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was in Church, though the former sometimes "talked the strong power of his contrasts." He believed, with politics" when not on the bench; but Chief Judge many leading northern Democrats, that the extreme Church never did. He did not possess the sa limits of justifiable concession to slavery had been lient mental qualities, the striking, unique, original reached, and he ardeutly sustained the Wilmot promind that gave such interest to the character of Mar viso. In the memorable discussion on Dixon H. Lewis' tin Grover. But the ability of Church exhibited a motion to strike the proviso from the original resolumore steady, commauding power. The fraukness tion, Grover greatly exasperated that powerful ad. with which Grover expressed his opinion upon hereut of the nullifying doctrine of Calhoun. all occasions was not acceptable to many, and if When Grover was addressing the House in support he did not thereby iucur their hostility, he cer of the proviso Lewis rose in his place, exclaiming, “I tainly failed to attach them to him as friends. His desire to say to the gentleman that the principles ho ambition, conceit and egotism, though tempered by is advocating will compel the south to a course that plausibility and good sense, were not among the char will astound him and all adherents to such incendiary acteristics of Church, or if they were he held them sentiments!” “May I ask what the gentleman thinks under better control.
the south will do ?” asked Grover. “It will dissolve Grover had a coustitutional buoyancy, an elasticity the Union, sir!” “Dissolve the Union, will you? of mind that could not subside into repose por rest Let me tell the gentleman, and all the south, tbat on one side of a question. By a sort of mercurial when the the south attempts to dissolve the Union. habit, he anticipated an argument, foreshadowing his the southeru people, after an awful drubbing, will find opinion in advance
out that the Union is of a great deal more consequence As a speaker at the bar, in the popular assembly, he to them than they are to the Union." was always singularly attractive. He had the faculty Denunciatory cries, threatening gestures and hisses of weaving, with great effect, words into any form he on oue side of the House, cheers and applause on the pleased, and he rauked with the most eloquent men other, followed this bold and somewhat prophetic reof his day. If occasion required he had wit, sarcasm tort. and ridicule at his commaud, which he used with the As politicians, Church and Grover knew how to spontaniety and art of Randolph.
“ catch the tunes of the times;” both exercised a In the early professional career of Martin Grover his controlling influence on public opinion and affairs. contempt of mode and fashion in regard to dress ren But their mauuer of doing this widely differed. dered him as famous as did his ackuowledged talents. | Church, while attaining this object, gained the reFor many years he was termed -not inappropriately | spect and coufidence of the people. Apparently he -"the ragged lawyer." As his means were ample it did not exert the skill of the politician, but wielded is difficult to find any satisfactory explanation for the the influence of a patriot. Grover compelled the dilapidated dress in which he always appeared in those attention and support of the people by his versadays. It has been suggested that he adopted it to gain tility and singular kuowledge of "the sovereigns, " as notoriety. But as "the apparel oft proclaims tho he always called the people, and his artifice in apman," Grover was frequently subjected to embarrass- | proaching them with the ambiguous, guarded language ments, resulting from his apparel.
of the schooled politician. He did not possess the On his first appearance at the General Term of the sincerity of manner and the impressive bearing of Supreme Court, then sitting at Rochester, he took his Church. And yet wo man at heart was more sincere, seat within the bar. The sheriff, believing him a man more conscientious, more fearless in supporting the of all work from some farm in his every-day dress, in: right, than Martin Grover. It has been alleged that formed him that he was in the place designed for law- he was not a close student, not extensively or deeply yers only, requesting him to take a seat outside with read in the learning of his profession. This is a misthe spectators. Grover assured himn that he was a take. Few men read more industriously, more prolawyer. Declining to believe this, the sheriff was on foundly, than Grover. the point of resorting to more urgent measures for the In bis student days and in the earlier years of his removal of the intruder, when the late Governor | practice, he emphatically “o'er books consumed the Young, who knew Grover, informed the official that | midnight oil.” Later in life, ainid his engrossing prohe was addressing Martin Grover. “What, the rag fessional and judicial duties he found time to devote ged lawyer?” asked the sheriff. “It is Mr. Grover, to legal reading and to the more solid literary producfrom Angelica, and he is a very eminent lawyer,'' said | tions, Young. “Then why don't he dress like an eminont His favorite authors were Voltaire, Junius, Swift lawyer?" muttered the sheriff as he was leaving the and Pope. We have sometimes thought he drew his bar.
powers of eloqueut vituperation from these writers. When, in 1845, Judge Grover took his seat in Con- | He used to say that Pope's attack on the Earl of gress, he was an object of general interest. But he Wharton was not equaled in the language of sarcasm, had learned the truth of the Roman poet, Juvenal's not even by the attack of Junius on Sir William remark, pluriuma sunt quæ non andant homines per Draper or the famous diatribe of Voltaire on Maupertusea dicere læng"there are many things which aman tius, and he defended Voltaire from the charge of inin a ragged coat dare not say"- and few members of fidelity with singular ingenuity. the twenty-uinth Congress were more tastefully 1 His memory may be compared to a capacious dressed than Judge Grover.
store-house. He was a delightful talker. His conIn the stormy, exciting debates of that Congress he versation was blended with flashes of wit and merritook a conspicuous part. His powers in debate ex ment, and his laugh was electrical. The artist who ceeded the expectation of his friends. A prominent painted his portrait, now in the room of the Court feature in his congressional career was his political of Appeals, by a happy thought, represents his features and intellectual independence. As was said of Ed. lighted up and animated in conversation. ward Burke, “he leaned on no other man's under It was one of his faults, however, to engross the standing, however great, and in the true sense of the whole conversation. We recall a remark of the late term, he never borrowed an idea of an image. The A. P. Lanning, of Buffalo, a particular friend of impression he made was owing, in a great degree, to Grover: “Grover is a fine talker," he said, “if you the remoteness of the ideas he brought together, the will allow him to do all the talking himself, but I startling novelty and yet justness of his combinations, should like to see the man whose lungs are strong
enough to break in upon him when fairly under way tributions to legal learning. Though without any disin his talk."
play of learning, they rank among the most learned The portrait of Chief Judge Church in the same of modern judicial opinions. As we have seen, room, not far from Judge Grover's, looks down from both Church and Grover went to the bench ardent the "speaking canvass,'' as though intently listening contestants in the political arepa -- champions of their to an argument. It is excellent in pose, in execution, party, fresh from fields of political strife - yet so and in truthful representation of its distinguished orig. effectually did they ignore the sword and shield of inal. Around it are the portraits of the many eminent partisan warfare, that none of their opinions were jurists who once occupied the bench of our great court ever warped by political influence: and their success of last resort, and who like him, have left the scenes was attained by no sacrifice of integrity or of judiof earth The eff:ct these beautifully executed paint- cial independence. Their biographer is spared the ings produce on the mind is singularly impressive, duty of making unpleasant deductions from their causing the spectator to reverently acknowledge the characters. Their faults are so easily eliminated that " oracles of art."
they leave no staiu; and any candid, truthful review of Judge Grover bad a much more extended experience their character is of itself the highest eulogy. To both on the bench than Chief Judge Church. As he was we may apply the Roman maxim, sed sine labe decus ; elected a justice of the Supreme Court in 1857, he had honor without stain. been on the bench thirteen years when Church assumed
L. B. PROCTOR. his judicial duties. It is no exaggeration to say that Martin Grover's judicial career was successful. As a CONSTITUTIONAL LAW - EXCISE - LOCAL judge at nisi prius, he was happily adapted to the task
OPTION of disentangling complex questions of law and fact. Though he did not escape some criticism, he was very
GEORGIA SUPREME COURT, MAY, 1887. popular with a great majority of the members of the bar. The large number of opinions written by him when a
MENKEN V. CITY OF ATLANTA. judge of the Supreme Court and of the Court of Appeals | 1. As long as the owner of liquors retains possession of them, exhibit the extent of his labors; they are marked by a intending to deliver them on an uulawful contract of sale, sure indication of an elevated mind. Their style is such possession is within a municipal ordinance which plain and succinot. If it is wanting in polish, it is prohibits the keeping of such liquors for unlawful sale. strong in argument His judgment was always open | 2 An agent having the actual possession, and participating in to appeal, and be acknowledged no finality in his the unlawful purpose is equally guilty with his principal. opinious.
3. That the offender will be liable to prosecution under a Both Grover and Church regarded the members of statute for unlawful selling, when the sale is consum. the bar with great respect. As the friends of the court, mated, will not hinder his being punished under the ordi. both had great contempt for those who brought dis- | nance for keeping for unlawful sale. credit upon it by sharp practice aud trickery, but | 4. The local option legislation of this State being constituChurch had a different manner of expressing his con tional as a valid exercise of the police power, it follows tempt. As he never presided at the Circuit, he saw
that the incidental effect upon the value of property, less of sharp practice and trickery in lawyers than
such as a brewery and its fixtures, resulting from the Grover.
inability of the owners to adjust their old business to the Grover's address to his first grand jury impaneled
new law, is damnum absque injuria. The law does not at Buffalo was much admired, and it outlined his
take or damage their property for the use of the public, views of the judiciary, the bar and juries.
but only prevents them from taking or damaging the
public for their use. “ While the administration of the law flows in pure · channels; while judges are incorruptible and inde
6. The express saving of vested rights in the local option act pendent, and are watched by the scrutinizing eyes of
embraces previously acquired rights to sell by virtue of an enlightened bar, and by the jealous circumspec
license already taken out and paid for, but comprehends tion of the people; while jurors continue to know and
no right either to obtain new license, or to sell without to exercise their high functions with diligence, honor
license, whether on the part of natural persons or corand purity, our safety will be beyond the reach of
porations. The act is not a scheme for stopping the sale demagogues, corrupt politicians and their venal allies of liquors by natural persons, but leaving the business to
be carried on by chartered companies in Legislatures, who are responsible for the existence of the putrid lobbies that surround them."
BLECKLEY, C. J. The statute of this State known as The manner of these eminent judges differed on the
the local option law was passed September 18, 1885. beuch. While it cannot be said that Grover was really Session Laws 1884-5, p. 121. It took effect in Fulton wanting in judicial dignity, his humor, his wit, and county, the county in which the city of Atlanta is his overflowing good nature often brought expressions located, as the result of a popular election held for that that convulsed the bar with laughter. Many of them county, as the act prescribes. have gone into legal history. Some of them were witty, The act declares, under certain penalties, that "it condeused expressions of learuing. If counselindulged shall not be lawful for any person within the limits of in too many excursions of eloquence, if it was apparent such county to sell or barter for valuable consideration, that he was talking for effect, the manner in which either directly or indirectly, or give away or induce Grover would, by some quick, good-natured sarcasm, trade at any place of business, or furnish at other rebuke him was always effective, while it left no sting public places any alcoholic, spirituous, malt or intoxiwith it. A record of his judicial repartees and humor cating liquors, or intoxicating bitters, or other drinks ous remarks to counsel would fill a volume.
which it drapk to excess will produce intoxication." The manner of Chief Judge Church on the bench was The manufacture, sale and use of domestio wines or a model of judicial dignity and courtesy. “Whether cider, the sale of wines for sacramental purposes, and the counsel was eminent or little known, he listened the sale or furnishing by licensed draggists of pure with the same attention and respect. He was endowed | alcohol for medical, art, scientific and mechanical by nature with patience that was never surpassed; purposes are excepted from the operation of the statpatience to hear that which he knew already, that ute, save that wines or cider shall not be sold by retail which he disapproved, that which he questioned." in bar-rooms. His opinions will always be regarded as valuable con- This act being in force, the city of Atlanta, on the
21st of June, 1886, by the mayor and general council, took the order, and made the delivery afterward. But passed an ordinance declaring “that on and after the treat the case in either aspect. If he bad possession of first day of July, 1886, any person, firm or corporation | these liquors to deliver them in the city on future who shall keep for unlawful sale in any store, house, orders, it would be possession for unlawful sale, and room, office, cellar, stand, booth, stall, or other place, | if to deliver on past orders, it would be possession for any spirituous, fermented or malt liquors, shall on the consummation of unlawful sale. The title to beer conviction be punished by fine not exceeding $500 or ordered in a city for family use would not pass until imprisonment not exceeding thirty days, either or actual delivery to the customer, unless delivery were both, in the discretion of the court."
dispensed with by express contract. Certainly it Menken, the plaintiff in error, was tried, convicted would not pass where the seller undertook to make aud fined for a violation of this ordinance, in Septem- | delivery at the residence of the buyer. Destruction ber, 1886, upon a charge of keeping for unlawful sale of the article whilst on the way would be the loss of spirituous and malt liquors. He petitioned the judge the seller, and any conversion of it or injury done to of the Superior Court in due form, for a writ of it by another, would give the seller a right of action, certiorari, which was denied, and this denial is the but none to the buyer. So long as the owner retains error assigned.
possession for the purpose of consummatiog a sale, At his trial in the municipal court, Menken made past or future, he should be regarded as keeping the affidavit of certain alleged facts, which affidavit the article for sale. The property is his, the possession his, prosecution conceded to be true. The material con and they remain his until delivery is made in pursutents of the affidavit were substantially as follows: ance of the contract of sale. Accordingly, we hold
When arrested, Menken was acting as agent of the that so long as the owner of liquors retains possession Atlauta City Brewing Company, a corporation organ. of them, intending to deliver them on an unlawful ized under a charter from the Legislature authorizing contract of sale, such possession is within a municipal it to manufacture and sell malt liquors. As such agent ordinance which prohibits the keeping of such liquors he was in possession of bottled beer which he was de for unlawful sale. livering at the residences of citizens of Atlauta for 2. That the accused was not the owner, but only the private use of such citizens, in quantities of a quart | hired agent of the owner is no excuse for him. The and more. The beer was the property of the corpora agent's possession is that of the owner; aud if the tion, and he was acting simply as its hired agent. The agent participate in the unlawful purpose, he is charter of the corporation was granted long before the equally guilty with his principal. In dealing with passage of the local option law. Under this charter crime the law gives no heed to a plea of agency. Iu several years ago, and whilst it was lawful to manufac criminal trausactions all voluntary agents are acoomture and sell malt liquors in the city of Atlanta and plices. elsewhere in Georgia, the corporation invested in its 3. The position of counsel that the city cannot, with beer manufactory $125,000, to wit: real estate, $3,100; or without an ordinance for the purpose, punish as an buildings, $18,000; bottling bouse and machinery, offense against the municipality any thing which by $7,000; vaults, $50,000; vats and tauks, $15,000; spriugs, statute is an offense against the State, is quite sound. $2,000; general machinery, $20,000; kegs and balf But the statute, though it makes the unlawful sale of barrels. $9,900. This large investment is so specialized liquors an offense, does not make the keeping of them and localized that it is available alone at the place for unlawful sale an offense. The ordinance does the where the brewery is situated and for the one special latter but not the former. It hovers on the margin of business. Except for the brewing business, the whole the statute, and no where overlaps the text. If there property, though costing $125,000, is :100 worth more is keeping for unlawful sale the ordinance is violated, tban $16,000. A brewing business in Atlanta cannot whether any sale is made or not. In case a sale ensues, be conducted so as to compete with establishments of the statute is also violated; but this does not cancel the west without a market for fresh beer in and near the violation of the ordinance. An offense committed the city, and the course of dealing is such that sales, against one jurisdiction cao not be wiped out by comeven on orders for shipment by railway, have to be mitting another against another jurisdiction. The consummated within the city, if made at all. To pro only object of the ordinance is to prevent preparation hibit delivery of beer in the city will necessarily stop for violating the statute. It would be singular if those the business of the corporation, and take from it and wbo prepare but go no further, could be punished its stockholders their property, to the value of over under the ordinance, while those who prepare and then $100,000.
go on to violate, could not. So.to rule would be like In addition to what Menken stated in his affidavit, holding that to carry a pistol concealed is an offense it appeared that he was arrested while in the act of only when there is nobody shot. That an offender delivering some bottles of beer at the house of one will be liable to prosecution under the statute for unBliley, in the city of Atlanta, and that he had already lawful selling, when a sale is consummated, will not eold the same to Bliley. Bliley himself, testified that hiuder his being punished under the ordinance for he purchased a number of bottles of beer from the keeping for unlawful sale. Mayson V. The City of Atlanta City Brewery, wbioh be ordered delivered at Atlanta, Nov. Term, 1886. his house, and that afterward delivery was made ao- 4. If it has not beeu heretofore sufficiently decided, cordingly.
we decide now that the local optiou legislation of this 1. Though the accused was not the owner of the malt State is constitutional as a valid exercise of the police liquors in which he dealt, we may for the present treat power. Historically considered, there is no subject him as owner, and consider the question of agency more completely amevable to this power than the afterward. It does not appear from his affidavit sale of intoxicating liquors. Georgia is upon record whether his occupation was only to deliver on past
as being familiar with the exercise of the power, both orders or whether it was partly that and partly to ob- | before and since the Revolution. He
before and since the Revolution. Her governing tain orders and deliver at the time of receiving them. authorities long ago branded distilled spirits as Of course, his affidavit is to be construed most strongly “dangerous" to the public, and even malt liquors against him, as to any thing which ought to bave been have from the dawn of her history been subjected to denied, or which naturally would have been depied, if some degree of publio control. not true. The testimony outside of his affidavit shows Oglethorpe, the founder of the colony, was instruwith reasonable certainty that in ono instance they mental in procuring the passage of an aot “to prohibit the importation and sale of rum, braudy, and or plantation where the same shall be so gold, exother distilled liquors within the limits of Georgia." cept in the counties of Chatham, Liberty and EffingAs early as November, 1733, the common council, ham, wherein it shall uot be lawful for any merchant "resolved that the drinking of rum in Georgia, be to dispose of any quantity less than one gallou." The al'solutely prohibited, and that all which shall be fee for each license is fixed at two pounds, to be paid brought there be staved.” Jones' History, vol. 1, p. by the applicant. The act concludes with a repealing 189. Amongst the inducements held out by the trus clause as to all prior acts on the same subject, and tees, in 1735, to attract emigration to the province, adds a proviso saving to the corporations of Savannah was the following: “Negroes and rum are prohibited and Augusta the sole regulation and power of govern)to be used in the said colony." Id. 195. A curious ing aud directing taverns and granting licenses within and minute observer, writing of Savannah says: "They their several jurisdictions. This act, by its whole have some laws and customs peculiar to Georgia, oue tenor aud toue, is assertive of plenary power over its is that all brandies and distilled liquors are prohibited subject. matter. It confines to liceused innkeepers the under severe penalties; another is that no slavery is right to sell in quantities less than one quart; it deallowed, nor negroes." Id. 220. It seems that the uies to all others, except merchants and producers, the policy of excluding negroes and rum continued until right to sell at all by retail, it denies to producers the 1749, and was they abandoned under a strong pressure right to sell at all for consumption on the premises from the inbabitants. Id. 419-427. These two “con- where sale is made; it discriminates betweeu places in tra bands” being admitted into the colouy, it soon be fixing the minimum quantity which mercbants are came necessary to regulate their intercourse with each allowed to sell, limiting the quantity to one gallon in other, and it was provided by statute that any person three counties, and to one quart in the other counties selling to a slave without the consent of his owner or of the State; and it leaves to the corporate authorities manager, beer or any spirituous liquors was subject to of Savannah and Augusta complete local jurisdiction, a fine of twenty shillings for the first offeuse, and so far as sale at taverns in these cities is concerned. double that amount for the second. Id. 482. It should Observe also that the mild beverages, wine, cider and be stated that during the period of exclusion, the beer, are embraced in this act, as well as the more authorities placed no restriction upon the moderate fiery fluids, brandy, rum, whiskey, etc. use of Euglish beer and the wines of Madeira. “With The licensed sale of liquors continued to be a branch these the trustees' stores at Sarannah were regularly of the hotel business exclusively, until 1809. lu that supplied, and the magistrates there were empowered year the Legislature provided that an applicant might to grant licenses for retailing beer both of foreigu obtain license to retail liquors without being obliged manufacture and home brewing." Id. 189.
to keep other public entertainment. Prince's Dig. Thus much for the exercise of the police power over 840. Whilst various other modifications of the old the liquor traffic under the early colonial government. act of 1791 have been made, yet the Legislature of this I turn now to au act passed by this Stato in December, State has ever beld, and still holds, with a firm and 1791, the sixteenth year of Independence, found in steady hand, police control over intoxicating liquors. Watkins' Dig. 453. This act provides that “any per Several publio and numerous local acts on the subject. son wishing to keep a tavern or house of entertain of more or less importance, might be cited, but it is ment shall petition the justices of the inferior court unnecessary. Uutil recently, the tendeuoy has been held for the couuty where such petitioner resides, and to tolerate liquors and temporize with their misthe court to whom such petition shall be exhibited behavior, but now there is a disposition to turn most shall thereupon consider the convenience of such place of them once more out of the State. The local option intended for a tavern, and having regard to the ability | law is the result, and it simply eni powers each comof such petitioner to keep good and sufficient accom. munity to protect itself, not indeed against the presmodation for travellers their horses and attendants, ence or consumption of liquors, but against the sale or may at their discretion grant a license to such person distribution of them within the given locality. In the or persons, for the term of one year next ensuing the
| nature of things, this cannot be done without affectdate of such license, and from thence to the next ing unfavorably the business interest of the makers of inferior court held for the said county, and no longer; the proscribed articles, and of those who deal in them. which license, upon petition, may be renewed from According to the record before us, the year to year. if the court think proper." The act then the Atlanta City Brewing Company has been calamigoes on to require the recipient of a license to enter tous in the extreme. Out of an investment of $125,000, into bond with security ; to require the justices of the the loss of the company has aggregated over four-fifths inferior court to establish annually the rates and prices of that amount or will do so if the law is upheld and to be paid at taverns for liquors, diet, lodging, prov enforced. We treat the record, in this respect, as imender, stabling and pasturage; and to prescribe a pen porting verity for the purposes of a decision of the alty or forfeiture for demanding and receiving prices case. Moreover, we make no question, as corporations above the rates so established. It then provides “that can only carry on their business through officers and if any person shall presume to keep a tippling house, agents, that the plaintiff in error can avail himself of or retail liquors, or sell by retail any wine, beer, cider, this loss as a defeuse to the same extent (no more and brandy, rum, or other spirits, or any mixture of such po less), as the corporation might, were it a natural liquors, in any house, booth, arbor, stall or other place person and under a like penal charge. It is quite cerwhatsoever, without license first obtained as afore taiu that the law makes no provision for compensating said, he or she so offending and being thereof convic
the corporation for this immense loss or any part of it, ted, shall forfeit and pay the sum of ten pounds, one
and on that account, the constitutionalty of the act is half to the informer and the other to the use of the denied. The provisions of the Coubtitution of the county. Provided always, that nothing herein con- | United States which it is supposed to vio
are as tained shall extend to prohibit any merchant from follows: “Nor shall any person * * * be deprived retailing liquors not less than one quart; nor to pre of life, liberty or property without due process of law. vent any planter or other person from disposing of Nor shall private property be taken for public use such brandy, rum or whiskey, as they may make from without just compensation. Nor shall any State detheir own grain, orchards, or distilleries, 80 that prive any person of life, liberty or property without it be pot sold in a less quantity than one quart, por due process of law.” And those of the State of Georgia drank or intended to be drank at the house. store in addition to a provision like the first one above
cited), are as follows: “Private property shall not be viously acquired rights to sell by virtue of license taken or damaged for public purposes without just already taken out and paid for. The saving comprehends and adequate compensation being first paid."
no right either to obtain new license after the act has Has the corporation been deprived of its property? gone into effect, or to sell without license, whether on Or has its property been taken? Or has its property | the part of natural persous or corporations. The act been damaged ? If these questions can all be answered | is not a scheme for stopping the sale by natural per in the negative, the objection fails. Of course, the sons, and leaving the traffic to be carried on by chardeprivation, the taking, the damaging, must be in a tered companies. The charter of this company was legal sense, not in a loose popular sense; and the in- granted in 1876, and was therefore subject to modificaquiry is about the brewery, not the beer. Where there | tion, as declared in the Code, S 1682. is no deprivation of title, or of possession, or of use (in | Judgment affirmed. cluding the jus disponendi), it cannot be said with legal propriety that the owner is deprived of his property. Here there is no invasion or abridgment of the title, possession or use of this brewery, or the right to
CRIMINAL LAW – CONSPIRACY – BOYCOTdispone of it. All these stand and remain precisely as
TING. they were before the law complained of was enacted. This being so, the question as to deprivation must be VERMONT SUPREME COURT, MAY 4, 1887. answered in the negative. For the same reason, the question as to taking must also be answered in the
STATE V. STEWART. negative. Taking is only one mode of deprivation.
If two or more persons combine to prevent, by violence and Nothing can be more manifest, than that none of the
intimidation, an employer from retaining or employing plant or investment of this corporation, real or per
certain persons, or employees from entering into his sersonal has been taken. The remaining question is, whether the property
vice, it is a criminal conspiracy at common law.* has been damaged within the true intent and meaning INDICTMENT for conspiracy. Heard on demurrer of the State Constitution? There has been no physi and motion to quash. The opinion states the case. cal interference with the brewery, no trespass or tort
Bates & May, for respondents. upon it, no change in its physical surroundings, or in the means of ingress and egress. It is as sound and
Marshall Montgomery, State's attorney, H. C. Ide complete in every respect, and as fit for enjoyment, and Alex. Dunnett, for State. use and disposition with tbis law in force as it would POWERS, J. Although authorities can be found that be without it. No doubt its value is greatly impaired, lay down the rule that felonies and misdemeanors, or and impairment of value is often the essence of legal different felonies cannot be joined in the same indictdamage. No doubt too, that the impaired value of
ment, still the rule in this and most of the States is this property is a remote consequence of the law, and
otherwise. that were the law repealed the value would be rein
It is always and everywhere permissible for the stated as it was before. But while to lessen the value
pleader to set forth the offense he seeks to prosecute of property by changing its physical condition, or by l in all the various ways necessary to meet the possible subjecting it directly to new physical conditions of a
I phases of evidence that may appear at the trial. If hurtful character is to damage it, to reduce its value
the counts cover the same transaction, though involvindirectly and incidentally by the casual effects of a
ing offenses of different grade, the court has it in its law passed for a wholly different object, is not to
power to preserve all rights of defense intact. Condamage it, within any legal or constitutional sense of
monwealth v. McLaughlin, 12 Cush. 612; State v. Linthe term. Rarely, perhaps, does any new law which
coln, 49 N. H. 464; State v. Smalley, 50 Vt. 736; State acts with vigor upou commerce, local or general, fail
v. Thornton, 56 id. 35; Rex v. Ferguson, 2 Stark. 489. to impair the value of more or less property. Surely
Moreover the motion to quash is addressed to the the damage clause in our new Constitution was not
discretion of the court, and its refusal is not the subiutended to make the State or the Legislature an in
ject of revision here. Commonwealth v. Eastman, 1 surer against all shrinkage of values that might result
Cush. 189; Commonwealth v. Ryan, 9 Gray, 137; 1 from the passage of laws intended for the public good.
Whart. Crim. Law, $ 519. Can it be seriously thought that the State must liter
The respondent's counsel argue that the first and ally pay its way to the establishment of a sound and
second counts do not cover the offense of criminal wholesome system of internal police and publio order?
conspiracy at common law. But we think, upon a The local option law rests in no degree upon the
careful examination of the English and American power of eminent domain. It does not contemplate
cases cited in argument, and we suspect that none have either the taking or the damaging of any thing. It is
boen overlooked on either side, that it is clear to a an exercise of the police power of this Commonwealth,
demonstration, that a combination of the character pure and simple. The incidental effect upon the value
set forth in these counts was a conspiracy at the comof this brewery and its fixtures result not from any interference with the property but solely from the in
mon law; and further, that the subject-matter of the
offense being the same in this country as in Englaud, ability of the owners to adjust their old business to the new law. These effects if they can be called
namely, an interference with the property rights of
third persous, and a restraint upon the lawful prosecudamage at all, are damnum absque injuria. The law does not take or damage the property of these owners
tion of their industries as well as an unlawful control
over the free use and employment by workmen, of for the publio use, but only prevents them to a certain
their own personal skill, and labor, at such times, for limited extent, from taking or damaging the public for their use. This is their real grievance, and for
such prices, and for such persons, as they please, the
common law of England is “applicable to our local that they have no remedy. Where business and law
situation and circumstances " in this behalf, and is, conflict it is the business that must give way, not the
therefore, the common law of Vermont. law.
In England and here it is lawful, and it may bo 5. A question raised on the construction of a par
aaded commendable, for any body of men to associticular clause of the act, remains to be considered. It
ate themselves together for the purpose of bettering is the clause, in the fourth section, which saves vested rights. The rights contemplated, we think, are pre
*See 35 Alb. L. J. 208: 24; 348.