growth of the useful arts, the spirit of commerce, the productions of taste, the erections of charity, and the display of the benevolent affections.” There are, undoubtedly, visionary theorists who advocate the community of property in small societies ; but the general sense of mankind indicates that civilized society cannot exist when the right to separate and distinct property does not prevail, or is not sacredly protected. The people of this state have shown their appreciation of the rights of property, in their organic law, by declaring, (art. 1, p. 6,) that “ no person shall be deprived of life, liberty or property, without due process of law.” We are thus as effectually protected in the enjoyment of our property as of our own lives or our liberty. The protection given to property as well by the sense of mankind as by positive enactment makes no distinction as to its greater or less utility. It extends to whatever has been held and enjoyed as such by custom, and usages of the country. No power is given to any man or body of men to discriminate. We hold our property independently of the varying and sometimes capricious estimates of our fellow men. So universal has been the sentiment in favor of the right, and the determination to support it, that the act [216]*216in question is, with a single exception, the only instance of an attempt to legislate any species of property substantially out of existence. The exception to which I allude, is the original abolition of slavery by statute. That institution, however, did not exist, nor were slaves considered as property at common law. If they had been it might have been a grave question whether their owners could have been deprived even of such property without compensation. But at any rate, that was an extraordinary case, having reference to what was generally admitted to be the original rights of man, which the statute was designed to enforce, and cannot be considered as a sanction for the violation of the constitutional protection of property. The protection of any species of property must necessarily extend to its essential and definitive characteristics, especially those which constitute its main value. Otherwise it might be rendered useless in the hands of the possessor, and its protection would be wholly illusory. One of the essential characteristics of property is its vendibleness, especially for the principal use to which it can be appropriated. That necessarily results from the despotic dominion over it which Blackstone ascribes to the possessor. Chancellor Kent says, (2 Com. 319,) that the exclusive right of using and transferring property follows as a natural-consequence from the perception and admission of the right itself, and for this he quotes Grotius, (6. 2, ch. 6, § 1.) And again the same learned commentator says, (p. 320, vol. 2,) “ The power of alienation of property is a necessary incident to the right, and was dictated by mutual convenience and mutual wants.” This is so entirely in accordance with the general sentiment of mankind and the universal practice, that it cannot be disputed : so far as my information or recollection extends, the present is the first and only attempt to interfere with, and prevent the general right of sale of any species of property. That the manner of selling it may be regulated so long as the right is essentially preserved, there can be no doubt. It is upon this principle that our former laws regulating the sales of spirituous liquors were passed. They were, however, by no means prohibitory of the right. Every man was at liberty to sell in [217]*217quantities exceeding five gallons, and a selected class in any quantity. Upon the same principle sales at auction of goods generally, sales by peddlers, and sales by apothecaries of poisonous drugs have been regulated, and sales of deteriorated and unwholesome provisions have been prohibited. These were merely police regulations, and it did not interfere with the ordinary sale of any property in its appropriate condition. So, too, it is competent for the legislature to prohibit the abuse of property so as to make it peculiarly dangerous or deleterious to society. It is on this principle that laws have been passed to prevent the storing of gunpowder in cities, to regulate the construction of buildings so as to prevent unnecessary exposure of lives in crowded places, and to suppress gambling - in lotteries or otherwise. In none of these instances is there any interference with the ordinary úse of property. There is also a power to prevent or abate nuisances. But to that there must necessarily be a limit. It cannot be extended to the general destruction of any species of property, or of its organic characteristics. If it could go thus far none would be safe. The use of animal food, tea, coffee and fruits, each of which is considered by many to be deleterious, might be prohibited. As the legislature has confessedly the power to adopt police regulations so as to prevent the abuses of property, it may be asked where are the limits to which it can be legitimately applied, and by w.hom are such limits to be prescribed 7 It may be very difficult in many cases to draw the line, but that can be no' reason for claiming an unlimited power. The right is simply one of regulation, not of destruction. When an enactment is clearly destructive of a right, and not simply reformatory of its abuses, there can be no question as to its invalidity. There is no reason for claiming discretionary power in such cases. That can be invoked only in cases of doubt. It can be no sufficient reason for acting clearly wrong in any particular matter that the exact line of separation between the right and the wrong cannot be easily defined. Upon the whole, my impression is that the right of property extends not only to its corpus, but to its ordinary and essential characteristics, of which the right of sale is one, and [218]*218that it can be controlled only so far as to prevent its abuse, without destroying such characteristics.
It must be conceded that an unlimited and unrestricted power to take the life, the liberty, or the property of our fellow man, is despotic. And it matters not whether it is lodged in the hands of one or many, or whether the depositories are elective or hereditary, the character is the same. It was contended on the argument by the counsel for the people, that the legislature of this state possess despotic legislative power by reason of the general constitutional grant. To that I cannot assent. It is undoubtedly true that absolute power exists originally in the people constituting a distinct and separate community. It is competent for them to establish for themselves a despotic government in one man, or many men, if they should choose to do so, although an intention to confer absolute power can never be inferred, and certainly not in a country claiming to be free. But the people of this state when they entered the union deprived themselves of the power of establishing any other than a republican form of government. (Const. of U. S. art. 4, § 4.) There is not, perhaps, any very accurate description of a republican form of government, but it is generally understood that it cannot be subject to a despotism in any of its public functionaries. The man who is the subject of despotic power, and I care not whether it be in the legislative or executive department, is a slave and not a republican. Liberty and despotism can never exist together". No general grant would confer an unlimited power over the lives, the liberty, or the property of the citizen. It was well remarked by Judge Story in Wilkinson v. Leland, (2 Peters, 657,) that “ 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 from any general expressions of the will of the people.” And Judge Bronson said in Taylor v. Porter, (4 Hill, 145,) [219]*219“ The security of life, liberty and property, lies at .the foundation of the social compact, and to say that the grant of legislative power includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which the government was established. If there was not one word of qualification in the whole instrument, I should feel great difficulty in bringing myself to the conclusion that the clause under consideration,” (conferring legislative power in general terms,) “ clothed the legislature with despotic power. Neither life, liberty, nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of the power.” But, as I have already remarked, the constitution of this state provides expressly that no person shall be deprived of life, liberty or property without due process of law. This provision is general and applies to and of course limits the power of the legislature. That body can no more deprive any one of his property without due process of law than can a private individual. An act of the legislature is not the due process of law mentioned in the constitution. Those words, as was remarked by Judge Bronson, in the case last cited, “ cannot mean less than a prosecution or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt or determining the title to property.” In other words, a man cannot be legislated out of his life, liberty or property.
That intoxicating liquors were property at the time of the adoption of our state constitution there can be no doubt. They had been for many ages in general use, as well by the prudent and the virtuous as by the reckless and the vicious. To have denied to the farmer his cheerful glass of cider, or to the laboring man when worn down with fatigue, the support of his customary restorative, would have excited as much astonishment and created as much resistance in the old time, as would the denial of tea or coffee to our ladies at the present day. Whether those who have gone before us, including the greatest, wisest and best of their days, were right in thus indulging their tastes, or whether their conduct was indiscreet and deserved [220]*220to be characterized as criminal, according to the opinion of modern reformers, are not questions for the consideration of the judiciary. I allude to the former practice to show that intoxicating liquors were property with the general assent of mankind.
It was said by Chief Justice Taney, in the license cases from Rhode Island, Hew Hampshire and Massachusetts, (5 Howard, 577,) that “ spirits and distilled liquors are universally admitted to be subjects of ownership and property, and therefore subjects of exchange, barter and traffic, like any other commodity in which a right of property exists and Catron, J., remarked, in the same cases, that “ ardent spirits have' been for ages and now are subjects of sale, and of lawful commerce, and that of a large class throughout the civilized world, is not open to controversy. So our commercial treaties with foreign powers declare them to be, and so the dealings in them among the states of this union recognize them to be.” That such liquors are property still admits of no doubt. Their importation from foreign countries is expressly sanctioned, and they are heavily taxed by congressional legislation. If the acts of congress had been legitimately passed by the legislature of this state, we should have been virtually precluded from denying the characteristics of property to what we had directly admitted within our borders and subjected to taxation. The faith of states, which should ever be preserved inviolate, would have forbidden it. We are equally, though possibly not as directly, concluded by the acts of a general government, of which by our own volition we are a member. Intoxicating liquors are still freely admitted and heavily taxed; and their sale by the importer, while in the cask or vessel in which they were introduced into the country, and their purchase by any one, are authorized beyond the reach of state legislation. It is true that their subsequent sale was, at the time of the adoption of our state constitution, subject— and no doubt lawfully subject—to the regulations contained in our excise laws. The supreme court of the United States has decided, on various occasions, that state laws regulating sales of intoxicating liquors are not prohibited by the constitution or [221]*221laws of the United States. Some of the judges, in the license cases from three of the New England states to which I have alluded, expressed opinions that state laws prohibiting entirely the sale of intoxicating liquors, might not conflict with the powers conferred upon and exercised by the general government ; but the decision of that question was unnecessary, as it was admitted by the judges that the statutes of those states were not prohibitory. The remarks of those learned judges as to the right of the states to pass laws prohibiting the sale of foreign liquors, had no reference to the limitation of the power of the legislature of the states by their own constitutions; and, besides, they were mere obiter dicta, as they were upon a question not at all involved in the cases before them, and would not, according to a rule they had laid down for their own conduct, at all control them or the court of which they were members, in any future determination. From the considerations to which I have alluded, I have no doubt but that imported liquors are still, as they always have been, property.
. As to liquors of domestic origin, there are other and possibly more difficult questions. The control of the state over them has not been, nor unless they are introduced from other states can it be, subject to congressional legislation. Whether it is competent for the legislature to prohibit their manufacture in this state, is not now a question, as that has not been done. They can yet be lawfully manufactured, and when manufactured are still property, and as such are, equally with imported liquors, protected by the aegis interposed by our state constitution.
It is clear, as I have before intimated, that the protection to property extends to and includes its generally conceded characteristics, especially those without which it would be valueless; otherwise it would be but nominal and scarcely that. It was contended, however, by the counsel for the people, that the sale of intoxicating liquors was not prohibited by the statute ; that any of them might be sold for medicinal, manufacturing and sacramental purposes, and that foreign liquors might be sold by the importers, in the orignal cask or vessel, to any one. The permitted sales would be very inconsiderable. And the statute [222]*222if carried into full and its designed operation would effectually prevent its use as an ordinary beverage by the great mass of the people—the use for which it was mainly designed, and without which it would be of little or no value. It might be accessible to the wealthy, but would be unattainable by men of moderate means. That would create a distinction between the rich and the poor which should ever be avoided in legislation, if it is desirable that our laws should be respected or enforced. It is no matter what may be the pretense, the denial would be a restriction ; and that to be just, should operate upon all; if not equally, the inequality should not be the direct and palpable effect of the statute. I consider the statute in question as mainly prohibiting the sale of intoxicating liquors as a beverage, and destructive of its principal value, and with that impression I must adjudge it to be null and void to that extent.
The inviolability of the rights of private property is subject to the prerogative resulting from the eminent domain always existing in the sovereign power to take it for public purposes, on paying an adequate compensation to the owner. But the compensation must consist of a direct and specific remuneration, and not merely of the general good conferred upon the community by the passage of a beneficent law. The 'prohibitory law does not, nor from the nature of the case could it, make any direct compensation to the owners for the property which it is proposed to sacrifice. So, too, there is necessarily reserved the right of taxation ; but the exercise of such right, although it requires the contribution of a portion of what belongs to the citizen, in effect rather increases than diminishes the value of the entire property, by the security which it enables the public to give to all that is retained.
The interest in the question as to the validity of the prohibitory law is not confined to those only who may own the property which it is proposed in effect to render unavailable to the proprietor; it extends to the entire community. If the shield of constitutional protection can be withdrawn from one species of property, any other may be successfully assailed under some specious pretenses, or indeed without any at all. It is by no [223]*223means a sufficient answer to this to say that the power over property, which is now claimed in behalf of the legislature, would not be liable to abuse, inasmuch as the members are elected by the people, with whom they retain a community of interests, as they enjoy but a short term of office, and must soon return to the ranks of private life. The patriots of the revolution who formed our national constitution, and the enlightened members of the convention which adopted our state constitution, thought otherwise, and accordingly limited the power of the legislature expressly in several important particulars, and by implication in many others. They no doubt thought, and rightly thought, that the possession of despotic power by any department of our government would be inconsistent with our free institutions, and that the safety of our lives, our liberty and our property, required that they should not be subjected to the arbitrary disposal or control of any man or set of men.
It may be that the ordinary use of intoxicating drinks necessarily leads to their frequent abuse, and that the interests of society require that property in them should be in effect annihilated. If so, they might, and possibly should, be withdrawn from the pale of constitutional protection. But that has not yet been done, nor can it be done by any other power than that by which, our organic laws were ordained. Whatever those institutions require, the court must award, as it is the duty of the judges, imposed upon them by their official position, and under the solemnity of an oath, to support the constitution of our common country, and of our own state, from whatever quarter or under whatever pretense they may be assailed.
I have not the slightest wish to extend any protection or encouragement to the habit of inebriation, or to throw any impediment in the way of the good and the virtuous who are so solicitous to arrest its progress. It is an abomination, and should be suppressed (so far as human means can do it) by precept, by example, and by legitimate legislation. But we should go no further, lest we “ do evil that good might come.” The injunction against that is wise; as the evil is certain, while the production of the good might be, at least, problematical.
[224]*224[Dutchess General Term,
July 21, 1855.
The judgment in the court below being erroneous, it must be reversed.
Rockwell, J., dissented from so much of the above opinions as relates to the unconstitutionality of the act. (See next case.)
Judgments reversed.
Brown, S. B. Strong and Bochwell, Justices.]