(dissenting). In the main I do concur in the opinion as written by Mr. Justice Grace. This is a case of turning water into wine. It presents two questions; one on the complaint; the other on the evidence and the misconduct of the officers of the law. To secure .conviction the officers committed a greater offense than that charged against the defendant. They obtruded themselves into his home, made searches, arrested him and seized some of his property which was offered in evidence against him. The officers should have known and respected the sacred and constitutional right of every man to be secure in his home and property against any such search and seizure. The complaint or information is that the defendant “did make, ferment and distill a liquid which was intoxicating for a beverage.” It does not state an offense under the prohibition section of the Constitution, which is that no person shall manufacture for sale or gift any intoxicating liquors. § 211. It does state an offense under the statute which forbids the manufacture of intoxicating liquor for any purpose. § 10,092. But that statute is in direct conflict with the first section of the Constitution.
“All men have a right do acquire and possess property and to pursue and obtain safety and happiness.”
*501Now liquor is property. It bas been so considered always and everywhere. In every part of the world it has a good exchangeable value. Since every man has a right to acquire and possess property, defendant had a right to acquire and possess liquor property. The state may regulate the use of property and traffic in liquor and in milk, but it may not penalize anyone for possessing milk or liquor. It is a maxim of law that everyone must use his own property so as not to injure another. That is a universal law; it is good everywhere and at all times. The state had a right to abolish the saloons and to restrain the liquor traffic, because it became a nuisance and a menace to society, a destroyer of property and a promoter of crime and idleness. And to some extent, for like reasons, it may restrain and regulate the traffic in tobacco, cigars and games that lead to idleness, poverty, and crime. Those vices do commonly go together. The one induces the other. But property is property; and the purpose of every just law is to safeguard life, liberty, and property.
And what of civil liberty? It is natural liberty restrained by law so far as may be necessary to protect the members of society. On his lonely island Bobinson Orusoe had the full enjoyment of natural liberty.
“He was monarch of all he surveyed;
Ilis right there was none to dispute.”
But when his good man Friday came upon the island, then came some restraint of natural liberty. For in every assembly of two, three, or more persons the law of civil liberty prevails. Every person must refrain from injury to another by force, fraud, deception, overreaching, sharp practices, sharp bargains, and otherwise. Manifestly the law of civil liberty did not bar Bobinson Crusoe from his natural right to make and use wine and strong drink. "When such a right is used inoffensively, it is" natural and inherent just the same as the right to drink tea or coffee. To deny it by force and power is sheer tyranny and despotism. The right is fully assured by the first section of the state Constitution. Any person for his own use may grow and obtain grapes, hops, malt, barley, corn, wheat and use the same inoffensively to make wine, beer, or strong drink. He may “drink and forget his sorrows and remember his poverty no more” But as a member of society he must observe the proprieties of life. He must not appear in a nude or drunken state, like Noah after the flood. Such is the law and *502it should appeal to the reason and common sense of every good citizen who is not a crank.
A different topic is the tyranny of the statute and its drastic enforcement. Since the fugitive slave act there has not been another statute so drastic and so questionable. It is strictly a crank statute. It does violence to the plain letter of the Constitution. It imposes excessive fines and unusual punishments. For turning grape juice or water into wine, the very thing that was done by Jesus Christ, the penalty is equal to that for a horse thief, and the expense of the crusade, the reckless destruction of life and property and the incentive to crime — all that is a fearful menace to the state. Surely it is time for decent, honest people to stop and think.
The judgment should be to dismiss the action.