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The People agt. Berberrich and Toynbee.

our common country, and of our own state, from whatever quarter, or under whatever pretence, they may be assailed.

I have not the slightest wish to extend any protection or encouragement to the habit of inebriation, or to throw any impediment in the way of the good and the virtuous, who are so solicitous to arrest its progress. It is an abomination, and should be suppressed (so far as human means can do it) by precept, by example, and by legitimate legislation. But we should go no further, lest we“ do evil that good may come.” The injunction against that is wise; as the evil is certain, while the production of the good might be, at least, problematical.

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

ROCKWELL, Justice-dissenting in part. The defendant (Berberrich) has been convicted before a court of special sessions held by the county judge of Dutchess county, of having sold intoxicating liquor in violation of the act for the prevention of intemperance, pauperism, and crime, passed April 9, 1855. It is claimed that the defendant should be discharged from custody.

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

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

The People agt. Berberrich and Toynbee.

consent of the governed, were instituted to protect. They are defined as follows:

“By the absolute rights of individuals, we mean those which are so in their primary and strictest sense, such as would belong to their persons merely in a state of nature, and which every man is entitled to enjoy, whether out of society or in it.” (1 Black. Com. 123.)

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

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

The People agt. Berberrich and Toynbee.

law-making power, in the exercise of its legitimate discretion, decides that such improvements are conducive to the public good, no individuals, whose injuries are consequential merely, will be permitted to arrest the action of the government, or will even be entitled to compensation for the injury which he may sustain. (Radcliff's Executors agt. The Mayor, &c., of Brooklyn, 4 Com. Rep. 195.)

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

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

There is no doubt but that a great number of individuals will sustain a serious loss of property and derangement of business through the operation of the prohibitory feature of the law in question. But this consideration is not decisive of the ques

The People agt. Berberrich and Toynbee.

tion of legislative competency. The question still remainsWas the passage of the act an exercise of the legitimate discretion and power of the legislature, founded upon considerations of public policy, tending to promote the morals, the health, and safety of the community, or was it a mere wanton and unnecessary invasion of the private rights of individuals?

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

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

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

It is enough to uphold this law, that its tendency is to prevent the public evils against which it is directed, and to promote the public benefits which it is designed to reach. It is not difficult, by ignoring the whole object and purpose of the law, to make out a very plausible case of legislative encroachment upon private rights. But this is not a just or fair mode of considering

The People agt. Berberrich and Toynbee.

it. The great ends of public policy which it was intended to subserve, are clearly within the scope of legislative competency. The public evils which it was intended to suppress are the most formidable to the peace and welfare of society which those who make or administer the laws are called upon to encounter. Assuming that the legislature have acted in good faith, that they have not wantonly and unnecessarily invaded private rights, under the mere pretence of preventing public evils, I think the question, whether the public benefits are of greater weight or importance than the individual losses which will result from the prohibition of the sale of intoxicating liquor as á beverage, is one of legislative discretion, and with which the judiciary has no concern. It was for the legislature to determine to what extent it was necessary to interfere with private rights in order to accomplish the great ends of public policy which they had in view; to array on the one side the serious loss of property, and derangement of business which must ensue from the passage of this law, and on the other the appalling statistics of intemperance, pauperism, and crime, and then determine whether the public necessity was sufficiently urgent to justify the individual wrong.

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

2. Because it does not appear, from the complaint under which he was arrested and convicted, that he sold liquor which was not imported. That, by the true construction of the exception at the close of the first section of the act, the unrestricted sale of all imported liquor is permitted. The language of this exception is as follows:

" This section shall not apply to liquor, the right to sell which in this state is given by any law or treaty of the United States."

It is said that, as this clause occurs in a penal statute, and is a part of the definition of the offence which it is the intention of the law to prohibit and punish, it must be strictly construed. This may be so; but a literal construction of the clause will render it entirely nugatory. The rights of those whose inter

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