Smyrna times., 1856-06-11

.
aud BY none more iuly than the recent New
York decisions, gnon the prohibitory law of that
State. And where the object is legitimate
one, any means which Tie Legislature may eni-
ploy Ia attain il ara.h wfnl, if not inhibited by
the constitution itself The New York law,
Which authorizes The seizure and destruction OF
liquor IN the hands OF its owner, was held to
impair the vested right of property thus law
fully possessed at the time Of its passage, and
I'VE have ne occasion TO controvert the decision
on that point, as cur law contains no such pro-
vision.
But we must dissent, and do dissent, from the
position assumed by some OF the Judges in
those cases, aud in the argument here, that the
prohibition TO sell an article Of merchandise
destroys its character as property, and takes
away the vested rights of the owner. If this
were true, the sovereignty of the State would
be robbed of nearly all its police power, and
the individual right TO dispose of his property
would be above the right of the public to be
protected in their morals, health, peace or
safety.
Poisonous drugs; unwholcsome food infect
ed goods demoralizing books or prints; COM
bustIble and explosive substances, dangerous
ANIMALS, and every species of property could be
heid'and transferred at The will of the owner
The vendible quality of a thing is not of the
substance OF the thing i'll such sense that they
nay not be lawfully separated, and the right
tohlve or own thing does not oblige the State
10 furnish a market for its SALE
The right to sell it is conferred by law and
may be taken away by law, or its use prohibi-
Ted in any spctifi I'd form which is deemed to be
Injurious or demon alzing l BIac. Com. 13S I
Instances of this are so common in our legisla-
ton that | refer, in addition to such as have
4 Il
the prohibition TO sell slaves out of the State
and the prohibition Offree negroes to OoR or have
ga possession fire arms or warlike instruments.
Restrictions on the sale of liquor fall under
the same police power, and have always been
imposed by law. a license has been required
not for the purpose Of revenue only, but for the
purpose OF restraint, and as Judge Mclean re-
marked in the case before referred to, '''rhe ne
cessIty OF a license prcsupposesa prohibition OF
the right to sell, as TO them who have no IL
cense." The purchase of liquor under license
gives no power to sell without it when the
license expires the vendibe character of the
article. in that market, ceases in his hands, and
the 9th section of this Act reserves the power
81 safe under all licenses before granted by yir
tue fany law of the State until such license
expired.
As this consideration of the inviolability of
the right of property is the point of difference
between the Judges of New York in the Iiauor
cases referred to, aud relied on in the argument
! shall examine them more particularly, to
show that their views even of this question
would not be adverse to the validity of our law
on the principles assumed by them. II this be
so, the defendant will be left without the au
thorIty ofany adjudged case denying the power
oil The Legislature To pass laws similar in char-
acter To the Act under which he is indicted
unless 1t be the decision of single judge in |
Indiana, expressed ut chambers on the hearing
OF Il habeas corpus case.
in the "Wyanchamer case" Judge Comstock. |
while he regards the power of sale, we think
enormously, as fundamental right" of pro- |
perty essential TO its character as propertv. |
places his judgement on the "physica destruc /
lion OF the liquor as a result ofthe law of New |
YORK. lie says, son the day the law took
effect it was criminal to be in possession of in
toxicatlng liquors, however innocently acquired
the day before. 1t was criminal TO sell them.
and, under the law, therefore, no alternative
was left to the owner but their immediate de.
struction."
Judge Hubbard admits that " there is no con-
sttutlonal restriction on the power of the Leg
stature IN the regulation of the sale or traffic
IN intoxicating drinks, whether affecting exis-
ting rights OF property in liquor or not Asa
scheme OF regulation the degree of the limita-
ton OF the sale or traffic is a matter of lerisla
tive discretion" But he proceeds to saw thai
the fault OF the law he was considering was thai
II DAD not profess to be scheme of regulation. {
. The plain design of the law seems to have a
been TO cuS OF the liquor itself; to insure its /
destruction by clrcumscribing the keeping of it.
ihd auihorizlng Its SEIZURE if kept in a forbid :
lien place, or with u criminal intent TO SELL
of L.
least is prohibited, aud in this, in my Judgment.
:Unssts the error of the law as it respects H..
IuOr owned when the law went into operation
. there had been any right of sale within the
state preserved, for instance TO a licensed ven ,
er, although of minor Importance, it would
ave been sufncIent, perhaps, TO have impressed
he law with a character OF regulation, and 4
ased its validity"
Judge Seldom said, awhile. therefore do
ot question the constitutionalty of the pener- |
objects of the prohibitory law, and fully con-
ede the power OF the Legislature to prohibit n
ne SAFE OF intoxicating liquors, for ali except :
lechanical, chemical and medicinal PURPOSES,
cannot admit that it has the right to compel
neir immediate aud unconditional destruction, S
: Is, think, substantially done by this law" +
Judge A. 3. Johnson. al am not prepared
0 say that the Legislature may not. under the s.
take away the right of sale to the
xtent which this act c0ntemplates. But bv a Z,
eaerdi prohibition of sale, irrespective ofousn-
~ and purpose, coupled with a prohibition ~
ven to keep It, except in a dwelling house "
here no store, &c, is kept, and in places "
here certain arts aud trades are carried ON. :.
~ le"ni existence which the law and the con.
LUTON aes'gnate as property, is, in my iudg- u
lent. broken up, and the private injury is as N
o,nPetely enected as It the thing were physi. p
lily taken away" This scheme. taken 10. :,
ether, in my Judgment, is a scheme not of reou. p
.tou, but OF legal destruction of property. :
Inch, as much as any other, was under the %
rejection of the Constitutions" is
Etch Of the Judges, therefore, who decided v,
g'unst the constilutionalily of the prohibitory
quor law of New York, based his opinion on
rounds Of objections not applicable 10 the act -
our legislature, and sustained the principle ~
restrictive legislation to the full extent 70. NJ