Wynehamer v People.pdf - The University of Texas at Austin

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ALBANY, MARCH, 1856. 399Wynehamer against The People.and whenever a case of difficulty arises, it must be met anddetermined upon its special circumstances, and by the aidof such lights as can be obtained. In the present case, thedifficulty suggested is not perceived. The statute we areexamining passes the utmost limit of regulation, and doesnot even wear a disguise. It is plainly prohibitory in everyfeature, and in its entire scope and policy. Some of theexcise acts referred to were of great stringency, consideredas regulations merely of traffic in intoxicating liquors; butnone of them totally prohibited their sale as a beverage, ordenied to them, as such, the essential qualities of property,or placed them without the protection of the laws.It is certain that the legislature cannot totally annihilatecommerce in any species of property, and so condemn theproperty itself to extinction. It is equally certain thatthe legislature can regulate trade in pioperty of all kinds.Neither of these propositions is deaied ; but they necessarilylead to another—that between regulation and destructionthere is somewhere, however difficult to define with precision,a line of separation. All reasoning, therefore, infavor of upholding legislation which belongs to one class,because it is often difficult to distinguish it from that whichbelongs to the other, must be fallacious, because it is simplyreasoning against admitted conclusions.The provision in the federal constitution, declaring thatno state shall pass laws impairing the obligation of contracts,and the course of judicial decision under that provision,may be referred to as illustrating the distinctionbetween legislation which is remedial merely, and thatwhich is subversive of the rights intended to be saved.Under this provision the constitutionality of state laws baaoften been examined, and the difficulty of distinguishingbetween statutes which regulated the remedy and thosewhich impaired or subverted the right has been great andacknowledged. But the distinction itself has been steadilymaintained. Neither the federal nor the state courts have
400 CASES IN THE COURT OF APPEALS.Wynehamer against The People.ever shrunk from the inquiry; and laws which transcendedthe limits of regulation merely, aud directly or indirectlyinvaded the right, have been uniformly adjudged io be void.Nor could we escape the kindred inquiry in the casebefore us, although it were attended with much greaterdifficulty than we believe it to be. Does the statute underconsideration simply regulate, or does it destroy an admittedspecies of property, in which millions of value aieinvested ? As this question is answered, the act must standor fall; and in my judgment but one answer can be given.Besides the license and excise laws, our attention hasbeen drawn to other legislative enactments, producing intheir result great injury to private property, the constitutionalityof which has been admitted or adjudged. Theembargo act of congress in 1807 (2 Statutes at Large, 4-51),is mentioned as one of these examples of legislation. I donot perceive any analogy which can influence the presentquestion. That was an act which simply prevented " allships and vessels in ports and places within the limits orjurisdiction of the United States" from sailing upon anyenterprise of foreign commerce. It is not important toinquire under what particular clause of the federal constitutionthe power was derived to enact such a law. That itwent to the utmost verge of constitutional power has beenuniversally conceded. (3 Story on the Constitution, 163.)It is enough for the present purpose to say, that it wasrecommended and adopted as a measure of protection to property,and not of annihilation. In the language of JusticeStory (id., 1G1), "It was avowedly recommended as ameasure of safety for our vessels, our seamen and our merchandise,from the threatening dangers from the belligerentpowers of Europe." In other words, it was an act of conservationand not of destruction, although in its effect itbore with great severity upon the interests of the commercialstates and upon the property of individuals. It didnot aim at the extinction of any species of property, or of
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