It has been shown, I think, in the case of Wynchamer v. ThePeople, and we all agree, that imported liquors, the moment they leave the hands of the importer, have passed the line of foreign commerce and federal authority, and become exclusively subject to state regulations and control; and that when they are once brought into this condition, the only right which attaches, so far as any right flows from government, is derived wholly from state laws, and they are not then within the exception in the 1st section of the act. I have also attempted in that case, as I think successfully, to demonstrate that the legislature, being the sole and exclusive *Page 481 law-making power in the state, has by virtue of its office, from the very nature and constitution of government, the power, and is charged with the duty of regulating, restricting, controlling and even prohibiting altogether any traffic in any property which is found to be demoralizing in its effects upon the community, or injurious to its interests, or burthensome to the government; and that there is not, either in the constitution of the United States or in that of this state, any limitation or restriction upon the exercise of this power which is in any respect in conflict with the provisions of this act, so far as it prohibits the sale of intoxicating liquors.
The right of traffic or the transmission of property, as an absolute inalienable right, is one which never has existed since governments were instituted, and never can exist under government. The government has always regulated and controlled it to the full extent required, in its judgment, by the public interests and necessities, as the whole history of legislation will clearly show. Government possesses many powers which it does not habitually or frequently exercise, and only puts forth to remedy particular evils or to meet occasional exigencies. But it must necessarily have the same right to prohibit any particular traffic or branch of traffic which it finds or deems injurious, and to declare it criminal, that it has to prohibit and declare criminal the injurious conduct and practices of men in other respects. Otherwise, the right to property and its transmission would be held superior to the right to life and liberty. Our statutes "concerning the acquisition, the enjoyment and transmission of property, real and personal" (1 R.S., 717), "of the regulation of trade in certain cases" (id., 528), "of the proof and recording of conveyances of real estate" (id., 755), all acts relating to revenue, excise, usury, champerty, lotteries and the like, with which our statute books abound, have their sole foundation in this right. *Page 482
This being so, it follows inevitably that the occasion and necessity for the exercise of the power embodied in a statute is wholly a matter of legislative judgment and discretion, where no constitutional restriction intervenes, with which no other power in the government has any right to interfere, at least after the executive sanction has been given. If the legislature shall determine that the occasion has arisen or that the necessity exists for the exercise of a more extended and stringent power than it has hitherto exercised, who shall decide to the contrary? What other tribunal is clothed with power to entertain an appeal and reverse such determination? The veto power given to the executive is the only authority the constitution has provided, and that must be exercised before legislation has ripened into statutes, and is then not necessarily conclusive. Whoever bestows the slightest reflection upon the nature and character of the judicial office, will see that courts can entertain no such question; and any attempt on their part to take cognizance of it, and to draw it within their jurisdict on, would be a clear invasion of the legislative province and a usurpation of legislative power.
The spectacle of a conflict between the representatives of the legislative and the judicial sovereignty of the people respecting a question of this character, upon any other than clear, undoubted, constitutional grounds, would, at this day, be at once novel and alarming. Every legislative act, when questioned, is to be brought to the test of the constitution, and if the power exercised is not there forbidden in express terms, or by clear and necessary implication, courts have no discretion, but are bound to pronounce it valid. The right of courts to declare legislative enactments, in derogation of the constitution, void, is one which has been too long and steadily exercised in this country to be now doubted or questioned. It is, however, one of the highest and most delicate of all conservative powers, and is never to be exercised against the acts of the superior branch *Page 483 of the sovereignty in doubtful and questionable cases. The legislative department being naturally the superior, its authority is always presumed to have been rightfully exercised. And this presumption is to prevail until the contrary has been made clearly to appear, and has been determined by the courts.
The only questions which arise in this case, differing from those considered in the case before referred to, relate to the authority and jurisdiction of the court of special sessions, before whom the defendant was tried and convicted, and the right of seizure and destruction of the contraband property.
These I propose very briefly to consider. It appears, from the case, that when the defendant was arrested and brought before the justice he objected to being tried by a court of special sessions, and offered to give bail to appear at the next court having criminal jurisdiction. The objection was overruled, the right to give bail denied, and the defendant was compelled to go to trial before the special sessions. It is claimed that the court erred in refusing to take bail. The court was, I think, right in refusing to take bail. The act undoubtedly contemplates and was designed to effect a speedy trial, and hence the justices and other officers authorized to issue a process under the act are required imperatively to hold courts of special sessions to hear and determine charges, and to proceed to trial as soon as the complainant can be notified, unless for good cause shown an adjournment shall be granted. Hence, also, the privilege given to persons brought before a magistrate, in the cases prescribed in the Revised Statutes, of giving bail to appear at another court, and thus avoiding a trial before the special sessions, is not given to the persons complained of for the offences created by this act. Under the Revised Statutes the right of the court of special sessions to try a person for any of the offences therein specified is given, subject to the request of such person to be so *Page 484 tried, or to his failure or refusal to give bail for twenty-four hours after being required by the magistrate. But the right of such court, under this act, is subject to no such conditions. On this point, as well as the others in the case, I agree fully with Wells, Justice, in the People v. Fisher (20 Barb., 652).
It is contended that if this is the true construction of the act, it is, in this respect, in violation of the constitutional provision that "the trial by jury, in all cases in which it has been heretofore used, shall remain inviolate forever.' It is conceded that the jury here referred to is a common law jury of twelve men. This act only allows a jury of six before a court of special sessions, and this clearly is not the jury intended by the constitution. The terms, "as heretofore used," in the constitution, mean as used before the adoption of the existing constitution. (Cruger v. The Hudson River Railroad Co., 2Kern., 198, per Johnson J.; Duffy v. The People, 6 Hill, 78.)
Trials for offences of this grade have been uniformly authorized and had, long before the adoption of the present constitution, and indeed under all our previous constitutions, without the use of a jury, or with a jury of only six. It was expressly held by the court for the correction of errors, in the case last cited, that a statute which authorized a magistrate to convict a person of being a disorderly person, which included the power of sentence and commitment to jail, was constitutional, although it did not give the right of trial by jury. And in that case the power of the legislature to confer upon courts of special sessions the right to try offences, below the grade of felony, without indictment and without a jury, is fully recognized and sanctioned. It is argued that the right to have a trial by a common law jury was secured to every one charged with a misdemeanor under the provisions of the Revised Statutes, allowing them to give bail for appearance at a higher court. And hence the inference is sought to be drawn, *Page 485 that the right has never been taken away in any case, but has always been used, and consequently, that the legislature had no right to take it away in these cases. It will be seen, however, that although by the Revised Statutes the jurisdiction of the special sessions to try and punish is made subject to certain conditions, the right of trial by jury is by no means there secured in all cases. If a person is unable to furnish bail to appear at another court, it is the right and duty of that court to try him, notwithstanding his desire or demand to be tried elsewhere. This is as much a violation of his right, if it is one secured by the constitution, as though the statute had in terms forbidden the magistrate to take bail.
But it is a question of power in the legislature to confer the jurisdiction upon these courts, and that question can never be made to depend upon the consent or request of the person accused, to be tried, or upon his ability to furnish bail to appear at another court. It is a privilege given by the legislature in such cases, which might have been withheld. The power of the legislature to determine before what courts, with or without a jury, offences of this character shall be tried, is, I think, undoubted. This view answers the other objection, that a trial and conviction before such a court is not by due process of law.
The case shows that the offence was committed in the presence of a policeman, who thereupon seized the bottle of champagne so sold, and the bottle of brandy and its contents from which the quantity sold to be drank had been taken. The right, therefore, to search for liquors, supposed or suspected to be kept for unlawful purposes, does not arise in the case. The court before which the defendant was tried adjudged that the liquor was unlawfully kept, and that it was forfeited, and issued a warrant for its destruction.
It is contended that no person can be deprived of his property in this manner. If the trial and conviction are *Page 486 by due course of law, it is difficult to see upon what foundation this objection can rest. The power of the legislature to authorize or impose, by way of penalty, the forfeiture, upon judicial sentence, of property kept or sought to be used contrary to law, cannot at this day be seriously questioned. It is the lowest grade and form of punishment for offences against the law, and has been too long and steadily exercised, without question, to be now involved in any doubt. Instances of the exercise of this power must be too familiar to every lawyer to need citation.
The act of seizure by the officer was clearly lawful. The unlawful act was open and flagrant in the officer's presence, and it would have been a gross and inexcusable breach of duty on his part had he overlooked it. The 12th section authorizes the seizure by an officer, under such circumstances, without warrant, to be taken before a magistrate, as was done in this case.
The conviction and sentence were, therefore, in my judgment, in all respects lawful and proper, and the judgment of the supreme court should be reversed.
WRIGHT, J., also delivered a written opinion in favor of affirming the judgment in the case of Wynehamer. He concurred in the dissenting opinions delivered by T.A. JOHNSON, J.
On deciding these cases, the court passed upon and affirmed the following propositions:
1. That the prohibitory act, in its operation upon property in intoxicating liquors existing in the hands of any person within this state when the act took effect, is a violation of the provision in the constitution of this state which declares that no person shall be "deprived of life, liberty or property, without due process of law." That the various provisions, prohibitions and penalties contained in the *Page 487 act do substantially destroy the property in such liquors, in violation of the terms and spirit of the constitutional provision.
2. That inasmuch as the act does not discriminate between such liquors existing when it took effect as a law, and such as might thereafter be acquired by importation or manufacture, and does not countenance or warrant any defence based upon the distinction referred to, it cannot be sustained in respect to any such liquor, whether existing at the time the act took effect or acquired subsequently; although all the judges were of opinion that it would be competent for the legislature to pass such an act as the one under consideration (except as to some of the forms of proceeding to enforce it), provided such act should be plainly and distinctly prospective as to the property on which it should operate.
3. That the criminal proceeding in a court of special sessions authorized by the said act is unconstitutional and void because the accused is thereby deprived of the right of trial by jury, guaranteed by the constitution.
DENIO, C.J., A.S. JOHNSON, COMSTOCK, SELDEN and HUBBARD, Js., concurred in the foregoing propositions.
MITCHELL, J., dissented from the first and second, and concurred in the third.
T.A. JOHNSON and WRIGHT, Js., dissented from all of them.
All the judges, except T.A. JOHNSON, WRIGHT and MITCHELL, were in favor of reversing the judgment of the supreme court, and of the court of general sessions in the case of Wynehamer. *Page 488
All the judges, except T.A. JOHNSON and WRIGHT, were in favor of affirming the judgment of the supreme court, which reversed that of the court of special sessions in the case of Toynbee.
Judgments accordingly.