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

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ALBANY, MARCH, 1856. 455Wynehamer against The People.But it is said that this law does not assume' to depriveany one of his property in liquor ; that the owner is allowedto retain the unmolested custody and personal use of it,according to his pleasure. It is true that the owner maynot be molested in this enjoyment, provided he keeps it inhis dwelling-house, if fortunate enough to possess a domicil.I apprehend that by a fair construction of the law he isforbidden, under a severe penalty, from keeping it elsewhere,except for mechanical and other specified uses,although innocent of any intent to sell. I have examinedthe 1st section of the law with care, to see if it could notbe construed in such manner as to make the keeping in anyplace, except a dwelling-house, criminal only when accompaniedwith an intent to sell. But the section cannot beso construed. Tne language is too clear to admit of adoubt as to the intention of the legislature. The keepingor deposit in anyplace, except in a dwelling-house, or placewhere some trade or business is carried on requiring itsuse, is prohibited, and by the 4th section of the act suchkeeping or deposit is a crime. This, certainly, is a mostextraordinary provision, which must have the effect to rendera person a criminal who was so unfortunate as to havea quantity of liquor on hand in a forbidden place at thetime the law took effect, although he had no intent toviolate the law by selling. A person thus circumstancedwould have but one of two alternatives to avoid criminality,either just before the law took effect to remove the liquorto a dwelling-house, or to a shop for mechanical and otherprescribed uses, or destroy it with his own hand. I canscarcely credit that the legislature designed the law to havethis effect; but no other construction can be put upon thelanguage of the 1st section of the law, and we are boundto suppose, judicially, that tne legislature intended whattheir words importThe law does not even countenance the exportation ofthe liquor after it took effect. The plain design of the law
456 CASES IN THE COURT OF APPEALS.Wynehamer against The People.seems to have been to cut off the liquor itself, to insure itsdestruction, by circumscribing the keeping of it, and authorizingits seizure, if kept in 6, forbidden place or with acriminal intent to sell. The entire right of sale, within thestate at least, is prohibited, and in this, in my judgment,consists the error of the law as it respects liquor ownedwhen the law went into operation. If there had been anyright of sale within the state preserved, for instance, to alicensed vendor, although of minor importance, it wouldhave been sufficient, perhaps, to have impressed the lawwith a character of regulation, and saved its validity.But the abolition of all right of sale in the state is equivalentto and is a substantial deprivation of the owner of hisproperty. The right of sale is of the very essense of propertyin any article of merchandise ; it is its chief characteristic; take away its vendible quality and the article ispractically destroyed. As applied to merchandise of anydescription, this effect can be judicially seen. Even if thelaw allowed exportation, that would be of such minorimportance as not to save the law from the charge of effectuallydepriving the owner of his property in the liquor.It is but of trifling value after the entire domestic market isclosed against it.I am unable, therefore, to avoid the conclusion that theprohibition in the 1st section of the law is invalid, inasmuchas it makes no discrimination, nor allows the courtsto make any, but extends to all liquor, irrespective of thetime of its acquisition; and that, by closing the domestic orstate market, it in effect substantially deprives the owner ofliquor acquired before the law took effect, of his vestedright of property therein, without due process of law.At the trial before the police justice, the defendant offeredbail for his appearance before a higher court having criminaljurisdiction. It was an error for the court to refuse toreceive it. I am well satisfied that the defendant had aconstitutional right to be tried by a common law jury of
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