Wynhammer v. People

By the court

All the exceptions taken by the defendant to the rulings of the court below, on the motion to quash the indictment for irregularity, and on the trial

Bills of exceptions in criminal cases were unknown to the .common law. The right to a bill of exceptions in such a case is given by statute. Its office is to bring up for review questions of law made and decided cn the trial. But the statute,0 which gives the right, limits it to exceptions taken'on the trial of the main issue. It is not extended to such as are taken on the trial of preliminary or collateral questions. (2 R. S. 736, § 21; The People agt. Freeman, 4 Denio, 21 , per Beardsley, J.)

It will, therefore, be unnecessary to examine the various • questions raised by these exceptions* as our conclusion on them either way could not affect the result. The same answer must be given to many of the questions suggested by the exceptions taken on the trial of the main issue, and discussed on the argument. The facts proved on the trial do not raise the questions; and any opinion which we might express upon them would be the mere result of gratuitous specluation upon questions in which the defendant has no legal interest.

The indictment was for selling brandy (not being liquor the sale of which was authorized by the laws of the United States) to persons not authorized to sell liquor by the act under which the indictment was found. The prosecution proved several sales, by the defendant, of brandy at his bar, in quantities less than one pint, which was drank on his premises. The defendant offered to prove that the brandy sold by him was- imported from foreign countries under the revenue laws of the United States; that the duties had been paid thereon; that he purchased it from the importer in the packages in which it was imported, and that it was drawn from those packages, and sold by him, as proved on the trial. The evidence was rejected as immaterial, and the defendant excepted. He also offered to prove that the liquor in question was owned by him on and before the third day of July, 1855. This evidence was rejected on the same ground, and the defendant excepted.

Two questions of law arise on these facts and exceptions: 1st. What is the extent of the prohibition upon the sale ojf

That part of the first section that bears upon these questions is in these words:

“ Intoxicating liquors, except as hereinafter provided, shall not be sold * * * * by any person, for himself or any other person, in any place whatsoever.”

Then follow divers provisions prohibiting the giving away or keeping such liquor, except in certain specified places, which provisions, as they have no bearing upon the questions above stated, require no examination.' The last clause of the section is in these words:

“ This section shall not apply to liquor the right to sell which is given by any law or treaty of the United States.”

The second section provides that certain persons, on complying with its provisions, “ may keep for sale, and may sell, intoxicating liquor and alcohol, for mechanical, chemical, or medicinal purposes, or wine for sacramental use.”

The twenty-second section contains several provisions in relation to the construction of the act, and among others a provision that nothing in the act shall be construed so as to prevent “ the importer of foreign liquor from keeping or selling the same in theforiginal packages, to any person authorized by this act to sell such liquor.”

These provisions embody all the prohibitions and exceptions material to the questions under consideration contained in this act.

It will be observed, that the act contains no provisions excepting. any liquor specifically from the operation of the prohibitory clause. The exception in the first section relates to “ liquor, the right to sell which is given by any law or treaty of the United. States.” No law or treaty of the United States has been cited, and I am not aware that any exists, expressly giving the right to sell any specific liquor. But there are divers laws and treaties providing and stipulating for the admission of foreign liquors into the United States, upon certain terms pie-

In the case of Brown agt. The State of Maryland, (12 Wheat.) it was held, by the supreme court of the United States, that an act of that state requiring importers to take out a license to sell imported merchandise, was repugnant to the provision of the constitution of the United States prohibiting the states from laying duties on imports.

Chief Justice Marshall, in the same case, held, that an importer of foreign merchandise, who had imported the same under the revenue laws of the United States, acquired a right under such laws to sell the imported article in the state and condition in which it was imported; that the law of Maryland was a regulation of foreign commerce, and, as such, was in conflict with the revenue laws of the United States.

Justice Thompson dissented from the position taken by the Chief Justice, and insisted upon the right of the state to levy the license tax, as a legitimate exercise both of its power of taxation and its power to regulate its own internal trade; holding that the importer acquired no right under the laws of the United States to sell the imported article independent of state regul lation.

In the cases of Pierce agt. The State of New-Hampshire, Thurlow agt. The State of Massachusetts, and Fletcher agt. The State of Rhode Island, commonly known as the u license cases,” (5 How. S. C. R.,) the question as to the right of the states to regulate and prohibit the sale of liquors, the importation of which was authorized by the laws of the United States, was brought before the same court. The statute of Massachusetts, under which one of the cases originated, made it unlawful for any person to sell intoxicating liquor, without a license, in quantities less than twenty-eight gallons. The law also contained an express provision, that the select-men, in whom the

The statute of New-Hampshire prohibited’the sale of liquor in that state in any quantity without a license.

The law of Rhode Island contained provisions similar to those contained in the law of Massachusetts.

The defendants were indicted and convicted in the state courts for violations of these laws; and the judgments, being affirmed by the supreme courts of the states respectively, were carried by writs of error to the supreme court of the United States. In that court it was contended, on the authority of Brown agt. Maryland, that the laws were void, on the ground that the laws of the United States authorized the importation of the liquor sold by the defendants in those cases,—(which liquor had been actually imported,)—and that the state laws were in conflict with those of the United States. The liquor sold by the defendant in the New-Hampshire case was imported from Massachusetts; and it was contended that the law of that state was repugnant to the provision of the constitution authorizing congress to regulate commerce among the states. But the court held that the laws of the states must be construed as applying exclusively to the domestic trade in liquor 5 that they had no application to imported liquor in the hands of the importer ; that they did not interfere with Ms right to sell in the original packages, as laid down in Brown agt. Maryland, and were not, for that reason, in conflict with the laws of the United States, under which the liquor was imported.

In the New-Hampshire case, it was held that the state law wras a regulation of commerce “ among the states,” within the meaning of the constitution, and so within the power of congress ; but the law was sustained on the ground that the powers of congress and the state legislature were concurrent; and that as congress had passed no law regulating commerce among the states, the state law was valid until congress passed some law conflicting with the provisions of the state law.

Chief Justice Taney, in these cases, reiterated tbe doctrine laid down by Chief Justice Marshall in Brown agt. Mary

It will be remembered that the law of Massachusetts prohibited sales in less quantities than twenty-eight gallons, and that the law of congress authorized the importation of the same liquor in quantities of fifteen gallons, and that the law could be sustained upon no other ground than that assumed by the chief justice, consistently with the rule asserted by the majority of the court in Brown agt. Maryland.

In the license cases, Justices Daniel, Woodbury, and Grier .dissented from the doctrine laid down by the chief justice, and by Chief Justice Marshall in Brown agt. Maryland, asserting the right of the importer, under the laws of the United States, to sell.imported merchandise uncontrolled by state regulation. The soundness of this rule is questioned by those learned justices, and Brown agt. Maryland was not regarded as an authority for the rule.

The question was not directly involved in either case, and it may be doubted whether it is not still open to discussion upon principle. But it will be perceived that the right to sell imported liquor, given by the laws of the United States, under the broadest rule laid down by the majority of the court in the cases cited, is subject to two important qualifications: 1st. That it remains in the hands of the importer; and, 2d. That it shall be sold in the condition in which its importation is authorized, and that all sales by other persons or in any other quantity or condition than that in which it is imported, are subject, like the sales of all other property, to such regulations as may be prescribed by state laws.

The question, then, arises as to the true construction of the exception contained in the first section of the prohibitory act. The plaintiff in error contends that it extends to all liquor in specie, the right to sell which, under any circumstances, is given by the laws of the United States.

We have seen that this right, considered in its utmost extent, as defined by the court whose province it is to give a construction to those laws, is neither general as to persons, nor in its application to the property to which the laws in question relate. The right, on the contrary, is limited to certain persons, and qualified by the status of the property. While it is in the hands of the importer, and in the condition in which it was imported, the laws under which he has imported give him a right to sell it in that condition. This is the extent of the right. When he parts with the property, or changes its condition, his right, and all right to sell it, derived from those laws, ceases. It is no longer liquor the right to sell which is given by the laws of the United States.

The object of this exception in the first section clearly was, by preserving the rights secured by the laws of the United States, to avoid collision with those laws, and the general exemption of certain liquor in specie from the operation of this section, which is claimed from a literal reading of the clause in question, should be controlled by the limitations as to persons, and the qualifications as to the status of the property, -which are annexed to the right of sale given by the laws of the United States. So that the provisions of the first section will not apply to imported liquor while in the hands of the importer,' and in the casks, bottles, or packages in which it was imported. The propriety of this construction is rendered plain by a reference to the language of the 22d section already quoted. This clause, whatever its purpose, or however unnecessarily inserted,

The second section, as we have seen, provided that certain persons, on the conditions therein prescribed, might sell liquor for certain purposes. Importers were not mentioned in this section ; nor was it necessary, under any construction of section 1, according to the rule laid down in the license cases, that importers should be mentioned in section 22; but the legislature, apparently as a matter of precaution, inserted the clause last cited in that section. It refers to the same subject-matter as the last clause of section 1, and may properly be read in connection with it; and when these two clauses are read together in the light of all the provisions of the act, I think the true construction of the first section is reasonably plain. It follows that the liquor sold by the defendant was not exempted from the operation of that section. The evidence offered by him to prove that it had been imported was, therefore, immaterial, and was properly rejected.

The only remaining question is as to the validity of the prohibition. It is claimed by the defendant that the prohibition is repugnant to the provisions of the sixth section of the first article of the constitution, and therefore void. That part of the section in question, to which the prohibition is supposed to be repugnant, is in these words:—

“No person * * * sh dl be deprived of life, liberty, or property, without due proves-, of law; nor shall private property be taken for public use without just compensation.”

I do not understand that it is claimed that this provision of the act violates the prohibition contained in the last clause of that part of the section above quoted. It certainly cannot be maintained that this part of the act provides for the talcing of property in any sense of the term.

But it is claimed that this prohibition of the sale of liquor does, in effect, deprive the owner of his property in it. The argument is, that the right to sell and traffic in property is incident to, and inseparable from the title ; that such right is one of the chief elements of its value; and that a law prohibiting

That liquor is property; that the right to sell property is one of its recognized legal incidents; and that “ due process of law,” which the constitution prescribes as the only condition upon which the owner of property can be deprived of it, means a trial and judgment in a regular judicial proceeding, are propositions too well established to admit of argument or require the support of authority. But that the right to sell and use property at the will of the owner is absolute and subject to no restraint, cannot be maintained, and will hardly be asserted. The rights and interests of individuals are, to some extent at least, subordinate to those of the. public, and must yield to them in cases of conflict.

It is the acknowledged province of legislation to prescribe, by law, such rules concerning the title to property, and its sale and use, as will, in the judgment of the legislature, most effectually secure to the owner the enjoyment of these rights on the one hand, and, on the other, protect the public from injuries that may result from the exercise of them. This power, however, is subject to the restraints imposed by the constitution, through which, in this state, the legislature derives its powers. We have, then, only to compare the provision heretofore cited, of the first section of the prohibitory act with the above provision of the constitution, and from such comparison to determine whether there is any conflict between the law and the constitution. The provision of the first section, as qualified by the second section, so far as the sale of liquor is concerned, is, in substance, that intoxicating liquor, (except for mechanical, chemical and medicinal purposes,) shall not be sold, &c.

The provision of the constitution is, that no man shall be deprived of his property without due process of law. The question is, does this prohibition deprive the owner of liquor of that property! It does not deprive him of the possession or use of it; but while it remains in the state, subject to the law, it undoubtedly diminishes its value; and hence it is argued, that the owner is, to that extent, virtually deprived of it.

Justice Strong concurred in this opinion as to the unconstitutionality of the prohibitory clause of the first section, and the judgments were reversed. Both of the learned justices placed their opinions upon the ground that the prohibition of the sale of liquor was virtually depriving the owner of his property in it. Justice Strong says, “ The protection of any species of property must necessarily extend to its essential and definitive characteristics, especially those which constitute its main ifalue. * j * * One of the essential characteristics of property is its vendibleness, especially for the principal use to which it can be appropriated. '* * * That the manner of selling it may be regulated so long as the right is essentially preserved, there can be no doubt. * * * Upon the whole, my conclusion 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 that it can be controlled only so far as to prevent abuse, without destroying such characteristics.”

The learned justice, speaking of our former excise laws, thus states the difference between the present statute and those laws; “ They were, however, by no means prohibitory of the right. . Every man was at liberty to sell in quantities exceeding five gallons—and a selected class, in any quantity.”

In conclusion, the learned justice says, “ I consider the statute in question as mainly prohibiting the sale of intoxicating liquor 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.”

Justice Brown, speaking of the character of the act, says, “ If its office is one of mere regulation, to prescribe by whom, and to whom, and at what places, liquors in certain quantities may be sold, then it does no more than the excise law, which it is thought to supersede; and although prejudicial to existing interests, and may subject certain classes to some privations and

Speaking of the <c written limitations ” upon legislative power, contained in our state constitution, the learned justice adds, “ They were intended to save absolute, inherent rights from the power of legislative acts which interrupt their enjoyment or impair their value. * * * There can be no property, in the legal and proper sense of the term, where neither the owner nor the person who represents the owner, has the power of the sale and disposition. That which cannot be used, enjoyed, or sold, is not property; and to take away all or any of these incidents is, in effect, to deprive the owner of his property.”

Both of the learned justices, from whose opinions I have quoted, concede the power of the legislature to regulate the “ manner of selling,” and to prescribe “ by whom liquors, in certain quantities, may be sold.”

Upon what principle, consistent with this constitutional provision, if it is applicable at all to this species of legislation, can the legislature, in the language of one of the learned justices, prescribe “by whom liquors, in certain quantities, may be soldor, in the language of the other learned justice, designate a “ selected class ” to sell in such quantities, while it prohibits others from doing the same thing. Those who do not happen to be thus “ prescribed ”—who do not belong to the “selected class,” and who may happen to own liquor in quantities less than those in which all are authorized to sell, would be as effectually “ deprived of their property ” under such a law, as those who own larger quantities are so deprived, by this lawr. It is no answer to say that such a law would affect but few persons and a limited amount of property, nor that its object is to regulate “ only so far as to prevent abuse.”

The protection of this constitutional provision, in its letter and spirit, extends in equal measure to each individual, and the aggregate population of the state, and to all property, whether its value is measured by mills or millions. It matters

If, therefore, a law, which in its operation diminishes the" value of property, can be regarded as depriving the owner of it, no law that produces that effect can be sustained. The argument under consideration, when followed to its logical consequences, will not, and cannot be satisfied with the overthrow of the law in question. Many of our police and sanitary, and all of our commercial regulations, our quarantine and usury laws, must share the same fate. Their effect upon property is the same; the difference is only in degree; and if this constitutional provision applies to any such law, it necessarily prohibits all. For the attempted distinction between the “ essential characteristicsof property, and any of its incidents or qualities, which are regarded as elements of its value, whether they c< constitute its main value f or only a small part of it; and between laws which “ subject certain classes to some priva tions.and laws which affect all classes, and involve great privations, there is no foundation in the constitution whose protection and prohibition are general; nor, I respectfully submit, in reason, which rejects distinctions where it fails to perceive differences. The validity of such laws rests upon no restricted construction of this constitutional provision, but upon a principle of the common law,, older than constitutions—coeval with the earliest civilized ideas of property. That principle is, that every man shall so use and enjoy his own as not to injure another, and especially that the use which he makes of his property shall not work a public evil.

This is another incident to the right of property, as inseparable from the title as the right of sale, or any other right of en

It is admitted that the sale may be controlled, but it is claimed - that it can be done “ only so far as to prevent abuse.” According to this proposition, if abuse should be found to be inseparable from, or so generally attendant upon the exercise of the right as to render the permission of the one and the prevention of the other impracticable, the right to prohibit would necessarily follow. Whether abuse is so intimately connected with this traffic, is a question of fact proper for the consideration of the legislature, in the exercise of its discretion, to ascertain the necessity and determine the extent of its action. But this is an inquiry which the court cannot entertain in considering a question of power.

The foregoing positions cannot be more clearly illustrated, or more powerfully enforced, than they are in the language of Chief Justice Marshall in Brown agt. Maryland. In reply to the argument of the counsel for the state in favor of the power there claimed, to lay duties on imports, or to require importers to procure licenses from the state to sell their imports, in which it was urged that the states would not be likely to impose such terms as to discourage or diminish importation, the chief justice said,

“ It is obvious, that the same power which imposes a light

The law of this state, which was superseded by the act in question, was probably as favorable an illustration of the exercise of the regulating power as could be instanced, I understand both of the learned justices, whose opinions are above quoted, to concede the validity of its provisions; and yet a slight consideration of its practical effect will show that the alleged “ absolute and inherent rights ” of the owners of this property, did not escape the obnoxious effect attributed to the law in question; but that, on the contrary, it C1 interrupted their enjoyment and impaired their value.” It prohibited all but a ££ selected class ” from selling in less quantities than five gallons, and thus not' only ££ interrupted,” but destroyed the right to that extent. It circumscribed the market, and decreased the demand for the article to a certain extent, and thus ££ impaired its value” to the same extent.

Similar illustrations might be drawn from our quarantine and health laws, and the police and other regulations of municipal corporations. But I propose to pursue the history of legislation on this subject, and to examine briefly some of the adjudications upon the laws of other states.

By the law of Massachusetts, under which one of the ££ license cases ” arose, all persons were prohibited from selling liquor, in quantities less than twenty-eight gallons, without" a license, and the act contained a provision that the commissioners of excise should, in no case be compelled to grant a license. This law, it will be seen, exercised the power of regulation to an extent approaching very nearly to practical prohibition*.

The law of New-Hampshire went still further, and prohibited all sales without a license. There was no provision in the law under which licenses, to any extent, could be procured as matter of right. The power of granting and refusing licenses waste be exercised in the discretion of the officers designated for that purpose.

It will be seen that absolute prohibition might result from the operation of -this law. That this was the design of the law, and the effect of its operation in a great majority of cases, no one can doubt. That all of these laws contained unusually stringent restrictions upon the sale of liquor; that they seriously interrupted the enjoyment, and impaired the value of the right of sale, no one will deny; but whether the right, in the language of Justice Strong, was even “ essentially preserved ” by the New-Hampshire law, might well be doubted. As was natural, these laws encountered sturdy opposition from the interests so seriously affected by them. They were subjected to the most searching judicial scrutiny, and their validity was affirmed by the supreme courts of the respective states.

The constitution of each of those states contained the same prohibition against depriving citizens of property without “ due process of law,”' as is relied on in this case. And yet,"it is a remarkable fact, that in all the discussions which these cases underwent in the state courts, this objection was not suggested-The question, as we have seen, which was argued in the supreme court of the United States was, whether those laws were in conflict with those of congress regulating commerce. The question now under consideration could not arise in that court, and for that reason the decided opinions of the chief justice and other members of the court, in favor of the right of the states to prohibit entirely the domestic traffic in liquor, cannot be regarded as authority, in the strict sense of the term, on this point. But the construction given by that court to the state

A legislative recognition of the same principle, equally significant, is found in the excise laws passed by congress in 1794 and 1813, each of which contained a proviso, that no license to sell liquor should be granted under the law, to any person who was prohibited from selling by the laws of any state.

Another instance of the exercise of this power of regulation, to the extent of absolute prohibition, is furnished by the embargo laws passed by congress in 1807, which prohibited all importation and exportation to or from any foreign country. These laws were, by their terms, unlimited as to the time of their duration, and were maintained in full force for nearly two years. It was objected to them that the constitutional power to regulate commerce, under which the law was passed, did not authorize congress to destroy commerce, as this act confessedly did. The question was raised, in the district court of the United States for the district of Massachusetts, in the case of The United States agt. The Brigantine William, (2 Hall’s Law Journal, 253,) in which a libel was filed to enforce a forfeiture of the vessel, for being engaged in the exportation of merchandise in violation of those laws.

It was argued, in behalf of the claimant, that the acts of congress were utterly void; that there was nob only an entire want of power in the constitution to prohibit commerce, but that the act was in direct violation of the grant of power to regulate, which necessarily implied the duty of preserving the thing to be regulated. The court held the law to be constitutional. Davis, district judge, in an elaborate opinion, examined the question in all its bearings. In discussing the questions as to the nature and extent of legislative power, and the' restrictions upon it, which could be enforced by the judiciary, the learned judge said:

Speaking of the objects for which this power may be exercised, the learned judge said,—

££ The mode of its management is a consideration of great delicacy and importance; but the national right or power, under the constitution, to adapt regulations of commerce to other purposes than the mere advancement of commerce, appears to me unquestionable.”

, The late Justice Story, in commenting upon this provision of the constitution, and in the same connection, upon the em

£<No one can reasonably doubt that the laying of an embargo, suspending commerce for a limited period, is within the scope of the constitution. But the question of difficulty was, whether congress, under the power to regulate commerce with foreign nations, could constitutionally suspend and interdict it wholly for an unlimited period; that is, by a permanent act, having no limitation as to duration, either of the act or of the embargo. * * An appeal was made to the judiciary upon the question ; and it having been settled to be constitutional, the decision was acquiesced in, though the measure bore with almost unexampled severity upon the Eastern States; and its ruinous effects can still be traced along their extensive seaboard. * * * Non-intercourse and embargo laws are within the range of legislative discretion; and if congress have the power, for purposes of safety, of preparation or counteraction, to suspend commercial intercourse with foreign nations, they are not limited as to duration any more than as to the manner and extent of the measure.”

The effect of these laws upon private property was far more extensive and destructive than any that can possibly result from the law in question. The right to export property, designed and valuable only for that purpose, was one of those “ essential and definitive characteristics which constituted its main value.” The prohibition was “ destructive of its principal value f’ and property of the value of many millions was rendered worthless by their operation.

The constitution of the United States contains the same restrictions upon the legislative power of congress that is imposed by the constitution of our state upon its legislature, that no man shall be deprived of his property without due process of law. But in all the opposition which the embargo laws encountered, the objection that they violated this provision of the constitution, occurred to none of its astute and able opponents.

The case of the William is a direct authority for the proposition, that the national government, under the constitutional

The potver in question is limited to commerce with foreign nations and among the states. That the same power over internal commerce is reserved in all its amplitude by .the several states, is not questioned; and that a state by virtue of its powers of original sovereignty which are merely limited by specific restrictions, and not enumerated in its constitution, may, in the absence of such restrictions, exercise the same control over its domestic commerce, as that exercised by congress over foreign commerce, and for the same purposes, cannot be doubted.

In view of this long-continued and uniform course of legislation, based upon the concurring authority of the general government and the several states, sanctioned by general acquiescence and vindicated by judicial authority whenever questioned, accompanied as such legislation has uniformly been by cotemporaneous constitutional restrictions identical with the restriction now invoked against this law, the question as to a conflict between the law, in the respect now under consideration, and the constitution, must be regarded as settled.

The prohibition in question, as I have remarked, does not affect the possession of the property. It does not interfere" with the right of sale except within the state; and'notwithstanding the prohibition, those interested in this property may manufacture and export it for sale elsewhere. I say, notwithstanding this prohibition ; I am aware that there are provisions in the act which were, perhaps, designed, and which may possibly be construed to prevent this,

The legislature have said, that the defendant shall not sell intoxicating liquor in this state. He has chosen to disregard that injunction, and has been convicted of an offence against the law. He disputes the right of the legislature to pass the law, and this question, and the question of construction, we are called upon to decide—nothing more.

With „the questions as to the wisdom, policy and propriety of the law, which were discussed with so much zeal by the defendant’s counsel at the bar, we have nothing to do. Those are questions addressed exclusively to the discretion of the legislature.

This is a mere question of power. If the power which the legislature has assumed to exercise exists, and the law is plain, the duty of the judge and the citizen is the same—that of simple obedience. To both alike it speaks the language of command and not of persuasion.

I know of no principle recognized by the constitution, or resulting from any sound theory of government, which requires or authorizes the judiciary to interpose between the legislature and the people, to shield the latter from the consequences of an improvident or capricious use, or even a positive abuse of legislative power. The remedy for such abuses, if they exist,

The judgment of the court of sessions should be affirmed.