The first ground assumed by the appellant's counsel on the argument was, that the sale of imported liquor in a less quantity than the package of importation was contrary to the provisions of the act under which the defendant was convicted. This is clearly a tenable position. In the view which I take of the law in *Page 448 this case, it is not very essential that this proposition be considered at much length. But as the point has been fully argued, and presents a question of general interest as it respects the relative jurisdiction of the federal and state government over imported articles, including liquors, I will consider it in this place.
It is contended by the defendant's counsel that the exception contained in the 1st section of the act in question embraces all imported liquor in specie, irrespective of its condition, whether in the hands of the importer or third persons. The excepting clause reads as follows: "This section shall not apply to liquor, the right to sell which in this state is given by any law or treaty of the United States." In its general character the act is highly penal, and should be construed strictly. But this rule, intended for the protection of the liberty or property of the citizen, should not be so applied as to narrow the ordinary import of the words used, to the exclusion of cases, or description of property or persons, which, according to common acceptation, would be within them. (5 Wheat., 76.) The office of all construction or interpretation of statutes, whether penal or remedial, in the application of its maxims, is to ascertain the mind or intention of the law makers. (1 Seld., 562; 2id., 9.) Effect should be given, if possible, to every word used; and if doubt exists as to the real intention of the legislature, reference, to dispel the ambiguity, should be had to the body of the statute, its great object and policy. It is also a cardinal maxim of interpretation to so construe the words of a statute, if possible, as to uphold rather than defeat it; if susceptible of two hostile constructions, to give it that which will sustain and effectuate its object.
In the light of these maxims, it cannot be difficult to ascertain the design of the legislature in the exception referred to. The language or phraseology is not the most perspicuous, still the intention is quite apparent. The construction contended for by the defendant's counsel *Page 449 would make the clause read as though it contained simply the words, "this section shall not apply to imported liquor." Had the legislature intended this broad exception, it is but reasonable to suppose they would have used this simple mode of expression, thus avoiding all speculation as to intention. The mode of expression adopted evinces clearly that a qualification was intended to be annexed. Considering the whole clause, in connection with the well settled right of the importer of liquor, I have no doubt the legislature designed to shield that right of sale, in the package of importation, which the importer impliedly has under the laws of congress, and to exempt the liquor in specie from the operation of the law only so far as necessary to protect that right. This construction harmonizes with the policy of the law, which was to cut off completely the traffic, within the state, in all liquor as a beverage, whether imported or not. It would be a futile measure, indeed, to proscribe the domestic and give entire immunity to imported liquor. Such an act would befelo de se, would defeat itself, and vastly increase rather than diminish the evils of intemperance. Such folly should not be imputed to the legislature.
In determining the scope of the exception, therefore, it is necessary to ascertain the nature and extent of the right of the importer to sell his importation. He has no right, grounded upon any express law or treaty; but it has been held that he has an implied right, growing out of his payment of duties, and that this right cannot be directly infringed or taken away by any state law. It was so adjudged in the case of Brown v. TheState of Maryland (12 Wheat., 419), and approved in the subsequent license case, in 5 How., 504. These decisions, pronounced by the highest tribunal in the land, whose peculiar province it is to expound the federal constitution and laws, and to define the boundary between the federal and state sovereignties, establish that no state can pass a law for the purpose *Page 450 of license, taxation or otherwise, directly affecting an import of foreign merchandise while in the hands of the importer, nor impair the right of sale in the original package of importation. A state law having this direct effect invades the domain of congress in its regulations of foreign commerce.
But it is urged that if the act in question assumes to prohibit the sale of imported liquors by retail, within the interior of the state, it conflicts with the revenue laws of congress. The argument is, that the prohibition lessens the value of the article, discourages importation, and thus, as a consequence, tends to diminish the quantum of revenue. This consequence is admitted, but the argument proves too much; legitimately carried out, it would forbid the state from enacting any laws, for taxation or otherwise, operating upon property imported of all descriptions, as the result must to some extent affect the quantity of imports. But aside from this, the question is perfectly answered by the decisions in the supreme court of the United States above cited. (Thurlow v. The State of Mass.,Fletcher v. The State of Rhode Island, Pierce v. The State ofNew Hampshire, 5 How., 504.) Those cases arose under the license laws of the several states. The two first decide the precise question under consideration. They distinctly hold that the power of congress in regulating foreign commerce extends no further into the interior of a state than is essential to render the power effective in the collection of duties; that for this purpose it embraces the article imported while it remains in the hands of the importer, and until he exercises his implied right of sale; that as soon as the article loses its distinctive character as an import, is broken up or sold, it then mingles with the general mass of property of the state and becomes a subject of state authority. Here is a well defined boundary between federal and state jurisdictions, as it respects all importations. The act in question, by the exception alluded to, expressly refrains from all *Page 451 interference with the operation of the laws of congress or with the right of sale of the importer as above stated, and hence is not obnoxious to the objection I am considering.
The next question to be considered relates to the prohibitory character of the law, and its vindicatory provisions as it respects existing rights of property in liquor at the time the act took effect. This is purely a question of legislative power, under the fundamental law. It is needless to say that the courts have no concern with the wisdom or expediency of the enactment to accomplish the beneficent ends indicated by the title. The policy of this government, from its foundation, certainly vindicates the political necessity and economy of stringent laws circumscribing the sale of spirituous liquors. I entertain no doubt of the constitutional competency of the legislature to prohibit entirely the commerce, within the state, in liquor as a beverage, by laws prospective in their operation. If, in the judgment of the legislature, the public welfare required it, the future production, manufacture or acquisition of liquor might be prohibited. The sovereign power of the state in all matters pertaining to the public good, the health, good order and morals of the people, is omnipotent. Laws intended to promote the welfare of society are within legislative discretion, and cannot be the just subject of judicial animadversion, except when it is seen that the constitutional guarantees of private property have been invaded. The police power is, of necessity, despotic in its character, commensurate with the sovereignty of the state; and individual rights of property, beyond the express constitutional limits, must yield to its exercise. And in emergencies, it may be exercised to the destruction of property, without compensation to the owner, and even without the formality of a legal investigation. It is upon this principle that health and quarantine laws are established; that a building is blown up to arrest a conflagration in a populous town; that the public market is purged of infectious articles; that *Page 452 merchandise on ship board, infested with pestilence, is cast into the deep, and public nuisances are abated. It is the public exigency which demands the summary destruction, upon the maxim that the safety of society is the paramount law. It is the application of the personal right or principle of self-preservation to the body politic. I know of no limits to the exercise of the police power vested in the legislature, except the restrictions contained in the written constitution. Under our system of government, with co-ordinate branches, each independent within its sphere, and all deriving their powers from a common source, the fundamental law, one cannot exercise a supremacy over the other, except as it finds its warrant for it in that law. The judiciary possesses no legitimate authority over acts of the legislature, aside from the constitutional grant; and even this authority is exercised in an indirect manner, when its powers are appealed to, to carry a statutory law into effect; and then only as it respects the individual rights of property or person.
It is said that this idea of the omnipotency of the legislature, aside from the express constitutional restrictions, is a fallacy. It is conceded that all power emanates from the people, and that the written constitution clothes the legislature with all the power it possesses. But the grant of power in that instrument is general, of all the legislative power of the state; what this is precisely, is not and cannot well be defined. Aside from the express limitations, it is believed to embrace all the common law power which the legislature would have possessed had the fundamental law remained, as in England, a part of the unwritten law of the state. This is by no means an alarming proposition. The declaration of rights, forming the guarantee of personal liberty and property in the first article of the constitution. when construed according to its full spirit and intent, is quite ample to protect the citizen against the unauthorized encroachments of the legislature; to protect against all *Page 453 sumptuary laws and laws of kindred character, which have not the public good for their object. I am opposed to the judiciary attempting to set bounds to legislative authority, or declaring a statute invalid upon any fanciful theory of higher law or first principles of natural right outside the constitution. If the courts may imply limitation, there is no bound to implication except judicial discretion, which must place the courts above the legislature and also the constitution itself. This is hostile to the theory of the government. The constitution is the only standard for the courts to determine the question of statutory validity.
There is no constitutional restriction upon the power of the legislature in the regulation of the sale or traffic in intoxicating drinks, whether affecting existing rights of property in liquor or not. As a scheme of regulation, the degree of the limitation of the sale or traffic is a matter of legislative discretion. The fault of the present law is, that it does not profess to be a scheme of regulation. There is no attempted discrimination between liquor owned at the time the law took effect and that acquired afterwards. I have reflected with much attention to see whether the courts could not make the discrimination, for instance, as a question of fact, to be ascertained in a given case, but I have encountered the insurmountable difficulty, that the legislature plainly intended that there should be no such distinction. No defence on a trial could be admitted on such ground, for the reason that it would be against the manifest policy of the act. It is the intent of the statute alone which the courts are authorized to execute.
The prohibitory feature of the law must, therefore, be regarded as extending to all liquor in the state at the time the act took effect. In this aspect I will, in a few words, give my views of its unconstitutionality as it respects vested rights of property in liquor, under the organic law, which forbids the citizen being deprived of his property without due process of law. That liquor is recognized by the law *Page 454 as property, that the constitution knows no distinction in its guarantees of the rights of property of all kinds, that the constitutionality of the law is to be tested the same as though it related to some other and perhaps better species of property, is not questioned. The constitution surrounds liquor, as property, with the same inviolability as any other species of property. There can be no room, I think, for difference of opinion as to the meaning of the phrase, "due process of law," as used in the constitution. It means an ordinary judicial proceeding. In a criminal case, an arraignment, formal complaint, confronting of witnesses, a trial, and regular conviction and judgment. When a forfeiture of property is made a part of the punishment, as in this case, the judgment embracing it would, in its effect, deprive the offender of his property in the constitutional method. I think it competent for the legislature, to declare a forfeiture of liquor, which an offender may have in possession, as a mode of punishment; and if the law in question was in other respects constitutional, I should uphold the judgment of forfeiture in this case as entirely proper. But the portion of the law which authorizes the seizure and destruction of liquor, where the prosecution or conviction of the owner is not contemplated, I should not hesitate to pronounce void, as property is thus destroyed or the citizen deprived of it without process of law. It is not pretended, nor can it be, that property which is not per se a nuisance can be annihilated by force of a statute alone, or by proceeding in rem for the punishment of a personal offence. Liquor is not a nuisance per se, nor can it be made so by a simple legislative declaration. It does not stand in the category of common nuisances which of themselves endanger the welfare or safety of society. It is its use and abuse as a beverage which gives it its offensive character. Otherwise it is entirely inoffensive. In my judgment, therefore, it cannot be confiscated to prevent its misuse, except through a prosecution against the owner in personam. *Page 455
But it is said that this law does not assume to deprive any one of his property in liquor; that the owner is allowed to retain the unmolested custody and personal use of it, according to his pleasure. It is true that the owner may not be molested in this enjoyment, provided he keeps it in his dwelling-house, if fortunate enough to possess a domicil. I apprehend that by a fair construction of the law he is forbidden, under a severe penalty, from keeping it elsewhere, except for mechanical and other specified uses, although innocent of any intent to sell. I have examined the 1st section of the law with care, to see if it could not be construed in such manner as to make the keeping in any place, except a dwelling-house, criminal only when accompanied with an intent to sell. But the section cannot be so construed. The language is too clear to admit of a doubt as to the intention of the legislature. The keeping or deposit in any place, except in a dwelling-house, or place where some trade or business is carried on requiring its use, is prohibited, and by the 4th section of the act such keeping or deposit is a crime. This, certainly, is a most extraordinary provision, which must have the effect to render a person a criminal who was so unfortunate as to have a quantity of liquor on hand in a forbidden place at the time the law took effect, although he had no intent to violate the law by selling. A person thus circumstanced would have but one of two alternatives to avoid criminality, either just before the law took effect to remove the liquor to a dwelling-house, or to a shop for mechanical and other prescribed uses, or destroy it with his own hand. I can scarcely credit that the legislature designed the law to have this effect; but no other construction can be put upon the language of the 1st section of the law, and we are bound to suppose, judicially, that the legislature intended what their words import.
The law does not even countenance the exportation of the liquor after it took effect. The plain design of the law *Page 456 seems to have been to cut off the liquor itself, to insure its destruction, by circumscribing the keeping of it, and authorizing its seizure, if kept in a forbidden place or with a criminal intent to sell. The entire right of sale, within the state at least, is prohibited, and in this, in my judgment, consists the error of the law as it respects liquor owned when the law went into operation. If there had been any right of sale within the state preserved, for instance, to a licensed vendor, although of minor importance, it would have been sufficient, perhaps, to have impressed the law with a character of regulation, and saved its validity.
But the abolition of all right of sale in the state is equivalent to and is a substantial deprivation of the owner of his property. The right of sale is of the very essense of property in any article of merchandise; it is its chief characteristic; take away its vendible quality and the article is practically destroyed. As applied to merchandise of any description, this effect can be judicially seen. Even if the law allowed exportation, that would be of such minor importance as not to save the law from the charge of effectually depriving the owner of his property in the liquor. It is but of trifling value after the entire domestic market is closed against it.
I am unable, therefore, to avoid the conclusion that the prohibition in the 1st section of the law is invalid, inasmuch as it makes no discrimination, nor allows the courts to make any, but extends to all liquor, irrespective of the time of its acquisition; and that, by closing the domestic or state market, it in effect substantially deprives the owner of liquor, acquired before the law took effect, of his vested right of property therein, without due process of law.
At the trial before the police justice, the defendant offered bail for his appearance before a higher court having criminal jurisdiction. It was an error for the court to refuse to receive it. I am well satisfied that the defendant had a constitutional right to be tried by a common law jury of *Page 457 twelve men, and that to this end he should have been allowed to give bail to appear before a tribunal where such a jury could be obtained. This right of trial by jury is secured by art. 1, § 2 of the constitution, which reads: "The trial by jury in all cases in which it has been heretofore used, shall remain inviolate forever." The term cases is used in a generic sense; it embraces grades or classes, not individual or particular cases, except as they make up a class. The intent of the constitution was to preserve the right as amply as it was enjoyed at the time of its adoption. The right of bail existed in all cases of felonies and misdemeanors, and was intended to be preserved without any distinction as to whether the offence existed at the time the constitution took effect or was subsequently created by statute. There is no ground for any such distinction in principle, as the right is as important in the one case as the other, as the punishment may be the same. Section 6 of the same article of the constitution does not assume to limit the operation of § 2. That section simply forbids the legislature from enacting any law by which an offender, charged with an infamous crime, in other words a felony, may be held to answer, except upon indictment. By implication, it is said the legislature may prescribe the mode of trial in all cases of misdemeanors. No such implication should be indulged to take away an express grant of the great privilege of trial by a common law jury, secured by another section. It may be that, under this implication, the legislature may provide for the trial of a misdemeanor before a court of special sessions, with or without a jury, subject, nevertheless, to the right of the accused to give bail to secure the advantages of a jury at common law. In this view the two sections are harmonious, and do not in any respect conflict.
It may be said, perhaps, that the right of such a jury trial in misdemeanors was not an absolute right under the law as existing when the constitution was adopted; that it was conditioned upon giving bail within twenty-four hours *Page 458 after arraignment. This condition, however, does not affect the right itself; it is the misfortune of the accused, if his poverty prevents him, from availing himself of the condition. The right is perfect, and the constitution secures its exercise upon the condition, which right cannot be taken away by any legislative act.
I am of the opinion, therefore, that the judgment of the supreme court ought to be affirmed.