Clement v. May

The main question presented by this appeal is whether the -provisions for. a -seizure, forfeiture and destruction of liquors kept or ■stored for the purpose of sale and distribution in violation, of the statute are constitutional.

In Lawton v. Steele ( 119 N. Y. 226 ) it was said: “ The right of the Legislature by a new statute to impose upon property held or used in the violation of law, the character of a public nuisance is generally admitted.”

The appellant does not seriously question this power of the Legislature, but he insists that the manner or course of proceeding provided in the statute for declaring the forfeiture is not due process of law.

It is clear that if 'the Legislature had power to direct the summary destruction of liquors kept or stored for the purposes of sale in violation of law, the objection to the judicial proceeding provided for in the act has no application.

It was a principle of the common law. that any one might abate or remove a public nuisance, without staying to have the thing abated or removed, found to be a nuisance by a jury, or in, or by, any preliminary legal proceeding. (Hart v. Mayor, etc., of Albany, 9 Wend. 571 ; Coe v. Schultz, 47 Barb. 64 ; Cartwright v. City of Cohoes, 39 App. Div. 69 ; Rockwell v. Nearing, 35 N. Y. 308 ; Lawton v. Steele, supra.)

In Coe v. Schultz, Sutherland, J., speakig of the constitutional provision that no person shall be deprived of life, liberty or property without due process of law, said: “Ho one has probably ever suggested that Magna Charta interfered with the process of-.summarily abating a public nuisance. If the abatement involved the deprivation of property, the owner was deprived of his property ‘by due process of law’ if the thing abated was a public nuisance, for then the summary process of abatement was authorized by the common law, and any process authorized by law must be due process. The common law was adopted by our State Constitution, and if this summary process of abating a public nuisance was ‘ due process’ within the meaning of Magna Charta, there is not a room for doubt that it is due process’ within the meaning of our State Constitution.”

There aré many statutes directing the summary seizure- and destruction of property kept or used in violation of law as a nuisance de facto,.demanding to be abated. I can see no distinction, as to the power of the Legislature in respect to liquor, kept, stored Or deposited for the purpose of unlawful sale or distribution, and gambling implements, lottery tickets, infected beds and cargoes, impure and unwholesome food, obscene prints or other articles of an indécent character. The law destroys all these for the public good, upon the principle that they are kept in violation of law; that they are not protécted as property by the Constitution, and, therefore, the seizure and physical destruction, without resort to judicial proceedings, interferes with no right of the owners.

’ This case differs from Wynehamer v. People ( 13 N. Y. 378 ), cited by the appellant. There the question was whether “ An act for the prevention of intemperance, pauperism and crime” (Laws of 1855, chap. 231), which declared intoxicating, liquors a nuisance per se, and substantially destroyed property in liquors owned dr possessed at the time the act took effect, was constitutional, and it was held that where liquors were acquired by a citizen under an existing law there is bo power in any branch of the government to take them away. That case impliedly, if not necessarily, affirmed the power of the Legislature to destroy intoxicating liquors acquired subsequent to the passage of the act. Judge Johnson there said: “The future acquisition the Legislature might, in my opinion, control, and I am not disposed to deny that, they could have subjected such future acquisitions to the prohibitions this act imposes.”