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place for the sale of liquors, subject to the liability which the act imposes. The objection we are now considering would apply with greater force to a statute prohibiting, under any circumstances, the traffic in intoxicating liquors, and as such a statute must be conceded to be within the legislative power, and would not interfere with any vested rights of the owner of real property, although absolutely preventing the particular use, a fortiori the act in question does not operate as an unlawful restraint upon the use of property.
The act of 1873 is not invalid because it creates a right of action and imposes a liability not known to the common law. There is no such limit to legislative power. The legislature may alter or repeal the common law. It may create new offenses, enlarge the scope of civil remedies, and fasten responsibility for injuries upon persons against whom the common law gives no remedy. We do not mean that the legislature may impose on one man the liability for an injury suffered by another, with which he has no connection. But it may change the rule of the common law which looks only to the proximate cause of the mischief, in attaching legal responsibility, and allow a recovery to be had against those whose acts contributed, although remotely, to produce it. This is what the legislature has done in the act of 1873. That there is or may be a relation in the nature of cause and effect, between the act of selling or giving away intoxicating liquors, and the injuries for which a remedy is given, is apparent, and upon this relation the legislature has proceeded in enacting the law in question. It is an extension by the legislature of the principle, expressed in the maxim sic utere tuo ut alienum non lodas to cases to wbich it has not before been applied, and the propriety of such application is a legislative and not a judicial question.
Conceding that the sale of intoxicating liquors may be
1 Bertholf v. O'Reilly, 74 N. Y. 524 (30 Am. Rep. 323).
prohibited altogether, or subjected to whatever other police regulations the legislature may see fit to impose, and this we do not admit to be true, without most material qualifications, the claim is still made that this kind of legislation is unconstitutional. The State may impose upon the lessor the police duty of preventing, as far as it lies in his power, the lessee from making an unlawful use of the premises, and may impose upon him penalties for his failure to eject the lessee. This is a legitimate police regulation. It is simply compelling the owner of property to perform a duty to the public which no one can do so well as he ; and he cannot complain if the profits of his property have been diminished by the regulation. Neither he nor his lessee has an indefeasible right to make use of his property in a way to injure anether in person or property. And be as well as the lessee can be made to respond in damages to any one who has suffered injury by and through his unlawful act. But in order that any one may recover damages of another, he must show that the damages were caused by the wrong. ful act. It is only on such a showing that any one can maintain a suit for damages. It is not a subject for police regulation to determine wbat is the cause of the damage. It is a judicial question of fact, to be determined in a judicial inquiry, free from any control on the part of the legislature. The legislature cannot determine when the legal relation of cause and effect exists between two facts. It will probably be granted that in one sense the relation of cause and effect exists between any two facts that may be selected. In organized society the lives of men are so intimately bound up with each other, there is so much influence and counter influence, that it is difficult to say whether anything now known would have happened, if some antecedent fact had not occurred, it matters not how remote. To apply the
1 For a discussion of limitation upon the power of the government to prohibit the sale of intoxicating liquors, see, ante, $ 103.
reasoning to the facts of the case in question, for the purpose of easier illustration, if the lessor had done his duty to the public in preventing an unlawful use of the premises, the injury to the third person would not have occurred through this intoxication, but likewise the injury would not have happened, if the lessee had not broken the law in making the prohibited use of the land. Nay, further, the joint wrongful acts of the lessor and lessee would not have caused the injury, if the purchaser had not been guilty of the vice, and, under the peculiar circumstances of the present case, the crime, of intoxication. Here are three unlawful acts, following each other in the order of sequence, followed by an injury to a third person. The common-law rule, which made the proximate cause responsible for the damage, to the exclusion of the remote cause, would have declared the intoxicated person to be alone responsible. Indeed, when one considers the fact that the same damage could have been caused as easily by an intoxication produced by liquor bought from some other dealer, within or without the State in which the sale of it is prohibited or regulated, and as easily, whether the lessor did or did not know of the sale of the liquor by his lessee; when it is still further considered that in the New York case there would have been no violation of law, had no injury been inflicted on another by the intoxicated person, the conclusion become irresistible that the damage was not caused by the wrongful act of the lessor or the lessee. The New York court holds that the legislature “ may change the rule of the common law, which looks only to the proximate cause of the mischief, in attaching legal responsibility and allow a recovery to be had against those whose acts contribute, although remotely, to produce it.” If this rule of the common law was itself a police regulation, it would of course be subject to legislative change ; but it has been established by the accumulated experience of ages as the best rule for the ascertainment of the cause of a damage, and is no more subject to legislative change than is the law of gravitation. This subject, and the facts of this particular case, has been given this extended consideration, because it was an extraordinary exercise of police power, and furnished a most striking example of the great uncertainty that now prevails in the legal minds of this country, concerning the constitutional limitations upon the police power of the government.
§ 127. Search Warrants — Sanitary Inspection.—The security of the privacy of one's dwelling, not only against private individuals, but also as against the officers of the law, or the frequent and unrestrained interference with this privacy by the common police officers, more than anything else distinguishes a free country, one governed by officials under constitutional limitations, from a country, in which political absolutism is checked only by the limitations of nature. The dwelling of the continental European, particularly the Frenchman, must open at the command of the police officer, whenever a crime has been committed, and suspicion rests upon him. His closets and other private apartments are broken open, his private papers ruthlessly scattered about or taken away, to be subjected to the inspection of some other official without any specific description of the persons or things which are to be apprehended; and without any proof beyond a mere suspicion, that the house contains the person or thing sought for. But under a constitutional government, of which the liberty of the citizen is the corner stone, the privacy of one's dwelling is rarely ever invaded, and then only in extreme cases of public necessity, and under such limitations as will serve to protect the citizen from any unusual disturbance of his home life. The common law maxim, “ Every man's house is his castle"
1 See, ante, $ 68, for a further and more general discussion of this question of remote and proximate cause. 2 Bertholf v. O'Reilly, supra.
is guaranteed in this country hy an express constitutional provision, which declares that “the right of the people to be secure in their persons, houses, papers, and effects, against unreasonable searches and seizures, shall not be violated ; and no warrants shall issue but upon probable cause, supported by oath or affirmation, and particularly describing the place to be searched, and the persons or things to be seized.”i Except in accordance with, and under the restrictions of this, constitutional provision, one may close his doors against all intruders, and resist their entrance by the use of all the force that may be necessary for the protection of the property, even to the extent of taking the life of the trespasser. The constitutional guaranties of the security of one's dwelling enable the Englishman and American to feel that there is a reality in these beautiful words of Lord Chatham, which have been so often quoted: “ The poorest man may, in his cottage, bid defiance to all the forces of the crown.
It may be frail; its roof may shake; the wind may play through it; the storm may enter; the rain may enter ; but the King of England may not enter; all his force dares not cross the thresbhold of the ruined tenement."
But the necessities of organized society do require that at times the doors of the private dwellings shall be opened for the admission of the officers of the law, and principally as an aid to the prosecution of crimes. But, before that is permissible, a search warrant must be obtained from a court of competent jurisdiction, which is authorized by law to grant it; it must be issued to an officer of the law, and never to the complainant; it can only be granted upon a showing of probable cause for believing that a proper case has arisen for the exercise of this police power; and lastly,
1 U. S. Const. Amend., $ art. 4. Similar provisions are to be found in each of the State constitutions.
? Bohannan v. Commonwealth, 8 Bush, 481 (8 Am. Rep. 474); Pond v. People, 8 Mich. 150.