Wynehamer v. The People
State of New York, Court of Appeals, March, 1856
13 N.Y. Rep. 378-488 (1856)
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T. A. JOHNSON, J. (Dissenting.) It has been shown, I think, in the case of Wynehamer v. The People, and we all agree, that imported liquors, the moment they leave the hands of the importer, have passed the line of foreign commerce and federal authority, and become exclusively subject to state regulations and control; and that when they are once brought into this condition, the only right which attaches, so far as any right flows from government, is derived wholly from state laws, and they are not then within the exception in the 1st section of the act. I have also attempted in that case, as I think successfully, to demonstrate that the legislature, being the sole and exclu-
[13 N.Y. Rep. 480]
sive law-making power in the state, has by virtue of its office, from the very nature and constitution of government, the power, and is charged with the duty of regulating, restricting, controlling and even prohibiting altogether any traffic in any property which is found to be demoralizing in its effects upon the community, or injurious to its interests, or burthensome to the government; and that there is not, either in the constitution of the United States or in that of this state, any limitation or restriction upon the exercise of this power which is in any respect in conflict with the provisions of this act, so far as it prohibits the sale of intoxicating liquors.
The right of traffic or the transmission of property, as an absolute inalienable right, is one which never has existed since governments were instituted, and never can exist under government. The government has always regulated and controlled it to the full extent required, in its judgment, by the public interests and necessities, as the whole history of legislation will clearly show. Government possesses many powers which it does not habitually or frequently exercise, and only puts forth to remedy particular evils or to meet occasional exigencies. But it must necessarily have the same right to prohibit any particular traffic or branch of traffic which it finds or deems injurious, and to declare it criminal, that it has to prohibit and declare criminal the injurious conduct and practices of men in other respects. Otherwise, the right to property and its transmission would be held superior to the right to life and liberty. Our statutes "concerning the acquisition, the enjoyment and transmission of property, real and personal" (1 R. S., 717), "of the regulation of trade in certain cases" (id., 528), "of the proof and recording of conveyances of real estate" (id., 755), all acts relating to revenue, excise, usury, champerty, lotteries and the like, with which our statute books abound, have their sole foundation in this right.
[13 N.Y. Rep. 481]
This being so, it follows inevitably that the occasion and necessity for the exercise of the power embodied in a statute is wholly a matter of legislative judgment and discretion, where no constitutional restriction intervenes, with which no other power in the government has any right to interfere, at least after the executive sanction has been. given. If the legislature shall determine that the occasion has arisen or that the necessity exists for the exercise of a more extended and stringent power than it has hitherto exercised, who shall decide to the contrary? What other tribunal is clothed with power to entertain an appeal and reverse such determination? The veto power given to the executive is the only authority the constitution has provided, and that must be exercised before legislation has ripened into statutes, and is then not necessarily conclusive. Whoever bestows the slightest reflection upon the nature and character of the judicial office, will see that courts can entertain no such question; and any attempt on their part to take cognizance of it, and to draw it within their jurisdiction, would be a clear invasion of the legislative province and a usurpation of legislative power.
The spectacle of a conflict between the representatives of the legislative and the judicial sovereignty of the people respecting a question of this character, upon any other than clear, undoubted, constitutional grounds, would, at this day, be at once novel and alarming. Every legislative act, when questioned, is to be brought to the test of the constitution, and if the power exercised is not there forbidden in express terms, or by clear and necessary implication, courts have no discretion, but are bound to pronounce it valid. The right of courts to declare legislative enactments, in derogation of the constitution, void, is one which has been too long and steadily exercised in this country to be now doubted or questioned. It is, however, one of the highest and most delicate of all conservative powers, and is never to be exercised against the acts of the superior branch
[13 N.Y. Rep. 482]
of the sovereignty in doubtful and questionable cases. The legislative department being naturally the superior, its authority is always presumed to have been rightfully exercised. And this presumption is to prevail until the contrary has been made clearly to appear, and has been determined by the courts.
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[13 N.Y. Rep. 483]