The People agt. Berberrich and Toynbee.

lurked under any general grant of legislative authority, or ought to be implied from any general expressions of the will of the people."

And Judge BRONSON said, in Taylor agt. Porter, (4 Hill, 145,) "The security of life, liberty, and property lies at the foundation of the social compact; and to say that the grant of legislative power includes the right to attack private property, is equivalent to saying that the people have delegated to their servants the power of defeating one of the great ends for which the government was established. If there was not one word of qualification in the whole instrument, I should feel great difficulty in bringing myself to the conclusion that the clause under consideration," (conferring legislative power in general terms,) "clothed the legislature with despotic power. Neither life, liberty, nor property, except when forfeited by crime, or when the latter is taken for public use, falls within the scope of the power."

But, as I have already remarked, the constitution of this state provides expressly that no person shall be deprived of life, liberty, or property, without due process of law. This provision is general, and applies to, and of course limits the power of the legislature. That body can no more deprive any one of his property, without due process of law, than can a private individual. An act of the legislature is not the due process of law mentioned in the constitution. Those words, as was remarked by Judge BRONSON in the case last cited, cannot mean less than a prosecution, or suit instituted and conducted according to the prescribed forms and solemnities for ascertaining guilt, or determining the title to property." In other words, a man cannot be legislated out of his life, liberty, or property.

66

That intoxicating liquors were property at the time of the adoption of our state constitution there can be no doubt. They had been for many ages in general use, as well by the prudent and the virtuous as by the reckless and the vicious. To have denied to the farmer his cheerful glass of cider, or to the laboring man, when worn down with fatigue, the support of his customary restorative, would have excited as much astonishment,

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and created as much resistance in the old time, as would the denial of tea or coffee to our ladies at the present day. Whether those who have gone before us, including the greatest, wisest, and best of their days, were right in thus indulging their tastes, or whether their conduct was indiscreet, and deserved to be characterized as criminal, according to the opinion of modern reformers, are not questions for the consideration of the judiciary. I allude to the former practice to show that intoxicating liquors were property with the general assent of mankind.

It was said by Chief Justice TANEY, in the license cases from Rhode Island, New-Hampshire, and Massachusetts, (5 Howard, 577,) that "spirits and distilled liquors are universally admitted to be subjects of ownership and property, and therefore subjects of exchange, barter, and traffic, like any other commodity in which a right of property exists:" and CATRON, J., remarked, in the same cases, that "ardent spirits have been for ages, and now are subjects of sale, and of lawful commerce, and that of a large class throughout the civilized world, is not open to controversy. So our commercial treaties with foreign powers declare them to be, and so the dealings in them among the states of this Union recognize them to be." That such liquors are property still admits of no doubt. Their importation from foreign countries. is expressly sanctioned, and they are heavily taxed by congressional legislation.

If the acts of congress had been legitimately passed by the legislature of this state, we should have been virtually precluded from denying the characteristics of property to what we had directly admitted within our borders and subjected to taxation. The faith of states, which should ever be preserved inviolate, would have forbidden it. We are equally, though possibly not as directly, included by the acts of a general government, of which, by our own volition, we are a member. Intoxicating liquors are still freely admitted and heavily taxed; and their sale by the importer while in the cask or vessel in which they were introduced into the country, and their purchase by any one, are authorized beyond the reach of state legislation. It is true, that their subsequent sale was, at the time of the adoption

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of our state constitution, subject—and no doubt lawfully subject-to the regulations contained in our excise laws. The supreme court of the United States has decided, on various occasions, that state laws regulating sales of intoxicating liquors are not prohibited by the constitution or laws of the United States. Some of the judges, in the license cases from three of the New England States to which I have alluded, expressed opinions that state laws prohibiting entirely intoxicating liquors, might not conflict with the powers conferred upon, and exercised by the general government; but the decision of that question was unnecessary, as it was admitted by the judges that the statutes of those states were not prohibitory.

The remarks of those learned judges, as to the right of the states to pass laws prohibiting the sale of foreign liquors, had no reference to the limitation of the power of the legislature of the states by their own constitutions; and besides, they were mere obiter dicta, as they were upon a question not at all involved in the cases before them, and would not, according to a rule they had laid down for their own conduct, at all control them, or the court of which they were members, in any future determination. From the considerations to which I have alluded, I have no doubt but that imported liquors are still, as they always have been,-property.

As to liquors of domestic origin, there are other and, possibly, more difficult questions. The control of the state over them has not been, nor, unless they are introduced from other states, cannot be, subject to congressional legislation. Whether it is competent for the legislature to prohibit their manufacture in this state is not now a question, as that has not been done. They can yet be lawfully manufactured, and, when manufactured are still property; and as such are, equally with imported liquors, protected by the ægis interposed by our state constitution.

It is clear, as I have before intimated, that the protection to property extends to and includes its generally conceded characteristics, especially those without which it would be valueless; otherwise it would be but nominal, and scarcely that. It was

The People agt. Berberrich and Toynbee.

contended, however, by the counsel for the people, that the sale of intoxicating liquors was not prohibited by the statute; that any of them might be sold for medicinal, manufacturing, and sacramental purposes; and that foreign liquors might be sold by the importers, in the original cask or vessel, to any one. The permitted sales would be very inconsiderable. And the statute, if carried into full, and its designed, operation would effectually prevent its use, as an ordinary beverage, by the great mass of the people-the use for which it was mainly designed, and without which it would be of little or no value. It might be accessible to the wealthy, but would be unattainable by men of moderate means. That would create a distinction between the rich and the poor, which should ever be avoided in legislation—if it is desirable that our laws should be respected or enforced. It is no matter what may be the pretence, the denial would be a restriction; and that to be just, should operate upon all; if not equally, the inequality should not be the direct and palpable effect of the statute. I consider the statute in question as mainly prohibiting the sale of intoxicating liquors as a beverage, and destructive of its principal value; and with that impression I must adjudge it to be null and void to that extent.

The inviolability of the rights of private property is subject to the prerogative resulting from the eminent domain always existing in the sovereign power to take it for public purposes, on paying an adequate compensation to the owner. But the compensation must consist of a direct and specific remuneration, and not merely of the general good conferred upon the community by the passage of a beneficent law. The Prohibitory Law does not, nor from the nature of the case could it, 'make any direct compensation to the owners for the property which it is proposed to sacrifice.

So, too, there is necessarily reserved the right of taxation; but the exercise of such right, although it requires the contribution of a portion of what belongs to the citizen, in effect rather increases than diminishes the value of the entire property, by

The People agt. Berberrich and Toynbee.

the security which it enables the public to give to all that is retained.

The interest in the question as to the validity of the Prohibitory Law is not confined to those only who may own the property which it is proposed, in effect, to render unavailable to the proprietor. It extends to the entire community. If the shield of constitutional protection can be withdrawn from one species of property, any other may be successfully assailed under some specious pretences, or indeed without any at all. It is by no means a sufficient answer to this, to say that the power over property, which is now claimed in behalf of the legislature, would not be liable to abuse, as the members are elected by the people, with whom they retain a community of interests, as they enjoy but a short term of office, and must soon return to the ranks of private life.

The patriots of the Revolution, constitution, and the enlightened of the contention who adopted our state constitutio thought Wise and accordingly limited the power of the lature expressly in several important particulars, and by in plication any hers. They no doubt thought, and rightly though that the possession of despotic power by any department of our government would be inconsistent with our free institutions, and that the safety of our lives, our liberty, and our property, required that they should not be subjected to the arbitrary disposal or control of any man, or set of men.

It may be, that the ordinary use of intoxicating drinks necessarily leads to their frequent abuse, and that the interests of society require that property in them should be, in effect, annihilated. If so, they might, and possibly should, be withdrawn from the pale of constitutional protection. But that has not yet been done, nor can it be done by any other power than that by which our organic laws were ordained. Whatever those institutions require, the court must award, as it is the duty of the judges, imposed upon them by their official position, and under the solemnity of an oath, to support the constitution of