13 N.Y. 378, Wynehamer v. People

Citation:13 N.Y. 378
Party Name:WYNEHAMER, plaintiff in error, v. THE PEOPLE, defendants in error. THE PEOPLE, on the complaint of Mathews, v. TOYNBEE
Case Date:March 01, 1856
Court:New York Court of Appeals

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13 N.Y. 378

WYNEHAMER, plaintiff in error,


THE PEOPLE, defendants in error. THE PEOPLE, on the complaint of Mathews,



New York Court of Appeal

March 1, 1856

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A. J. Parker, for the plaintiff in error, in the case first entitled.

A. Sawin, for the people.

J. M. Van Cott, for the people, in the case secondly entitled.

John A. Lott, for the defendant.

The opinion by COMSTOCK, J., and that by T. A. JOHNSON first inserted, and by MITCHELL secondly inserted were delivered in the case of Wynehamer, first above entitled. The other opinions, except that by DENIO, C. J., which states his conclusions as to both cases, were delivered in the case of Toynbee.


The defendant, Wynehammer, was indicted and convicted by a common-law jury, in the court of sessions

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of Erie county, for selling liquors in small quantities contrary to the "Act for the prevention of intemperance, pauperism and crime, " passed April 9, 1855. The indictment contains no allegations to bring the case within any of the excise laws of the state, even if those can be regarded as unrepealed, and the conviction therefore must stand, if it can stand at all, upon the statute referred to. It was admitted on the trial that the defendant was the owner of the liquors in question before and at the time the law took effect; and his counsel insisted that he was entitled to an acquittal on the ground, among others, that the statute was unconstitutional and void. The proposition was overruled. The supreme court in the 8th district affirmed the conviction; thus determining that the act, in its prohibitory clauses, was constitutional and valid; and this is the only question I shall consider.

The constitution of this state has vested "the legislative power" in the senate and assembly, subject, however, to some special limitations, which are of very great interest and importance. It is declared (art. 1, § 1) 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. "It is further declared (art. 1, § 6) "that 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. " Without inquiring into the extent of legislative power, in the absence of special restraints, I think the case before us can be and should be determined under these limitations, the construction, force and application of which will be hereafter considered.

In determining the question, whether the "Act for the prevention of intemperance, pauperism and crime" was an exercise of power prohibited to the legislature, an accurate perception of the subject to which it relates is the first requisite. It is, then, I believe, universally admitted that when

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this law was passed intoxicating liquors, to be used as a beverage, were property in the most absolute and unqualified sense of the term; and, as such, as much entitled to the protection of the constitution as lands, houses or chattels of any description. From the earliest ages they have been produced and consumed as a beverage, and have constituted an article of great importance in the commerce of the world. In this country the right of property in them was never, so far as I know, for an instant questioned. In this state, they were bought and sold like other property; they were seized and sold upon legal process, for the payment of debts; they were, like other goods, the subject of actions at law; and when the owner died, their value constituted a fund for the benefit of his creditors, or went to his children and kindred, according to law or the will of the deceased. They entered largely into the foreign and internal commerce of the state, and when subjected to the operation of this statute, many millions in value were invested in them. In short, I do not understand it to be denied that they were property in just as high a sense as any other possession which a citizen can acquire. Judicial authority might be cited, but this does not seem necessary where there is scarcely a controversy.

It may be said, it is true, that intoxicating drinks are a species of property which performs no beneficent part in the political, moral or social economy of the world. It may even be urged, and, I will admit, demonstrated with reasonable certainty, that the abuses to which it is liable are so great, that the people of this state can dispense with its very existence, not only without injury to their aggregate interests, but with absolute benefit. The same can be said, although, perhaps, upon less palpable grounds, of other descriptions of property. Intoxicating beverages are by no means the only article of admitted property and of lawful commerce in this state against which arguments of this sort may be directed. But if such arguments can be allowed

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to subvert the fundamental idea of property, then there is no private right entirely safe, because there is no limitation upon the absolute discretion of the legislature, and the guarantees of the constitution are a mere waste of words. The foundation of property is not in philosophic or scientific speculations, nor even in the suggestions of benevolence or philanthropy. It is a simple and intelligible proposition, admitting, in the nature of the case, of no qualification, that that is property which the law of the land recognizes as such. It is, in short, an institution of law, and not a result of speculations in science, in morals or economy.

These observations appear to me quite elementary, yet they seem to be necessary, in order to exclude the discussion of extraneous topics. They lead us directly to the conclusion that all property is alike in the characteristic of inviolability. If the legislature has no power to confiscate and destroy property in general, it has no such power over any particular species. There may be, and there doubtless are, reasons of great urgency for regulating the trade in intoxicating drinks, as well as in other articles of commerce. In establishing such regulations merely, the legislature may proceed upon such views of policy, of economy or morals as may be addressed to its discretion. The whole field of discussion is open, when the legislature, keeping within its acknowledged powers, seeks to regulate and restrain a traffic, the general lawfulness of which is admitted; but when the simple question is, whether it can confiscate and destroy property lawfully acquired by the citizen in intoxicating liquors, then we are to remember that all property is equally sacred in the view of the constitution, and therefore that speculations as to its chemical or scientific qualities, or the mischief engendered by its abuse, have very little to do with the inquiry. Property, if protected by the constitution from such legislation as that we are now considering, is protected because it is property innocently

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acquired under existing laws, and not upon any theory which even so much as opens the question of its utility. If intoxicating liquors are property, the constitution does not permit a legislative estimate to be made of its usefulness, with a view to its destruction. In a word, that which belongs to the citizen in the sense of property, and as such has to him a commercial value, cannot be pronounced worthless or pernicious, and so destroyed or deprived of its essential attributes. Sir William Blackstone, who wrote of the laws of England nearly a century ago, said: "So great is the regard of the law for private property, that it will not authorize the least violation of it, no, not even for the general good of the whole community. If a new road, for instance, were to be made through the grounds of a private person, it might, perhaps, be extensively beneficial to the public, but the law permits no man, or set of men, to do this without the consent of the owner of the land. In vain may it be urged that the good of the individual ought to yield to that of the community, for it would be dangerous to allow any private man, or even any public tribunal, to be the judge of this common good, and to decide whether it be expedient or no. Besides, the public good is in nothing more essentially interested than in the protection of every individual's private rights, as modeled by the municipal law. In this and similar cases, the legislature alone can and frequently does interfere and compel the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property, in an arbitrary manner, but by giving him a full indemnity and equivalent for the injury thereby sustained. " (1 Bl. Com., 139.)

While this language of the English commentator by no means expresses the full force of the limitation imposed upon the legislature by the people of this state in their written constitution, it contains, nevertheless, a vindication of the sanctity of private property, as against theories of

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public good, eminently applicable to our own condition and times. In a government like ours, theories of public good or public necessity may be so plausible, or even so truthful, as to command popular majorities. But whether truthful or plausible merely, and by whatever numbers they are assented to, there are some absolute private rights beyond their reach, and among these the constitution places the right of property.

The views thus far expressed, the substance of which I think must command a general assent, would seem to narrow the field of inquiry. Do the prohibitions and...

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