Thomas v. Clapp. the persons therein named, as thereby assessed, together with five per cent for fees. If there is any informality in the warrant it consists in the direction to collect five per cent for fees; the law of 1849 (Sess. Laws of 1849, p. 555) entitling the collector to but one per cent on all sums paid in within two weeks. This statute does not prescribe a new form for the warrant, but limits the action of the collector under it. He cannot demand or receive over one per cent for such sums as may be paid in to him within two successive weeks, and when he proceeds to collect after the expiration of that time he may collect, and should be commanded to collect, five per cent for his fees. He is to remain passive to receive during two weeks, and then is to proceed to collect, when he may demand five per cent on his collections for fees. (Parker v. Brown, 17 Barb. 145.) It was sufficient that the warrant was signed by two of the trustees. The statute requires that the warrant should be under the hands of the trustees, or a majority of them. (1 R. S. 903, 4th ed. p. 144. Folsom et al. v. Streeter, 24 Wend. 266.) The warrant was fair on its face, and hence afforded complete protection to the collector. The tax was levied and assessed by all the trustees; and in performing those duties they acted together, and all concurred. This was an end of their judicial labors, and it was unimportant whether all were present or not when the warrant was signed. The signing of the warrant was but a ministerial duty. The case of Lee v. Parry, (4 Denio, 125,) and kindred cases, have therefore no application to this. The statute requiring the tax to be assessed and the tax list therefor to be made out by the trustees and a proper warrant attached thereto, within thirty days after the district meeting in which the tax shall have been voted, is merely directory as to time. It being for the benefit of the public, those acts may be done after the time specified in the statute has elapsed. (Gale v. Mead, 2 Denio, 160, and cases there cited.) It only remains to inquire whether the trustees had jurisdiction to levy the tax; and on this question there can be but The People v. Toynbee. one opinion. They acted in pursuance of their duty, under a resolution adopted at a regular meeting of the inhabitants of the district. The judgment of the county court should be affirmed. [FULTON SPECIAL TERM, May 15, 1855. Bockes, Justice. Affirmed at the ESSEX GENERAL TERM, July 2, 1855, C. L. Allen, Bockes and James, Justices, for the reasons given in above opinion.] 20b 168 64ad286 THE PEOPLE, on the complaint of JOHN MATHEWS VS. THOMAS TOYNBEE. THE SAME, on the complaint of JOHN E. VASSAR, vs. Philip So much of the 1st section of the act of the legislature entitled "An act for the prevention of intemperance, pauperism and crime,” passed April 9, 1855, as declares that intoxicating liquors shall not be sold or kept for sale, or with intent to be sold, except by the persons and for the special uses mentioned in the act; so much of sections 6, 7, 10 and 12 as provide for its seizure, forfeiture and destruction; so much of the 16th section as declares that no person shall maintain an action to recover the value of any liquor sold or kept by him which shall be purchased, taken, detained or injured, unless he prove that the same was sold according to the provisions of the act, or was lawfully kept and owned by him; so much of section 17 as declares that upon the trial of any complaint under the act, proof of delivery shall be proof of sale, and proof of sale shall be sufficient to sustain an averment of unlawful sale; and so much of section 25 as declares that intoxicating liquor kept in violation of any of the provisions of the act, shall be deemed to be a public nuisance-are repugnant to the provisions of the constitution for the protection of liberty and property, and are absolutely void. ROCKWELL, J., dissented. THE HE first of these cases came before the court on an appeal from a court of special sessions in the city of Brooklyn, and the other by certiorari to a court of special sessions of the county of Dutchess, in which courts the defendants were severally convicted of violations of the act of the legislature entitled The People v. Toynbee. "An act for the prevention of intemperance, pauperism and crime," passed April 9, 1855, and usually known as the "Prohibitory Liquor Law." (Laws of 1855, p. 340.) John A. Lott and A. Hadden, for the appellants. I. The act under which the proceedings in this case were instituted, is unconstitutional and void. 1st. Because it is in violation of the first section of article 1, of the constitution of the state of New York, which provides that "no member of this state shall be disfranchised or deprived of any of the rights or privileges secured to any citizen thereof, unless by the law of the land, or the judgment of his peers. By "the law of the land," is meant a proceeding according to the course of the common law; a trial and judicial sentence, and not merely a statute passed for accomplishing the wrong. The property, the keeping of which is prohibited, is not only declared to be a public nuisance, by section 25, but the natural and unavoidable effect of the act is to render the property useless and unavailable to its owners as an article of traffic, and in the manner in which it has heretofore been used and disposed of; and the right to use his own property, to control and dispose of it, is a right and privilege secured to every citizen. Previous to the passage of the act under consideration, great numbers of the citizens of the state had, by manufacture and purchase, acquired and become the owners of, and therefore had vested rights in large quantities of liquors, wines and ales, the value of the principal part of which will be entirely destroyed if the act be sustained. The act is in violation of the same section of the constitution in this also: That by the 16th section of the act, every person who shall be engaged in the sale of the prohibited article, is deprived of his competency and right, when called upon, to act as a juror upon any trial under any provision of the act, without any legal or sufficient reason. (Green v. Green et al. 1 Curtis, 328.) 2d. Because section 5th, which directs the trial of the accused by courts of special sessions, is in violation of sec. 6, art. 1, of the constitution, which provides that no person shall be held to answer for an infamous crime (except in VOL. XX. 22 The People v. Toynbee. the cases there specified) unless on presentment or indictment of a grand jury. 3d. Because it violates sec. 2 of art. 1, of the constitution, which secures the right of trial by jury, inasmuch as the 5th section of the act restricts the number of jurors to act on trials under the provisions of the act, to six only; whereas the right of trial by jury secured by the constitution is the right to be tried by twelve jurors. (Taylor v. Porter, 4 Hill, 140. See also Debates in Convention of 1846, Argus edition, p. 423, &c.) 4th. Because it violates sec. 5 of art. 1 of the constitution, by imposing excessive fines and inflicting unusual punishments. The 4th section of the act provides that every person who shall violate any provision of the preceding sections shall forfeit all the liquor kept by him in violation of either of those sections; which might well amount to many thousands of dollars in value. And the same section also directs the commitment of the defendant in case of default of payment of any fine, costs and fees, or any part thereof, until the same are paid, "not less than one day per dollar of the amount unpaid,” thereby authorizing the imprisonment of the defendant for an unlimited time. 5th. Because it violates that part of the 6th section of the constitution which provides that no person shall be deprived of property without due process of law. The seizure directed by the 12th section of the act, is without due process of law. An enactment of a legislature is not a process of law. Those words mean a trial according to the known and established forms and rules for ascertaining guilt or determining the title to property. (Opinion of Justice Bronson, in Taylor v. Porter, 4 Hill, 145, 6. Sackett v. Andross, 5 id. 358, 9. Westervelt v. Gregg, 2 Kernan, 209, 212. 2 Kent's Com. 13. 2 Inst. 50.) The section referred to authorizes and directs the seizure of property to an unlimited amount by every sheriff, under sheriff, deputy sheriff, constable, marshal or policeman, however irresponsible, and without making any provision for securing the return thereof to the owner, in any case. II. The act is an infringement of certain natural, fundamental and obvious rights and principles, which are not derived The People v. Toynbee. from nor defined by any written constitution or laws, but which are recognized by and constitute the bases of both, thus: The right of personal liberty, and the innocent use and enjoyment of the products of our labor and our property. The power of the legislature in the enactment of laws, (whatever it may be in other countries,) is not unlimited in this; but is restricted. both by the written constitution, and by the generally received principles of justice and equal rights; and the judiciary is the only tribunal by which it can be peaceably determined whether the legislature have transcended their authority. (Opinion of Justice Chase, in Calder v. Bull, 3 Dallas, 386. Opinion of Chief Justice Marshall, in Fletcher v. Peck, 6 Cranch, 87. Opinion of Bronson, J., in Taylor v. Porter, 4 Hill, 146. Opinion of Senator Tracy, in Bloodgood v. The Mohawk and Hudson R. R. Co., 18 Wend. 56, 61, 62, 63. Opinion of Justice Hosmer, in Goshen v. Stonington, 4 Conn. 225. Wilkinson v. Leland, 2 Peters, 654. Smith's Com. on Statutory and Const. Constr. 258 to 289. 2 Kent's Com. 329 to 340, Lec. 34, 2d ed.) Those provisions of the act which authorize the seizure and destruction of private property; which undertake to prohibit the use to which the proscribed property is generally and principally appropriated; which declare that to be a crime which is not considered by the world criminal, or even immoral; which assume the power to determine physical facts, as that all distilled and malt liquors are intoxicating, are unwarranted by any thing contained in the constitution, or in the delegated powers of the legislature. What is a nuisance, and what is intoxicating, are questions for adjudication, and not subjects of legislation; and the legislature have quite as much authority to declare the use of wine for sacramental purposes a nuisance, and pure water intoxicating, as to determine such to be the respective characteristics of liquor kept to be used as a beverage, and of distilled liquors. The prohibition by the act so far, at any rate, as regards domestic liquor, is in effect absolute, because no person under this act can have any authority to sell any quantity of it, except for purposes for which it is only accidentally useful, and in comparatively minute quantities, |