New-York tribune., 1919-07-06
Saloon Men Pin Hopes ON
NY. .CourtRuling in 1856
That Legislative Prohibb
tion Is Unconstitutional
Wait on Supreme Judges
Both Sides Marking Time
Until Highest Tribunal
Ends Limitless Tangle
Nesr Yeyk Tribune
Washington Barecu

NeW York Tribune
Washington Barecu
WASHINGTON, July 5.-The United
States Supreme Court is expected
shortly to clear up the legal Jog OF
the prohibition situation, wet leaders
here declared today, invoking, among
other things, the opinions of tho jus
tices of the New York State Court OF
Appeals when, in 1856, they declared
void and unconstitutional the prohibi-
tion law passed by the state Lesis-
lature which was similar in provisions
10 the Eighteenth Amendment
Among the matters to be settled by
the court will be the low-grade beer
dispute, the case of Rhode Island,
which has legalized 4 per cent beer in
the face Of national prohibition; the
case Of Ohio, which has directed that
an election be held on the wet or dry
issue. and the claims of California
grape growers against confiscation.
The 1856 ruling is summarized IN
statement given out by the Association
Opposed TO National Prohibition, with
extracts in the case Of Wynehamer VS..
The People:
This high tribunal gave painstaking
attention to every principle OF law IN
volved. Each justice rendered sepa-
rate opinion, going fully into the merits
OF the issue. Five of the SIX justices
took the ground that the dry law was
unconstitutional.
Test Power of Legislature
"Tha main noint was whether or not
the state Legislature had the power 10
pass n law that would be tantamount
to taking away a mans right to prop
ertv he had lawfully come in posses
sion of prior to July 4, the time when
the dry law became effective. The JUS
tices ruled with practical unanlml'y
that a distinction ought to have been
made between alcoholic beverages when
were already in possession of persons
when the law took effect and those
which might be manufactured after
that date. The opinion was general tnat
the state Constitution and the United
States Constitution protected all prop
erty legally owned by the citizen on
July 4 the same as il had done on July
3. After reviewing this phase of the
case Justice Comstock wrote:
~ en- brought, therefore, to more
particular consideration Of the llmlta-
lions of power contained IN the funda-
mental law. No member Of this stats
shall be disfranchised or deprived OF
any Of the righgts or privileges Sc
cured to any citizen thereof, unless oy
he law of the land or the judgment o.
h;s peers. No person shall be deprived
Of life. liberty or property without due
process of law. nor shall private prop
ertv be taken for public use without
INST compensation. These provisions
have been incorporated in substance
into all our state legislations. They
arc sirnple and comprehensive. and
DO not perceive that they derive any
additional force or meaning by tracing
their origin to Magma Charta and the
later fundamental statutes OF Great
Britain. In Magma Chayta they were
wrested from the King as re1tralh1s
unon the mower of the Crown. with US
thew are imposed by the people as re-
straints upon the power OF the Legis-
lature.
SAYS Property Is Protected
"'No doubt. it seems to me, can be
admitted Of the meaning of these pro
visions. To say, as has been sug
gested. that "the law Of land, or due
nrocess of law" may mean the act OF
LEGISLATION which deprives the citizen
Of his rights. privileges or properly
leads to- a simple absurdlty.. Inc Con-
stitution would then mean that no per
SON should be deprived OF his properly
or rights unless the Legislature shoui5
oass law to effectuate the wrong, ana
this would be throwing l"e
entirely away &c
"After q very exhaustive review Oh
the case and laying down some points
~ constitutional law about natural ana
;rherent rights which no legislative
i,anch of the American government
ON vjolate-points which apply to the
a,tuation of to-day with true slmih-
tude-Justice Comstock concludes mus:
"I am not insensible 70 the dellcacy
and importance of the duty we assume
in oyerruling an act oil the LegisIa.ulSi
believed by so many intelligent and
Good men to afford the best remedy Tor
sreat md admitted evils in society;
hut we cannot forget that the highest
function intrusted TO US Is that OF
maintaining infexibly the fundamental
i,v And. believing as | do that the
,rohibitory act transcends the constitu-
.;enaI limits Of the legislative power,
II must be adjudged TO be VOID. Inc
Judgments Of the Supreme Court ana
OF the Court OF Sessions must 'ne'e-
fore. be reversed.
Justice Selden's Opinion
"Upon the subject of confscation OF
property by legislative enactment JUS
tice Selden wrote:
"If IL be conceded that the Legis-
lature has not the power 20 pass law
directing a Sheriff or other officer tc
destroy these liquors, wherever he car
End them, without any process what
ever. then the constitutionality OF the
provision under consideration cannot
think, be maintained; because there
can be no material difference betweer
directing an officer 10 destroy them anC
directing the owner TO do 1t. nor be
tween enacting. in so many words. tha
the latter shall destroy them. anc
placing him in situation which sub
mits him 10 punishment as crimina
unless he does it.
"'How Is it possible TO deprive I
man more effectually Of his propert!
than TO enact that be shall be deemed
guilty Of q misdemesnor. and be liable
70 9 penalty. II he keeps it for an!
purposeT"