ÀҾ˹éÒ˹ѧÊ×Í
PDF
ePub

6

the one is inseparably connected with the
other; that they may be said to exist, not
as separable and distinct principles, but as
parts of one and the same principle." "We
do not mean to say," declared the Supreme
Court of the United States, "that property
actually in existence, and in which the right
of the owner has become vested, may be
taken for the public good without due com-
pensation. But we infer that the property
in this case, as in the case of Barteneyer v.
Iowa, was not in existence when the liquor
law of Massachusetts was passed. Had the
plaintiff in error relied on the existence of
the property prior to the law, it behooved
it to show that fact."s It was again said
in the same court by Justice Field that, "I
have no doubt of the power of the state to
regulate the sale of intoxicating liquors
when such regulation does not amount to
the destruction of the right of property in
them. The right of property in an article
involves the power to sell and dispose of
such articles as well as to use and enjoy it.
Any act which declares that a person shall
neither sell it, nor dispose of it, nor use
and enjoy it, confiscates it, depriving him of
his property without due process of law.
Against such arbitrary legislation by any
state, the Fourteenth Amendment affords
protection." Speaking along the
lines, Justice Brewer said in the case of
State v. Walruff, "I affirm, no matter what
legislative enactment may be had, what
forms of procedure, judicial or otherwise,
may be prescribed, there is not 'due pro-
cess of law' if the plain purpose and inev-
itable result is the spoliation of private
property for the benefit of the public with-
out compensation. It is a mistake to say
that the forms of law alone constitute 'due
process.'
* Now, in the case at bar,
while judicial proceedings are prescribed,
yet the spoliation is the direct command of
the legislature, and the judicial proceedings
are only the machinery to execute that com-

same

Sinnickson v. Johnson, 17 N. J. Law, 129.
18 Wall. 129.

(6)

(7)

(8)

Beer Co. v. Mass., 97 U. S. 25, 32, 33. (9) Bartemeyer v. Iowa, 18 Wall. 137. also ex parte Campbell, 74 Cal. 20, 24.

See

mand. No discretion is left to the courts. The legislature has in terms said to the defendants: 'Stop your use of your brewery,' and has directed the courts to enforce that command. There is nothing but mere machinery between the legislative edict and an unused valueless manufactory. Such a command, however enforced, operates to deprive a citizen of the value of his property without compensation, is, in the language of Justice Bradley, 'arbitrary, oppressive, and unjust,' and therefore, should be 'declared to be not due process of law.' 'Property,' within the meaning of that amendment (Fourteenth) includes both the title. and the right to use; that when the right to use in a given way is vested in a citizen, it cannot be taken from him for the public good without compensation. Beyond any doubt, the state can prohibit defendants from continuing their business of brewing, but before it can do so, it must pay the value of the property destroyed."10

The New York court, in a well-considered case, held that legislation which does not discriminate between liquors existing at the time the law becomes effective, and liquors that may thereafter be acquired by importation or manufacture, and makes no provision for a defense based upon such distinction, cannot be sustained, either in respect to the liquors on hand at the time of its enactment, or those acquired subsequently. "It may be said, it is true," declared the court, "that intoxicating drinks are a species of property which performs no beneficent part in the political, moral or social economy of the world. It may even be urged, and, I will admit, demonstrated with reasonable certainty, that the abuses to which it is liable are so great, that the people of this state can dispense with its very existence, not only without injury to their aggregate interests, but with absolute benefit. The same can be said, although, perhaps, upon less palpable grounds, of other descriptions of property. Intoxicating beverages are by no means the only article of admitted property and of lawful commerce in this state

(10) State v. Walruff, 26 Fed. Rep. 196.

or economy.

* * *

against which arguments of this sort may be directed. But if such arguments can be allowed to subvert the fundamental idea of property, then there is no private right entirely safe, because there is no limitation upon the absolute discretion of the legislature, and the guarantees of the constitution are a mere waste of words. The foundation of property is not in philosophic or scientific speculations, nor even in the suggestion of benevolence or philanthropy. It is a simple and intelligible proposition, admitting, in the nature of the case, of no qualification, that that is property which the law of the land recognizes as such. It is, in short, an institution of law, and not a result of speculations in science, in morals The whole field of discretion is open, when the legislature, keeping within its acknowledged powers, seeks to regulate and restrain a traffic, the general lawfulness of which is admitted; but when the simple question is, whether it can confiscate and destroy property lawfully acquired by the citizens in intoxicating liquors, then we are to remember that all property is equally sacred in the view of the constitution, and therefore that speculations as to its chemical or scientific qualities, or the mischief engendered by its abuse, have very little to do with the inquiry. Property is protected by the constitution from such legislation as that we are now considering, is protected because it is property innocently acquired under existing laws, and not upon any theory which even so much as opens the question of its utility. If intoxicating liquors are property, the constitution does not permit a legislative estimate to be made of its usefulness, with a view to its destruction. In a word, that which belongs to the citizen in the sense of property, and as such has to him a commercial value, cannot be pronounced worthless or pernicious, and so destroyed or deprived of its essential attributes. Sir William Blackstone, who wrote of the laws of England nearly a century ago, said: 'So great is the regard of the law for private property, that it will not authorize the least violation of it,

no, not even for the general good of the whole community. * * * Besides, the public good is in nothing more essentially interested than in the protection of every individual's private rights, as modelled by the municipal law.' * * In governments like ours, theories of public good or public necessity may be so plausible, or even so truthful as to command popular majorities. But whether truthful or plausible merely, and by whatever numbers they are assented to, there are some absolute private rights beyond their reach, and among these the constitution places the right of property. * * * We must be allowed to know, what is known by all persons, of common intelligence, that intoxicating liquors are produced for sale and consumption as a beverage; that such has been their primary and principal use in all ages and countries; and that it is this use which has imparted to them in this state, more than ninety-nine hundredths of their commercial value. It must follow that any scheme of legislation which, aiming at the destruction of their use, makes the keeping or sale of them as a beverage, in any quantity and by any person, a criminal offense-which declares them a public nuisance-which subjects. them to seizure and physical destruction, and denies a legal remedy if they are taken by lawless force or robbery, must be deemed, in every beneficial sense, to deprive the owner of the enjoyment of his property. Such, I understand, to be precisely the character of this law. The only sales which it permits are for mechanical, chemical and medical purposes-and of wine for sacramental use. * * * With these exceptions, so minute and trivial scarcely to disturb the general scheme, the act is one of fierce and intolerant proscription. It is unlawful to sell intoxicating liquors, to keep them for sale, or with intent to sell, and, with an exception of no importance to the question, it is to keep them at all. * On the day the law took effect, it was criminal to be in possession of intoxicating liquors, however innocently acquired the day before. It was criminal to sell them,

and under the law, therefore, no alternative was left to the owner but their immediate destruction. * * * 'No person can be deprived of his property without due process of law' by the legislature or any other power of government. When a law anniWhen a law annihilates the value of property, and strips it of its attribute, by which alone it is distinguished as property, the owner is deprived of it according to the plainest interpretation, and certainly within the spirit of the constitutional provision intended expressly to shield his rights from the exerçise of arbitrary power."

9911

The constitutional guaranty that no person shall be deprived of his property without due process of law, or without just compensation, may be violated without the physical taking of property for public or private use. Property is owned and kept for some useful purpose, and it has no value unless it can be so used. Its capability for enjoyment and adaptability to some use are essential characteristics and attributes without which property cannot be conceived. Hence, a law which destroys it or its value, or takes away any of its essential attributes, or interferes with its use, deprives the owner of his property within the meaning of the constitution.12 It would be a very

(11) Winehauer v. People, 13 N. Y. 378. See also Berthols v. O'Reilly, 74 N. Y. 516; in re Jacobs, 98 N. Y. 98; Taylor v. Porter, 4 Hill 140; Hoke v. Henderson, 4 Devereaux Law 1; Beebe v. State, 6 Ind. 501. Sir William Blackstone wrote: "So great is the regard of the law for private property that it will not authorize the least violation of it; no, not even for the general good of the whole community. In vain may it be urged that the good of the individual ought to yield to that of the community, for it would be dangerous to allow any private man or even any public tribunal to be the judge of this common good, and to decide whether it be expedient or not. Besides, the public good is in nothing more essentially interested than in the protection of every individual's private rights as modelled by the municipal law. The legislature alone can and frequently does interfere the individual to acquiesce. But how does it interpose and compel? Not by absolutely stripping the subject of his property in an arbitrary manner, but by giving him a full equivalent for the injury thereby sustained." 1 Bl. Com. 139.

(12) In re Jacobs, 98 N. Y. 98, 105; Bertholf v. O'Reilly, 74 N. Y. 509; People v. Otis, 90 N. Y. 48; People v. King. 110 N. Y. 418; Janesville v. Carpenter, 77 Wis. 288; State v. Julow, 129 Mo. 163; St. Louis v. Dorr, Mo., 41 S. W. Rep. 1094.

curious and unsatisfactory result, declared the Supreme Court of the United States, were it it held that, "if the government refrains from the absolute conversion of real property to the uses of the public, it can destroy its value entirely, can inflict irreparable and permanent injury to any extent, can, in effect, subject it to total destruction, without making any compensation, because, in the narrowest sense of the word, it is not taken for the public use. Such a construction would pervert the constitutional provision into a restriction upon the rights of the citizen as those rights stood at the common law, instead of the government, and make it an authority for the invasion of private rights under the pretext of the public good which had no warrant in the laws or practices of our ancestors."

9913

In the case of Mugler v. Kansas, decided by the Supreme Court of the United States in 1887, it was held that when anything in and of itself, or by the uses to which it is put, becomes injurious to the public, the law may withdraw from it the attribute of property.14 It was there said that the law frequently declares certain. species of property nuisances because of their injurious influence upon the public health, safety or morals. That lottery tickets, and the implements with which games of chance are played, have been deprived of the attribute of property, and declared nuisances, abatable by individuals or the public. It was said that, "A prohibition solely upon the use of property, for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only a declaration by

(13) Pumpelly V. Green Bay Co., 13 Wall. 166, 177, 178.

(14) 123 U. S. 623.

the state that its use by any one, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the Fourteenth Amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general wellbeing, but under the guise of police regulation, to deprive the owner of his liberty and property, without due process of law. The power which the states have of prohibiting such use by individuals of their property as will be prejudicial to the health, the morals, or the safety of the public, is not-and, consistently with the existence and safety of organized society, cannot be― burdened with the condition that the state must compensate such individual owners for pecuniary losses they may sustain, by reason of their not being permitted, by a noxious use of their property, to inflict injury upon the community. The exercise of the police power by the destruction of property, which is itself a public nuisance, or the prohibition of its use in a particular way, whereby its value becomes depreciated, is very different from taking property for public use, or from depriving a person of his property without due process of law. In the one case, a nuisance only is abated; in the other, unoffending property is taken away from an innocent owner."15

16

When, however, the use of an article is hurtful to the public, it cannot be destroyed or robbed of the attribute of property until a breach of the law has been determined judicially. When the state undertakes to confiscate a person's property, upon the assumption that it has been used in committing trespass upon public or individual rights, something more is necessary than an ex parte determination and command of an individual. The confiscation and destruction of property which is used contrary to law, without judicial proceedings, is illegal, and

a statute which should authorize a summary

(15) Mugler v. Kansas, 123 U. S. 623, 664. (16) Dunn v. Burleigh, 62 Me. 24. But se Lawton v. Steele, 152 U. S. 133.

proceeding of this kind, would be, to that extent, unconstitutional and void.17

Mugler v. Kansas.-There is an apparent conflict between Mugler v. Kansas,18 and the other cases referred to herein; but it is not believed that there is any material repugnancy between them on the main question under consideration, namely: May prohibition laws authorize the taking of property without just compensation? In the Mugler case, the point was made (1) that the Kansas prohibition law was violative of Article Fourteen of the Constitution of the United States, which provides that, "No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny any person within its jurisdiction the equal protection of the law;" (2) and that the law sought to deprive persons affected by it of the right to manufacture beer for their own use, or for storage or transportation out of the state of Kansas, and also of the right to use their property for the manufacture of beer, without due process of law. The decision in the Mugler case is an analysis of the Kansas law solely in the light of the Fourteenth Amendment to the Federal Constitution. The question determined was not whether the law authorized the taking of property without just compensation in violation of state constitutional guaranties, but whether it authorized the taking or destruction of property without due process of law in violation of the provision for the protection of property contained in the Fourteenth Amendment. This is not only shown by the statement of counsel for the plaintiff in error, viz.: "The plaintiff in error confidently submits his case upon the contention that the prohibition statute of Kansas deprives him of 'liberty and property without due process of law;" (p. 631) but by

(17) Dunn v. Burleigh, supra. See Fisher McGirr, 1 Gray (Mass.) 1.

(18) 123 U. S. 623.

the following selection from the court's opinion: "Upon this ground, if we do not misapprehend the position of defendantsit is contended that, as the primary and principal use of beer is as a beverage; as their respective breweries were erected when it was lawful to engage in the manufacture of beer for every purpose; as such establishments will become of no value as property, or at least will be materially diminished in value if not employed in the manufacture of beer for every purpose; the prohibition upon their being so employed is, in effect, a taking of property for public use without compensation, and depriving the citizen of his property without due process of law. In other words, although the state, in the exercise of her police powers, may lawfully prohibit the manufacture and sale, within her limits, of intoxicating liquors to be used as a beverage, legislation having that object in view cannot be enforced against those who, at the time, happen to own property, the chief value of which consists in its fitness for such manufacturing purposes, unless compensation is first made for the diminution in the value of their property, resulting from such prohibitory enactments. This interpretation of the Fourteenth Amendment is inadmissible. It cannot be supposed that the states intended, by adopting that amendment, to impose restraints upon the exercise of their powers for the protection of the safety, health or morals of the community."

While the court in this case considered the question of the taking of property for the public benefit, it did so solely in the light of the Fourteenth Amendment. Thus, it is said: "A prohibition upon the use of property for purposes that are declared, by valid legislation, to be injurious to the health, morals, or safety, of the community, cannot, in any just sense, be deemed a taking or an appropriation of property for the public benefit. Such legislation does not disturb the owner in the control or use of his property for lawful purposes, nor restrict his right to dispose of it, but is only

a declaration by the state that its use by anyone, for certain forbidden purposes, is prejudicial to the public interests. Nor can legislation of that character come within the Fourteenth Amendment, in any case, unless it is apparent that its real object is not to protect the community, or to promote the general well-being, but, under the guise of police regulations, to deprive the owner of his liberty and property without due process of law."

A common guaranty for the protection of property found in the state constitutions is the provision that private property shall not be taken for public uses without just compensation having first been paid to the owner. But in the Constitution of Kansas we find that, "The manufacture and sale of intoxicating liquors shall be forever prohibited in this state, except for medical, scientific and mechanical

purposes.

1919

While a prohibition law might offend against constitutional guaranties for the protection of property in other states, such could not be the case under the Kansas constitution. The contention that the Kansas law authorized the taking of property without just compensation, could not, therefore, consistently be made under a constitution that expressly provided that "the manufacture and sale of intoxicating liquors shall be forever prohibited." In a case of this kind, therefore, the party injured is necessarily driven to the protection afforded by the Fourteenth Amendment to the Federal Constitution. But is the protection he desires to be found in that amendment? As we have said above, the Supreme Court of the United States has declared that that amendment does not afford protection to the citizen affected by prohibition laws. In fact, it was broadly stated by that court that prohibition laws were not. repugnant to any clause of the Federal Constitution. Said

Justice Harlan: "In Bartmeyer v. Iowa,20 it was said that prior to the adoption of

(19) Art. 15, Sec. 10. (20) 18 Wall, 129.

« ¡è͹˹éÒ´Óà¹Ô¹¡ÒõèÍ
 »