OPINION OF

NICHOLAS HILL, JR., ESQ.,

ON THE PROHIBITORY LIQUOR LAW.

THE bill, after prohibiting the selling or givingaway of intoxicating liquor, except by certain persons, and for specified purposes, proceeds to make the mere act of keeping or depositing it, with certain qualifications as to the place and intent, a cause of seizure, forfeiture, and destruction. And the first question I propose to consider is, whether, the means prescribed for effecting the latter object are consistent with the Constitution.

There is no doubt that intoxicating liquor-one of the subjects of this process of seizure and forfeiture is property; and that it remains so until the period when judgment of forfeiture is finally pronounced.

See 6 Law Report. 622, 634, N. S.; 1 Curtis' R., 311, 32-9; 33 Maine Reports

558, 561.

Whether it can be levied on and sold, under an execution against the owner for debt, on the ground that the prohibition against selling relates only to voluntary and private acts, and not to sales in invitum, by public officers, need not be considered.

See 3 Pick. R. 323.

On his death, however, at any time before judgment of forfeiture, it will clearly pass to his executors or administrators as a part of his personal estate, and may be the subject of distribution by them, if not of sale, for the payment of debts, &c.

2 R. S. 82, 3; Id. 87, 96-7; § 3 of bill.

Nor is there any thing in the anomalous clause declaring all liquor unlawfully kept, to be a public nuisance, which prevents it from being considered and protected as property. Even if the clause is valid, the liquor is not declared a nuisance per se, but becomes so, in the judgment of the Legislature by the mere manner in which it is used or kept. (Section twenty-five.) The legal effect of the provision need not be traced to all its practical consequences. Assuming for the present that it is valid, and gives all the rights arising from the existence of a nuisance at common law, one of these may be the right of abatement by private force. The most that can be done, however, in the ex

ercise of this right, if it exists, which I utterly deny, is to remove the nuisance; not unnecessarily to destroy the property.

See 7 Dana's R 376 et seq.; 1 Strange's R. 686, 688-9; Chitty's Prac. 654; 9 Barn. & Cres. 302; 2 Harris' R. 306-7; 15 Wend. R. 398, per Circuit Judge; 1 Green's R. (Iow.) 348.

Conceding, however, that a person may even destroy it under color of the remedy by abatement, does it cease to be property because of its exposed condition in this respect? I think not. Take the extreme case of gunpowder, kept in such a manner as to render it a public nuisance. It is property, nevertheless, and as such, is protected by law. For depredations upon it, except to remove the nuisance, the aggressor would be liable; if a thief, to indictment; and if a trespasser, to a civil action.

True, there is another part of the bill, which, in effect, and in certain cases, disables the owner from maintaining a civil action for the possession or value of liquor unlawfully kept, if taken, detained, or injured. (Section sixteen.) And it may be admitted that the design was to sanction, if not invite, every species of depredation of this kind, though done from mere malice, and without any intent to redress the supposed public wrong; nay, though the express object of the aggressor was to repeat or continue the public wrong for his own emolument. The unqualified tender of impunity which the bill strangely makes to him, does, indeed, seem to contemplate all this; but what is the effect upon the question of property, supposing the provision to be valid? The title of the owner is not extinguished. While he remains in possession of the liquor, it is his property, and as such, he may defend it against unlawful aggression by private force. Even after he is dispossessed, moreover, he may pursue and retake it by virtue of his original title, if he can do so without committing a breach of the peace. And if stolen from him, while unlawfully kept, no one will probably contend that the thief can escape punishment on the ground that the liquor had ceased to be property, and become an object of lawful plunder.

To infer that an article is not property, because the protection of the public force is partially withdrawn from the owner, or because it is liable to be destroyed under pretence of abating a nuisance, seems to me at variance with common sense as well as law. After the liquor has been deposited, in a forbidden place, or in a proper place, for a forbidden purpose, the owner my change its locality, or his intent, and thus entitle himself to complete protection in keeping it. And the most we are authorized to say of it afterward, is, that it has been in a situation of exposure and peril, and has been rescued; not that it has ceased to be property in the meantime, even for a moment.

I have thus far considered the question of property upon the theory assumed by the bill, and irrespective of any distinction as to the manner in which the liquor is kept. Whether the owner keeps it lawfully or unlawfully, it is his property, and remains so until he is

deprived of it by some authorized proceeding. But by way of testing the system of measures, prescribed for the purpose, it is enough to assume, what the bill expressly recognizes throughout, that a person may lawfully acquire property in liquor; that he may keep it in his dwelling-house, for personal use, or to be given away; that he may transport it from one place to another, and in so doing, deposit it in a warehouse; and that he may even sell it as a useful article, for some purposes, on complying with specified regulations. Indeed, the entire process of forfeiture, prescribed by the bill, necessarily pre-supposes the existence of property in the liquor; something for a judgment of forfeiture to operate upon, something and which, until forfeiture, has an owner.

1 Curtis' R. 838-9, Curtis J.; 6 Law Report. 324, Shaw, Ch. J.; 33 Maine R. 561-2, Shepley, Ch., J.

Can the owner be deprived of it by the process which the Legislature has deemed proper to prescribe for that purpose?

The Legislature is not omnipotent. Like other departments of the government, it can only exercise "such powers as have been delegated to it, and when it steps beyond that boundary, its acts, like those of the humblest magistrate who transcends his jurisdiction, are void."

4 Hill's R. 144, Bronson, J.

What measure of power it can lawfully assume under the general grant in the third article of the Constitution, has been a subject of considerable doubt and discussion. It must clearly be mere "legislative power," and all attempts to exercise judicial functions, under color of the grant, are mere acts of usurpation, without validity or force.

350;

2

Art. 3 § 1; see 5 Hill 367-8; 2 Peters' R. 657; 5 Cowen's R. 346, McCord's R. 55, 62; 4 Dev. 1 et. seq.; 3 Greenl. R. 326; 10 Yerg. R. 59. Even independently, therefore, of any express constitutional restriction imposed upon the Legislature, it is more than doubtful whether a statute, depriving a man of his property, without a trial, can be upheld. It would be a sentence, rather than a law.

See 2 Peters' R. 657, Story, J.; 4 Hill 144-5; 9 Gill & Johns. R. 408 et. seq.; 1 R. M. Charlt. R. 332-3; 5 Hill 359 to 368; 13 Wend. 328-9. But the Constitution expressly declares that no person shall be deprived of life, liberty, or property, without the process of law.

Art. 1, § 6.

This clause was derived from Magna Charta. It originated in an age when sovereigns assumed to charter the people, instead of being chartered by them; when private rights were regarded but as so many encroachments on royal authority-the fruits of prosperous rebellion, or at best, the concessions_of_gracious princes to their subjects, revokable at pleasure. In England, from the very structure of government, the principle could only exert a moral power in restraining what is called the "Omnipo

tence of Parliament;" but its effect is far different with us. It invests the rights of property with a sacredness equal to those of life or liberty, grouping them together and ranging them in the same class; and having done this, it places them all above and beyond the reach of the Legislature. Almost every state of the Union has embodied this clause in its Constitution, and the interpretation it has received from the courts, leaves no doubt of its true meaning and proper application. Its general object was to prohibit invasions of private rights by the mere exercise of sovereign will; to interpose the protecting shield of the judiciary between the citizen and the government; and to render him secure against forfeitures of every kind, except for guilt judicially ascertained. Accordingly, the words due process of law, have always been understood as securing to him the benefit of a trial, and any bill, purporting to deprive him of his property, without tendering this privilege, is absolutely void.

See 4 Hill's R. 140, 145-6; 9 Gill. & Johns. R. 408 et seq.; 4 Dev. R. 11 to 16; 6 Law Report. 1 R. M. 637-8; Charlt. R. 332-3; 1 Curtis' R. 311; 7 Porter's R. 294; 1 Haywy. R. 28-9; 1 Murphy's R. 87, 88; 16 Penns. R. 256; 5 Hill's R. 359, 360; 3 Story's Const. 661.

The clause under consideration, however, secures more; it calls for a trial, not only, but a trial according to the course of the common law. The mere semblance of a trial-the form without the substance-will not answer. The process must be such as gives the unconditional right to a trial in the common law sense of the term, at least in all essential particulars. A trial according to the course of the civil law is not a compliance with the condition; nor is a trial by arbitration; nor by commisioners; nor by the Legislature; nor by an inquisition; nor, it is believed, by any other unusual or exceptional process.

See 4 Hill's R. 140, 145-6

6 Greene's (low.) R. 15; 6 Law Reports, 638, N. S. 1 Hayw. R. 29; 5 Cowen's R. 346; 4 Dev. R. 11 to 16; 3 Pet. R. 446-7; 11 How. R. 437; 2 Greene's R. (Iow.) 15; 5 Pennsylv. R. 207-8; 15 Penn. 18, 20; 16 id. 266-7; 11 id. 489; and see Leiber on Civil Liberty, 87. It must be a trial which, at least, secures the right of appearing and controverting the accusation made; of adducing and crossexamining witnesses; and of having all doubtful questions of fact resolved by the verdict of a jury.

See 6 Law Reports 636, 638, N. S.; 1 Curtis' R. 311; Leiber on Civil Lib. 87; 1

Hayw. R. 28-9.

If, therefore, the process prescribed by this bill shall be found wanting in these, or any other, essential elements of a trial, it is so far void, and can not be lawfully enforced. And in inquiring whether the Constitution has been complied with, we are to consider the nature of the process itself, and the privileges which it actually secures, not the mere name given to it by the Legislature. That body can not comply with the conditions imposed by providing any kind of process which its members think proper to call a trial; but whether it is so, in fact, must be determined by. the judiciary. If an attempt should be made, for example, to

substitute an ex parte hearing of the complainant for a trial, or hearsay for evidence of guilt, or the act of issuing a warrant for a judgment, all men would agree that the Constitution had been violated. It must be complied with completely-without reservation, without conditions which render the guaranty a barren abstraction; and the citizen is not to be tantalized by evasions, nor is he bound to accept a juggle, or cheat, as a substitute for his right.

See 11 Penn. 494-5; 2 McCord's R. 55, 61-2; 3 Seld. 9, 45, 93; 1 How. R. 311, 317, et seq.; 2 id. 608, 612, 613; 1 Curtis' R. 311 et seq.; 4 Gill. and Johns. 109; 16 How. R. 314, 326–7.

There is no doubt that the bill purports to be a penal statute, and that the proceedings under it are criminal in their nature.

1 Curtis' R. 328.

It must not be confounded, therefore, with statutes regulating mere civil remedies, where a trial, in the common law sense, may or may not be required, according as other provisions of the Constitution apply or not. Even if such a trial can be dispensed with in cases of that kind, it is impossible to say it can be in this, without surrounding the whole principle, and placing life and liberty, as well as property, at the mercy of the Legislature.

5 George R. 206 et seq.; 1 Saxt, R. 725-6.

Nor am I to be understood as saying, that none of the common law forms of the process may be altered without violating the Constitution. Changes of this nature, so long as they operate mere modal differences, and do not trench upon the substantial rights intended to be secured, may indeed be made. But the principle of the entire process, and every thing essential to its full and efficient operation, must be left unimpaired. So far the ground is consecrated and forbidden, and the Legislature can not invade it, until the people, who made the fundamental law, think proper to abrogate it.

See How. Miss. R. 104-5; 5 Smedes & Marsh 664; 4 Conn. R. 538-9; 5 Penn. R. 207-8; 2 Dallas' R. 308; 3 Seld. 9; 8 Wheat. R. 75-6; 1 How. R. 311; 2id. 608.

Does the bill tender and secure to those who may be 'deprived of their property under it a trial in the sense of the Constitution? A careful examination of its provisions has brought me to the conclusion that it does not.

The initiatory steps prescribed for obtaining a judgment of forfeiture are substantially as follows: 1st. There is to be a complaint, which may be made before any justice of the peace, police justice, or other magistrate named. It is to be in writing, and on oath or affirmation, and must state that complainant has reason to, and does believe, that liquor is unlawfully kept or deposited in some specified place; no matter whether by the owner or not. The facts on which this belief is founded need not be verified by the complainant, but may be sworn to by some other person;