With the result reached in this case I agree. "A `public nuisance' is a crime against the order and economy of the State, and consists in unlawfully doing an act, or omitting to perform a duty, which act or omission: 1. Annoys, injures or endangers the comfort, repose, health or safety of any considerable number of persons; or, 2. Offends public decency; * * * or, 4. In any way renders a considerable number of persons *Page 100 insecure in life, or the use of property." It is not necessary that the public be invited to the building upon which the nuisance is said to be maintained. It is enough if any considerable number are accustomed to enter and disorder customarily follows.
Here there is proof that persons became intoxicated upon the premises and left them, still intoxicated, school children and others being in the neighborhood. Under such circumstances the defendant maintained a disorderly house within every reasonable definition and so comes within the first and second subdivisions of the statute.
I am unwilling to go further. Doubtless if the defendant dispensed poisonous or adulterated liquor, he endangered the health of many. (People v. Kingston, 177 App. Div. 376.) Of that there is no proof. We certainly may not hold, as a matter of judicial knowledge, that the moderate consumption of pure beer, wine or spirits is dangerous. Too many eminent physicians take the other view. Nor do epithets supply the want of evidence.
Neither do I think that the maintenance of premises for practices not in themselves immoral or disorderly although prohibited by statute, is an offense against public decency. The so-called Volstead Act is no more sacred than other statutes authorized by the Constitution. Its habitual violation is no more an offense against the decency, or the order of this State, than would be the habitual grant of rebates by railroad corporations. To so hold where there is no actual disorder would be to subject the defendant to that same double jeopardy which was one of the reasons for the repeal of the Mullan-Gage Act.
If mere disobedience to some statute is not sufficient, then there must be something peculiar in the possession and sale of liquor to bring it within the thought of the Legislature. It must be immoral per se. Such sales have long been regulated. One object was revenue for the *Page 101 State, easily collected, as was the case with tobacco. Another was to check public disorder. We all know the indignation caused by the persistent and notorious breach of these regulations. We know the evil influence of saloons in politics — the poverty and violence that resulted. Conducted as they were and given the frailty of human nature they were as a whole an undoubted evil. Ill repute fell on innocent and guilty alike. Also, even if no drunkenness or disorder were permitted, they were a temptation to extravagance, to neglect of thrift — as are today a cigar store or an automobile salesroom.
Yet under the guise of enforcing a penal statute courts should beware of attempting to give effect to their own notions of right or wrong, of wisdom and policy. They are to declare that criminal only when the Legislature has made it a crime. New conditions may point to new needs. It is for the Legislature to act. The courts are to interpret its words — not to extend its meaning to situations as to which it had no thought. And in so doing they may not consider this particular section of the Penal Law as if it were a venture into a new and untried field. They are to view it in the light of its historic background. The Legislature spoke of "public decency," having before it many decisions and a long tradition.
Neither the Legislature nor the Commissioners who drafted this section of the statute in 1857 thought the mere possession and consequently the sale of liquor a thing immoral in itself — a sin. If for other reasons a saloon became disorderly, yes. Then there was an independent crime. Not otherwise. If a saloon were unlicensed, the sale was forbidden. But never was it held that such disobedience was also an offense against decency. In that day the thought that the moderate use of liquor was a wrong occurred to few. Such an idea seems never to have been in the mind of Moses if we have received the substance of his words (Deuteronomy, XIV:23). Nor did it occur to St. Paul (1 Corinthians, XI: *Page 102 25; 1 Timothy, V:23), to St. Augustine (St. Augustine, book 10, chap. 31), to Luther (Bayne, Luther, vol. 2, p. 243), nor to Jonathan Edwards (Works, vol. 1, p. 70). It is not yet the belief of England, France, Italy or Quebec. Nor of our own citizens on a British steamer with New York a hundred miles behind. To impute to our Legislature any such belief is an anachronism. It itself authorized possession and sale. It drew a large revenue from the traffic. The people of the State approved. We pay slight respect to our predecessors if we ascribe to them a thought that the orderly sale in itself offended public decency or the order and economy of the State.
The Legislature gave some indication of the kind of thing it understood by the word "indecent" in definitions contained in another article. Clearly in using words subject to wide interpretation, it had in mind the meaning given them in the past. Brothels, houses of abortion were evil in themselves. So, to a lesser extent, were public gaming houses. As to them courts might well say that their direct tendency was to debauch public morals and to disturb the public peace. Such general statements should not, however, be disassociated from their context. Never before, in England or New York, have they been applied to the orderly sale of liquor, permitted or unpermitted. And when the Legislature spoke of public decency it did not, any more than would one who reads the statute, suppose it had reference to such sales. Nor did it suppose that the habitual possession of wine in a private house, where freely offered to guests, was an indecent act.
What has happened since the section was adopted to make a crime of that which was not a crime before? Concededly any sale of liquors is now unlawful. Concededly the Volstead Act is the rule of New York as well as the rule of Kansas. Yet its violation does not offend the order and economy of the State, unless the violation of any statute does so because such violation might *Page 103 corrupt the public morals. Such wide latitude to the term is inadmissible.
We disapprove of the possession and sale of liquor, as we do of disobedience of any statute, State or National. But because we disapprove, we should not declare criminal what was never so intended by the Legislature. We should remember what was in its mind when the section was adopted. We should limit our declarations as to what constitutes public decency to acts strictly analogous to those with which the courts had hitherto dealt.
This discussion is not necessary for the decision of the case before us, as the discussion in the prevailing opinion is not. Always a disorderly drinking place has been declared a public nuisance; here disorder was shown. For that, I repeat, the present defendant may be punished under our statute.
CARDOZO, Ch. J., POUND, CRANE and O'BRIEN, JJ., concur; POUND and CRANE, JJ., in separate opinions; ANDREWS, J., concurs in result in opinion in which KELLOGG, J., concurs.
Judgment affirmed.