
    SUPREME COURT.
    James G. Wynhammer, plaintiff in error, agt. The People of the State of New-York, defendants in error
    The right to a bill of exceptions in a criminal case is given by statute. Its office is to bring up for review questions of law made and decided on the trial. But the. statute limits this right to exceptions taken on the trial, to the main issue. It is not extended to such as are taken on the' trial, of preliminary or collateral questions. . ... 1
    The last clause of the first section of the act, entitled “An Act for the Prevention of Intemperance, Pauperism and Crime,” passed April 9, 1855, reads 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.”
    Held, that this right to sell imported liquor, as defined and construed by the United States courts, 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 it, give him a right xto sell it in that condition. This is the extent of the right. When he (the importer) parts with the property, or changes its condition, his right, and all right to sell it, derived from those laws, ceases.
    Therefore the provisions of the first section of the prohibitory act, 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. But imported liquor, sold or kept for sale otherwise than as here stated, is applicable to that ■Section, and is not exempted from the operation of the last clause of the section.
    
      Held, that the provisions of the first section of the prohibitory act (see ante page 290) are not in conflict with the provisions of the constitution (Art. 6) of this state, which says, that no person shall be deprived of life, liberty, or property, without due process of law. (This is adverse to the decisions of Brown and Strong, JJ., in the case of Berberrich and Toynbee, ante page 289.)
    The rights and interests of individuals are, to some extent, 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 pulilie 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.
    The protection of the above 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. If this constitutional provision applies to such a law as the one in question, it necessarily prohibits many of our police and sanitary regulations—and all our commercial regulations, our quarantine and usury laws. Por the attempted ■distinction between the essential characteristics of property, and any of its incidents or qualities which are regarded as elements of its value, whether they constitute its main value, or only a small part of it; and between laws which subject certain classes to some privations, and laws which affect all classes, and involve great privations, there is no foundation.
    The legislature, which exercises the sovereign power of the state, is clothed with the power, and charged with the duty, of promoting its prosperity, by regulating its internal commerce, and holding out suitable encouragements to the industry of its citizens; of preserving the public peace by preventing and punishing crime, and of guarding the health and morals of the people, by such laws and regulations as in its judgment may seem likely to promote these objects, subject only to the limitations prescribed by the constitution. The powers of the legislature for these purposes are unlimited. In the choice of the means its discretion is plenary. If, in its judgment, the trade in any article is incompatible with or dangerous to any of these objects of its protection, that trade may be regulated, restricted or prohibited.
    
    
      Eighth District, Erie General Term,
    
      Sept., 1855.
    This is a writ of error to the court of sessions of Erie county, ■where the plaintiff in error was convicted of a misdemeanor, for selling liquor in violation of the act of April 9, 1855.
    The first count of the indictment charged that, on the 5th day of July, 1855, the plaintiff in error, at the city of Buffalo, without having any lawful authority, wilfully and unlawfully sold to some person unauthorized by law to sell intoxicating liquor, to the jurors unknown, one gill of rum, one gill of brandy, &c., &c., (the said intoxicating liquor not being alcohol or pure wine, manufactured by the plaintiff in error,) without having filed, in the office of the clerk of Erie county, the undertaking required by the provisions of the 2d section of the said act; and that the sale of the said intoxicating liquor, in the manner charged, was not authorized by any law or treaty of the United States; and that no right to sell the said liquor was given by any law or treaty of the United States.
    The plaintiff in error pleaded not guilty, and the cause came on for trial at a term of the court of sessions, held at Buffalo on the 20th day of July, 1855. When the cause was moved for trial, the plaintiff in error interposed a challenge to the array of jurors, alleging several grounds of challenge, upon each of which issue was joined by the counsel for the people. The plaintiff in error then moved to quash the indictment, for divers irregularities in impanneling the grand jury. This motion was denied, and the court, by consent of the counsel for both parties, proceeded to try the issues joined on the challenge to the array and after hearing the proof, the court found and decided that the said challenge was not well taken, and refused to set aside the panel, to which decision the plaintiff in error excepted.
    A jury having been impannelled, the counsel for the people gave evidence tending to1 show that on several occasions, between the 4th and 14th days of July, 1855, the plaintiff in error sold and delivered to several persons, in quantities less than one pint, brandy, at his bar in Buffalo, which was drank on his premises. The people then rested their cause.
    The counsel for the plaintiff in error then moved the court to direct the jury to find a verdict of not guilty, on the grounds—
    1st. That it did not appear that any offence had been committed by the defendant.
    2d. That the charges in the indictment were not proved.
    3d. That it did not appear but that the liquor, alleged to-have been sold, was liquor the right to sell which was given by laws or treaties of the United States.
    4th. It did not appear but that the liquor sold was imported into this country, by the defendant, from foreign countries, in pursuance of laws of the United States.
    5th. That the first section of the act in question is in violation of the constitution of this state, and of the United States, and is void.
    6th. That the 4th section of said-act is likewise contrary to said constitution, and is void,
    7th. That the whole act is also unauthorized by, and in conflict with, the laws and treaties of the United States, and the constitution of the state of New-York, and is void.
    
      8th. That it does not appear but that the liquor sold by the defendant was authorized to be sold by the statute as above referred to.
    The court overruled these objections, and the defendant excepted.
    The defendant’s counsel then offered to prove that the liquor sold by him was imported into this state from foreign countries under the revenue laws of the United States, and that the legal duties had been paid thereon; that the defendant purchased said liquors from the importers in the imported packages; and that the same was drawn from such packages and sold to the persons and at the times proved by the witnesses for the people.
    The counsel for the people objected to this evidence as immaterial. The court sustained the objection, and the defendant ■excepted.
    The defendant’s counsel then offered to prove that the liquor sold by him was owned by him on and before the third day of July, 1855.
    The counsel for the people objected to this evidence as immaterial, the court sustained the objection, and the defendant excepted.
    The evidence being closed, the counsel for the defendant requested the court to direct the jury to acquit the defendant on each and all of the grounds before stated by him. The court ■refused so to charge, and the defendant excepted.
    The jury, under the charge of the court, rendered a verdict of guilty; whereupon the court proceeded to render judgment pursuant to the statute, and the defendant sued out a writ of error to this court.
    F. J. Fithian, for plaintiff in error.
    
    A. Sawin, for defendants in error.
    
   Greene, Justice.

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 of the issue joined on the challenge to the array, are- improperly incorporated in the bill of exceptions.

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 liquor, contained in the first section of the act, as it is qualified by the second and other sections 1 and, 2d. Is that prohibition a valid legislative act I

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-scribed by such laws and treaties. These laws and treaties were enacted and entered into in pursuance of the power conferred upon congress by the constitution of the United States, to regulate commerce with foreign nations and among the several states, and with the Indian tribes. (Art. 1, § 8.)

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 power to grant licenses was vested, should not be compelled to grant any licenses.

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 land, and held that the right to sell imported liquor, derived from the laws of the United States, was confined to the importer, and to liquor in the casks or packages in which it was imported; and that when it passed from his hands it ceased to be an import, and became subject to state regulation.

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.

The repugnancy of this construction to the entire policy of the act, as manifested by all of its provisions, is too plain to escape observation; and if the language of the exception will fairly admit of two constructions, it should receive that which will best harmonize all of the provisions of the act. The object of this clause, whatever the effect of its construction may be, is rendered plain by a reference to the subject-matter to which it relates. It was assumed by the legislature that a right to sell certain liquor, was 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, may be resorted to on this question of construction as evidence of the intention of the legislature.

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 ihe exercise of this right virtually deprives the owner of his property,.

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.

Substantially the same prohibition as that contained in our present constitution, has existed in all our constitutions since the organization of the state government; and under each of those constitutions laws were passed imposing restraints, to a greater or less extent, upon the sale of liquor." The validity of those laws has never, to my knowledge, been questioned. But the difference, it is urged, between those laws and the present law is, that those laws merely regulated, while this prohibits such sale.

It remains to he seen whether there is any difference in principle between the two cases, when they are regarded with reference to the objection now under consideration. ' The only cases cited, in which this question has been considered by this court, are those of The People agt. Berberrich and The People agt. Toynbee, decided at a general term in the second district, by Justices Brown, Strong and Rockwell. A prosecution was commenced in each case before a magistrate, upon a charge of selling, and having with intent to sell, intoxicating liquor. Both defendants were convicted, and, in Toynbee’s case, a fine was imposed pursuant to the statute, and a judgment of forfeiture, directing the destruction of the liquor, was rendered, from which judgment the defendant appealed to this court. Berber-rich’s case was removed by certiorari before sentence. An objection was taken before the magistrate in Toynbee’s case to the sufficiency of the complaint, and also to the jurisdiction of the magistrate to proceed to try the case after the defendant had offered to give bail to answer to an indictment; and, as I understand the opinion of Justice Brown, the. last objection was taken in Berberrich’s case. Justice Strong held both objections good; and my recollection of Justice Rockwell’s opinion (which I have not now before me) is, that he concurred with Justice Strong as to the validity of the above objections, and concurred in the judgment on that ground alone. Justice Brown held that the last objection was not well taken; but held that the first section of the law, so far as it prohibits the sale of liquor, the sections or provisions which provide for its seizure and destruction, and several other provisions, under which (as I understand the facts from the several opinions) no questions were raised in the cases, were unconstitutional.

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 inconvenience, it is nevertheless a law of binding obligation, which the people must obey and the tribunals of justice enforce.”

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 iiot whether a few or many áre deprived of their property, or whether the amount of which they are deprived be small or great, whether a person is deprived of an inconsiderable portion or all of his property. The constitutional prohibition is not fractional, but a unit, indivisible and absolute. It regards the character of the act, and not the extent of its consequences. If the act is prohibited, no consideration of consequences can change its character; nor can it be palliated by the purpose which prompted it, however laudable.

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 privations.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 enjoyment annexed to it. The legislature, which exercises the sovereign power of the state, is clothed with the power, and charged with the duty of promoting its prosperity, by regulating its internal commerce, and holding out suitable encouragement to the industry of its citizens, of preserving the public peace by preventing and punishing crime, and of guarding the health and morals of the people by such laws and regulations as in its judgment may seem likely to promote these objects, subject only to the limitations prescribed by the constitution. The powers of the legislature for these purposes, are unlimited. In the choice of the means, its discretion is plenary. If in its judgment the trade in any article is incompatible with, or dangerous to any of these objects of its protection, that trade may be regulated, restricted or prohibited., in the discretion of the legislature.

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 duty can impose a heavy one—one “which amounts to prohibition. Questions of power do not depend on the degree to which it may be exercised. If it may be exercised at all, it must be exercised at the will of those in whose hands it is placed. * * * The question is, where does the power reside? not, how far will it be probably abused ? The power claimed by the state is, in its nature, in conflict with that given to congress: and the greater or less extent in which it may be exercised, does not enter into the inquiry concerning its existence.”

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 Rhode Island, under which another of these cases arose, contained a provision similar to that of the Massachusetts law, fixing the minimum quantity that might be sold without a license at ten gallons.

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 laws, (which, in their terms, comprehended all liquors,) limiting their application to the domestic trade, for the purpose of maintaining the validity of those laws, shows the high sense entertained by that court of the importance of preserving, in its utmost latitude, the power of the states to control, by restrictions or prohibitions, its domestic trade.

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:

“Affirmative provisions and express restrictions contained in the constitution are sufficiently definite to render decisions, probably in all cases, satisfactory; and the interference of the judiciary with the legislature, to use the language of the constitution, would be reduced to £ cases ’ easily to be understood, and in which the superior commanding will of the people, who established the instrument, would be clearly and peremptorily expressed. To extend the censorial power further, and especially to extend it to the degree contended for in the objections under consideration, would be found extremely difficult, if not impracticable in execution. To determine where the legitimate exercise of discretion ends and usurpation begins, would be a task most delicate and arduous. Before a court can determine whether a given act of congress, tearing relation to a power with which it is vested, be a legitimate exercise of that power or transcends it, the degree of legislative discretion admissible in the case must first be determined. Legal discretio7i is limited. * * * Political discretion has a far wider range. It embraces, combines and considers all circumstances, events and projects, foreign or domestic, that can affect the national-interest. Legal discretion has not the means of ascertaining the ground on which political discretion may have proceeded. It seems admitted that necessity might justify the acts in question. But how shall legal discussio7i determine that political discretion, surveying the vast concerns committed to its trust, and the movements of conflicting nations, has, not perceived such necessity A

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 embargo laws, and the question involved in the case just cited, says,—

£<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 grant of power to regulate commerce, may restrict it in its discretion, that such restriction may be carried to the extent of absolute prohibition; and that this power is not restricted' to measures exclusively beneficial to commerce, but that it may • be exercised as an instrument for other purposes of general policy and interest. These propositions may, in my opinion, be rested with equal safety upon the authority of this case, and the conclusive reasoning by which it is sustained. The powers of congress are enumerated in the constitution, and are expressly restricted to those so enumerated.

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 provision that it shall not be kept in any place except a dwelling-house or church, has been cited, with others supposed to evince a destructive purpose towards this property, and which are alleged to be plainly repugnant to the constitutional rights of the citizen. But the defendant has not been prosecuted, nor has his property been proceeded against under these provisions. When he is indicted for keeping liquor in violation of the act, or proceedings are instituted to enforce a forfeiture of his liquor for any such cause, different questions will be presented. With those questions we have nothing to do in this case. When they are legally presented for our consideration, the parties interested in them will be entitled tó the deliberate and unbiased judgment of the court upon them. ’But to secure this, it is not only proper but indispensable that the parties interested, instead of the court, should be first heard.

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, is in other hands. It rests with the people, who, in their constitution, have established the only restrictions upon legislative power that can be judicially recognized, or practically enforced, except by those in whom the ultimate power of sovereignty resides.

The judgment of the court of sessions should be affirmed. 
      
       Since this opinion was written, the cases of The People agt. Berberrich and Toynbee have been reported, ante page 289.
     