Nov. Term, 1856.

HUTCHINS

V.

HANNA.

estate was in no manner affected, either directly or remotely. I regard the cases of Bronson v. Kinzie, and M'Cracken v. Hayward, induced, perhaps, by unwise and imprudent relief legislation, as having gone very far to confound all distinctions between rights and remedies, and I am not disposed to carry the principle of these cases beyond the cases themselves. The decision in this case does, I think, carry the principle far beyond those cases, and in fact, denies to Barnett the very rule established by them-that is, that his undertaking shall be governed by the law of the remedy in force at the time his liability accrued.

Per Curiam.-The judgment is reversed with costs. Cause remanded, &c.

J. B. Howe, for the appellant.

(1) Ante, 110.

END OF THE NOVEMBER TERM, 1856.

APPENDIX.

HERMAN V. THE STATE.

A law which absolutely forbids the people of the State to manufacture and sell whisky, ale, porter and beer, for use as a beverage, or at all, except for the government, to be sold by it as a medicine, and absolutely prohibits the use of these articles as a beverage, is unconstitutional.

It is an invasion by the government upon the faculties of industry possessed by individuals, when it attempts to appropriate to itself any particular branches of industry, or any business which is not of a public, general character.

There are certain absolute rights, and the right of property is among them, which, in all free governments, must of necessity be protected from legislative interference, irrespective of constitutional checks and guards.

The power of the legislature to declare nuisances.

HABEAS CORPUS before a judge of the Supreme October 30. Court.

PERKINS, J.-Herman was arrested upon a charge of having violated the liquor act of 1855. He obtained a writ of habeas corpus, pursuant to which he is now brought before us at chambers, with the cause of his detention in custody.

His counsel moves for his discharge on the ground that said liquor act is unconstitutional and void. The case is submitted to us upon the arguments heretofore filed in the Supreme Court in the case of Bebee.

to us.

We regret that this question has been thus presented We had hoped that these applications would have been confined to the inferior courts till the Supreme VOL. VIII.-35

1855.

11

Court had decided upon the validity of the law in question.

But the legislature, acting, as we think, within the constitution, has conferred upon the citizen the right of suing out the writ of habeas corpus from the judges severally of the Supreme Court; the right has been exercised in this case, and it is not for us, upon slight pretexts, to shrink from the discharge of the duty thus, as we cannot, indeed, but believe, injudiciously imposed upon us.

Counsel on both sides concede in argument that the record presents the question of the validity of, at least, what is alleged to be the prohibitory portion of said liquor act, and that question will, therefore, without inquiry upon the point, be considered.

We approach it with all the caution and solicitude its nature is calculated to inspire, and that intention of careful investigation its importance demands, feeling that the consequences of the principles we are about to assert will not be confined in their operation to this case alone. Preliminary to the discussion of the main questions involved, however, the course of argument of counsel requires that we should say a word by way of fairly setting forth the duty this Court has to perform in the premises, viz., the simply declaring the constitutionality or unconstitutionality of the law, with an assignment of the reasons upon which the declaration is based.

It will not be for us to inquire whether it be a good or bad law, in the abstract, unless the fact, as it might turn out to be, should become of some consequence in determining a doubtful point on the main question. It not unfrequently becomes the duty of courts to enforce injudicious acts of the legislature because they are constitutional, and to strike down such as, at first view, appear to be judicious, because they are in conflict with the constitution.

With these remarks, we proceed to the examination of the feature of the liquor act of 1855, now more espe

cially presented to the Court. We shall not spend time upon the inquiry whether, on the day it came into force, there were existing unsold manufactured products in the hands of the distillers and brewers upon which it operated, rendering them valueless, or whether such products had all been disposed of between the passage and taking effect of the law. We shall direct our investigation to the character of its operation upon the future manufacture, sale, and consumption of intoxicating liquors. And

First. Is it prohibitory?

The first section enacts, "that no person shall manufacture, keep for sale, or sell" any ale, porter, malt beer, lager beer, cider, wine, &c. The second section permits the manufacture and sale of cider and wine, under certain restrictions, by any and all of the citizens of the State.

Other sections permit the manufacture of whisky, ale, &c., by persons licensed for the purpose, so far as may be necessary to supply whatever demands certain persons, called county agents, may make upon them. These agents are authorized to sell for medicinal, mechanical, chemical, and sacramental uses, and no other, and may procure their liquors of the licensed manufacturers, but are not required to do so, and, as matter of fact, do not, but obtain them, in most cases, from abroad. They constitute no part of the people engaged in business on their own account, but are appointed, under the law, by the county commissioners; supplied with funds from the county treasury; paid a compensation for their services by the county; sell at prices fixed for them, and make the profits and losses of the business for the public treasury, and not for themselves. We say they are furnished with public funds. They are so in all cases; for when they, in the first instance, invest their own, it is by way of loan to the county at a fixed rate of interest, and the amount is refunded by the county with interest. These selling agents, then, are, and for convenience, may be denominated government agents; for it is all one in prin

ciple whether the government creates and furnishes them with funds through the medium of the counties, or appoints them directly by statute and supplies them with funds from the State treasury. To express, then, the substance of the main provisions of the law, they may be paraphrased thus:

Be it enacted, 1. That the trade and business of manufacturing whisky, ale, porter, and beer, now and heretofore carried on in this State, shall cease; except that any person specially licensed to manufacture for medicine, &c., for the government, may do so, and sell to that extent, if the government should conclude to buy of such person, but not otherwise.

2. That no person in this State shall sell any whisky, beer, ale, or porter, unless the sale be to an agent of the government, or by such agent, for medicine, &c.

3. That no person in this State shall drink any whisky, beer, ale, or porter, as a beverage, and in no instance, except as a medicine.

It thus appears that the law absolutely forbids the people of the State to manufacture and sell whisky, ale, porter and beer, for use as a beverage; or, at all, except for the government, to be sold by it for medicine, &c.; and it prohibits absolutely the use of those articles, by the people, as a beverage.

The exception as to the admission of foreign liquors under the constitution and laws of the United States, will not be noticed, for the reason that they are admitted simply because they cannot be prohibited, and not in accordance with the spirit and policy of the State statute; and such foreign liquors may or may not be obtained here according to the contingent action of other powers; and for the further reason, that their admission, if claimed to be a part of the object and policy of the State liquor law, in order to supply the people with liquor as a beverage, renders the law doubly objec tionable, for while, according to such a view, the law designs to permit the use of liquors as a beverage, it prohibits the people from manufacturing for their own use.