fence between adjoining proprietors; 3. Because it properly concerns the safe mode of exercising a dangerous occupation or business; and 4. Because it is but a reasonable provision for the protection of domestic animals, all of which interests fall legitimately within the range of legislative control, both in regard to natural and artificial persons.

WYNEHAMER, the defendant in the court below in the case first above entitled, was, in July, 1855, indicted at a court of general sessions, held in and for the county of Erie, for selling intoxicating liquors, contrary to the provisions of the statute entitled "An Act for the Prevention of Intemperance, Pauperism, and Crime." 2 The indictment

1 There are some analogous subjects where legislative control has been sustained by the courts which may properly be here alluded to. The expense of sidewalks and curbstones in cities and towns has been imposed upon adjacent lots, chiefly for general comfort and convenience. Paxson v. Sweet, 1 Green, 196; City of Lowell v. Hadley, 8 Metcalf, 180. Unlicensed persons not allowed to remove house-dirt and offal from the streets. Vandine's Case, 6 Pick. 187. Prohibiting persons selling produce not raised upon their own farms, from occupying certain stands in the market. Nightingale's Case, 11 Pick. 168. See also Buffalo v. Webster, 10 Wendell, 99; Bush v. Seabury, 8 Johns. 327. Prohibiting the driving or riding horses faster than a walk in certain streets. Commonwealth v. Worcester, 3 Pick. 462. Prohibiting bowling-alleys. Tanner v. The Trustees of the City of Albion, 5 Hill, 121, or the exhibition of stud horses or stallions in public places. Nolan v. Mayor of Franklin, 4 Yerger, 163. The same may be said of all statutes regulating the mode of driving upon the highway or upon bridges, the validity of which have long been acquiesced in.

The destruction of private property in cities and towns, to prevent the spread of conflagrations, is an extreme application of the rule, compelling the subserviency of private rights to public security, in cases of imperious necessity. But even this has been fully sustained after the severest scrutiny. Hale v. Lawrence, and other cases upon the same subject; 1 Zabriskie, 714, 3 Zabriskie, 590, and cases there referred to from the New York Reports. There is, in short, no end to these illustrations, when we look critically into the police of the large cities. One in any degree familiar with this subject would never question the right depending upon invincible necessity, in order to the maintenance of any show of administrative authority among the class of persons with which the city police have to do. To such men any doubt of the right to subject persons and property to such regulations as the public security and health may require, regardless of merely private convenience, looks like mere badinage. They can scarcely regard the objector as altogether serious. And generally, these doubts in regard to the extent of governmental authority come from those who have had small experience. [This appears to be the Chief Justice's note. See also Minneapolis, &c. Ry. Co. v. Emmons, 149 U. S. 364 (1893). — ED.]

2 The reporter does not give the terms of the statute. The following summary of it is taken from the opinion of A. S. JOHNSON, J., at pp. 406-409: The sections which

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contained several counts, each of which charged in substance that the defendant, on a day subsequent to the 4th of July, 1855, at the city of particularly relate to it are substantially these, omitting such parts as do not bear upon this case: 'It shall be the duty of every sheriff, under sheriff, deputy sheriff, constable, marshal, or policeman, to arrest any person whom he shall see actually engaged in the commission of any offence in violation of the 1st section of this Act, and to seize all liquor kept in violation of said section, at the time and place of the commission of such offence, together with the vessels in which the same is contained, and forthwith to convey such person before any magistrate of the same city or town, to be dealt with according to law, and to store the liquor and vessels so seized in some convenient place, to be disposed of as hereinafter provided. It shall be the duty of every officer by whom any arrest and seizure shall be made, under this section, to make complaint on oath against the person arrested, and to prosecute such complaint to judgment and execution.'- Laws of 1855, p. 340, § 12. All liquors and vessels in which they are contained, which shall have been found and seized in the possession of any person who shall have been arrested for violating any provision of the 1st section and not claimed by any other person, shall, upon conviction of such person of such offence, be adjudged forfeited.' § 13. When any liquor seized under any provision of the Act shall be adjudged forfeited, as provided in any section of the Act, it shall be the duty of the magistrate (after the determination is become final) forthwith to issue a warrant commanding that the liquor be destroyed. The officer to whom the warrant shall be delivered is to destroy it and make a return of the destruction, and then an execution is to be issued to sell the vessels which contained the liquor § 10. Every justice of the peace, police justice, county judge, city judge (certain other officers in New York), and in all cities where there is a recorder's court, the recorder, has power to issue process, to hear and determine charges, and punish for all offences under the Act, and to hold courts of special sessions for the trial of such offences. The section proceeds: 'Such court of special sessions shall not be required to take the examination of any person brought before it upon charge of an offence under the Act, but shall proceed to trial as soon thereafter as the complainant can be notified' Power to adjourn, for good cause, is given for not exceeding twenty days. At the time of joining issue, and not after, either party may demand trial by jury, in which case the magistrate is to cause a jury to be summoned and empanelled, as in other criminal cases in courts of special sessions. § 5. No person who shall have been convicted of any offence against any provision of the Act, or who shall be engaged in the sale or keeping of intoxicating liquors, contrary to the Act, shall be competent to act as a juror upon any trial under any provision of the Act. § 16. Upon the trial of any complaint under the Act, proof of the sale of liquor shall be sufficient to sustain an averment of an unlawful sale, and proof of delivery shall be prima facie evidence of sale. § 17. A violation of any provision of the 1st section is made a misdemeanor. The guilty party is to forfeit all liquors kept by him in violation of the section, and is to be further punished by a fine of $50 for the first offence; for the second, by a fine of $100 and thirty days' imprisonment; for the third and every subsequent offence, by a fine not less than $100, nor more than $250, and by imprisonment for not less than three, nor more than six months. The defendant is likewise to pay all costs and fees provided in the Act; and in default of payment of any such fine, costs, and fees, or any part thereof, the defendant is to be committed until the same are paid 'not less than one day per dollar of the amount unpaid.' § 4. . .

"The prohibitory clause itself, upon which these proceedings are founded, constitutes the 1st section. Omitting certain exceptions from the prohibition, which will be afterwards noticed, it provides that intoxicating liquor shall not be sold, or kept for sale, or kept with intent to be sold, by any person, in any place whatsoever; that it shall not be given away, nor be kept with intent to be given away, in any place whatsoever, except in a dwelling-house, in no part of which any tavern, store, grocery, shop, boarding-house or victualling-house, or room for gambling, dancing, or other public amusement or recreation of any kind is kept; that it shall not be kept or deposited in

Buffalo, wilfully and unlawfully and contrary to the form of the stat ute, sold to persons unauthorized by law to sell intoxicating liquor to the jury unknown, intoxicating liquor, to wit, a gill each of rum, brandy, gin, wine, whiskey, and strong beer, without having filed in the office of the clerk of the county of Erie any undertaking approved by the county judge of that county, according to the provisions of the 2d section of the Act. It was further alleged in each count of the indictment that the liquor so sold was not alcohol manufactured by the defendant, or pure wine manufactured by him from grapes grown by himself; and that the sale of the liquor was not authorized, nor was any right to sell the same given by any law or treaty of the United States. The defendant pleaded not guilty; and the issues were tried in the court of general sessions by a common-law jury duly empanelled. On the trial the counsel for the people gave evidence tending to prove that after the 4th day of July, 1855, and before the finding of the bill of indictment, the defendant on several occasions had sold and delivered to different persons at his bar, in Buffalo, brandy, in quantities less than a pint, which was drank on his premises. When the people rested, the counsel for the defendant requested the court to discharge the defendant, or to direct the jury to render a verdict of not

any place whatsoever, except in such a dwelling-house as is above described, or for sacramental purposes in a church or place of worship; or in a place where either some chemical, or mechanical, or medicinal art, requiring the use of liquor, is carried on as a regular branch of business, or while in actual transportation from one place to another, or stored in a warehouse prior to its reaching the place of its destination. By an exception in this same section, liquor may be given away as a medicine by physicians pursuing the practice of medicine as a business, or for sacramental purposes. The section concludes with a provision that it shall not apply to liquor, the right to sell which in this State is given by any law or treaty of the United States.

"By §§ 2 and 3, persons answering the description, doing the acts, and taking the oaths prescribed therein, may be licensed to keep for sale, and sell intoxicating liquor and alcohol for mechanical, chemical, or medicinal purposes, and wine for sacramental use. By § 22, the Act is not to be construed to prevent the sale of cider in quantities not less than ten gallons; nor to prevent the manufacturer of alcohol, or of pure wine from grapes grown by him, from keeping or from selling such alcohol or wine, nor the importer of foreign liquor from keeping or selling the same in the original packages to any person authorized by the Act to sell such liquors; nor to prohibit the manufacture or keeping for sale, nor the selling burning fluids of any kind, perfumery, essences, drugs, varnishes, nor any other article which may be composed in part of alcohol or other spirituous liquors, if not adapted to use as a beverage, or in evasion of this Act.

"The foregoing clauses contain, in substance, the prohibition of the Act, with the exceptions which qualify its effect.

"Two other provisions are necessary to be quoted, as they bear upon the rights which the owner of liquor has in it, and the modes in which he may assert those rights. The first is at the close of § 16, and declares that no person shall maintain an action to recover the value or possession of any intoxicating liquor sold or kept by him, which shall be purchased, taken, detained, or injured by any other person, unless he shall prove that such liquor was sold according to the provisions of the Act, or was lawfully kept and owned by him.' The other clause is at the end of § 25, and provides that 'all liquor kept in violation of any provision of the Act shall be deemed and is hereby declared to be a public nuisance.' - ED.

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guilty, on the following grounds, viz.: 1. That it was not shown that any offence had been committed by the defendant; 2. That it did not appear but that the liquor alleged to have been sold was liquor, the right to sell which was given by laws or treaties of the United States, nor but that it was imported by defendant from foreign countries in pursuance of the United States laws; 3. That the 1st and 4th sections of the aforesaid Act were respectively in violation of the constitutions of the United States and of this State, and void; 4. That the said Act was unauthorized by and in conflict with the laws and treaties of the L United States and the Constitution of this State, and therefore void; 5. That it was not shown but that the liquor alleged to have been sold by the defendant was authorized to be sold by the Act of the Legislature above referred to. The court overruled each of the objections, and decided that the case must be submitted to the jury, and the counsel for the defendant excepted. Thereupon the counsel for the defendant offered to prove that the liquor alleged to have been sold was imported into this State from a foreign country, under and in pursuance of the revenue laws of the United States, and that the legal duties thereon were paid; that the defendant purchased such liquor from the importers in the package in which it was imported; and that it was drawn from such package and sold to the persons and at the times proved by the witnesses for the prosecution. The counsel for the people admitted the truth of the facts so offered to be proved, but objected to their admissibility as evidence, on the ground that they were irrelevant and immaterial. The court so held and excluded the evidence, and the defendant's counsel excepted. The counsel for the defendant also offered to prove that the liquor sold by the defendant was owned and possessed by him previous to and on the 3d of July, 1855; the counsel for the people admitted the fact to be so, but objected to it as evidence on the ground that it was immaterial. The objection was sustained, and the evidence excluded, and the defendant's counsel excepted. At the close of the evidence the counsel for the defendant requested the court to direct the jury to acquit the defendant, on the grounds stated at the close of the evidence for the prosecution. The court declined and the defendant's counsel excepted. The counsel for the defendant also requested the court to charge the jury that the people must prove that the liquor sold by the defendant was intoxicating; the court as to this request charged, that if it was proved that the defendant sold brandy, this was intoxicating liquor within the meaning of the Act; and the defendant's counsel again excepted. The jury found the defendant guilty; and the court sentenced him to pay a fine of fifty dollars, and to be committed until the same was paid. The judgment was affirmed by the Supreme Court sitting in the eighth district. See 20 Barbour, 567. The defendant sued out a writ of error.

Toynbee, the defendant in the case secondly above entitled, was, on the 17th of July, 1855, arrested by Mathews, a police officer of the city of Brooklyn, and brought before a police justice of that city, with

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out any precept for his arrest having been issued. When he brought him before the justice, Mathews made a complaint in writing, verified by his oath, which stated that on the day of the arrest the complainant saw the defendant at a place which was specified, in Brooklyn, sell and keep for sale, and have in his possession, with intent to sell, intoxicating liquors, to wit, brandy and champagne; that the complainant saw the defendant engaged in selling liquor, to wit, brandy, in violation of the Act for the prevention of intemperance, pauperism, and crime; that the offence consisted in selling one glass of brandy and one bottle of champagne; that the complainant had arrested the defendant and brought him before the justice to answer the charge, and to be dealt with according to law; and that at the time and place of the offence, he, the complainant, seized the said brandy and champagne, with the bottles in which they were contained, and had stored them in a convenient place, to be disposed of as provided by the aforesaid Act. The defendant asked to be discharged, on the ground that the Act was unconstitutional, and on the further ground that the complaint did not set forth facts sufficient to constitute an offence by the defendant. His application was denied. He then objected to being tried by a court of special sessions, and offered to give bail for his appearance at the next court having criminal jurisdiction. The justice overruled the objection, refused to take bail, and required the defendant to plead to the charge. The defendant pleaded not guilty, and thereupon the complainant was sworn and testified that the defendant kept a hotel in Brooklyn, in the basement of which he kept a bar-room; that on the 17th of July, he, the witness, saw the defendant sell a glass of brandy and a bottle of champagne, which were intoxicating liquors, and that the defendant kept for sale in his bar-room such liquors. He further testified that the champagne was imported liquor; and that he, the witness, on the occasion aforesaid, seized and took into his possession the bottle of brandy from which the defendant sold, and the bottle of champagne which he had sold and was in the act of delivering. The foregoing is the substance of all the evidence. The court found the defendant guilty of selling and having in his possession with intent to sell, intoxicating liquors, as charged in the complaint, adjudged him guilty of a misdemeanor, and sentenced him to pay a fine of $50, and $5.87 costs of the proceedings, and that he be imprisoned until the same were paid, not exceeding fifty-six days. The court further adjudged that the liquor seized be forfeited, and that a warrant for its destruction be issued. On appeal by the defendant, the judgment was reversed by the Supreme Court at a general term in the second district. See 20 Barb. 168. The people appealed to this court. . . .

A. J. Parker, for the plaintiff in error, in the case first entitled.

A. Sawin, for the people.

J. M. Van Cott, for the people, in the case secondly entitled.

John A. Lott, for the defendant. . . .

...

HUBBARD, J. The first ground assumed by the appellant's [Toyn