People v. Toynbee

Phillip Berberrich, the defendant in one of these actions, was arrested under the act of the 9th of April, 1855, entitled “ An Act for the Prevention of Intemperance, Pauperism and Crime,” charged with having in his possession, with intent to sell and with having sold, intoxicating liquor called lager bier. He was brought before E. Q. Eldridge, Esq., county judge of Dutchess county, and upon a trial by a jury, was found guilty. At this stage, and before sentence, the proceedings were removed into this court by certiorari.

Thomas Toynbee, the defendant in the other action, was also arrested under the same act, without warrant, by John Mathews, a police officer, and brought before D. K. Smith, a police justice of the city of Brooklyn, and there charged with being in the act of selling intoxicating liquor, to wit: one glass of brandy — and also with having in his possession other intoxicating liquor, to wit: champagne wine, with intent to sell the same. The wine was seized by the officer. At the trial before the justice without a jury, sitting as a court of Special Sessions, Toynbee was’found guilty, and sentenced to pay a fine of $50, with $587 costs, and to be committed until such fine and costs be paid, for a period not exceeding fifty-six days. It was also adjudged that the liquor seized be forfeited, and a warrant issued for its destruction. The defendant appealed to the general term of this court, and th*s we have the principal questions which arise upon the construction of the

The object to be effected by the statute under which these proceedings are had, must be ascertained from an examination of its various sections, twenty-six in number. 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 inconveniences, it is nevertheless a law of binding obligation, which the people must obey and the tribunals of justice enforce. If, however, its office and purpose is greater and more comprehensive than mere regulation; if it aims at prohibition, prohibition of sales as well as of general and ordinary uses, to an extent which deprives the subject of the law of its value, and strikes down the vast and varied interests concerned in its importation, sale and production; if it provides for the seizure, forfeiture and destruction of an article or thing, the product of human industry hitherto invested with the attributes of property, solely because its producers or owners design to make it the subject of sale and transfer, to deal in it and with it as property, and apply it to general uses, then the question assumes a very different character, and. we are brought to inquire whether an act pregnant with such consequences, and armed with such unusual and dangerous powers, is really within the sphere of legislative authority. It is just to observe, that while sales by persons generally and for general uses are expressly forbidden, there is no positive interdict against its general use when lawfully acquired. Yet, as there can be no lawful sales after the act takes effect, except by the authorized venders for certain special purposes, and as the act is careful to impose one of its penalties upon purchasers from authorized venders, under a false representation that it is designed for an authorized use, it seems clear that the intent was to interdict the general use.

Section one forbids the sale, and the keeping for sale, or with

In neither of the cases under consideration, were the defendants impleaded or brought to trial upon the indictment of a grand jury. Indeed, the law contemplates no preliminary inquiry by the grand inquest. The counsel for the defendants insist, that in this respect it is in conflict with that part of section six of article first of the constitution which declares that “ no person shall be held to answer for a capital or otherwise .infamous crime, (except, &c.) unless on presentment or indictment of a grand jury.” This involves an inquiry into the character of the crime created by the act. Is it an infamous crime? Offences which rendered the perpetrator infamous at the common law, were treason, felony, and the crimen falsi. It is not easy to define the meaning and extent of the latter term with certainty. It not only involved falsehood, but offences which injuriously affected the administration of justice. It was the infamy of the crime, and not the nature of the punishment, which constituted the crimen falsi. Thus a conviction for libel, or for seditious word's, or for keeping a gaming-house, did not render a man infamous. (Wharton's Crim. Law, 354; 1 Rus. on Crimes, 45; 1 Phil. Evid., 28; Barker v. The People, 20 Johns. Rep., 457 ; Peake's Ev., 126.) The present constitution was adopted in 1846. At that time the term infa

We have already seen that the object of the law is prohibition. For general and ordinary uses; for all but a few special purposes, liquors having intoxicating properties are to be banished from society, and neither bought nor sold. The trades and employments connected with their importation, manufacture and distribution, are to be suspended or put down, and the interests which supply such trades and employments with capital, raw material, labor and means of transport, are to find other fields of enterprise, or be put down with them. This brings me to consider the principal question discussed upon the argument, which is this: Does the legitimate authority of the legislature extend to the enactment of las prohibitory of the common and ordinary use of property? Can this department of the government, in the .execution of the trusts confided in it, declare by statute an article or thing, the product of human industry or the creation of human skill, long recognized as property, and of all but universal use, and perfectly inoffensive in itself, to be a public nuisance, and thus authorize and justify its destruction? It is worth while, before we proceed further, to inquire what the proscribed article or thing is, to consider its qualities and uses, and whether it is invested with the attributes of property, so as to entitle it to the protection of the constitution.

The taste for intoxicating drinks is thought to be an instinct of our nature, an operation of the principle of organized life, and not an artificial appetite or desire peculiar to races or tribes, and induced by habit, or climate, or other external in

The learned counsel for the people, in the case against

The latter" clause of section: six of the first article Of the" constitution is in these words: “ No person shall be subject to be twice put in jeopardy for the' same offence; nor shall he he compelled, in any criminal cause, to be a witness against him

There is another right incidental to the right of property which, when abrogated or suspended, tends to the deprivation of property. That is, the right of action, the right to the protection of the laws, and to redress by the legal tribunals. The forms of action and of legal proceedings, the mode by which civil injuries are redressed and rights asserted and defended in the courts, are classed as remedies, and are doubtless subject generally to legislative supervision and control. But when the law-making power comes to deal with the absolute inherent rights referred to in the 6th section of the first article of the constitution, forms and modes of proceeding from being mere remedies rise to the dignity of rights which can not be denied or withheld. The principle is asserted by Mr. Justice Washington, in Green v. Biddle, ( 8 Wheaton Rep. 1 , 75,) in the following language: “ Nothing can be more clear, upon principles of law and reason, than that a law which denies to the owner of land a remedy, &c., or which clogs his recovery of possession by conditions and restrictions tending to diminish the amount and value of the thing recovered, impairs his right

Those provisions of this act which I have endeavored to show tend to the deprivation of property, can not, by any process of reasoning, be brought within the meaning of the terms, “ by the laws of the land,” and by course of law,” used in the English Statutes, or the " due process of law,” of the 6th section of article 1, of the constitution. Lord Coke says, that the words “ by the law of the land,” mean by the course and process of law by indictment or presentment of good and lawful men, where such deeds be done in due manner or by original writ of the common law.” The law of the land, in bills of rights, does not mean merely an act of the legislature, for that would abrogate all restraints upon legislative authority. The clause means, that the statute which deprives a citizen of the rights of person and property without a regular trial according to the course and usage of the common law, would not be the law of the land in the sense of the constitution.” Hoke v. Henderson, ( 4 Dev. 1 .) “ The words “ due process of law,” in this place, can not mean less than a prosecution or suit instituted and conducted according to the forms and solemnities for ascertaining guilt or determining the title to property. It will be seen that the same measure of protection against legislative encroachments is extended to life, liberty and property, and if the latter can be taken without a forensic trial and judgment then there is no security for the others. If the legislature can

Nor can the force and efficiency of the constitutional limitations be evaded or averted by the declaration of the 25th section of the act,- that intoxicating liquors are a public nuisance. In the words of Chief Justice Ruffin, “ such a

There are some observations of Justices Taney and Woodbury, in the opinions delivered by them in the cases against the states of Massachusetts, Rhode Island and New Hampshire, ( 5 Howard, 504 ,) which are thought to favor the idea that the states may pass laws prohibitory of the uses and sales of ardent spirits, subject to the right of importation and of sale by the importer. Those who attach any value to expressions which are obiter dicta and not necessary to the decision of the precise question under examination, will do well to remember that the language referred to asserts the absence of any thing in the constitution of the United States which forbids the passage of prohibitory laws, and nothing more. The cases in which the

A distinction has also been suggested between the power of the legislature over property in liquors acquired and existing at the time the act took effect, and property in liquors acquired afterward. The act itself recognizes no such distinction, and does not discriminate between present and future acquisitions, but applies its penalties, forfeitures and disabilities with unsparing rigor to those who now own and to those who may hereafter own such property. In this respect I think it entirely consistent with itself, for a constitutional security which does not cover future as well as present acquisitions is of no practical value, and will afford no sort of guaranty against intentional or mistaken aggression. Here are a class of citizens who have invested their property and spent the best years of their lives in learning and establishing a particular business or trade, inoffensive and commendable in itself—the growth and manufacture, it may be, of wine, the culture of barley anr hops, the manufacture of firearms and gunpowder, the fabrication of types, printing presses and paper, and then comes a legislative act, confessing its incompetency to invade or disturb existing interests, and declares that because wine and the decoction of barley and hops may lead to intoxication, firearms and gunpowder to war, bloodshed and the destruction of human life; .and types, printing presses and paper to blasphemous, libelous amd obscene publications, all future acquisitions of the

If the judgment in the case of Brown v. The State of Mary land., and the reasoning of the chief justice, is entitled to any weight as authority, it is decisive of the question so far as sales of foreign liquors by importers is concerned. The right of importation, we see, means the right to introduce foreign goods into the country, and to sell them to those who may choose to become purchasers. If state legislation can substantially take away from the mass of its citizens the power to become purchasers, a state can in effect impede foreign trade and put an end to foreign importations. It has only to declare, what the act under examination declares, that the importer shall only sell in the original packages, to-such persons as the state may-license and authorize to become purchasers. Sale is no longer incidental to importation. The importer’s right to dispose of his goods in the market no longer depends upon the authority-given to congress to regulate commerce and intercourse with foreign countries. But it depends also upon the disposition of the states to suffer their citizens to become purchasers of foreign commodities. I am unable to perceive any difference between state resistance to foreign importations by interdicting sales by and purchases from the importer, and resistance by a preventive force stationed upon its own borders. Either mode is an unwarrantable interference with a subject of legislation over which congress has exclusive control and dominio*'.

I therefore arrive at the conclusion, that so much of the 1st section of the act under consideration as declares that intoxicating liquor shall not be sold, or kept for sale, or with intent to be sold, except by the persons and for the special uses mentioned in the act; so much of sections 6, 7, 10 and 12, as provide for its seizure, forfeiture and destruction; so much, of the I6th section as declares that no person- shall maintain an action to recover the value of any liquor sold or kept by him which shall be purchased, taken, detained or injured, unless he prove that the same was sold according to the provisions of the act, or was lawfully kept and- owned by him; so much of section 17 as declares that upon the trial of any complaint under the act, p; oof of delivery shall be proof of sale, and proof of sale shall be sufficient to sustain an averment of unlawful sale; and so much of section 25 as declares that intoxicating liquor, kept in violation- of any of the provisions of the act, shall be deemed to be a public nuisance, are repugnant to the provisions of the constitution for the protection of liberty and property, and absolutely void.

The proceedings in both cases should be reversed and set aside, and Philip Berberrick is discharged from his arrest.

This cause comes before us on an appeal ay 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

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 fifty dollars 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 offence in the act, so as to bring the de

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 at vessel, when, according to the decisions of the Supreme

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 of our higher courts of criminal jurisdiction are de. signated by responsible town officers; their names are deposited in a box kept by the county clerk, and are drawn by him in the

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 tb 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 oí appeál is given to the complainant as well as the defendant. If the defendant appeals, he is required to give á 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 apellate court is considerably increased, and ány judgment or verdict against evidence may bé reversed bn appeal, as, (in the words of the statute) “ in civil actions.” It is hot. material to inquire here whether Verdicts agaitist evidence in civil actions can be reversed oh appeal. 1 am considering the provision simply as indicative of the inten

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 ,{arf. 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 ¿pplied according to their meaning at common law, unless a different interpretation is clearly inr dicated. 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 Kernan’s R. 198,) that tfie constitutional provision which I have quoted, imports a jury of twelve men, whose verdict must be unanimous. In reference to the cases to which it refers, and whether they in? elude the subsequently created cases, I will quote from an

The only remaining question which I deem it proper to con

The right is simply one of regulation not of destruction. When an enactment is clearly destructive of a right, and not dimply reformatory of its abuses, there can be no question .as

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 possesses despotic legislative power by reason of the general constitutional grant. * * * * To that I can not 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 the 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 can not 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 funda

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 i general use, as well by the prudent

It was said by Chief Justice Taney in the license cases from Rhode Island, New 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 existsand 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 shou'd 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, included by the acts of a general government, of which by our own volition we

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

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 original cask, or vessel, to any one. The perra tied sales would be very inconsiderable. And the statute if 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 pretence, the denial would be a restriction; and that to he 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.

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 pretences, or indeed without any at all. It is by no means 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, as the members are elected by the people, with whom they retain a community of interests, and 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 instituí ions,, and that the safety of our lives, our liberty and out 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 drawn 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

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.

The judgment in the court below being erroneous, it must be reversed

The defendant has been convicted before a

court of Special Sessions held by the county judge of Dutchess county, of having sold intoxicating liquor in violation of the act for the prevention of intemperance, pauperism and crime, passed April 9, 1855. It is claimed that the defendant should be discharged from custody.

I. Because so much of the said act as prohibits the sale of intoxicating liquor is void. That such prohibition is an unauthorized invasion of private rights, and a violation of the fundamental law.

It is clear that under every free government there are certain fundamental and inherent rights belonging to individuals which are not solely dependent upon the will of the legislature; and it is unnecessary to examine the written constitution of the state to ascertain whether they are expressly shielded by that instrument from legislative encroachment. The rights of personal security, or personal liberty, and private property do not depend upon the constitution for their existence. They existed before the constitution was made or the government

But while these rights are better protected, they are not as entirely absolute under government as in a state of nature. They are subservient to such measures as become necessary for the preservation of the government, its defence against external or internal enemies, or the promotion of the best interests of the whole community. For the protection of the government against external danger, individuals may be compelled to enter the military service, and to subject and expose themselves to the hardships and perils of war. For the protection of society against the consequences of crimes, offenders may be deprived of liberty, property or life. Lunatics who become dangerous to others may be imprisoned. Persons sick of contagious diseases may be removed to and placed in hospitals. Property may be removed or destroyed, or. trades suppressed, which endanger the public safety or health. Property may be taken from individuals in the form of taxes, and applied toward the support of the government and its institutions. In short, government is not to be restrained in the exercise of its legitimate powers, which are essential to the public welfare, "because the rights of. individuals would be injuriously affected "thereby.

In cases where private property is directly and specifically taken for the public use, compensation must be made to the owner. But cases are constantly occurring where individuals are subjected to great and ruinous losses of property through the operation of public measures and laws; but these losses being merely consequential and incidental to the exercise of the legitimate powers of the legislature, the individual injury is not the subject of legal redress. Individual loss frequently

We may assume for the purposes of this case, at least, that the legislature of a,free state is not competent to pass a tyrannical law; that is, one which restrains the natural rights of individuals for any other purpose than to advance some public good or to repress some public evil. The distinction between laws which are tyrannical because they unnecessarily infringe upon the absolute rights of individuals, and those which are consistent with civil liberty, although in restraint of natural liberty, is very clearly pointed out by Blackstone, as follows:

“ Political or civil liberty, which is that of a member of society, is no other than natural liberty, so far restrained by human laws (and no further) as is necessary and expedient for the general advantage of the public. Hence we may collect that the law which restrains a man from doing mischief to his fellow-citizens, though it -diminishes the natural, increases the civil liberty of mankind; but that every wanton and causeless restraint of the will of the subject, whether practiced by a monarch, a nobility, or a popular assembly, is a degree of tyranny; nay, that even laws themselves, if they regulate and constrain our conduct in matters of mere indifference, without any good end in view, are regulations destructive of liberty; whereas, if any public advantage can arise from observing such precepts the control of our private inclinations in one or two particular points will conduce to preserve our general freedom in others of more importance by supporting that state of society which alone can secure our independence.” (1 Black. Com., 125.)

There is no doubt that a great number of individuals will

Any interference with the right of property is not the primary object of this law. Its object is to prevent intemperance, pauperism and crime. Surely these are proper subjects of legislation. A law aiming at the prevention of these evils by regulating, and to a certain extent prohibiting the sale of intoxicating liquor, has long existed as one of the police regulations of the state. The present law assumes that the former law has been found insufficient to accomplish the ends for which it was designed. That the regulation of the sale of intoxicating liquor having failed to suppress intemperance, pauperism and crime, and the public evils flowing therefrom, it has become necessary to try what virtue there is in prohibition.

Whether the law can be carried into effect, whether the whole result will not be a mere legislative enactment of prohibition without the power of enforcing it practically, whether the evils at which the law is pointed will not be aggravated instead of suppressed, are matters addressed solely to the discretion of the legislature, and wilh which the judicial branch of the government has no concern.

The objects of the law are matters in which the whole community are interested. Drunkards, paupers and criminals are burdens upon the public, enemies to the peace, welfare and happiness of society. Can it be doubted that if the traffic in intoxicating liquor was.entirely suppressed their number would be greatly diminished?

It is enough to uphold this law that its tendency is to prevent the public evils against which it is directed, and to pro

But is further claimed that the defendant should be discharged from custody.

2. Because it does not appear, from the complaint under which he was arrested and convicted, that he sold liquor which was not imported. That, by the true construction of the exception at the close of the first section of the act, the unrestricted sale of an imported liquor is permitted. The language of this exception is as follows: “This section shall not apply to liquor, the right to sell which in this state is given by any law or treaty of the United States.” Jt is said, that as this clause occurs in a penal statute, and is part of the definition of the offence which it is the intention of the law to prohibit

The rules by which the sages of the law have ever been guided in seeking for the intention of the legislature, are maxims of sound interpretation, which have been accumulated by the experience, and ratified by the wisdom of ages. (Plowden’s Rep., 205.)

The resolutions of the barons of the exchequer in Heyden's case were the following: “ For the sure and true interpretation of all statutes in general, be they penal or beneficial, re

“ 1. What-was the common law before the making of the act?

“ 2. What was the mischief and defect against which the common law did not provide?

“ 3. What remedy the parliament hath resolved and appointed to cure the disease of the commonwealth?

“ 4. The true reason of the remedy. And it was held to be the duty of the judges at all times to make such construction as should suppress the mischief and advance the remedy, putting down all subtle inventions and evasions for continuance of the mischief, et pro privaio commodo, and adding force and life to the cure and remedy according to the true intent of the makers of it pro bono publico.” (3 Reports, 7.)

Surely we are not called upon to reverse these admirable rules for the construction and interpretation of statutes, and so to construe this act as will certainly and clearly advance the the mischief which it was intended to suppress, and suppress the remedy which it was intended to advance.

It is further claimed that the defendant is entitled to his discharge.

3. Because the proceedings against him were in violation ' of law and void. I can perceive no substantial error in these proceedings down to the time when the defendant was brought before the county judge upon the warrant issued by that magistrate for his arrest.

He then demanded that his examination should be taken, and offered bail for his appearance at the next court of Sessions of Dutchess county. This was refused, and he was therefore tried and convicted before a court of Special Sessions held by said county judge. In refusing an examination or to take bail for the appearance of the defendant, I think the county judge committed an error which was fatal to the validity of all the subsequent proceedings against the defendant. The examination of the defendant, should have been taken by the county judge; and if upon the examination of the whole mat

A court of Special Sessions is one of limited jurisdiction, deriving all its power from the statute. It could only acquire jurisdiction over the person of the defendant upon his request to be tried before it, or his omission for twenty-four hours after being required to do so to give bail for his appearance according to law. (2 R. S., 711, 712.)

I think the conviction of the defendant was void and does not authorize his detention in custody.

Proceedings in both cases reversed.