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.

It is well settled that the Legislature has power to enlarge the catalogue of public nuisances and declare places or property used to the detriment of public interests or to the injury of the health, morals, or welfare of the community public nuisances, although not such at the common law. In Lawton v. Steele, 119 N. Y. 226 , 23 N. E. 878 , 7 L. R. A. 134 , 16 Am. St. Rep. 813 , it was said:

“The right of the Legislature by a new statute to impose upon property held or used in 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. Hoyt, 9 Wend. 571 , 24 Am. Dec. 165 ; Coe v. Schultz, 47 Barb. 64 ; Cartwright v. City of Cohoes, 39 App. Div. 69 , 56 N. Y. Supp. 731 ; Rockwell v. Nearing, 35 N. Y. 308 ; Lawton v. Steele, supra. In Coe v. Schultz, Southerland, J., speaking of the constitutional provision that no person shall be deprived of life, liberty, or property without due process of law, said:

“No one has probably ever suggested that Magna Oharta 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.”

In Lawton v. Steele the court said:

“The right of summary abatement of nuisances without judicial process or proceedings was an established principle of the common law long before the adoption of our Constitution, and it has never been supposed that this common-law principle was abrogated by the provision for the protection of life', liberty, and property in our state Constitution, although the exercise of that right might result in the destruction of property. * * * But, as the Legislature may declare nuisances, it may also, where the nuisance is physical and tangible, direct its summary abatement by executive officers, without the intervention of judicial proceedings, in cases analogous to those where the remedy by summary abatement existed at common law.”

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” (chapter 231, p. 340, Laws 1855), which declared intoxicating liquors a nuisance per se, and substantially destroyed property in liquors owned or 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 no power in any branch of the government to take it 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 acquisition to the prohibition this act imposed.”

I am therefore of the opinion that it was not necessary to provide, in the statute in question, for a judicial determination, in order to destroy the right of property in liquor kept or stored in violation of its provisions.

If, however, we assume that the Legislature had no power to declare the liquors forfeited without the intervention of judicial authority, the act is not in conflict with the constitutional provision that no person shall be deprived of his property “without due process of law.” It provides for a judicial proceeding in rem, according to the rules and forms which have been established for the protection of private rights. It is no objection to the validity of the proceeding that it does not require personal services of a notice or process upon the party whose property is in question. It is sufficient if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be apprised of what is going on or against him and an opportunity is afforded him to defend. In the Matter of Empire Bank, 18 N. Y. 199 ; Rockwell v. Nearing, 35 N. Y. 302 ; Happy v. Mosher, 48 N. Y. 317 ; Hiller v. B. & M. R. R. Co., 70 N. Y. 223 ; Matter of Union E. R. R. Co. of Brooklyn, 112 N. Y. 61 , 19 N. E. 664 , 2 L. R. A. 359 . The Legislature has uniformly acted upon that understanding of the Constitution, and has provided for the services of process or notice upon natural persons by posting, publication, by mail, by leaving the notice at the parties’ place of residence, or by leaving it with the person in whose possession the property may be found.