Wynehamer v. . the People

13 N.Y. 378, 12 How. Pr. 238

• Court: New York Court of Appeals
• Decided: March 5, 1856
• Status: Published

Opinions

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[EDITORS' NOTE: THIS PAGE CONTAINS HEADNOTES. HEADNOTES ARE NOT AN OFFICIAL PRODUCT OF THE COURT, THEREFORE THEY ARE NOT DISPLAYED.] The defendant, Wynehammer, was indicted and convicted by a common-law jury, in the court of sessions of Erie county, for selling liquors in small quantities contrary to the "Act for the prevention of intemperance, pauperism and crime," passed April 9, 1855. The indictment contains no allegations to bring the case within any of the excise laws of the state, even if those can be regarded as unrepealed, and the conviction therefore must stand, if it can stand at all, upon the statute referred to. It was admitted on the trial that the defendant was the owner of the liquors in question before and at the time the law took effect; and his counsel insisted that he was entitled to an acquittal on the ground, among others, that the statute was unconstitutional and void. The proposition was overruled. The supreme court in the 8th district affirmed the conviction; thus determining that the act, in its prohibitory clauses, was constitutional and valid; and this is the only question I shall consider.

The constitution of this state has vested "the legislative power" in the senate and assembly, subject, however, to some special limitations, which are of very great interest and importance. It is declared (art. 1, § 1) that "no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers." It is further declared (art. 1, § 6) "that no person shall be deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation." Without inquiring into the extent of legislative power, in the absence of special restraints, I think the case before us can be and should be determined under these limitations, the construction, force and application of which will be hereafter considered.

In determining the question, whether the "Act for the prevention of intemperance, pauperism and crime" was an exercise of power prohibited to the legislature, an accurate perception of the subject to which it relates is the first requisite. It is, then, I believe, universally admitted that when this law was passed intoxicating liquors, to be used as a beverage, were property in the most absolute and unqualified sense of the term; and, as such, as much entitled to the protection of the constitution as lands, houses or chattels of any description. From the earliest ages they have been produced and consumed as a beverage, and have constituted an article of great importance in the commerce of the world. In this country the right of property in them was never, so far as I know, for an instant questioned. In this state, they were bought and sold like other property; they were seized and sold upon legal process, for the payment of debts; they were, like other goods, the subject of actions at law; and when the owner died, their value constituted a fund for the benefit of his creditors, or went to his children and kindred, according to law or the will of the deceased. They entered largely into the foreign and internal commerce of the state, and when subjected to the operation of this statute, many millions in value were invested in them. In short, I do not understand it to be denied that they were property in just as high a sense as any other possession which a citizen can acquire. Judicial authority might be cited, but this does not seem necessary where there is scarcely a controversy.

It may be said, it is true, that intoxicating drinks are a species of property which performs no beneficent part in the political, moral or social economy of the world. It may even be urged, and, I will admit, demonstrated with reasonable certainty, that the abuses to which it is liable are so great, that the people of this state can dispense with its very existence, not only without injury to their aggregate interests, but with absolute benefit. The same can be said, although, perhaps, upon less palpable grounds, of other descriptions of property. Intoxicating beverages are by no means the only article of admitted property and of lawful commerce in this state against which arguments of this sort may be directed. But if such arguments can be allowed to subvert the fundamental idea of property, then there is no private right entirely safe, because there is no limitation upon the absolute discretion of the legislature, and the guarantees of the constitution are a mere waste of words. The foundation of property is not in philosophic or scientific speculations, nor even in the suggestions of benevolence or philanthropy. It is a simple and intelligible proposition, admitting, in the nature of the case, of no qualification, that that is property which the law of the land recognizes as such. It is, in short, an institution of law, and not a result of speculations in science, in morals or economy.

These observations appear to me quite elementary, yet they seem to be necessary, in order to exclude the discussion of extraneous topics. They lead us directly to the conclusion that all property is alike in the characteristic of inviolability. If the legislature has no power to confiscate and destroy property in general, it has no such power over any particular species. There may be, and there doubtless are, reasons of great urgency for regulating the trade in intoxicating drinks, as well as in other articles of commerce. In establishing such regulations merely, the legislature may proceed upon such views of policy, of economy or morals as may be addressed to its discretion. The whole field of discussion is open, when the legislature, keeping within its acknowledged powers, seeks to regulate and restrain a traffic, the general lawfulness of which is admitted; but when the simple question is, whether it can confiscate and destroy property lawfully acquired by the citizen in intoxicating liquors, then we are to remember that all property is equally sacred in the view of the constitution, and therefore that speculations as to its chemical or scientific qualities, or the mischief engendered by its abuse, have very little to do with the inquiry. Property, if protected by the constitution from such legislation as that we are now considering, is protected because it is property innocently acquired under existing laws, and not upon any theory which even so much as opens the question of its utility. If intoxicating liquors are property, the constitution does not permit a legislative estimate to be made of its usefulness, with a view to its destruction. In a word, that which belongs to the citizen in the sense of property, and as such has to him a commercial value, cannot be pronounced worthless or pernicious, and so destroyed or deprived of its essential attributes. Sir William Blackstone, who wrote of the laws of England nearly a century ago, said: "So great is the regard of the law for private property, that it will not authorize the least violation of it, no, not even for thegeneral good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might, perhaps, be extensively beneficial to the public, but the law permits no man, or set of men, to do this without the consent of the owner of the land. In vain may it be urged that the good of the individual ought to yield to that of the community, for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, thepublic good is in nothing more essentially interested than in theprotection of every individual's private rights, as modeled bythe municipal law. In this and similar cases, the legislature alone can and frequently does interfere and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property, in an arbitrary manner, but by giving him a full indemnity and equivalent for the injury thereby sustained." (1 Bl. Com., 139.)

While this language of the English commentator by no means expresses the full force of the limitation imposed upon the legislature by the people of this state in their written constitution, it contains, nevertheless, a vindication of the sanctity of private property, as against theories of public good, eminently applicable to our own condition and times. In a government like ours, theories of public good or public necessity may be so plausible, or even so truthful, as to command popular majorities. But whether truthful or plausible merely, and by whatever numbers they are assented to, there are some absolute private rights beyond their reach, and among these the constitution places the right of property.

The views thus far expressed, the substance of which I think must command a general assent, would seem to narrow the field of inquiry. Do the prohibitions and penalties of the "Act for the prevention of intemperance, pauperism and crime" pass the utmost boundaries of mere regulation and police, and by their own force, assuming them to be valid and faithfully obeyed and executed, work the essential loss or destruction of the property at which they are aimed? If they do, then, so far as I can see, nothing remains except to apply the provisions of the fundamental law of the state, and the act must be declared unconstitutional and void. In my judgment, they do plainly work this result.

We must be allowed to know, what is known by all persons of common intelligence, that intoxicating liquors are produced for sale and consumption as a beverage; that such has been their primary and principal use in all ages and countries; and that it is this use which has imparted to them, in this state, more than ninety-nine hundredths of their commercial value. It must follow that any scheme of legislation which, aiming at the destruction of this use, makes the keeping or sale of them as a beverage, in any quantity and by any person, a criminal offence — which declares them a public nuisance — which subjects them to seizure and physical destruction, and denies a legal remedy if they are taken by lawless force or robbery, must be deemed, in every beneficial sense, to deprive the owner of the enjoyment of his property.

Such I understand to be precisely the character of this law. The only sales which it permits (vide § 2) are for mechanical, chemical and medicinal purposes — and of wine for sacramental use. Even this exception, minute and special as it is, is attended with extraordinary conditions. The person proposing to sell is prohibited, if he pursues any one of some fifteen or twenty lawful avocations; he must be a man of totally abstinent habits; he must give stringent bail, and he must have a good moral character. Sales may also be made to the authorized venders, but as they can only sell for the particular purposes enumerated, of course sales to them cannot be made in contemplation of any other purpose or use.

With these exceptions, so minute and trivial as scarcely to disturb the general scheme, the act is one of fierce and intolerant proscription. It is unlawful to sell intoxicating liquors, to keep them for sale, or with intent to sell, and, with an exception of no importance to the question, it is to keep them at all. (§ 1.) They are declared a public nuisance (§ 25); and not only by that declaration, but by another express provision, all legal protection is withdrawn from them. (§ 16.) If the owner attempts to sell them, he can maintain no action for the price; and if they are taken from him by force or fraud he is remediless. (§ 16.) In other parts of the act special provisions are contained for seizure, judicial condemnation and destruction. (§§ 5, 6, 7, 8, 9, 10, 11, 12 and 13.) But the act by no means waits for the operation of this machinery. Itself pronounces the sentence of condemnation, and the judicial machinery, such as it is, which it provides are agencies merely to insure the execution of the sentence. Property is lost before the police are in motion, and, I may add, crime is committed without an act or even an intention. On the day the law took effect, it was criminal to be in possession of intoxicating liquors, however innocently acquired the day before. It was criminal to sell them, and under the law, therefore, no alternative was left to the owner but their immediate destruction. (Vide § 4.)

It will be seen, therefore, that aside from the exceptional cases which have been stated, and as a beverage without exception, intoxicating liquors are laid under the ban of absolute and unqualified condemnation. As property, the right to sell them is denied, and their commercial value is thus annihilated. They are, moreover, devoted to physical destruction. Special agencies for destruction are provided; but before these are set in motion the law itself condemns them as property, in a series of provisions entirely free from ambiguity or doubt. It was said, on the argument, that nothstanding the sweeping prohibitions of sale, the owner might still keep them, and even export them, and so effect a total or partial saving of his property. If this were so, I do not see how it would affect the question under consideration. If laws contrived for the destruction of property within the state are unconstitutional and void, they cannot be upheld, even though special leave be given to the owner to remove it from the state, and so place it beyond the reach of those laws. But the suggestion is founded in a misapprehension of the act. From the instant it took effect, intoxicating liquors could not lawfully be kept a single hour with a view to exportation, or kept at all, except for the special purposes of medicine, the sacrament, or for mechanical or chemical uses. It might be smuggled away, but that would not be the fault of the law. It would be quite as logical to say that an act to deprive a man of his liberty or life without a trial, is constitutional, because there is a possibility that he may run away and thus escape.

There are many provisions of this act which were reviewed at length on the argument, and which might now receive a more particular notice. But the summary exposition which has been given is enough for the present purpose. Proceeding upon the admitted hypothesis that the subject thus denounced and proscribed is property, and like other property essentially inviolable, the inquiry will remain, whether the constitution does not expressly prohibit such legislation?

It has been urged upon us, that the power of the legislature is restricted, not only by the express provisions of the written constitution, but by limitations implied from the nature and form of our government; that, aside from all special restrictions, the right to enact such laws is not among the delegated powers of the legislature, and that the act in question is void, as against the fundamental principles of liberty, and against common reason and natural rights. High authority, certainly, has been cited to show that laws which, although not specially prohibited by written constitutions, are repugnant to reason, and subvert clearly vested rights, are invalid, and must so be declared by the judiciary. In Calder and wife v. Bull (3 Dallas, 386), Judge Chase said: "I cannot subscribe to the omnipotence of a state legislature, or that it is absolute and without control, although its authority should not be restrained by the constitution or fundamental law of the state. The nature and end of legislative power will limit the exercise of it. This fundamental principle flows from the very nature of our free republican governments, that no man should be compelled to do what the laws do not require, nor refrain from acts which thelaws permit. There are acts which the federal or state legislature cannot do without exceeding their authority. There are certain vital principles in our free republican governments which will determine and overrule an apparent and flagrant abuse of legislative power; as to authorize manifest injustice by a positive law, or to take away that security for personal liberty or private property, for the protection whereof government was established." "A few instances," he adds, "will suffice to explain what I mean; a law that punishes a citizen for an innocent action, or in other words, for an act which, when done, was in violation of no existing law — a law which destroys or impairsthe lawful private contracts of citizens — a law that makes a man a judge in his own case — a law that takes property from Aand gives it to B. It is against all reason and justice for a people to entrust a legislature with such powers, and therefore it cannot be presumed that they have done it. The legislaturecannot change innocence into guilt, or punish innocence as acrime, or violate the right of antecedent lawful privatecontract, or the right of private property." Chief Justice Marshall said, in Fletcher v. Peck (6 Cranch, 135): "It may be doubted whether the nature of society and of government does not prescribe some limits to the legislative power; and if any be prescribed, where are they to be found, if the property of anindividual, fairly and honestly acquired, may be seized withoutcompensation?" (See also Dash v. Van Kleeck, 7 Johns., 477; Taylor v. Porter, 4 Hill, 146 — per Bronson, J.;Goshen v. Stonington, 4 Conn., 225 — per Hosmer, J.)

I entertain no doubt that, aside from the special limitations of the constitution, the legislature cannot exercise powers which are in their nature essentially judicial or executive. These are, by the constitution, distributed to other departments of the government. It is only the "legislative power" which is vested in the senate and assembly. But where the constitution is silent, and there is no clear usurpation of the powers distributed to other departments, I think there would be great difficulty and great danger in attempting to define the limits of this power. Chief Justice Marshall said (Fletcher v. Peck, supra): "How far the power of giving the law may involve every other power, in cases where the constitution is silent, never has been, and perhaps never can be, definitely stated." That very eminent judge felt the difficulty; but the danger was less apparent then than it is now, when theories, alleged to be founded in natural reason or inalienable rights, but subversive of the just and necessary powers of government, attract the belief of considerable classes of men, and when too much reverence for government and law is certainly among the least of the perils to which our institutions are exposed. I am reluctant to enter upon this field of inquiry, satisfied as I am that no rule can be laid down in terms which may not contain the germ of great mischief to society, by giving to private opinion and speculation a license to oppose themselves to the just and legitimate powers of government. Nor is it necessary to push our inquiries in the direction indicated. There is no process of reasoning by which it can be demonstrated that the "Act for the prevention of intemperance, pauperism and crime" is void, upon principles and theories outside of the constitution, which will not also, and by an easier induction, bring it in direct conflict with the constitution itself.

I am brought, therefore, to a more particular consideration of the limitations of power contained in the fundamental law: "No member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land or the judgment of his peers. No person shall be deprived of life, liberty or property, without due process of law; nor shall private property be taken for public use without just compensation." These provisions have been incorporated, in substance, into all our state constitutions. They are simple and comprehensive in themselves, and I do not perceive that they derive any additional force or meaning by tracing their origin to Magna Charta and the later fundamental statutes of Great Britain. In Magna Charta, they were wrested from the king as restraints upon the power of the crown. With us they are imposed by the people as restraints upon the power of the legislature.

No doubt, it seems to me, can be admitted of the meaning of these provisions. To say, as has been suggested, that "the law of the land," or "due process of law," may mean the very act of legislation which deprives the citizen of his rights, privileges or property, leads to a simple absurdity. The constitution would then mean, that no person shall be deprived of his property or rights, unless the legislature shall pass a law to effectuate the wrong, and this would be throwing the restraint entirely away. The true interpretation of these constitutional phrases is, that where rights are acquired by the citizen under the existing law, there is no power in any branch of the government to take them away; but where they are held contrary to the existing law, or are forfeited by its violation, then they may be taken from him — not by an act of the legislature, but in the due administration of the law itself, before the judicial tribunals of the state. The cause or occasion for depriving the citizen of his supposed rights must be found in the law as it is, or, at least it cannot be created by a legislative act which aims at their destruction. Where rights of property are admitted to exist, the legislature cannot say they shall exist no longer; nor will it make any difference, although a process and a tribunal are appointed to execute the sentence. If this is the "law of the land," and "due process of law," within the meaning of the constitution, then the legislature is omnipotent. It may, under the same interpretation, pass a law to take away liberty or life without a preëxisting cause, appointing judicial and executive agencies to execute its will. Property is placed by the constitution in the same category with liberty and life.

Clear as this matter stands upon principle, it is equally well settled by authority. Chief Justice Gibson, of Pennsylvania, speaking of a similar clause in the constitution of that state, and of the right of property as protected by it, said: "What law? Undoubtedly a preëxisting rule of conduct, not an ex postfacto rescript or decree made for the occasion. The design of the convention was to exclude arbitrary power from every branch of the government; and there would be no exclusion of it if such rescripts or decrees were to take effect in the form of a statute. The right of property has no foundation or security but the law; and when the legislature shall successfully attempt to overturn it, even in a single instance, the liberty of the citizen is no more." (Norman v.Heist, 5 Watts Serg., 193.) And Chief Justice Bronson, of this state, in Taylor v. Porter (4 Hill, 145), said: "The words `law of the land,' as here used, do not mean a statute passed for the purpose of working the wrong. That construction would render the restriction absolutely nugatory, and turn this part of the constitution into mere nonsense." And again: "The meaning of the section, then, seems to be, that no member of the state shall be disfranchised of any of his rights and privileges, unless the matter be adjudged against him upon trial had according to the course of the common law. It must be ascertained judicially that he has forfeited his privileges, or that some one else has a superior title to the property he possesses, before either of them can be taken from him. It cannot be done by mere legislation." Again he adds, speaking of the words "due process of law:" "If the legislature can take the property of A, and give it to B, they can take A himself and either shut him up in prison, or put him to death. But none of these things can be done by mere legislation."

Chief Justice Ruffin, of North Carolina, in a very able and elaborate judgment, involving the construction and force of a similar clause in the constitution of that state, laid down the doctrine that "the terms `law of the land,' do not mean merely an act of the general assembly. If they did, every restriction upon the legislative authority would be at once abrogated." "In reference," he adds, "to the infliction of punishment and divesting of the rights of property, it has been repeatedly held in this state, and it is believed in every state in the Union, that there are limitations upon the legislative power notwithstanding those words; and that the clause itself means that such legislative acts as profess, in themselves, directly to punish persons, or to deprive the citizen of his property without trial before the judicial tribunals and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode and usages of the common law as derived from our forefathers, are not effectually `laws of the land,' for those purposes." (Hoke v. Henderson, 4 Dev., 15.)

Chancellor Kent (2 Com., 13), says: "The words, `law of the land,' as used originally in Magna Charta, in reference to this subject, are understood to mean, due process of law, that is, by indictment or presentment of good and lawful men: `and this,' says Lord Coke, `is the true sense and exposition of those words.' The better and larger definition of due process of law is, that it means law in its regular course of administrationthrough courts of justice." (See also Story on Const., 661; 10Yerger, 59; 2 Coke Inst., 45-50.)

It is plain, therefore, both upon principle and authority, that these constitutional safeguards, in all cases, require a judicial investigation, not to be governed by a law specially enacted to take away and destroy existing rights, but confined to the question whether, under the preëxisting rule of conduct, the right in controversy has been lawfully acquired and is lawfully possessed. A proposition so obvious would have deserved less consideration, if a singular misapprehension in regard to it did not appear to have prevailed in a decision not now before us for review, but upon the act under examination, pronounced in another branch of the supreme court. (People v. Quant, in the 4thdistrict.)

We are brought, then, directly to the question, does the "Act for the prevention of intemperance, pauperism and crime," in a just constitutional sense, deprive the citizens of this state of their property in intoxicating liquors? We have already seen that this species of property is just as inviolable as any other. That by the operation of this law, its commercial value is annihilated; that it cannot be sold; that it is unlawful to keep it; that all legal protection is withdrawn from it; and that it becomes a public nuisance. Is the owner "deprived" of it within the fair meaning of the constitution? I bring the act to this particular test, because if it can stand with this clause of the constitution, it can with every other.

Now, I can form no notion of property which does not include the essential characteristics and attributes with which it is clothed by the laws of society. In a state of nature property did not exist at all. "Every man might then take to his use what he pleased, and retain it if he had sufficient power; but when men entered into society, and industry, arts and sciences were introduced, property was gained by various means, for the securing whereof proper laws were ordained." (Tomlin's Law Dic.,Property; 2 Bl. Com., 34.) Material objects, therefore, are property in the true sense, because they are impressed by the laws and usages of society with certain qualities, among which are, fundamentally, the right of the occupant or owner to use and enjoy them exclusively, and his absolute power to sell and dispose of them; and as property consists in the artificial impression of these qualities upon material things, so, whatever removes the impression destroys the notion of property, although the things themselves may remain physically untouched.

Nor can I find any definition of property which does not include the power of disposition and sale, as well as the right of private use and enjoyment. Thus Blackstone says, (1 Com., 138): "The third absolute right of every Englishman is, that of property, which consists in the free use, enjoyment anddisposal of all his acquisitions, without any control or diminution, save only by the laws of the land." Chancellor Kent says, (2 Com., 320): "The exclusive right of using andtransferring property follows as a natural consequence from the perception and admission of the right itself." And again, (p. 326): "The power of alienation of property is a necessary incident to the right, and was dictated by mutual convenience and mutual wants." By another author, property is defined as an "exclusive right to things, containing not only a right to use those things, but a right to dispose of them, either by exchanging them for other things, or giving them away to any other person without consideration, or even throwing them away." (Bouvier's Law Dict., tit. Property.) These definitions are in accordance with the general sense of mankind. Indeed, if any one can define property eliminated of its attributes, incapable of sale, and placed without the protection of law, it were well that the attempt should be made.

The statute under consideration, without reference to its provisions for the seizure and physical destruction of intoxicating liquors, by force of its prohibitions alone, sweeps them from the commerce of the state, and thus annihilates the quality of sale, which makes them valuable to the owner. This is destructive of the notion of property. I need, perhaps, take no further notice of their qualified vendibility for the sacrament, and the other special uses named in the act. These are only the occasional and incidental uses of the article. It is the general and primary use which is aimed at. It is the mass of property which is struck down; and the possible conservation of an extremely insignificant portion cannot change the character of the law. No ingenuous advocate of the law will deny that its great characteristic is prohibition, intended to turn back from the channels of commerce important masses of property, and thus, by suppressing the use, to prevent the abuse. To regard the act in any other light would be a fraud upon its entire policy, and upon the views and motives in which it must be supposed to have had its origin. And in order to a full view of the spirit and intent of the law, to simple prohibition, we must add its penalties and its other connected and dependent clauses, the whole forming one scheme and all tending, with fatal accuracy, to the destruction of property in intoxicating liquors within this state.

Unless, therefore, the right of property in liquors is denied altogether, and this has never been done, or unless they can be distinguished from every other species of property, and this has not been attempted, the act cannot stand consistently with the constitution. The provisions of the constitution should receive a beneficent and liberal interpretation, where the fundamental rights of the citizen are concerned. But, in the case before us, its plain and obvious meaning is enough. "No person can be deprived of his property without due process of law" by the legislature or any other power of the government. When a law annihilates the value of property, and strips it of its attributes, by which alone it is distinguished as property, the owner is deprived of it according to the plainest interpretation, and certainly within the spirit of a constitutional provision intended expressly to shield private rights from the exercise of arbitrary power.

I have not reached this result without an attentive examination of the arguments which have been urged in favor of an opposite conclusion. Such of them as may appear to have most weight, or to have been most relied on, may here be noticed.

Prominent among these suggestions, our attention has been directed to a supposed analogy between the act under consideration and the license and excise laws of this and other states, the constitutionality of which is not questioned. I think the analogy does not exist. However difficult it may be to define, with accuracy and precision, the line of separation, there is a broad and perfectly intelligible distinction between what is plainly regulation on the one side, and what is plainly prohibition on the other. In another case great difficulty may attend the inquiry, but not greater certainty than often attends judicial investigations. The inquiry is essentially judicial in its nature; and whenever a case of difficulty arises, it must be met and determined upon its special circumstances, and by the aid of such lights as can be obtained. In the present case, the difficulty suggested is not perceived. The statute we are examining passes the utmost limit of regulation, and does not even wear a disguise. It is plainly prohibitory in every feature, and in its entire scope and policy. Some of the excise acts referred to were of great stringency, considered as regulations merely of traffic in intoxicating liquors; but none of them totally prohibited their sale as a beverage, or denied to them, as such, the essential qualities of property, or placed them without the protection of the laws.

It is certain that the legislature cannot totally annihilate commerce in any species of property, and so condemn the property itself to extinction. It is equally certain that the legislature can regulate trade in property of all kinds. Neither of these propositions is denied; but they necessarily lead to another — that between regulation and destruction there is somewhere, however difficult to define with precision, a line of separation. All reasoning, therefore, in favor of upholding legislation which belongs to one class, because it is often difficult to distinguish it from that which belongs to the other, must be fallacious, because it is simply reasoning against admitted conclusions.

The provision in the federal constitution, declaring that no state shall pass laws impairing the obligation of contracts, and the course of judicial decision under that provision, may be referred to as illustrating the distinction between legislation which is remedial merely, and that which is subversive of the rights intended to be saved. Under this provision the constitutionality of state laws has often been examined, and the difficulty of distinguishing between statutes which regulated the remedy and those which impaired or subverted the right has been great and acknowledged. But the distinction itself has been steadily maintained. Neither the federal nor the state courts have ever shrunk from the inquiry; and laws which transcended the limits of regulation merely, and directly or indirectly invaded the right, have been uniformly adjudged to be void.

Nor could we escape the kindred inquiry in the case before us, although it were attended with much greater difficulty than we believe it to be. Does the statute under consideration simply regulate, or does it destroy an admitted species of property, in which millions of value are invested? As this question is answered, the act must stand or fall; and in my judgment but one answer can be given.

Besides the license and excise laws, our attention has been drawn to other legislative enactments, producing in their result great injury to private property, the constitutionality of which has been admitted or adjudged. The embargo act of congress in 1807 (2 Statutes at Large, 451), is mentioned as one of these examples of legislation. I do not perceive any analogy which can influence the present question. That was an act which simply prevented "all ships and vessels in ports and places within the limits or jurisdiction of the United States" from sailing upon any enterprise of foreign commerce. It is not important to inquire under what particular clause of the federal constitution the power was derived to enact such a law. That it went to the utmost verge of constitutional power has been universally conceded. (3 Story on the Constitution, 163.) It is enough for the present purpose to say, that it was recommended and adopted as a measure of protection to property, and not of annihilation. In the language of Justice Story (id., 161), "It was avowedly recommended as a measure of safety for our vessels, our seamen and our merchandise, from the threatening dangers from the belligerent powers of Europe." In other words, it was an act of conservation and not of destruction, although in its effect it bore with great severity upon the interests of the commercial states and upon the property of individuals. It did not aim at the extinction of any species of property, or of any of its attributes. If congress, proceeding upon a theory that all foreign commerce was injurious to the interests of the nation and the morals and habits of the people, had passed an act intended to destroy it perpetually, and for that purpose confiscating ships and vessels, prohibiting their sale, making it unlawful to keep them with intent to sell, or keep them at all, and declaring them a nuisance, and such a law had been adjudged valid, then, and I think not till then, an analogy might be traced having something to do with the question before us.

Statutes conferring upon municipal corporations powers which, in their execution and ultimate result, inflict incidental or consequential injury upon the property of individuals — injury for which it is said the law affords no remedy — have been adjudged constitutional. In legislation of this kind it is also supposed some warrant can be found for the act under consideration. Here, again, the analogy fails. Laws of this character proscribe no species of property. They may injure it in their remote and accidental result, but they do not, like this act, say it shall not be allowed to exist at all, or strike directly at the qualities and attributes, without which it can have no legal existence. The constitutional requirement is, that no person shall be deprived of his property, and that private property shall not be taken for public use without just compensation. It is nowhere declared that, in the exercise of the admitted functions of government, private property may not receive remote and consequent injury without compensation. (SeeRadcliff's Executors v. The Mayor of Brooklyn, 4 Comst., 195.)

The authorized destruction of buildings in the city of New-York, by direction of the mayor and aldermen, in order to prevent the spread of conflagration (2 R.L. of 1813, p. 368, § 81), has been referred to as a constitutional exercise of legislative power, which deprives a citizen of his property. It is enough to say of such statutes, that they are founded upon and are mere regulations of the common law right of any person to destroy property in a case of immediate and overwhelming necessity to prevent the ravages of fire or pestilence. (2 Kent Com., 339; Russell v. The Mayor,c., of New-York, 2 Denio, 46]; 17 Wend., 285; 25 id., 157.) Statutes of this description merely appoint a municipal agent to judge of the emergency, and direct the performance of acts which any individual might do at his peril without any statute at all. If such legislation can prove anything to the present purpose, it would show that these powers of destruction may be invoked in order to reform the morals and habits of society, and therefore that authorized agents of the legislature, or individuals without authority, may go forth on a roving commission to seize and destroy all intoxicating liquors within the borders of the state, and plead an overruling necessity as a justification of their lawless acts. This would be a mission which philanthropists and reformers have not yet undertaken, and certainly which no judge or lawyer would defend.

Other examples of legislation have been cited, which may be grouped together and considered at a single view. Laws of quarantine, which detain ships for a limited period coming from places where pestilential diseases exist; laws against smuggling, which forfeit the goods and the vessels in which they are conveyed for non-payment of impost duties; laws against gambling, which forfeit the tools and implements with which the offence is committed; laws against horse racing, under which it is said the horses unlawfully used are forfeited; laws against selling liquors to Indians, under which the liquors themselves may be forfeited. Examples of this sort are supposed to have a peculiar application to the question, because, by the force of statutes of admitted validity, property is specifically forfeited, and so the owner deprived of it. There is, however, a fallacy in all reasoning and illustration from such sources, which can be readily exposed.

And the precise and fatal difficulty in the argument is, that the only resemblance between the statutes referred to, and the one under consideration, is in the character of the punishment. The prohibitions themselves are totally unlike, and relate mostly to different subjects. That the punishment for violating such prohibitions is similar, or even the same, amounts to nothing, when the question is whether the prohibitions themselves, or any one of them, is constitutional or valid. Take, for example, the instance of smuggling. No one doubts the power of congress to prohibit the importation of goods without the payment of duties, nor, consequently, that the offender may be punished by a forfeiture of the goods, by pecuniary fine or by imprisonment. But whether the legislature of this state has the power to prohibit the keeping or sale of property in general, or any particular species, is the precise question now to be determined. When that is first established, then the owner who violates the prohibition may lose his property, or be fined, imprisoned, banished or put to death.

It is certainly a simple proposition, that an admitted public offence against a constitutional statute may be punished by loss of property, of money, of liberty or of life; but how this tends to show that another statute, prohibiting things of a totally different character, and similar only in its sanction or penalty, is valid, and the offence itself constitutionally created, is what I have been unable to perceive. In a word, to trace an analogy between two statutes in the manner of enforcing them, or punishing the offender, does not advance a step toward proving that either the one or the other is constitutional, or the contrary.

The illustration from the statutes referred to, and all others which can be referred to, fails for another reason of great significance, which seems to have been overlooked by those who assert the validity of the prohibitory law. It is an entire misconception of the law itself to say that the species of property to which it relates is forfeited by a violation of its provisions. It is simply extinguished by the force of the prohibitions themselves. In other parts of the act, pecuniary penalties and imprisonment are inflicted, but the loss of property is not exacted as a forfeiture at all in any just or ordinary sense of the term. It is quite absurd to say of a law, which enacts in substance that property of a particular species shall no longer exist, that it imposes a forfeiture of such property as the punishment for violating the prohibition. There is no offence, except the misfortune of being the owner. A forfeiture of goods implies a title to them, good against all the world; but if this law is valid, then the owner has no title to lose. Analogies for such legislation will be sought for in vain.

In respect to one of the statutes which have been mentioned, that which prohibits the sale of intoxicating liquors to Indians, it should be further observed, that Indians are considered as persons inops consilii under the tutelage of government, and in the same category with minors, habitual drunkards, c. These classes of persons are particularly the subjects of governmental care; and to concede that the legislature may constrain or prohibit the sale of spirituous liquors to them, is only admitting that it may regulate traffic in any species of property — an admission which suggests the distinction already sufficiently considered between the power to regulate and the power to destroy.

It has been said, also, that the admitted power of taxation may be so exercised under legislative authority as greatly to impair the value of private property. This is undoubtedly true, but it throws no light upon the present question. The power may be wisely or unwisely, justly or unjustly, exercised; but, as a power, it rests upon the theory that full compensation is received by the individual in the benefit conferred by the tax itself. The support of government, and other objects of public utility promoted by taxation, are supposed to return to the individual the value which has been taken from him as his share of the public burden. This is neither depriving a man of his property, in a constitutional sense, nor taking it for public use under the right of eminent domain. Again, it may be suggested, if, in a given case, it could be plainly seen that the confiscation and extinction of a species of property were the essential object of a statute, it should be declared unconstitutional, although disguised under the forms of taxation.

It has also been supposed that some authority for legislation of this kind is found in the observation of one or two of the judges of the supreme court of the United States, delivered where the license laws of Massachusetts, Rhode Island and New Hampshire were examined in that court. (5 Howard, 504.) This is quite a mistake. The question involved and determined was, that the excise laws of those states did not conflict with the authority of congress to regulate commerce with foreign countries and among the states. Whatever was said beyond that was, of course, obiterdicta merely, and even as such had no reference to the limitations of legislative power contained in state constitutions.

It is scarcely necessary, perhaps, to observe, that in the views which have been expressed, it is not intended to narrow the field of legislative discretion in regulating and controlling the traffic in intoxicating liquors. We only say that, in all such legislation, the essential right of the citizen to his property must be preserved; a right which includes the power of disposition and sale, to be exercised under such restraints as a just regard both to the public good and private rights may suggest.

I am not insensible to the delicacy and importance of the duty we assume in overruling an act of the legislature, believed by so many intelligent and good men to afford the best remedy for great and admitted evils in society; but we cannot forget that the highest function intrusted to us is that of maintaining inflexibly the fundamental law. And believing, as I do, that the prohibitory act transcends the constitutional limits of the legislative power, it must be adjudged to be void.

The judgments of the supreme court and of the court of sessions must, therefore, be reversed.