The Portland daily press. [volume] (Portland, Me.) 1862-1921, 1886-03-13

perfectly legal industry, would the owner
| hold his investment subject to the opinions
/ OF perhaps temporary majority?
Or take still stronger Illustration. ms
Is q corn growing State. Yet wheat, also, Is
raised abundantly, and many -four mills ex-
ISL suppose the legislature should deter
mine tnat the best interests of the State
would De promoted BY stopping the growing
| OF WneaL, ana increasing the crop of corn
and to that end should prohibit the milling
OF Hour. Must the owners without compen-
| sation abandon their milling and sacrifice
their investment? Does not natural justice,
as well as constitutional guarantee, Compel
] compensation as condition to such sacri-
| fee? Yet who can state what the law will
recognize as a legal distinction between
| those cases and this. OF course it will be
said that no legislature would ever think of
such extreme and unreasonable action. But
the question for courts to determine is not
what is likely to be done, but what can be
DONE
Thirdly, l affirm that no matter what legis-
lative enactments may be had, whatforms OF
procedure, judicial or otherwise, may be pro-
scribed, there is not "due process OF law, II
the plain purpose and inevitable result Is
the spoliation of private property for the
benefit of the public without compensation.
1t is mistake to say that the forms OF law
alone constitute "due process" No COM
plete and perfect definition of the phrase
due process of law" has yet been given.
The most familiar, and one for ordinary
cases sqt1eiently accurate, is that given by
Daniel Webster in the celebrated Dartmouth
college case, the claw of the land" being
substantially equivalent to "due process Of
law, as follows: SPY the law of the land is
meant the general law, which hears before it
condemns which proceeds upon inquiry, and
rendens judgment only upon trial."
Bnt as said by Mr.. Justice Miller. in Da-
wilson VS.. New Orleans, 96 u. S., 104, 1t Is
probably better to leave the meaning to be
evolved by the gradual process of judicial
md alr ciO
Sented for decision shall require, with the
reasoning on which such decision may be
founded"
In the same case Mr. Justice Bradley adds
these words I'm judging what is due pro-
cess of law respect must be had to the cause
and object OF the taking-whether under the
taxing power, the power of eminent domain,
or the power of assessment for local improve
ments, or none of these; and if found to be
suitable or admissible in the special case, it
will be adjudged to be in due process Of
law but if found to be arbitrary, oppres-
sive and unjust it may be declared to be not
due process of law
In Murray's lessee VS.. Hoboken L. & | Co.,
IS How, 266, the supreme court thus limits
the meaning Of the phrase:
1.-THE constitution contains no description
of these processes which it was intended to
allow or forbid. 1t does not even declare
what principles are to be applied to ascer-
tain whether it be due process. 1t is mani
fest that it was not left to the, legislative
power to enact any process which might be
devised. The article is restraint on the
legislative, as well as on the executive and
judicial powers, of the government, and can
not be so construed as to leave congress free
to make any process due process OF law, by
its mere will''
Now, in the case at bar, while judicial pro-
ceedings are prescribed, yet the. spoliation Is
the direct command of the legislature, ana
the judicial proceedings are only the machin-
cry to execute that command. No discretion
is left to the courts. The legislature has in
terms said to defendants, stop your use Of
your brewery, and has directed the courts to
enforce that command. There is nothing
but mere machinery between the legislative
edict and an unused valuelesS mandatory.
As well might the executive as the courts be
charged with the enforcement Of this COM
mand. Such command no matter how en-
forced, operative to deprive the citizen of
the value of his property without compensa-
ton, is, in the language Of Mr.. Justice Brad
ley, supra, arbitrary, oppressive and I'M
just" and therefore should be declared to
be not due process of law"
Fourthly, and as necessary consequence
of the preceding legislation which operates
upon the defendants, as does this, in conflict
with the fourteenth amendment, and as to
them void, at least it presents question
arising under such amendment and to which
they are entitled to the opinion and judg-
ment of the federal courts. As the amount in
controversy is unquestionably in excess OF
$500, the case is removable one. In view
of what has hitherto fallen from my pen in
other cases it may be unnecessary to add
anything further; yet to guard against any
possible misrepresentation, as well as to indi-
cate that my views, as expressed upon other
questions, have not changed, let me say that
| do not in the least question the power of
the state to absolutely prohibit the manufac-
ture of beer, or doubt that such prohibition
is potential as against any one proposing in
the future to engage in such manufacture.
Any one thus engaging does so at his peril,
and cannot invoke the protection OF the
fourteenth amendment or demand the con-
sideration and judgment of the federal
courts All that | hold is, that property
within the meaning of that amendment in
cludes both the title ana the right to use;
that when the right to use in given way is
vested in citizen, 1t cannot be taken from
him for the public good without compensa-
ton. Beyond any doubt the State can pro-
hibit defendants from continuing their busi-
ness of brewing, but before it can do so 1t
must pay the value Of the property de-
stroyed
Nothing that have said in this opinion is
to be taken as bearing on the question OF the
sale of beer or the power of the State over
that. Counsel claimed that the right to man
ufacture without the right to sell was bar
rem right. Whatever limitations may exist
in this State, the markets of the world are
open, and with such markets the rlghtto
manufacture is far from barren right.
Other questions were discussed by counsel
at great length, and with great ability. l
have not noticed them in this opinion, al
ready lengthy, because this question is in the
case, cannot be ignored, and Justifies re-
moval.
The motion to remand will be overruled.
One thing more l may be excused for re-
ferring to. In the course of the various ar
gumentS that have been made to me in this
State and the sister state of Iowa on the
question of removals to the federal courts OF
proceedings to enforce their prohibitory
laws, it has more than once been intimated
that jurisdiction in the federal courts of
such proceedings, meant the notification of
those laws There could be no greater mis-
take. The judges of these courts
are citizens of these States; as inter-
ested as any citizens in the good name
of their states the enforcement of their laws,
and the sobriety of their citizens. Experience
has shown that those courts enforce laws as
strictly as any, are as little disposed to toll
crate triling or evasion OF their orders, and
generally with a severe hand. If 1t should
Supreme Court of the United States, the ul-
innate tribunal in this nation, 1t should be
determined that in this or any kindred case
the zeal for temperance of the good people
of this State has led them to infringe upon
sacred and protected rights OF property /
cannot doubt that they will gladly hasten to
make the compensation which shall be found
just. Indeed it is a truth ever to be borne
in mind, and never more so than in times of
deep feeling and determined effort, that they
who are striving to lift society up to the
plane Of higher and purer life should see
to it that every act and every step is attended
by absolute justice. | commend this to the
thoughtful consideration and judgment Of
the good people of my state, state in whose
past glory, and in whose future l believe.
DAVID J. BREWER,
Circuit Judge.