Gambar halaman
PDF
ePub

vent tenant, and that consequently the outgoing ten- This is an action for the recovery of certain real ant runs practically little or no risk does not meet all property described in the petition of the plaintiff, sitthe grounds of unreasonableness above pointed out. uated in the city of New Orleans, and of the rents and Indeed, it does not adequately meet any of them; for profits. The plaintiff claims title to the premises by it would be to the interest of an unscrupulous land- a conveyance from his father, Charles M. Conrad, lord to put in an insolvent man as tenant for a short made to himself and his brother, on the 6th of May, time, so as to avoid having to pay the outgoing tenant 1862, and a subsequent conveyance to himself of his himself, and yet to obtain possession before the pov- brother's interest. The conveyance of the father was erty of the new tenant could be productive of injury. made in settlement and discharge of certain obligaThe reasonableness or unreasonableness of a custom tions resting upon him under the laws of Louisiana, is a question of law for the court (see Tyson v. Smith, by reason of his having received, as the natural tutor 9 A. & E. 421), and not a question of fact for the jury, of his children, property belonging to them as minor and the principles applicable to such questions will be heirs of their deceased mother. It appears from the found in Com. Dig., Copyhold, S., and Tyson v. Smith, record that she died intestate, at New Orleans, iu 1839, ubi sup., and on these principles we proceed. It may,

leaving the plaintiff and his brother, her only heirs, indeed, be said that the custom here condemned is and an estate valued at a sum over $35,000. The estate that which prevails in practice all over England, it consisted principally of her separate property; a small being well known that as a matter of fact the out- portion was her share of the real property belonging going and incoming tenants usually settle questions of to the matrimonial community. The surviving husvaluation between themselves without referring to band qualified and was confirmed as the natural tutor the landlord. This is no doubt true; but if the prac- of the children and took charge of their property. tice is examined it will be found to be based entirely The law of Louisiana imposes a general mortgage on the principle that the landlord is liable by custom upon all the property of a tutor to secure the interest to the outgoing tenant, and that the incoming tenant of minors and his faithful execution of the trust, but is not liable to the outgoing tenant where there is no gives him the right to substitute in place of it a specontract, express or tacit, between them. See Faviell

cial mortgage upon particular parcels of his property. v. Gascoigne, 7 Ex. 273; Stafford v. Gardner, L. Rep., The tutor here availed himself of this right at differ7 C. P. 242; Codd v. Brown, 15 L. T. Rep. (N. S.) 536.

ent es. The last special mortgage was executed in The custom here found to exist is totally different; it

1847, and, with other property, covered the premises exonerates the landlord from all liability, and imposes in controversy. Previously to this, and in 1845, his a liability on the incoming tenant to the outgoing teu

indebtedness to his sons had been ascertained and ant, even in the absence of any contract, express or fixed by decree of the probate court at the sum of tacit, between them. There is no inconsistency, there- $36,757. This amount was subsequently increased. fore, in condemning the custom and upholding the No account of his administration was ever rendered practice which is based upon a custom wholly opposed

by the tutor until May 6, 1862, when a settlement took to that with which we have to deal. Holding as we

place between him and his sons, and in discharge of do that the custom found to exist in point of fact cau

his obligations to them he executed before the renot be supported in point of law, we set aside the ver

corder and ex-officio notary pulbic of the parish of St. dict of the County Court judge and direct a verdict to

Helena, a public act of sale, by which he sold and conbe entered for the plaintiff subject to a valuation; the

veyed to them several lots situated in New Orleans, defendant must pay the costs of the action and of this

and among them the one in controversy in this case. appeal.

This act of sale, which purports to have been recorded Judgment for the plaintiff.

in the city of New Orleans on the 31st of the same

month, the court refused to admit in evidence. THE CONFISCATION LAW NOT RETROAC

The defeudant, Waples, in his answer, asserts title TIVE.

to the premises in controversy under a deed to him by

the marshal of the United States, executed in March, UNITED STATES SUPREME COURT, OCTOBER TERM, 1865, upon a sale under a decree of the District Court, 1877.

rendered in February of that year, condemning and

forfeiting the property to the United States in proCONRAD V. WAPLES.

ceedings takon under the confiscation act of July 17, In May, 1862, C., who was a member of the Confederate

1862. The other defendants disclaim title. Congress, and engaged in arined hostility to the United On the 1st of May, 1862, New Orleans passed into States within the Confederate lines, conveyed to plaintiff, his son, also within the Confederate lines and en

the possession of tbe army of the United States, and gaged in hostility to the United States, certain real on the 6th of the month, Gen. Butler, commandestate situate in the city of New Orleans, then within the Federal lines. Subsequently, and under authority

ing our forces there, issued a proclamation re-estabof the act of Congress of July 17, 1862, the property was lishing the national authority in the city. The proclaconfiscated in proceedings against C., and sold by the

mation bears date on the 1st of May, but was not pubUnited States marshal. Heli, (1) that the confiscation act mentioned did not authorize proceedings for acts lished until the 6th. The Conrads, father and sons, committed before its passage. (2) That transfers of

had left the city before it was captured. They had property between those in hostility to the government before its passage were not invalid. (3) That the pro- previously been engaged in the rebellion against the ceedings could only affect the interest of C. in the

United States - the father as a member of the Conproperty at the time the act was passed, and that the proceedings did not invalidate the title of plaintiff to federate Congress and the sons as officers of the Conthe property acquired by transfer from C. in May, 1862.

federate army - and they continued in such rebellion N error to the Circuit Court of the United States until the close of the war. The parish of St. Helena

for the District of Louisiana. The facts appear in was within the Confederate lines when the act of sale the opinion.

of May 6, 1862, was executed; and the questions preMr. Justice FIELD delivered the opinion of the sented for our determination relate to the admissicourt.

bility and effect of that act of sale, aud to the subsequent condemnation and sale in the confiscation pro- mains undiminished, and when the sovereign authority ceedings.

shall choose to bring it into operation, the judicial deNumerous exceptions were taken to the rulings of partment must give effect to its will. But until that the Circuit Court in admitting and rejecting evidence, will shall be expressed, no power of condemnation can and in giving and refusing instructions to the jury, exist in the court." but we do not deem it important to notice them in de- The only acts of Congress providing for the confiscatail. What we have to say upon the confiscation act, tion of property of persons engaged in the rebellion the title which passed by a condemnation and sale are those of August 6, 1861, and of July 17, 1862. That under it, and the power of enemies to sell and convey of 1861 applied only to property acquired with intent to each other their interest in real property situated to use or employ the same, or to suffer the same to be within the lines of the other belligerent, will suffi- used or employed in aiding or abetting the insurrecciently express our judgment upon the questions in- tion, or in resisting the laws, and did not touch the volved, and serve to guide the court below in any sub-property in controversy here. And the act of 1862, as sequent proceedings.

already stated, did not authorize a seizure and confisThe law of July 17, 1862, so far as it related to the cation for past acts. It might have done so, on the confiscation of property, applied only to the property simple ground that the owner of the property seized of persons who thereafter might be guilty of acts of was a public enemy, without reference to the time he disloyalty and treason. It carefully excluded from became such, but Congress otherwise provided, and its application the property of persons who, previous its will furnishes the rule by which to determine the to its passage, may have committed such acts. It left rights of the elder Conrad at the time he disposed of the door open to them to return to their allegiance his property. without molestation for past offenses. The fifth sec- The statute not only did not recognize past acts as tion, with the exception of the third clause, directed grounds for confiscation, but it reached only the estate the seizure of property only of persons who might of the actual owner at the time the property was thereafter hold an office or an agency under the gov- seized. It might, undoubtedly, have provided for the ernment of the Confederacy, or of one of the States confiscation of the entire property, from its being composing it, or might thereafter act as an officer in its within the enemy's country, but the Legislature did army or navy, or who, owning property in any loyal not 80 euact. Congress limited the exercise of its State or Territory or in the District of Columbia, power of confiscation to those cases where the owners might thereafter give aid and comfort to the rebellion; were officers or agents of the insurrectionary organiand the joint resolution of the two houses of Congress, zation, or of one of the States composing it, or compassed in explanation and limitation of the law, re- manding in its army or navy; or where while holding moved that exception. That resolution declared that property in a loyal State or Territory or in the District the third clause of that section should be so construed of Columbia, they gave aid and comfort to the rebelas not to apply to any act or acts done prior to its pas- lion, or where not being within these classes, but besage. The sixth section, which provided for the seizure ing in arms in support of the insurrection, they reof the property of persons other than those named in fused for sixty days, after the warning and proclamilthe previous section, who, being engaged in armed re- tion of the President, to return to their allegiance. It bellion, did not, within sixty days after the warning was the seizure and confiscation of “the estate, propand proclamation of the President, cease to aid, coun- erty, money, stocks, credits, and effects” of the pertenance and abet the rebellion, declared that “all sons thus specially designated that the act authorized; sales, transfers and conveyances of any such property not the seizure and confiscation of property in eneafter the expiration of the said sixty days," should be mies' territory or of enemies generally. It was at the null and void. 12 Stats. at Large, 627.

estate and interest which belonged to offending perNothing done, therefore, by the elder Conrad when sons of the classes mentioned that the act aimed, he made his sale to his sons, which was before the pas- ņothing more. Proceedings under the act, therefore, sage of the confiscation act, affected his title or power affected only their estate and interest in the property of disposition. It is true he was, as already stated, seized. It was so held by this court in Day v. Micou, then engaged in the rebellion, as a member of the Con

reported in the 18th of Wallace, where the effect of an federate Congress, and giving constant aid and com

adjudication and sale under the act was the direct fort to the insurrectionary government. But until point in judgment. And this conclusion was not consome provision was made by law, the courts of the

sidered as at all affected by the fact that after the United States could not decree a confiscation of his

seizure proceedings in rem were to be instituted for property and direct its sale. This follows from the

the condemnation of the property. The question, said doctrine declared in Brown v. United States, reported

the court, remained, what was the res against which in the 8th of Cranch. In that case the question arose

the proceedings were directed; and this, it answered, whether certain property of the enemy, found on land

was that which was seized and brought within the at the commencement of hostilities with Great Britain

jurisdiction of the court. “A condemnation in a in 1812, could be seized and condemned as a conse

proceeding in rem," it added, speaking through Mr. quence of the declaration of war. And it was held

Justice Strong, 'does not necessarily exclude all that it could not be condemned without an act of Con

claim to other interest than those which were seized. gress authorizing its seizure and confiscation. The

In admiralty cases and in revenue cases a condemnacourt said that it was conceded that war gives to the soy

tion and sale generally pass the entire title to the propereign the right to take the persons and confiscate the

erty condemned and sold. This is because the thing property of enemies wherever found, adding that the

condemned is considered as the offender or the debtor, mitigation of this rigid rule, which the humane and

and is seized in entirety. But such is not the case in wise policy of modern times has introduced into prac

many proceedings which are in rem. Decrees of courts tice, cannot impair the right though it may more or

of probate or orphans' courts directing sales for the less affect its exercise. “That," said the court, re

payment of a decedent's debts or for distribution are

proceedings in rem. So are sales under attachments or proceedings to foreclose a mortgage quasi proceedings in rem, at least. But in none of these cases is any thing more sold than the estate of the decedent, or of the debtor or the mortgagor, in the thing sold. The interests of others are not cut off or affected."

If we apply these views to the case at bar, we must hold that there was nothing in the proceedings and decree under the confiscation act against the property of the elder Conrad, upon which the defendant in his answer relies, which could in any respect affect the rights of the younger Conrads to the lands conveyed to them before that act was passed, unless the fact that the parties to the conveyance were, at the time of the sale, engaged in the rebellion against the United States and were within the enemies' country, rendered it unlawful for the father to transfer and the sons to receive the title to real property situated within the Federal lines. The illegality of the sale on this ground was insisted upon in the court below, and the position was there sustained. But we do not think the position at all tenable. The character of the parties as rebels or enemies did not deprive them of the right to contract with and to sell to each other. As between themselves, all the ordinary business between people of the same community in buying, selling and exchanging property, movable and immovable, could be lawfully carried on, except in cases where it was expressly forbidden by the United States, or where it would have been inconsistent with or have tended to weaken their authority. It was commercial intercourse and correspondence between citizens of one belligerent and those of the other, the engaging in traffic between them, which were forbidden by the laws of war and by the President's proclamation of non-intercourse. So long as the war existed all intercourse between them inconsistent with actual hostilities was unlawful. But commercial intercourse and correspondence of the citizens of the enemies' country among themselves were neither forbidden nor interfered with, so long as they did not impair or tend to impair the supremacy of the national authority or the rights of loyal citizens. No people could long exist without exchanging commodities, and, of course, without buying, selling and contracting. And no belligerent has ever been so imperious and arbitrary as to attempt to forbid the transaction of ordinary business by its enemies among themselves. No principle of public law and no consideration of public policy could be subserved by any edict to that effect, and its enforcement, if made, would be impossible. If, then, intercourse between the ('onrads, father and sons, they being all enemies, was not unlawful; if between them contracts for the purchase and sale of property, in respect to which there was no special interdict, would have been binding, the sale in the case at bar can only be impeached, if at all, by reason of the situation of the property within the Federal lines. Aud from that circumstance it could not be impeached, unless the sale, if upheld, in some way frustrated the enforcement of the right of seizure and confiscation possessed by the United States. It may be admitted that the right of a belligerent to confiscate the property of enemies found within its territory cannot be impaired by a sale of the property during the war, but it is not perceived that on any other ground the sale could be invalidated. A conveyance in such case would pass the title subject to be defeated if the government

should afterward proceed for its condemnation. And to declare this liability was the object of the provision in the confiscation act, enacting that “all sales, transfers and couveyances” of property of certain designated parties made subject to seizure should be null and void. The invalidity there declared was limited and not absolute. It was only as against the United States that the transfers of property liable to seizure were null and void. They were not void as between private parties, or against any other party than the United States. This was so held in the case of Corbett v. Nutt, reported in the 10th of Wallace. There a devise (which for the purpose of the case was treated as included within the terms “sales, transfers and couveyances ") of property situated in the District of Columbia, made by a resident enemy in the State of Virginia to a person as trustee, who also resided in that State and held office under the Confederate government, was held to pass a title good against all the world except the United States. The seizure and confiscation of property of persons engaged in the rebellion, and the appropriation of the proceeds to support the army and navy, were supposed, whether wisely or unwisely is immaterial, to have a tendency to insure the speedy termination of the rebellion; and it was to prevent the provisions enacted to enforce the confiscation from being evaded by the parties whose property was liable to seizure, that sales, transfers and conveyances of it were declared invalid. As stated by the court, “They were null and void as against the belligerent or sovereign right of the United States to appropriate and use the property for the purpose designated, but in no other respect, and not as against any other party. Neither the object sought por the language of the act requires any greater extension of the terms used. The United States were the only party who could institute the proceedings for condemuation, the offeuse for which such condemnation was decreed was against the United States, and the property condemned or its proceeds went to their sole use. They alone could, therefore, be affected by the sale.” And the court added that any other construction would impute to the United States a severity in their legislation entirely foreign to their history. If the sale to the younger Conrads had been made after the passage of the confiscation act, it would not have prevented the title of the elder Conrad from vesting by the decree of condemnation in the United States. But having been made previously, it was not impaired by the act.

An actual delivery of the property to the vendees at the time was not essential to the validity of the sale, it baving been made by public act before a notary. The Code of the State declares that an obligation to deliver an object, which is particularly specified, is perfect by the mere consent of the parties aud renders the creditor the owner; and, further, that this rule “is without any exception, as respects immorables, not only between the parties, but as to all the world, provided the contract be clothed with the formalities required by law, that it is bona fide, and purports to transfer the ownership of the property.” Art. 1914. The Code also declares that "the law considers the tradition or delivery of immovables as always accompanying the public act which transfers the property." Art. 2455; Lallande v. Lee, 9 Rob. 517; Flynn v. Moore, 4 An. 401; Ellis v. Prevost, 13 La. 235237. We are of opinion, therefore, that the act of sale

[ocr errors]

made on the 6th of May, 186:2, was unaffected by the

CONSTITUTIONALITY OF STATE PROHIBITsubsequent confiscation proceedings and should have been admitted in evidence.

ORY LAWS AS TO CORPORATIONS
This case is much stronger than that of Fairfax's

AFFECTED BY.
Devisee v. Hunter's Lessee, reported in the 7th of
Crauch, which received great consideration by this

SUPREME COURT OF THE UNITED STATES, OCTOBER court. There a devisee to an alien enemy, resident in

TERM, 1877. England, made during our revolutionary war by a citizen of Virginia, and there residing at the time, was

Boston BEER COMPANY, plaintiff in error, v. COMsustained, and held to vest a title in the devisee which

MONWEALTH OF MASSACHUSETTS. was good until office found. “It is clear by the com- A statute of Massachusetts passed in 1809 providing for the mon law," said Mr. Justice Story, speaking for the

chartering of manufacturing corporations contained

this : “ Provided always that the Legislature may from court, “that an alien can take lands by purchase time to time, upon due notice to any corporation, make though not by descent; or, in other words, he cannot

further, provisions and regulations for the management

of the business of the corporation and for the governtake by the act of law but he may by the act of the ment thereof, or wholly repeal any act or part thereof party. This principle has been settled in the Year

establishing any corporation, as shall be deemed expe

dient." In 1828 the Boston Beer Company was incorpoBooks and has been uniformly recognized as sound rated for the purpose of manufacturing malt liquors law from that time. Nor is there any distinction

in all their varieties in the city of Boston," and the act

of incorporation, which was passed by the Legislature whether the purchase be by grant or by devise. In either of Massachusetts, provided that said company for that case the estate vests in the alien, not for bis own bene

purpose shall have all the power and privileges and be

subject to all the duties and requirements contained fit, but for the benefit of the State; or, in the language in" the act of 1809 mentioned. In 1829 the act of 1809 of the ancient law, the alien has the capacity to take

was repealed with this provision : “But this repeal shall

not affect the existing rights of any person or the existbut not to hold lands, and they may be seized into the ing or future liabilities of any corporation, or any memhands of the sovereign. But until the lands are so

bers of any corporation now established, until such

corporation shall bave adopted this act and complied seized the alien has complete dominion over the same. with the provisions herein contained." Held, that the And, continues the learned justice, “ We do not find

repeal of the act of 1809 by the act of 1829 was not a re

vocation or surrender by the State of Massachusetts of that in respect to these general rights and disabili- the reserved power to repeal the charters of corporaties there is any admitted difference between alien

tions, and the passage of an act forbidding the manu

facture and sale of inalt liquors was not an act impairfriends and alien enemies. During the war the prop- ing an obligation of a contract with the company menerty of alien enemies is subject to confiscation jure

tioned and was not in violation of the Federal Consti

tution. belli and their civil capacity to sue is suspended. But as to capacity to purchase, no case has been cited in

N error to the Superior Court of the Commonwealth which it has been denied; and in The Altorney-Gen

of Massachusetts. The facts appear in the opinpral v. Wheeden and Shales, Park. 267, it was ad

ion. judged that a bequest to au alien enemy was good,

Mr. Justice BRADLEY delivered the opinion of the and after a peace might be enforced. Indeed, the

court. common law in these particulars seems to coincide

The question raised iri this case is, whether the with the jus gentium.

charter of the plaintiff, which was granted iu 1828, If an alien enemy can, by devise or purchase from a

contains any contract the obligation of which was imloyal citizen or subject, take an estate in the country

paired by the prohibitory liquor law of Massachusetts, of the other belligerent and hold it until office found,

passed in 1869, as applied to the liquor in question in there would seem to be no solid reason for refusing a

this suit. like efficacy to a conveyance from one enemy to

Some question is made by the defendant in error, another of land similarly situated. See the able and

whether the point was properly raised in the State exhaustive opinion of the Supreme Court of Massa

courts, so as to be the subject of decision by the highchusetts in Kershaw v. Kelsey, delivered by Mr. Chief

est court of the State. It is contended that, although Justice Gray, 100 Mass. 561. A different doctrine

it was raised by plea, in the municipal court, yet, that would unsettle a multitude of titles passed during the

plea being demurred to, and the demurrer being suswar between residents of the insurrectionary terri

tained, the defense was abandoned, and the only issue tory, temporarily absent therefrom whilst it was dom

on which the parties went to trial was the general deinated by the Federal forces. Such residents were

nial of the truth of the complaint. But whatever deemed enemies by the mere fact of being inhabitants

may be the correct course of the proceeding in the of that territory without reference to any hostile dis

practice of courts of Massachusetts, a matter which it position manifested or hostile acts committed by them.

is not our province to investigate, it is apparent from In numerous instances, also, transfers of property

the record that the very point now sought to be argued were made in loyal States, bordering on the line of

was made on the trial of the cause in the Superior actual hostilities, by parties who had left those States

Court, and was passed upon, and made decisive of the and joined the insurgents. This was particularly

controversy, and was afterward carried by bill of excepthe case in Missouri and Kentucky. No principle of

tions to the Supreme Judicial Court, and was decided public policy would be advanced, or principle of public

there adverse to the plaintiff in error on the very law sustained, by holding such transfers absolutely

ground on which it seeks a reversal. void, instead of being merely inoperative as against

The Supreme Court, in its rescript, expressly decide the right of the United States to appropriate the prop

as follows: erty jure belli; on the contrary, such a holding would

“ Exceptions overruled for the reasons following: create unnecessary hardship, and therefore add a new

“The act of 1869, chapter 415, does not impair the cruelty to the war.

obligations of the contract contained in the charter of It follows from the views expressed that the judg

the claimant, so far as it relates to the sale of malt ment of the court below must be reversed and the liquors, but is binding on the claimant to the same excause remanded for a new trial; and it is so ordered. tent as on individuals.

" The act is in the nature of a police regulation in regard to the sale of a certain article of property, and is applicable to the sale of such property by individuals and corporations, even where the charter of the corporation cannot be altered or repealed by the Legislature."

The judgment of the Superior Criminal Court was entered in conformity to this rescript, declaring the liquors forfeited to the Commonwealth, and that a warrant issue for the disposal of the same.

This is sufficient for our jurisdiction, and we are bound to consider the question which is thus raised.

As before stated, the charter of the plaintiff in error was granted in 1828, by an act of the Legislature passed on the 1st of February in that year, entitled “ An act to incorporate the Boston Beer Company." This act consisted of two sections. By the first, it was enacted that certain persons (named), their successors and assigns, " be and they hereby are made a corporation by the name of The Boston Beer Company, for the purpose of manufacturing malt liquors in all their varieties, in the city of Boston, and for that purpose shall have all the powers and privileges, and be subject to all the duties and requirements contained in an act passed on the 3d day of Mareb, A. D. 1809, entitled "An act defining the general powers and duties of manufacturing corporations,' and the several acts in addition thereto," The second section gave the company power to hold such real and personal property to certain amounts, as might be found necessary and convenient for carrying on the manufacture of malt liquors in the city of Boston.

The general manufacturing act of 1809, referred to in the charter, had this clause, as a proviso of the 7th section thereof: “ Provided always that the Legislature may from time to time, upon due notice to any corporation, make further provisions and regulatious for the management of the business of the corporation and for the government thereof, or wholly to repeal any act or part thereof, establishing any corporation, as shall be deemed expedient."

A substitute for this act was passed in 1829, which repealed the act of 1809 and all acts in addition thereto, with this qualification: “ But this repeal shall not affect the existing rights of any person or the existing or future liabilities of any corporation, or any members of any corporation now established, until such corporation shall have adopted this act and complied with the provisions hereih contained.”

It thus appears that the charter of the company, by adopting the provisions of the act of 1809, became subject to a reserved power of the Legislature to make further provisions and regulations for the management of the business of the corporation and for the government thereof, or wholly to repeal the act or any part thereof establishing the corporation. This reservation of the power was a part of the contract.

But it is contended by the company that the repeal of the act of 1809, by the act of 18:29, was a revocation or surrender of this reserved power.

We cannot so regard it. Th arter of the company adopted the provisions of the act of 1809 as a portion of itself, and those provisious remained a part of the charter notwithstanding the subsequent repeal of the act. The act of 1829 reserved a similar power to amend or repeal that act at the pleasure of the Legislature, and declared that all corporations established

under it should cease and expire at the same time when the act should be repealed. It can hardly be supposed that the Legislature, when it reserved such plenary powers over the corporations to be organized uuder the new act, intended to relinquish all its power over the corporations organized under or subject to the provisions of the former act. The qualification of the repeal of the act of 1809 before referred to seems to be intended, not only to continue the existence of the corporations subjeot to it in the enjoyment of all their privileges, but subject to all their liabilities, of which the reserved legislative control was one.

If this view is correct, the Legislature of Massachusetts had reserved complete power to pass any law it saw fit, which might affect the powers of the plaintiff in error.

But there is another question in the case which, as it seems to us, is equally decisive.

The plaintiff in error was incorporated “for the purpose of manufacturing malt liquors in all their variety," it is true; and the right to manufacture, undoubtedly, as the plaintiff's counsel contends, included the incidental right to dispose of the liquors manufactured. But although this right, or capacity, was thus granted in the most unqualified form, it cannot be construed as conferring any greater or more sacred right than any citizen had to manufacture malt liquor; nor as exempting the corporation from any control therein to which a citizen would be subject, if the interests of the community should require it. If the public safety or the public morals require the discontinuance of any manufacture or traffic, the hand of the Legislature cannot be stayed from providing for its discontinuance, by any incidental inconvenience which individuals or corporations may suffer. All rights are held subject to the police power of the State.

We do not mean to say 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 compensation. But we infer that the liquor in this case, as in the case of Bartemeyer v. The State of Iowa, 18 Wall. 129, 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 behoved it to show that fact. But no such fact is shown, and no such point is taken. The plaintiff in error boldly takes the ground that, being a corporation, it has a right, by contract, to manufacture and sell beer forever, notwithstanding, and in spite of any exigencies which may occur in the morals or the health of the community requiring such manufacture to cease. We do not so understand the rights of the plaintiff. The Legislature bad no power to confer any such rights.

Whatever differences of opinion may exist as to the extent and boundaries of the police power, and however difficult it may be to render a satisfactory definition of it, there seems to be no doubt that it does extend to the protection of the lives, health and property of the citizens, and to the preservation of good order and the public morals. The Legislature cannot, by any contract, divest itself of the power to provide for these objects. They belong emphatically to that class of objects which demand the application of the maxim, salus populi suprema lex. And they are to be attained and provided for by such appropriate means

« SebelumnyaLanjutkan »