
    James G. Wynhamer, plaintiff in error, vs. The People of the State of New York, defendants in error.
    The right to a hill of exceptions, in a criminal case, is given hy statute ; and its office is to bring up for review questions of law made and decided on the trial.
    The statute 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 preliminar)' or collateral questions, such as motions to quash the indictment for irregularity, challenges to the array, &c.
    The last clause of section one of the act of April 9, 1866, for the prevention of intemperance, pauperism and crime, excepting from the operation of that section liquor, the right to sell which “ is given by any law or treaty of the United States,” does not apply to liquor in the possession of a person who has purchased the same from the importer, in the original packages, and who retails the same from those packages, as it is called for.
    The selling of imported liquor, by any person other than the importer, and such others as ape allowed to sell, by the act, is therefore prohibited by the first section as qualified by the second and other sections of the statute. And upon the trial of an indictment, under the act, evidence' by the defendant to show that the liquor sold by him was imported by another, from foreign countries, under the revenue laws of the United States; that the duties have been paid thereon; that he purchased the same from the importer, in the packages in which it ivas imported; and that it was drawn from those packages when sold by him, is immaterial, and should be rejected.
    The right to sell imported liquor, given by the laws of the United States, is subject to two important qualifications; 1. That it remains in the hands of the importer; and 2. That it shall he sold in the condition in which its importa- " tion 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 right is neither general as to persons, nor in its application to tile property to which the laws of the United States 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 it give him a right to sell it in that condition. This is the extent of the right. When lie 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 the right to sell which is given 'by the laws of the United States.
    The prohibition of the sale of liquor, contained in the first section of the act for the prevention of intemperance, pauperism and crime, passed April 9, 1855, as it is qualified by the second and other sections, is not repugnant to the provisions of the constitution, but is a valid legislative act.
    ERROR to the court, of sessions-of the county of Eric. The plaintiff in error was indicted for a violation of the “act for the prevention ■ of intemperance, pauperism and crime,” passed April 9,1855, (Laws of 1855, p. 340,) in 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 above mentioned. • The facts appearing upon the trial, and the questions there raised, are stated in the opinion of the court. At the close of the testimony, the defendant’s counsel requested the court to charge and direct the jury to acquit the defendant, on various grounds, specified. The court refused so to charge, and the defendant excepted.
    The defendant’s counsel asked the judge to charge that the people must prove that the liquor sold by the defendant was intoxicating. The court charged that if the defendant was proved to have sold brandy, that was intoxicating liquor within the meaning of the act. To which charge the counsel for the defendant excepted. The jury found the defendant guilty, and he brought a writ of error.
    
      F. J. Fithian, for the plaintiff in error.
    The court of general sessions erred in excluding the evidence offered by the plaintiff in error, and admitted to be true by the people, that the liquor in question was “ imported.” This was material evidence, because the sale of “ such liquor” is not prohibited by law and constitutes no offense known to the law.
    I. The indictment in the case and the prosecution is under. and by virtue of the act of April 9th, 1855, usually termed the “ prohibitory liquor law.” It seeks to bring itself solely within the provisions of that statuterefers to it by its title and concludes “ contrary to the form of the statute,” &c.
    II. By the true construction of the 1st section of this act, all imported liquors are excepted from its operation, and are not within any of its penalties or prohibitions, and may be sold in this state by the large or small quantity, without subjecting the vender to any punishment or penalty. (1.) The true rule of construing statutes is to read and examine them by the words they contain, and according to the natural, most obvious import of the language used; and it is only when the language is obscure and ambiguous that it is allowed to resort to “ comparison,” “ intention,” or any other matter aside from the fair import of the language used. (Smith on Statutes, §§ 505, 545. 7 Barn. Cres. 569. 10 id. 520. 1 Kent, 7th ed. 511. Story on Const. § 426. 15 John. 394. 13 Mass. Rep. 343, 4. 21 Wend. 561. Dartmouth College case, 4 Wheaton. Vattel's Law of Nations, b. 2, ch. 17, pp. 244, 245, 256. Puffendorf 
      
      p. 13, § 12.) (2.) Adopting this rule of construction, it is clear that the concluding sentence of the first section of the prohibitory liquor law excepts from the operation of that section “ liq/uor;” not a right of sale of liquor, but the “ liquor” itself in specie. (3.) The language of the exception itself,assumes and declares that there are some kinds or qualities of liquor, the right to sell which 11 in this state” is given by law and treaties of the United States. (4.) All imported, liquor has attached to it, by the laws of the United States, a right of sale “in this state.” (Brown v. Maryland, 12 Wheat. 419.) And although that/1 right to sell in this state” is confined to specified persons, and while the liquor is in specified casks or packages, still as to those persons, and while thus kept, 11 the right to sell in this state” is absolute, perfect and unqualified. Here then is “liquor,” answering in every respect the requisites and conditions called for by the exception. Why should it not be within the exception, and without the prohibition ? 1st. The language of the exception is broad and full. It is not confined to any 11 persons,” “ packages” or conditions of the liquor excepted. 2d. The exception is not limited to quantity or kind, whether sold by the drink or by the cask. If Wynhamer’s liquor ever was liquor, the 11 right to sell which was given, &c.” then that liquor is not prohibited. (5.) This construction is in no respect in conflict "with any other section or provision of the act. The 22d section of the statute contains no prohibition whatever. It sustains the exception in the first section, to the extent of sales by the 11 importer” in the 11 original package,” and does not in/ any respect limit or restrain the language of the exception, as to sales by other persons in other quantities. The prohibitions in the 3d and 18th sections have no reference to this question at all. (6.) The limitation which is sought by some to be put upon the exception under consideration, by a verbal criticism on the word 11 is,” cannot obtain; for that is in effect a concession that the construction contended for by the plaintiff in error, is true as to all foreign liquor, imported into the country since July 4th. Thus making a senseless and useless distinction as to the time when foreign liquor was imported. (7.) The construction contended for, by the plaintiff in error, is in no respect in conflict with that rule of construction of statutes which requires they should be read and interpreted in accordance with their true intent and meaning. Because, 1st. The intent and meaning of a statute is to be gathered from the language of the act itself, upon a full and fair reading of all its provisions in accordance with established rules of construction, (see authorities before cited.) 2d. To depart from the act itself, and grope in the wide field of conjecture, would lead to endless confusion. It would be impossible to discover any common intent on the part of the individual legislators. 3d. In seeking the intent from the act itself, we can gather no light from the title of the act. It is meaningless, and determines nothing on the question under discussion. Although indicative of a general purpose, it points to no particular means. It could be attached with equal propriety to-a law suppressing gambling, horse racing, or the Mormon religion. And this liquor statute might with equal propriety, so far as the question of construction is Concerned, be entitled “An act to promote the welfare of the people of the state of ¡New York.” For these reasons it is not allowable to resort to the title or preamble of a statute for interpretation. (1 Kent, 509, lect. 20.) 4th. In arriving at the intent and meaning of a statute, all the words of the act must be so construed as to give them some effect. (Smith on Stat. § 527. 7 Barn. & Cress. 569.) And consequently the language of the exception in the first section, is to have its full weight and force in ascertaining the general intent of the statute. 5th. So in construing a statute by the rule of looking at the old law, the mischief and the remedy, it is allowable to look outside the statute for the mischief, but the “remedy” must be ascertained from the body of the act itself. (Smith on Stat. § 530.) 6th. So the plain language of a statute is not to be rejected in construing laws, on the ground of "its leading to an absurd conclusion, unless the absurdity be such as could not be attributed to any man in his right senses. (Vattel’s Law of Nations, 245.) 7th. Applying these rales of construction to this statute, it is impossible to say, as some have pretended, that it was the clear intent of this statute, that foreign as well as domestic liquors should be prohibited from sale as a beverage. It is clear from every section and provision of this statute, that it was not intended to wholly prohibit the use of intoxicating liquor as a beverage, or wholly to prevent the sale of it for that purpose. The act expressly authorizes every body who chooses, to import, to manufacture, to buy and to use intoxicating liquor, in any way he pleases, provided he does not keep it or sell it contrary to the act. It also authorizes many persons to sell it for many purposes ; and intoxicating cider and intoxicating pure wine, made from grapes grown by the manufacturer, are authorized to be sold without limitation, to all persons, for all purposes. These are all exceptions to the general prohibitory provisions of the 1st section. Ho one denies that the legislature meant these exceptions, because it has said so. How then can it be said the law does not mean what it says, in the first exception as to foreign liquor? 8th. If the legislature had intended to limit the effect of this exception to sales by importers and liquor in the original packages, they could and would have said so. They knew how to express their meaning in the 7th and 22d sections. 9th. The language in the 7th section, in regard to the custom house receipts and marks on the casks and packages, corroborates the construction contended for by the plaintiff in error, because if it were intended that only the importer should sell in the imported package, then there would' be little danger that he would fill his imported casks with an adulterated domestic article. On the contrary if it were understood that foreign liquor was not prohibited, then there was great good sense and reason in requiring the dealer to furnish other and further proofs than the custom house brands and certificates, that his liquor actually was imported. (8.) Another rule of construction of statutes, which is paramount to all others, and to which there is no exception, and which ought to be conclusive as to the construction of the statute in question is, that “ penal statutes are to be construed strictly,” and with “ regard to the principles of the common law(Kent’s Com. 7th ed. p. 514. Smith on Stat. sec. 468-748. Savage, J., 7 Cowen, 253;) for it is not to be presumed that the legislature intended to make any innovation upon the common law, further than the language of the statutes absolutely requires. All laws in “ restraint of natural liberty,” those that forbid anything not. in itself unlawful,” or which “ derogate in any other manner from the general law /’ those which inflict “ penalties or punishments for crimes or offenses such as “ work forfeitures” derogate from the “ rights of property” or work “ disability of persons ;” or such as impose restrictions upon “ trade, commerce or the common occupations of men or which lay “ an excise or tax on the citizen”—are among those which are enumerated in the books as coming within the rule above stated, applicable to u penal statutes.” (9.) The act of April 9th, 1855, for the prevention of intemperance, &c. includes in its provisions, each and every of the foregoing elements and characteristics, which the law and the courts have always considered and treated as “ odious.” It is therefore a subject particularly requiring a stringent application of the rule of strict construction. The history of the law in this country and England abounds with instances where wise and patriotic judges, armed with this power of strict construction, have extracted the venom from tyrannical and oppressive laws enacted in times of excitement, the offspring of the ignorance an dpassions, and hot of the judgment and consciences of men; and made such laws in some degree tolerable to the citizens. And so too in cases where the law contained but one or two “ odious” features.
    Having thus established, as we believe, that the plaintiff in error in this case has not been guilty of a violation of the statute by virtue of which he has been prosecuted to conviction and sentence, if the court should be against us upon that point, then our next proposition is that the statute itself cannot he upheld by the courts as a law. That in all its principles, provisions and features, it usurps and assumes to exercise pow’ers inconsistent with the nature of republican and free government, and such as have uniformly been deemed tyrannical and characteristic of a despotism, and are not therefore within the scope and purview of the general grant of “ legislative powerf conferred by the- constitution and the peeple upon the legislature ; wherefore the statute is null and void. And further, that the statute in question, is, as it respects most of its provisions, in conflict with those clauses of the state and national constitutions, which have for their object the protection of the citizen in the enjoyment of his personal “ liberty" “ security" “ business" “rights" and “property ,” “ privileges and franchises,” and therefore it is void and must be so declared by the courts.
    I. It is clear that this statute, as regards the business and subject matter upon which it acts, is a statute for prohibition and restriction, and not one of regulation merely. The former excise laws were statutes of regulation merely; they left the whole traffic untouched in the main, not pretending even to regulate, only in respect to sales in quantities under five gallons, and in regard to those sales imposing but few restrictions as to persons, and none as to the purposes for which the liquor should be sold. On the contrary, the law of 1855 acts upon the Avhole traffic, (save only it has made particular exception where,) and seeks the certain destruction of the whole ma-ss of property in this state, known as intoxicating liquor, save only the comparatively trivial quantity needed for mechanical, medicinal and sacramental purposes, and which form but a mere -minimum. The statute provides that the liquor shall not be “ sold or kept for sale or with intent to be sold, nor shall it be given away, nor shall it be kept or deposited in any place whatsoever. And all liquor kept in violation of these provisions is declared to be a nuisance and authorized to be seized and destroyed.” The mere statement of its provisions shows the statute is intended to, and does, reach far beyond mere regulation of the traffic and the property.
    II. The next proposition is that although the courts may, and frequently do, in pronouncing upon statutes, declare some portions of a statute unconstitutional and void, and uphold and sustain other portions thereof as good and valid; yet this is when the obnoxious provisions are—either as to the persons and things upon which they act—the objects and purposes they seek to accomplish—the principles upon which. they are based, or the particular remedies or modes of proceeding which they authorize—so separate, distinct and independent of the other valid provisions of the statute, that they can be expunged without materially affecting the other provisions. But where, as in the statute under consideration, it is one connected system or series of measures, having a single object and purpose, acting upon a particular class of persons and business, a specified kind of property, and where the bad (if any) is connected and blended with the good in the same sections and sentences, so that the bad cannot be separated without leaving the whole system impaired and so imperfect as to require legislation to give it any life or effect; then it is submitted the statute must stand or fall as a whole. (Shaw, J., in Commonwealth v. Albro, 1 Gray's Mass. R. 49.)
    III. In this country the legislatures are not omnipotent or unlimited in their powers, even when not restrained by any constitutional restriction. They cannot pass despotic laws, or laws contrary to natural rights and justice, even though there be no express constitutional inhibition. And if the legislature does so far depart from its legitimate purpose and authority, as to usurp such powers, the judiciary, which is a co-ordinate branch of the government, will declare its acts void. We grant (says Chief Justice Marshall,) that “ the representatives of the people are the shepherds, to preserve the flock; but they are not exclusively such. If through inadvertence or design they should endeavor to sacrifice any one or more as victims, it cannot be done, so long as the judiciary remain virtuous, intelligent and independent. Both departments must concur to work iniquity before the people can be made to mourn, and in bitterness to curse their government.” (1.) The proposition that the legislatures of this country are limited in their powers, aside from, and independent of constitutional restriction, is deducible from the form and structure of the governments themselves, and the received and recognized political maxims and truths upon which the governments are based. (See preamble and resolution first, of the declaration of rights of the general congress of deputies at Philadelphia, 1774; Declaration of Independence.) (2.) The proposition is further sustained by the fact that the colonial legislatures of this country from the first settlement of the country and organization of society here, were subordinate and limited in their action. They were not even possessed of the supreme legislative power. (See-history of colonial governments, Massachusetts, Hartford and Connecticut and others.-) (3.) The fundamental maxim of a free government, professing to derive all its powers from the consent of the governed, renders it impossible that the-legislature should possess the power to pass unequal and unjust laws. For, inasmuch as the great end and object of all government and organized society is “ protection to person and property,” so no legislature of body of representatives can possibly be vested with authority to subvert the very ends and objects for which it was created. And so no legislative body can by any possibility be authorized or empowered to do that which the whole body of the people, when in a state of nature, would not be authorized to do ; viz: to deprive any one person of his rights of liberty, property or the pursuit of happiness, provided he had not forfeited either of those rights, by criminal conduct or injury to others. (1 Lieber's Political Ethics, 188, 189, 194, 202. Wooddeson's Lectures upon Law. Domat Civil Law. Vattel's Law of Nature and Nations, Book 4, §§ 45, 51. Works of John Locke, vol. 5, chap. 11. Opinions of Chase, J., in Caldar v. Bull, 3 Dallas, 386. 6 Cranch, 87. 2 Dallas, 310. University of Maryland v. Williams, 9 Gill & John. 365. Taylor v. Porter, 4 Hill, 146. 18 Wend. 9. 2 Peters, 654. 1 Baldwin, 223. 4 Barb. 64.)
    IV. In the enactment of the “prohibitory law” in question, the legislature has for the first time, in the history of legislation in this country, by a government acknowledging itself to be based upon the free principles before mentioned, assumed to usurp and exercise many of those despotic and arbitrary pow- ' ers which cannot exist in them, consistently with the principles which have been shown to be the basis and foundation of our system of government. (1.) This statute, so ‘far as it affects property in existence, at the time of its taking effect, directly or indirectly, or interferes with" the business of manufacture and sale .of intoxicating liquor, is not in any sense a law. But is rather a legislative sentence or edict of destruction, resembling more an imperial ukase or despotic decree, than a legal constitutional statute, prescribing a “rule of action” for the future conduct of man. (2.) This is a law changing innocence into guilt. It punishes citizens for an innocent act, or rather for no act at all, and makes that to be criminal, which when done was in violation of no existing law. (See §§ 1, 4, 10, 16, 35, of the statute.) Up to 12 o’clock in the night of the 3d of July, it was perfectly lawful and innocent for the manufacturer, dealer and owner of liquor, to sell and keep-for sale, and with intent to be sold, to give away, and keep to be given away and keep and deposit in any and all places whatsoever, all the liquors owned or possessed by him. Then come the provisions of this statute, which do instantaneously, by a simple legislative declaration, declare all such liquors forfeited, devote them to destruction, and mulct the owner thereof in severe penalties and forfeitures, when he has done no single act in regard to them, but has only let them alone. (3.) It compels a man to be a witness against himself, or if he refuses to testify, it assumes the truth of the criminal charge against him. And in one case destroys his property without any evidence whatever, and in another case deprives him of a substantial privilege and franchise belonging to citizens of this state. (See §§ 16 and 7.) (4.) It is a retrospective law with a retroactive effect. It destroys vested rights in private property, and violates the rights of lawful antecedent contract. (Opinion of Chase, J., in 3 Dallas, 386.) (5.) It seizes upon large amounts of property belonging to citizens, and takes it. If for public use it does so without compensation ; if not for public use, then it is worse than taking the property of A. and giving it to B., for it destroys the property without benefit or use to any body. These powers have always been esteemed beyond the reach of legislative interference. (See authorities before cited. Tracy, senator, 18 Wend. 9.)
    Having thus, as we believe, sufficiently maintained the proposition that this statute does ht the outset, in its first enacting clause, usurp power and assume to do that which is not within .the province of the legislature tp do, and to which the general grant of the legislative power in the constitution does not extend; our next position is that this statute, both in its prohibitions and its penalties, is in conflict with the letter and spirit of those provisions of the state and national constitutions having for their object the protection of personal and property rights, and restraints upon state legislation.
    I. The law divests the plaintiff in error and all other owners of liquor in this state of their vested rights in their property which they had at the time of the law taking effect, and is therefore in conflict with the provision of the constitution which provides that no citizen shall be deprived of his property without due process of law. (1.) That intoxicating liquor is property, hardly needs an argument to show. It has all the elements of property, and has been so considered for hundreds of years, and it is so determined by courts, and this statute in question, it will not be controverted. (2.) The prohibiting of the sale of this property, or the keeping of it for sale, is to the plaintiff in error, and all manufacturers and dealers in this article, depriving them of their vested rights therein, (see 1 Leiber’s Ethics, 113, 114, 210, 211. Reese’s Encyclopaedia, title property. 2 Kent’s Com. 7th ed. p. 377. 2 Bouvier’s Institutes, 442.) The right of sale and disposition is one of the principal elements of the rights of property in an article. Aside from the exceptions, this act provides the liquor shall not be sold to any body by any body, or for any purpose whatsoever. It shall not have any vendible quality or exchangeable value. This is as much a deprivation of property as if the owner’s possession was divested. But the denunciation does not stop with the prohibition of the sale. The act further provides that the liquor shall not be kept for sale or given away, or kept to be given away, or kept at all, (s 1st;) so that although five minutes before 12 o’clock at night, July 3d, the liquor of the plaintiff in error was lawful property to keep and vend, five minutes after 12, the liquor was not property, it could neither be sold, given away or kept. It was declared to be a nuisance, and courts were ordered to confiscate it, thieves were permitted to steal it, and violence to destroy it, without wrong and without redress ; and, (4.) So far as the law affects property, owned at the time of its taking effect as a law, it does all this without any “ process of law” whatever. This must be obvious to every mind. Whether the amount of intox- , icating liquors held by dealers and manufacturers on the 3d of July last, was five million dollars worth, as some have contended, or fifty million dollars worth, which is more near the truth, the owners thereof, at the manufactories, warehouses, stores, groceries, taverns, bars and shops, had that amount of vested rights of property in that liquor. The moment sections 1st, 4th and 25th of this law, spoke by authority, those vested rights of property in those liquors, thus lawfully held, were instantaneously destroyed, and that before any “process of law” whatever could begin to be had; and as to such liquors thus made contraband and confiscate all that the “process of law” provided for by the statute could possibly effect, would be to find the liquor and execute the sentence or edict of confiscation which the law had already pronounced.
    
    II. This law violates that provision of the constitution which declares private property shall not be taken for public use, without just compensation. (1.) This law takes the property. It claims to devote it to destruction, for the public good:, If it is not for public use, then it may not be touched at all. But if taken at all it can only be on compensation paid. (2.) Destruction, or any diminution of private property, is as much a taking within this provision of the constitution as if kept for public use. (Stevens v. Middlesex Canal, 12 Mass. Rep. 466. 16 Pick. 431.)
    III. This act, by several of its provisions, does in effect assume to declare and make all intoxicating liquors (save the exceptions) and the trade and traffic in them, a public nuisance. And indirectly it subverts and destroys the trade and business of manufacturing malt and distilled liquors in this state, with all the property, materials and labors incident thereto. Section 1st prohibits the business ; section 4th makes it a misdemean- or, and adjudges a forfeiture; section 6th provides for a process of search and seizure, and arrest of the suspected party, on probable suspicion. The 7th section prohibits a defense by a claimant without an oath of innocence. The 14th section packs the jury. The 10th section executes the legislative sentence of destruction. The 17th section reverses the rules of evidence, and presumes guilt instead of innocence. The 25th section declares the property to be a public nuisance. Thus is a trade and a business, and an article which by the common law of the country at the time of the adoption of our first constitution and immemorially before, was not a nuisance, but a legal and legitimate business and property, declared and made a nuisance, and destroyed by legislative edict, and this too when no change has taken place in the trade or the article, in any way altering its character, but only a change of opinion in the legislators. Thus are the life long habits and traditions of a whole people sought to be changed by force and violence in one night by a legislative pronunciamento, and which it is insisted is in conflict with those provisions of the state constitutions, which declare the “ liberty” of the citizen shall not be taken away without “ due process of law,” and that no member of this state shall be disfranchised or deprived of any right or privilege, secured to any citizen, unless by the law of the land, and judgment of his peers. (1.) The term “ law of the land” and “ due process of law,” do not mean the statute which works the forfeiture ; for otherwise it would make the constitution read—no man shall be deprived of bis property or liberty or franchise, without due process of law, unless the legislature pass a law to do it. This would be no limitation at all upon the legislative power. (4 Hill, 146. 3 Story on the Constitution, 661. 2 Kent’s Com. 13. 2 Coke’s Institutes, 50, 51.) (2.) Although the prohibitory law provides for a kind of process and trial, yet that is only to determine whether or not any accused person has or not kept or sold, and to find and destroy the article which the law had by its provisions made contraband. But so far as the divesting any right, which a citizen might before have to follow the business of selling, or any right of property which he before had in liquor, which he does keep for sale or had on hand in-his store for sale, on the morning of July 4th, it is clear the statute itself ¡ by its own power, and without any process, trial or proceeding whatever, divests and destroys these rights, (if any.) (3.) The constitutional provisions as to “ liberty,” “property” and “franchises” of a citizen, were taken from “ magna charta,” and the “ bill,” and “ petition of rights” in England, and these, with the other kindred provisions in our constitution, constitute what in this country are the “ bills” or “declarations of rights” of the citizen. They are the protections equally of social, political and personal liberty. They are to be largely and liberally expounded. In the language of the supreme court of the United States, (3 Dallas, 310,) “Hot a particle of them should be shaken, not a pebble removed; innovation is dangerous, one encroachment leads to another,” &c. (See Story on the Constitution, § 1865. 1 Kent's Com. led. 24, p. 607.) (4.) These provisions of our constitution, when thus expounded, cannot be limited to the mere technical and verbal meaning of the words used. The “ liberty” meant by the constitution, is not mere absence from imprisonment. The “ privileges” and “ franchises” spoken of, are not merely privileges to vote and hold office. But those provisions extend further ; they include the freedom of the citizen in his actions and movements. They comprehend that right to the “pursuit of happiness,” declared and asserted in our declaration of independence. They extend to protection of the citizen in his employments, in his freedom to earn a support by the ordinary and usual trades and business ; the long recognized modes of industry in the country. (See Coke's Commentaries upon Magna Charta, 2 Inst. ch. 29, 47, 48.) (5.) There is much reason that these constitutional guaranties should extend to the business pursuits of men. It is quite as important that the trade and business which a man spends years to learn, and has made valuable to him by years of labor and experience, and the only business which he is qualified to follow, should be protected from despotic power, as that the property acquired by such business should be protected. Chief Justice Ruffin) in 4th Devereux, says : 11 He is deprived of an employment, the immediate source of his livelihood, the preparation for which has been the great business, it may be, of his life, to which he has served a long apprenticeship, and to which he has devoted himself, abandoning other lines of life which were once open to his free choice. True, he is free to work at other employments, but he is fit for none. He knows but this. He is in the situation of one bred to the agriculture of our country, to whom the legislature should say, ‘ Till the ground no more; go and spin silk or weave muslin.’ His labor is not the subject of conscription ; but he hangs a burden on himself, because the only employment to which he is competent is denied him.” (6.) “ The doctrine of this statute is, that the legislature may declare a property or business to be a nuisance, whenever a noxious or injurious use is made by others of the property, or the products of the business. This the legislature cannot do ; if they may do so as to intoxicating liquor, they may do so as to all other business. It has been decided the legislature cannot be the sole judge of whether a purpose for which private property is taken, be or not, a ‘ public use,’ within the meaning of the constitution.” (Tracy, in Bloodgood v. The Mohawk and Hudson R. R., 18 Wend. 9.) So the legislature -cannot by declaring a river to be navigable, make it so, and thus deprive riparian proprietors of their rights. (16 Ohio Rep. 540.)
    IV. The law is also in conflict with the provision that no man shall be twice put in jeopardy of life or limb, dec., for the same offense. (Sec. 8.) It authorizes an appeal by and on the part of the prosecution upon a verdict of acquittal by a jury, •whereby the acquittal may be reversed, and the defendant again tried for the same offense, and that too, without the complainant being required to give any security whatever. While the defendant’s right of appeal is conditioned upon his giving excessive security, not only to pay and abide by the judgment rendered against him : but also to furnish sureties that he will not commit any other offenses under the act, and which sureties shall undertake to pay all fines that he may incur in other cases. Thus rendering it next to impossible for a poor man to have an appeal.
    V. The law deprives a defendant of right to a “ trial by jury,” and to be convicted, if at all, by “judgment of his peers.” It is clear that the act may be so construed as to deprive the defendant of his election to give bail, and compel him to go to trial before the tribunal, created by section 5 of the act, and with a jury of six only, while the constitution secures to him a trial by twelve jurors, according to the common law. (Opinion of Justice Parker, in People v. Kennedy, 2 Kern. 198. Opinion of Justice Dean, in People v. Johnson.) But even if he may have his election, and thus secure a trial before a jury of twelve men, he is still deprived of trial by “jury of his peers,” within the meaning of the constitution. The tribunal which the constitution secures to the accused, is a “jury,” empanneled, draivn and constituted in accordance with the common law, and the statutes in force at the time the constitution Avas adopted. By this statute, the jurors to try accusations under that act, are packed by a new and arbitrary disqualification unknown to the common law, and not applicable to any other criminal trial or proceeding. If the legislature may exclude from the jury box a person qualified as a juror by the general law of the land, on mere suspicion and without any evidence at all that he has been, or is guilty of a like offense, Avith the person on trial; if they may make arbitrary disqualications against particular persons or classes, in one case, they may do so in all, and might require the defendant to take his trial before the Carson League.” He is entitled to a trial by his “ peers.” (See opinion of Pitman, J, 1 Curtis’ Rep. 335.)
    VI. The law violates that provision of the constitution declaring that a man shall not be required to give evidence against himself. Section 12 compels a person arrested for intoxication to SAvear where he obtained his liquor; section 7 compels a man to swear to his innocence, before he can put the complainant upon proof of guilt, and section 16 gives an accused juryman the option of declining to criminate himself, and by so doing to accomplish by his silence just what and only what he could do if he answered against himself.
    VII. The act violates the provisions against demanding “ excessive bail,” “ imposing excessive fines,” and inflicting cruel and “ unusual punishments,” and so it establishes new and inferior courts with new jurisdictions in places other than cities, and which do not proceed according to the common lawn (Const. art. 6, § 14.) This act also clothes officers and inferior and irresponsible magistrates with new and unusual powers. It vests the lowest grade of ministerial officers with arbitrary and dangerous powers, which can be exercised without let or hindrance, upon the mere discretion of the officers. By sections 5, 6, 13, 10, the inferior magistrates, named in the 5th section, are authorized to impose fines without limit, and forfeit and destroy property to any amount from $10 to a million, and to inflict long terms of imprisonment. All of which is contrary to the spirit and implied inhibitions contained in the 6th article of the constitution. And so section 12 of this statute forces upon constables and police officers the exercise of judicial and discretionary powers of arrest and interference with the persons and property of citizens, without warrant, complaint or process, to an extent unknown and unheard of ever before in a free country, and truly alarming in view of the tendency of all power to abuse. By this 12th section the officer is compelled to arrest all and every person whom he may determine to be engaged in violating the act, and to seize all property which he may determine is kept contrary to the act, and he may arrest and imprison every person whom he may determine to be intoxicated in any place whatsoever, whether guilty of any offense or not. And by the 14th section the officer is impliedly protected against the consequences of any malice, bad faith, or want of probable cause, which may have prompted his conduct. And by section 20, if the officer err on the side of mercy, he himself is subject to entire and irretrievable ruin.
    It is insisted as another general proposition that this statute, in many of its provisions, is in conflict with those provisions in the bill of rights in the United States constitution, providing for the security of private rights, and which provisions are also incorporated into the constitution of this state. (See art. 5 of Amendments to the Constitution.') But it also violates those provisions of the United States constitution, which are intended to protect the people from the annoyance of spies, and to secure their houses, persons and premises from unreasonable searches and seizures. And also those provisions of section 10 of the 1st article, which have for their object, to restrain state legislation from any undue interference with the powers conferred upon the national government, and from, passing laws inconsistent with the nature of republican and free institutions.
    I. The law is to all intents and purposes a “ bill of attainder,” which, as used in our constitution, includes “ bills of pains,” and “ penalties.” In England a bill of attainder, as technically understood, was such only as deprived of life. In our constitution it has a more extended signification, and all laws which assume of themselves to exercise judicial magistracy, either in the deprivation of life or confiscation of property, are bills of attainder. (Fleicher v. Peck, 6 Cranch, 87,138. 2 Cond. U. S. Rep. 322.) And so a bill of attainder, as thus defined, is not necessarily confined to individual victims. It may designate its objects by classes or by a general description, fitting a multitude of persons. In either mode it is equally liable to moral and constitutional censure. (1 Dana, 510.) The statute under consideration answers to the definition of a “ bill of attainder” as above given. It confiscates property of individuals and classes without trial, judgment or hearing. The proceedings required, and provided for by the statute are (as has been before shown) in no sense a judicial proceeding to determine whether intoxicating liquors kept for sale, or kept at all, shall or not be forfeited. The judicial proceedings provided for by the act are themselves but the result of a forfeiture theretofore incurred, and a divestiture of title which had theretofore taken place. (1 Dana, 519. Paley's Moral Philosophy.)
    II. This statute is an “ ex post facto law,” in a sense more odious if possible than any definition which has ever been given of that term. (1.) It is a statute making acts criminal, which in their nature are not criminal, and which for all time before had been sanctioned by the common law and the statute. (2.) It not only makes acts criminal, which were not criminal, when done, but it declares a man a criminal for doing 'no act at all, (§§ 1, 4,) or an omission to do any act expressly required by the statute. A man is by this statute made' a criminal for letting his own property alone. (3.) And so the statute requires less evidence to convict of doing an act, than was before required in like cases.
    III. This statute “ impairs the obligation of contracts.” (See Story on the Const. §§ 1374 to 1399 inclusive ; 1 Kent’s Com. 7th ed.p. 455 to 466.) (1.) It has been held, in regard to this provision of the constitution, that the inhibition extends as well to contracts executed, as executory contracts, and to preserve and secure rights acquired, as well as obligations assumed. (Smith on Stat. § 250.) (2.) Also it is said that although this provision of the constitution does not affect the power of the legislature to deal with the remedies for the enforcement of obligations or protection of the rights secured by the contract, yet if while pretending to deal with the remedy, it so legislates as in any degree to affect the right or impair the obligation, such legislation is void. (Smith on Stat. & 255. Green v. Biddle, 8 Wheat. 1. Bronson v. Kinzie, 1 Howard, 211.) (3.) And so it has been held that the laws in force-where the contract was made, at the time it was made, enter into and become a part of the contract, as much as if they were expressly set forth in its stipulations. (Smith on Stat. § 258. McCracken v. Hayward, 2 How. 608. (4.) It has also been decided that this provision of the constitution prohibits the state legislatures passing any law, divesting a vested right, whether acquired under a contract between party and party or by a charter from government; and that the restriction as toyested rights extends to rights of every nature, arising or resulting from contracts, either verbal or. written, express or implied. And so, whether the rights arise from the stipulation of the parties, or accrue by tho operation of the law, which is a part of the contract. And that this restriction must be considered as rendering v.oid any statute retrospective in its operation so far as it affects vested rights. 
      
      (Smith on Statutes, §§ 261, 264. Dartmouth College case, 4 Wheat. 518. Nelson v. Allen, 1 Nerger, 366. New Jersey v. Wilson, 7 Crunch, 164: Osborn v. Humphrey, 7 Day, 335. Atwater v. Woodbridge, 6 Conn. 223. Lewis v. Brackenridge, 1 Blackf. 112.) It follows therefore: 1st. As to all intoxicating liquor in the hands of manufacturers and dealers at the time of the prohibitory act going into effect, and which had been manufactured or purchased by them for sale again—they had a vested right to re-sell the article, which right arose both by contract and by operation of law. 1. By express contract: for when a dealer in any kind of property purchases of another an. article or quantity of the property in which he traffics, he contracts and bargains for all the rights and incidents which attach to the property while owned by the vender. And the vender is considered in law to have expressly granted and conveyed to his vendee those rights and incidents. The most important of which, and indeed the only one of any use and value whatever to a vender thus circumstanced, is the right of re-sale. 2. Such rights of re-sale attached to the property as an inseparable incident when purchased by the dealer by operation of law. The law as it then was gave to the dealer the absolute right to use, keep and sell. That law became a part of the contract, and vested the right thus acquired in the dealer. And that right of sale so vested, the “ higher law” of the constitution secures and protects, inviolable from state interference. It is a right acquired by contract, the obligation of which is to respect and sustain the right, and the state law that touches either is void.
    In conclusion, as to this statute, it is submitted that the act for the prevention of intemperance, pauperism and crime, while it proposes to attain and accomplish a good and a worthy object, does, nevertheless, manifest a determined purpose in the pursuit t>f that object, if necessary, to violate the fundamental guarantees of civil liberty, subvert the constitution and usurp despotic power. When it is met by constitutional barriers, it seeks to avoid them by a series of transparent evasions. Pretending to respect property, it destroys it indirectly, by depriving it of all its incidents and uses; pretending to respect liberty and personal security, it proscribes a large class of citizens, and places their rights of person and property, entirely at the mercy of any man in the community, who from good or bad motives may choose to destroy them. It claims the right, and usurps the power to do all manner of evil in order “ that good may come.” The entire scheme of measures proposed by the law are vicious, and should not be upheld by the courts.
    
      A. Sawin, (district attorney,) for the defendants in error.
    The only question presented by the bill of exceptions, (apart from matters of form,) involving the validity or construction of the prohibitory liquor law, is that presented by the rejection of the proof offered by the defendant, and rejected by the court below, “ that the liquor sold by the defendant was liquor imported into this state from foreign countries, under and in pursuance of the revenue laws of the United States; that the defendant purchased such liquor from the importer 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.” All the counts in the indictment are for illegal sales in quantities less than one pint, and not for giving away or keeping with intent to sell. The proof showed the liquor was sold at the defendant’s bar in quantities less than one pint, and was drank on his premises. The 1st section of the act for the “ prevention of intemperance, pauperism and crime,” enacts substantially that intoxicating liquor shall not be sold, except as thereinafter provided for medical purposes. The 22d section declares all distilled liquors (and of course brandy) to be intoxicating. The first section also excepts “ liquor the right to sell which, in this state, is given by any law of treaty of the United States." There is no pretense that the brandy in question was- sold by the defendant under the provisions of the second section.
    
      First. There is no law or treaty of the United States giving the right to the importer of liquors, or any other person, to sell the same in the original package or otherwise, in this state. I. It is admitted there is no treaty or law .of congress, in ex
      
      press words, authorizing the importer of brandy or distilled spirits or wine, upon payment of duties under the revenue laws of the United States, to sell the same. The acts of congress bearing on the question are as follows: The first act of regulation of imports, passed March 2,1799. (1 U. S. Stat. at Large, p. 701, § 103,) prohibits the importation of distilled spirits in less quantities than ninety gallons. By act of 2d March, 1829, and act of 27th February, 1830, which are now in force, brandy may be imported in casks of a capacity of not less than fifteen gallons. The last tariff act, passed 30th July, 1846, (9 Stat. at Large, schedule A, p. 44,) imposes a duty upon brandy of one hundred per centum, ad valorem.
    
    II. The constitution of the United States and laws of congress authorizing the importation from foreign countries of distilled spirits and imposing duties thereon, do not, by implication, give the right of sale of the same in this state to the importer or any body else. (1.) There has been no adjudication of the supreme court of the United States to that effect. The case of Brown v. The State of Maryland, (12 Wheat. 419,) decided in 1827, arose under a state lawr prohibiting importers from selling without taking out a license for which they shall pay fifty dollars,” and Chief Justice Marshall held the act repugnant to that clause in the constitution, which declares “ that no state shall lay any imposts, or duties on imports or exports.” The question was one of taxation. Afterwards, in 1847, the supreme court of the United States held that the laws of New "Hampshire, Massachusetts and Rhode Island, regulating the sale of intoxicating liquors, were not inconsistent with the federal constitution or acts of congress under it; and in doing so, all the judges expressly held one important portion of the opinion of Chief Justice Marshall in the above case to be obiter, and three of them, Justices Daniel, Woodbury and Grier, substantially adjudged that so much of Chief Justice Marshall’s opinion in the case of Brown v. Maryland, as held that the state governments could not prohibit sales by the importer in the original packages, to be “ not the point settled or the substantial reason for it.” (See 5 Howard, 505 to 633.) “ It is clear,” says Chief Justice Taney, (Id. 574,) “ that the power of congress over this subject does not extend further than' the regulation of commerce with foreign nations and among the several states ; and beyond those limits the states have never surrendered their power over trade and commerce, and may still exercise it, free from any controlling power on the part of the general government. Every state therefore may regulate its own internal traffic, according to its own judgment, and upon its own vieios of the interest and well being of its citizens.”
    III. But even if congress possess the right under their power to regulate commerce, to authorize the importer of foreign liquors to sell the same in this state, that power has not been exercised, and therefore, according to the unanimous opinion of the justices of the supreme court of the United States, in the above cited Hew Hampshire case, the legislation in this state is valid. It follows, therefore, that no construction can be given to the excepting clause under consideration, that would render the proof offered material; in other words, there is no liquor “ the right to sell which in this state is given,” either in express terms or by implication, by any law or treaty of the United States. The court will probably see from the examination of the other points presented below, that the decision of the first proposition is of no practical consequence in this case, yet it is peculiarly fit that the bar and the courts should upon all proper occasions, when satisfied the precise question presented by the first point is yet open for argument and discussion in the supreme court of the United States, maintain the right of every state “to regulate its own internal traffic according to its own judgment, and upon its own views, of the interest and well being of its citizens.”
    
      Second. Assuming, however, (as the legislature undoubtedly did,) that the federal judiciary have given such a construction to the law of congress as authorizes the importer of brandy to sell it within this state in the original cask or package, (not less than fifteen gallons,) then the brandy charged in the indictment and proven to have been sold by the defendant, at his bar, in quantities less than one pint, and drank on his premises, is not 
      
      the “ liquor” named in the last clause of said first section, within the intent and meaning of the exception.
    I. Construing the clause by itself, adopting the most stringent rule of subtle and strict construction, (“ the letter that killeth instead of the spirit that maketh alive,”) it is submitted— (1.) The words “ is given”—the present tense, clearly limit the operation of the exception, as the technical words in an indictment “ then and there” do—to the specific liquor charged in the indictment. (2.) The words “ is given” mean, “ is granted in express terms.” (3.) The words “ liquor the right to sell which is given by,” are equivalent to the following words, “ the sales of liquor authorized by.” (4.) There is no pretense under any construction by the supreme court of the United States, or any judge thereof, of any act of congress, that the right to sell liquor is attached to or flows with the liquor. “ The right to sell which,” is a right not “ given” to the liquor but to the person.
    
    II. But if there is any doubt as to the meaning of the excepting clause, such a construction should be given to it as will put in force the intent of the lawmakers, which can be done only by limiting it to sales of liquor in the original packages by the importer. This can be done in the application of well settled rules for the construction of statutes, without adding to or taking from the whole act a single word, and at the same time give weight and meaning to every word therein. But it has been argued that penal statutes should be construed so strictly, as that the intent of the legislature should not be diligently sought out. This pestilent dogma has no foundation in principle and is not sustained by authority. “ However true it may in the general'be, that penal laws are to be construed strictly, yet, even in the construction of them the intention of the legislators ought to be regarded.” (Bacon’s Abr. tit. Statute ; cases, Rex v. Hodnet, 1 Durnf. & East, 96; Heydon’s case, 3 Rep. 7; 8 Mod. 65 ; 2 Atkins, 205.) The statute declared it to be treason for a servant to kill his master. The court held, that applied to his master’s wife. Croke, J., saying, “¡Notwithstanding that a statute which increases a punishment beyond what it was at the common law, ought not to be extended by an equi
      
      table construction, yet the words of such statute ought to be construed according to the intention of the makers of the statute. So in the soldier’s case, (Cro. Car. 71.) The statute making the departure of a soldier from his captain without license, felony, it was held by nine judges against three that a departure of the soldier from his conductor; was within the meaning of the act. That a penal statute when made for the public service and good-of the king and realm, ought to be construed according to the intention of the makers of the statute. So in Poulter's case, (11 Rep. 34, 35,) it is said, “ There are many cases in our books where penal statutes have been construed by intendment for the suppression of a mischief,” &c. Spencer, justice, in delivering the opinion of the court in the case of Sickles v. Sharp, (13 John. 497.) says: “ The rule that penal statutes are to be construed strictly when they act on the offender, and inflict a penalty, admits of some qualification. In the construction of statutes of this description, it has often been held that the plain and manifest intention of the legislature ought to be regarded. A statute which is penal to-some persons, provided it is beneficial generally, may be equitably construed. Even in case of felony, the courts have regarded the intention of the legislature.” A statute which is made for the good of the public, ought, although it be penal, to receive an equitable construction. (2 Pro. 110, 111, 116.) “ Yet penal statutes are taken strictly and literally, only in the point of defining and setting down the fact and pumshment, not in words that are but circumstances and conveyance in the putting of the case. (Bacon’s Maxims, 51, 58, 59.) Chief Justice Marshall says, “ Although penal laws are to be construed strictly, they are not to be construed so strictly as to defeat the obvious intention of the legislature.” (5 Wheat. 76.) Woodworth, justice, in delivering the opinion of the court, in the ease of The People v. Bartow, (6 Cowen, 293,) says, “ Although a penal statute is to be construed strictly, the courts are not to disregard the plain intent of the legislature. Among other things it is well settled; that a statute which is made for the good of. the public ought, although it be penal, to receive an equitable construction. When it is considered that this statute [the restraining act] was intended to strike at an existing evil, deemed to be of serious injury to the community, it cannot well be doubted that its enactment was to promote the public good.” Justice Story, in 1 • Gallison’s Rep. 118, says: “ We are obviously bound to construe penal statutes strictly, and not to extend them beyond their obvious meaning by strained inferences. On the other hand we are bound to interpret them according to the manifest import of the words, and to hold all cases which are within the words and mischief to be within the remedial influences of the statute ; and this is what I understand by expounding a statute liberally as to the offense.” Again in 3 Sumner, 211, says the same judge in reference to penal statutes, “ The proper course is to search out and follow the intent of the legislature, and to adopt that sense of the words which harmonizes best with the context, and promotes in the fullest manner the apparent policy and object of the legislature.” Justice Woodbury, (2 N. Hamp. Rep. 195,) says : 11A statute, if of public utility, as the uniform presumption, should be so construed as to effectuate the intent of the makers. The intention, to be sure, is to be gathered from the language and subject matter of 'the statute. But when once so gathered, it is no less important to-society, and no more severe upon the offender to enforce it in penal statutes than in remedial ones. Without such a construction, too, this class of statutes become almost a dead letter, prosecutions are a mockery, and malefactors encouraged.” Chief Justice Parsons, in 8 Pick. 370, says, (in relation to this rule that penal statutes must be strictly construed,) “This did not exclude the application of common sense to terms made use of in the act, in order to avoid an absurdity which the legislature ought not to have been presumed to have intended. There were cases which showed this, although precedents were not required to sustain so reasonable a doctrine.” (See 15 Wend. 147.) A penal statute may also be a remedial law penal in one part and remedial in another. (1 Wilson, 126. Douglass, 702.)
    The foregoing citations furnish precedents (if any were necessary) for the application of the good old rules for the construction of all statutes, to the act for the suppression of intemperance, though it be called a penal statute. (1.) The rule in Hey denis casé. “ What was the state of the law before the act ?” The law of the state granted licenses to sell intoxicating liquors in small quantities ; and it was supposed the United States laws granted the right to sell in large quantities. “ What was the mischief against which the former law did not provide ?” The general use, especially in public places, of ardent spirits as a beverage. “ What remedy has the legislature provided by this act to cure the defect ?” The abolition of licenses for the sale of ardent spirits, and the prohibition of the use of intoxicating liquors as a beverage. “ What was the true reason for the remedy?” The “ intemperance, pauperism and crime,” resulting from its use. (2.) See rule in Plowden, 565. “ A saving clause in a statute is to be rejected when it is directly repugnant to the purview or body of the act, and could not stand.without rendering the act inconsistent with, and destructive of itself." (See 15 Pet. 445; 1 Kent, 463; 20 Maine R. 360.) (3.) The rule that the intention of the lawgiver and the meaning of the law are to be ascertained by viewing the whole and every part of the act. (See Broom's Legal Maxims, 448,' and opinion there cited, by Justice Coleridge.) Putting the 1st and 22d and 4th sections of this act together, then, the plain reading, “ whoever shall.sell intoxicating liquor except liquor in original packages, the right to sell which is given by law or treaty of the United States to the importer thereof, shall be guilty of a misdemeanor.” (4.) The rule, that all words, whether they be in deeds or statutes, or otherwise, if they be general and not express and precise, shall be restrained unto the fitness of the matter and person. (Bacon’s Maxims, Reg. 10. Broom's Max. 601, 140, 439.)
    This act is not, so far as it bears on the case at bar, a penal statute within the meaning of the rule construing penal statutes strictly. It created no new offense, and imposed no new punishment. (1.) The selling of intoxicating liquors in this state, England and all civilized countries, has been for centuries the subject of penal legislation. (2.) Instead of increasing the punishment for unlawful sales, it diminished it—(provided our old excise'laws are repealed by it.) Under the revised statutes, the overseers of the poor recovered from the seller, $25 for each sale under five gallons. In addition, for the same sale, the party was subject to an indictment; the punishment of which was both fine to the amount of $250, and imprisonment for one year in the county jail.
    
      Third. But assuming the penal provisions of the act under consideration, relate exclusively to home made liquors, then the indictment, conviction and judgment can be sustained under the provisions of the revised statutes ; these provisions not being in terms repealed, and not by implication, because they are not “ inconsistent with this act” so far as they relate to. the case at bar. (1.) The 15th and 16th sections of the excise act (1 R. 8. 681) prohibit sales in quantities less than five gallons, and the 25th section makes such sales, (without license,) misdemeanors. (2.) The 25th section of the present act prohibits the granting of licenses, leaving the prohibition of sales in quantities less than five gallons in full force. (5 Denio, 70, 112. 3 Barb. S. C. Rep. 548,) (3.) Implied repeals are not favored by the law. (.Broom’s Legal Maxims, 24 to 27, and cases there cited.) But to conclude on this .branch of the case, inasmuch as no one doubts the actual intention of the legislature to have been to place additional restraints upon the sale and use of all imported as well as domestic intoxicating drinks—and assuming that the importer of foreign liquors has been authorized by act of congress to sell the same in the same quantities as imported, (without which assumption there is no subject matter for the exception to operate upon,) it is respectfully submitted, this court will by “restraining,” in the language of Bacon, the “ general” term “ liquor” to “ the fitness of the matter and the person”—the original package and the importer, permit this praiseworthy enactment “ to suppress intemperance, pauperism and crime,” to effectuate the intent of its makers.
    
      Fourth. None of the provisions of the “ act for the prevention of intemperance, pauperism and crime,” applicable to this case—the retail sale of intoxicating liquors—and this proceed-ing> by indictment, (whatever opinion may be formed of the validity of the search and seizure clause,) are in conflict with the constitution of the United States, or of this state, and therefore, were the allegations of the sellers of intoxicating liquor true, that those constitutional provisions are arbitrary and despotic, and consequently in conflict' with natural justice—this court nevertheless will affirm the judgment in this case, and the validity of such provisions of the statute, because judges in the exercise of judicial power cannot recognize any higher law than the constitution of this state and of the United States:
    As to the other points presented in the bill of exceptions.
    
      Fifth. The proceedings relative to the alleged irregularity m the organization of the grand jury, are improperly incorporated in the bill of exceptions, and therefore cannot be-made a ground of error in this form. (2 R. S. 736, §§ 21 to 26. 21 Wend. 509. 4 Denio, 9, 133.) The remedy, if any exists, is by mandamus. (20 Wend. 108.) Again; the motion to quash was made after pleading to the indictment. It was then too late; at any rate it then became a matter of discretion. (Barbour’s Crim. Law, 348, 9.) Besides, the court having ascertained the absence of grand jurors, in other words excused them, properly exercised the power of ordering the four talesmen to be summoned.
    
      Sixth. No error can be assigned upon the proceedings of the court below upon the challenge to the array. (1.) The court having been constituted triors of the challenge, by consent of the defendants, no exceptions can be taken to their proceeding, upon the facts. (2.) There being various unconnected allegations of facts set forth in the challenge, one portion material and furnishing good, causes of challenge to the array, as those relating to the absence of the sheriff and county judge at the time of the drawing, and others entirely immaterial, as the mode of summoning, &c., and there being no pretense of proof that the drawing was irregularly conducted, the finding of the court of sessions is in accordance with the proof.
   By the Court, Greene, J.

All of 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 on the trial. But the statute which gives the right, limits it to exceptions taken on the trial of the mam issue. It is not extended to such as are taken on the trial of preliminary or collateral questions. (2 R. S. 736, $ 21. Freeman v. The People, 4 Denio, 21, per Beardsley, J.) It will therefore be unnecessary to examine the various questions raised by those 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 speculation 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 liquor 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 3d 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. Wha,t is the extent of the prohibition upon the sale of liquor, contained in the first section of the act as it is qualified by the second and other sections? and 2d. Is that prohibition a valid legislative act?

That part of the first section that bears upon these questions is in these words : “ Intoxicating liquor, 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 liquors from keeping or selling the same in the original packages to any person authorized by the act to sell such liquors.” These provisions embody all the prohibitions and exceptions material to the questions under consideration, contained in this act.

It will be observed that this act contains no provision 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.” Ho 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 prescribed 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 v. The State of Maryland, (12 Wheat. 419,) 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 provisions of the constitution of the United States, prohibiting the states from laying duties upon 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 positions 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 regulation. In the cases of Pierce v. The State of New Hampshire; Thurlow v. The State of Massachusetts, and Fletcher v. The State of Rhode Island, commonly known as the 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 selectmen in whom the power to grant licenses was vested, should not be compelled to grant any licenses. The statute of Hew 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 v. Maryland, that the laws of Massachusetts and Rhode Island 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; that they had no application to imported liquor in the hands of the importer ; that they did not interfere with his right to sell in the original packages, as laid down in Brown v. 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 was 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 the doctrine laid down by Chief Justice Marshall in Brown v. Maryland, and held that the right to sell imported liquor, derived from the United States, was confined to the importer and to liquor in the casks or packages in which it was imported, and tha-t 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 quanties 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 sustaiñed upon no other ground than that assumed by the chief justice, consistently with the rule asserted by the majority of the court, in Brown v. 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 v. 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 was questioned by those learned justices, and Brown v. 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 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 it, 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 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 exception of certain liquor in specie, from the operation of the first 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 still 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 2d 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 1st, according to the rule laid down in the license cases, that importers should be mentioned in section 2, but the legislature, apparently as a matter of precaution, inserted the clause last cited, in the 22d section. It refers to the same subject matter as the last clause of section 1st, 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 6th 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 *' * * shall be deprived of life, liberty, or property, without due process 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 taking 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 incidental to and inseparable from the title; that such right is one of the chief elements of its value, and that a law prohibiting the 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 gale 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 exeróise of them. This poAver, hoAvever, is subject to the restraints imposed by the constitution through which, in this state, the legislature derives its poAvers. 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 Avhether 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 or medicinal pui’poses, 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 1 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 these 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, betAveen those laws and the present law is, that those laws merely regulated, Avhile this prohibits such sale. It remains to be seen Avhether there is any difference in principle between the tAvo 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 v.Berberrich, and The People v. 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. Berberrich'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 the 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 value. * * * 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 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 or 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 sold, or 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 law. 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 j)revent 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 not whether a few, or many, are deprived of their jjroperty, 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 an 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, wdll 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 laws, it necessarily prohibits all. For 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 in the constitution whose protection and prohibitions 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 wrork 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 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 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 this 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 v. 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 concerningits 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 “ 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 liquors 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 prohibitum. The law of Rhode Island, under which another of those 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 Hew 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 a matter of right. The power of granting and refusing licenses was to 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 Hew Hampshire law, might well be doubted. As was natural, these laws encountered sturdy opposition from the interests só 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 their 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 by that court of 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 their 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 in the embargo laws passed by congress in 1807, which prohibited all importation and exportation to or from any foreign country. The 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 laws were passed did not authorize congress to destroy commerce, as those acts 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 v. 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 not 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, bearing relation to a power with which it is vested, be a legitimate exercise of that power or transcend it, the degree of legislative discretion admissible in the case must first be determined. Legal discretion is limited. * * * Polical discretion has a far wider range. It embraces, combines, and considers all circumstances, events and projects, foreign or domestic, that can affect the national interests. Legal discretion has not the m.eans of ascertaining the grounds upon which political discretion may have proceeded. It seems admitted that necessity might justify the acts in question. But how shall legal discussion determine that political discretion, surveying the vast concerns committed to its trust, and the movements of conflicting nations, has not perceived such necessity.” 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 on 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 á 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,” 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 power 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 purpose, 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 eotemporaneous 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 this act, 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 this 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, 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 this act, or proceedings are instituted to enforce a forfeiture of his liquor, for any such cause, different questions will be presented. With these 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 to 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 offense against the law. He disputes the right of the legislature to pass the law, and this question and the question of construction heretofore considered, 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 interfere 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 powers of sovereignty reside.

[Niagara General Term,

September 3, 1855.

The judgment of the court of sessions should be affirmed.

Bowen, Mullett and Greene, Justices.] 
      
       Reported ante, pp. 108, 224.
     