Wynehamer was indicted, tried by a common law jury and found guilty; no such objection as exists in Toynbee's case can be raised in this.
The only questions properly arising in this case are. 1st. Whether the only remedy allowable under the prohibitory law is by complaint before the special sessions? 2d. Whether the 1st section of the act allows every one to sell imported liquors by retail, and in packages less than those in which they were imported? or, allows the sale of imported liquors only by such persons and in such quantities as the United States law, controlling the state, compels the state to allow? and whether that is a sale by the importer, and in the original packages? 3d. Whether the prohibition to sell intoxicating liquors owned by a man before and when that law took effect, except to persons authorized by that act to buy, or for medicinal, chemical, manufacturing or sacramental uses, is such a violation of the right of property as to be unconstitutional, although the legislature passed the law with a view to prevent intemperance, pauperism and crime?
As to the 1st. The general sessions is the tribunal authorized to try all misdemeanors and crimes not punishable with death or imprisonment in the state prison for life. (2 R.S., 208, § 5.) This applies to all crimes (except the especially excepted cases), whether made so before the Revised Statutes or after, and whether the power was specially given to that court or not. This act declares the *Page 479 offence of selling contrary to it to be a misdemeanor, and does not restrict the remedy under it to the special sessions. The close of the 20th section saves this jurisdiction; it is: "The existing provisions of law, relative to misdemeanors and offences, shall apply to offences created by this act, except where the same are inconsistent therewith." Section 23 declares it is the duty of grand juries to inquire into all offences against this act; that makes the offence indictable. As to the 2d. I adopt the reasoning of Judge Strong, in 20 Barb., 207, 208, 209, and his conclusion, that the only effect of the saving clause in the 1st section is to allow the importer to sell in the original packages in which he imported; that is the only liquor, the right to sell which is given by any law or treaty of the United States. (See also id., 234, 235, 236.) It never could have been the design of the act to allow all imported liquors to be sold by all persons and in all quantities, while it prohibited the sale of domestic liquors by the most stringent law. The intention of a criminal law is to govern, and is to be discovered by reading the whole law; although it is not to be extended by a supposed equity to cases not within its terms. As to the 3d. I adopt the reasoning and conclusion of Justice Rockwell, in 20Barb., 232, 233, 234, 235, 236 (and see the opinion of JusticeMcLean, 5 How. U.S.R., 589, 590). The legislature has the undisputed right to forbid the sale of liquors except in large quantities (which it may be prescribe), or by certain persons who are to be licensed, or in certain places, and to forbid it to be drank in certain places. Such laws impair very much the value and enjoyment of such property to such persons as would wish to use it in a different way. They are valid, not because they impair the value and enjoyment of the property only in a slight degree, which the opponents of this law call a regulation, but because they are not passed with a view to impair the right of property in any degree, but in the exercise of the plain duty of the legislature to prevent pauperism and *Page 480 crime. In the exercise of this last power, the value of certain property is incidentally diminished to some persons, but that result cannot take away the right or the duty of the legislature to exercise its power to prevent crime in the way that may be most effectual; they have deemed it necessary, in order to prevent crime, to prohibit any use of certain liquors except for certain purposes. This they may do.
If, as is argued, the legislature could not prohibit the keeping or sale of liquors, on hand when the law was passed, and may prohibit the sale of such as might be thereafter acquired, it would be the duty of the courts in this, as in other cases, to discriminate between the two cases, and to pronounce only such parts of the law void as were unconstitutional. Such has been, it is believed, the uniform practice heretofore. No difficulty could occur; it would be the business of the district attorney to draw the indictment so as to bring the case within the valid parts of the law; otherwise it would be demurrable. A contrary rule would, it is believed, be equally novel and dangerous. If the innocent and the guilty acts are blended together in the law, the court can easily separate them. I am of opinion that the judgment in this case, should be affirmed.