Borman v. State , 34 Ala. 216 ( 1859 )

R. W. "WALKER, J.

The principal question in this case is, whether the act, under which the defendant -was indicted, can be sustained as an exercise of power belonging to the legislature. The solution of this question demands some inquiry into the nature and limits of the legislative power vested by our constitution in the general assembly.

Antecedent to the formation of the Federal constitution, the people of the several States constituted separate, independent, and sovereign communities, with all the rights and powers inherent in sovereignty. Some of these powers they delegated to the government formed by that constitution; but their essential sovereignty — the supreme ultimate power, which with us. resides in the people alone, and cannot attach to government, and which is, in its very nature, incapable of mutilation or division — this they retained. Alabama became a member of the Union upon a footing of equality with the States which originally formed the Federal constitution. Consequently, although she has delegated to the general government the exercise of certain enumerated sovereign powers, she, like her sisters of the confederacy, the original parties to the compact of union, retains in its plenitude, unexhausted and unimpaired, her sovereignty as a State. The very existence of a State implies that it has appropriate organs to will and to act as such; and the necessity for these gives rise to government, which is, in fact, only the representative of a State in its sovereign character, and the medium through which, as a sovereign, it speaks and acts. Each State of the Union has, therefore, a separate government of its own, which, being designed to extend to all the multiform and ever changing objects which, in the ordinary coarse of affairs, concern the lives, liberties, and property of the people, and the internal order and prosperity of the State, is the representative and organ of the entire mass of powers properly appertaining to government, except only those which have been delegated to the Federal government, or withheld by the people themselves in organizing the State government.

In the ascertainment of the respective powers of the Federal and State governments, this fundamental distinction is to be observed — that whereas, by the Federal constitution, the States have delegated to the government thereby organized only specifically enumerated powers, withholding all not named, the State constitution, on the contrary, contains a grant from the people of all powers not expressly withheld. In the Federal constitution, the enumeration of powers is of those delegated; in the State constitution, it is of those reserved. But for the enumeration, the Federal government would have no powers ; but for the reservations, the State government would possess all the powers inherent in the people. Hence it has grown into a maxim of universal acceptance, among both jurists and statesmen, that “ the Federal government can do nothing but what is authorised expressly or by clear implication, while that of the State can do whatever is not prohibited.” — Sharpless v. Mayor, 21 Penn. 147-160; People v. Draper, 25 Barb. 359-60; Norris v. Clymer, 2 Barr, 285; Calhoun’s Works, vol. 6, p. 224.

By the constitution of this State, the powers of government are divided, and distributed to three departments, the legislative, the executive, and the judicial. Section 1, article 3, declares, that “the legislative power of this State shall be vested in two distinct branches: the one to be style ‘ the senate,’ the other ‘the house of representatives,’ and both together ‘the general assembly of the State of Alabama.’ ” These words, standing by themselves, import a general grant of all that legislative power which resides in the people as a sovereign community. But a part of the powers inherent in the people they had already delegated to the general government; and these, of course, are excepted out of the grant here made to the State legislature. The force of these terms is further weakened by qualifications and limitations carefully expressed in the constitution itself. In the first place, the power here conferred is legislative power — the power to make laios. The executive and judicial powers are expressly confided to other departments, and each of these three departments is emphatically forbidden ‘ to exercise any of the powers belonging to either of the others.’ (Article 2, sect. 2.) Here, then, is one restriction upon the legislative department of the State government. It can do no act not of .the nature of legislative power. Auy attempt on its part to exercise executive or judicial authority would be a naked usurpation. But there are still other restrictions, plainly declared in the constitution. The 1st article sets forth certain rights of the citizen, which are declared to constitute ‘general, great, and essential principles of liberty and free government,’ and which are expressly excepted out of ‘ the general powers of government.’ Subject to the restrictions and limitations here indicated, the people of the State have conferred on the general assembly the authority to exercise every power, legislative in its nature, which they themselves, as a sovereign community, possessed. When, therefore, an act of the legislature is assailed as unconstitutional, the objector assumes the burthen of showing, either that it is an exercise of authority not legislative in its nature, or that it is inconsistent with some other provision of the Federal or State constitution. — Wynehamer v. People, 3 Kernan, 390, 411, 430, &c.; Sill v. Corning, 1 Smith’s N. Y. 303; Sharpless v. Mayor, 21 Penn. 147; Commonwealth v. Maxwell, 27 Penn. 444-456; Clarke v. City of Rochester, 24 Barb. 480.

We are aware that the proposition has been sometimes asserted, that there áre limitations upon the legislative power of the State governments, aside from, and independent of, the constitutional restrictions to which we have adverted. Such unenacted limitations are sought to be deduced from the form and nature of the governments themselves, the objects which they were designed to accomplish, and the received political maxims and fundamental truths on which they are based. Nor is this view unsupported by the sanction of great names. Judge Chase, in Calder v. Bull, 3 Dallas, 386 ; Judge Story, in Wilkinson v. Leland, 2 Peters, 657; Judge Bronson, in Taylor v. Porter, 4 Hill, 145; Judge Strong, in People v. Toynbee, 20 Barb. 218 ; Judge Hosmer, of Connecticut, in Goshen v. Storlington, 4 Conn. 259 ; Chancellor Walworth, in Varick v. Smith, 5 Paige, 137; Judge Spalding, of Ohio, in Griffith v. Comm’rs, &c., 20 Ohio, 609; and Chief-Justice Parker, in Ross’ case, 2 Pick. 169, have all, in terms more or less strong, intimated that the authority of the legislature is not absolute in all cases where the constitution has failed to impose an explicit restraint, but that there are other restrictions growing out of the fundamental principles of free government and the original rights of men ; and several of these eminent judges have asserted it. as an inherent prerogative of the judiciary, independently of constitutional provisions, to arrest the execution of any law which is contrary to the cardinal rules of justice or morality, or, as it is sometimes expressed, which is in conflict with common reason and natural right. See, also, People v. Supervisors, &c., 4 Barb. 64, 74; Benson v. Mayor, 10 Barb. 223; Hatch v. Verm’t R. R., 25 Verm. 49 ; People v. Berberrick, 20 Barb. 230; Smith on Stat. & Const. Law, chap. 7 ; Ham v. McLaws, 1 Bay, 91; Bowman v. Middleton, ib. 250.

But these views are founded on notions of the extent of legislative-power in the abstract, and of the nature and function of the judicial office, which are, in our judgment, radically false. It must be remembered,' that the very term State implies that there is somewhere a sovereign power whose only limit is its will- — -a power of that transcendant, supreme, illimitable nature, which, in the ascription of it to the English parliament, is describEdby the strong word, omnipotence. In the United States, this absolute, uncontrollable power resides in the people of each State in the aggregate, as a separate and independent community. As it is expressed by Chief-Justice Gibson, i£ In every American State, the people in the aggregate constitute the sovereign, with no limitation of its power, and no trustee of it but its own appointee.” — Kirby v. Shaw, 7 Harris, 258. All the powers, then, included in the omnipotence, which, under the English constitution, is ascribed to parliament, belong in our system to the people of each State in their collective capacity. Lord Coke says, “ that the power and'jurisdiction of parliament is so transcendent and absolute, that it cannot be confined, either for causes or persons, within any bounds.” — 4 Coke’s Inst. 36. “So long as the English constitution lasts,” says Blackstone, “ we may venture to affirm that the power of parliament is absolute and without control.” — 1331a. Com. 162. Mr. Hallara says, that the absolute power of the legislature, in strictness,” is as arbitrary in England as in Persia. And in a recent case, Lord Denman distinctly asserted the supremacy of parliament. — Stockdale v. Hansard, 11 Ad. & Ell. 253.

Though there are some loose expressions, in early cases, to the effect that statutes against common right are void, the modern doctrine clearly is, (and this is the logical result of the principle of parliamentary supremacy,) that an act of parliament, of which the terms are explicit, and the meaning plain, cannot be questioned, or its authority controlled, in any court of justice. — Stockdale v. Hansard, 11 Ad. & Ell. 253 ; 1 Keut, 408, 488. Indeed, there is no doubt that everywhere, except in the United States, the judicial is subordinate to the legislative power, and has no authority to annul an act of the latter when its meaning is plain. — Woodward v. Watts, 2 Ellis & Black. 457. This necessarily results from a principle, universal in the science of government, that, in the absence of institutional restrictions, the legislative power is subject to no limitations.

In Calder v. Bell, 3 Dallas, 386, Mr. Justice Iredell said: “ If, then, a government, composed of legislative! executive, and judicial departments, were established by a constitution which imposed no limits on the legislative power, the consequence would inevitably bo, that whatever the legislative power chose to enact would be lawfully enacted, and the judicial power could never interpose to pronounce it void.” There is no room to doubt that our various State governments were organized with reference to this principle of the unlimited nature of legislative power in the abstract. Indeed, the object of the State constitutions was not so much to grant as to limit legislative power. The limitations they impose are not so much limitations of the legislature, as of the power of the people themselves,. self-imposed by the constitutional compact.” — People v. Draper, 1 Smith,(N. Y.) 549.

The whole, unbounded legislative power of the people is granted to the general assembly, subject only to expressed exceptions. Without these exceptions, the power would be as unlimited as that of the people from whom it is derived. For the express reserva!ion of a particular thing out of a general grant proves that the thing reserved would be within the general grant, had not the reservation been made.

Under our system, the power of the judiciary to arrest the operation of an unconstitutional law rests upon the familiar principle, recognized by courts everywhere, that when laws conflict in actual cases, the judge must decide which is the superior or paramount, and which the inferior or subordinate law. Written constitutions are, with us, the fundamental law; and to them acts of legislation must, in case of collision, yield. This is the foundation and the limit of the power of courts to annul an act of the legislature. If we go a step further, and assert then-power to avoid such acts because they conflict with some law other than the written fundamental laws of the State and the Union, where shall we go to find it ? Who are to settle the principles of eternal justice, and define the limits of so vague a thing as natural right ?

If, while the legislature keeps within the written authority under which it acts, its proceedings are to be subje&t to the supervision and control of the judiciary, who are thus to be allowed to deprive the general assembly of legislative powers not denied to it by the constitution, it may well be asked, and we know not where to find an answer, qais cusiodiet cusiodes ? So long as the limitations of the constitution are not transcended, the wisdom, policy and justice of laws must be left to the discretion of the legislature; and an appeal from its discretion, to the discretion of the courts, is subversive of the first principles of free government. Lord Coke says, that ‘ in judicature discretion is a crooked cord.’ Burke improved the saying by adding, that ‘ in legislation it is a golden rule.’ The legislature is in direct communication with the people, and responsible to them ; and if, while keeping within the limits which the sovereign power has prescribed for its action, it yet violates the abstract principles of justice, and disregards the boundaries of natural right, there is no remedy, save in the punitive power of public opinion, and the right of the people to change the representatives of their legislative sovereignty, and, through them, to repeal the obnoxious enactment.

Notwithstanding occasional intimations from eminent judges to the contrary, it may now be considered an established principle of American law, that while it is the duty of the judiciary to confine the legislative department within the constitutionally declared limits of its power, it has no right to set aside or annul a law, upon the mere ground that it conflicts with natural right, sound morality, or abstract, justice. — Wynehamer v. People, 3 Kernan, 390, 411, 430, 452, 476 ; Town of Guilford v. Supervisors, &c., 3 Kernan, 143-5; Sharpless v. Mayor, 21 Penn. 147; Butler v. Palmer, 1 Hill, 324; Cochran v. Van Surley, 20 Wend. 380 ; Boston v. Cummins, 16 Geo. 102, 113; Stein v. Mayor, 24 Ala. 614; Bennett v. Boggs, 1 Bald. 74; Golden v. Rice, 3 Wash. C. C. R.; State v. Wheeler, 25 Conn. 290 (297 ;) Grant v. Courter, 24 Barb. 232, 237 ; Benson v. Mayor, &c., 24 ib. 248, 452-5; Clarke v. City of Rochester, 24 Barb. 446, 480, 489; People v. Draper, 25 Barb. 344, 359-60; People v. Collins, 3 Gibbs, 348-9; 1 Kent, 448; Doe v. Douglass, 8 Blackf. 10; Hamilton v. St. Louis County Ct., 15 Missouri, 23.

"We stand, then, upon the proposition, that there are no limits to the legislative power of the State governments, save such as are written upon the pages of the State or Federal constitution.

Is there in the State constitution any provision, which,, fairly construed, prohibits the enactment of the law before us? The act is obviously in the nature of legislative power, because it prescribes a rule of action for the people. — Sedgwick on Const. Law, 167-8; Smith on Const. Construction, 290-1. It cannot be assailed, therefore, as an assumption by the legislation of powers legitimately appertaining to either of the other departments of the government. Does it infringe any of those rights of the citizen, which, by the declaration of rights, are expressly excepted out of the grant of legislative power? By the 10th section of that declaration it is provided, that no person ‘shall be deprived of life, liberty, or property, but by due course of law.’ For the original of this we must look to the Great Charter of King John, where, as it stands in the English translation, it reads thus: “No freeman shall be taken, or imprisoned, or disseized, or outlawed, or banished, or any way destroyed; nor will we pass upon him, or commit him to prison, unless by the legal judgment of his peers, or unless by the law of the land.” It was this particular clause of this ancient muniment of English freedom which drew from Lord Chatham his memorable saying, that ‘ Magna Gharta, though rude in its Latin, was wmrth all the classics in the world.’ In the subsequent charter of King Henry 3d, the same provison is found, in a form somewhat more comprehensive and specific.

The expressions, ‘the law of the land,’ ‘due process of law,’ and ‘ due course of law,’ as found respectively in the English charters and in the various State constitutions in the United States, are substantially identical, and have always been held to mean a judicial proceeding regularly conducted in a court of justice, as contra-distinguished from statutory enactment. Any other construction would deprive the guaranty of all-its force, and put the rights it was designed to protect at the mere mercy of the legislature. If life, liberty and property could be taken away by tbe direct operation of a statute, the enjoyment of these rights would depend upon the will and caprice of the legislature, and the provision would be amere nullity. Thus construed, the constitution would read, ‘no person shall be deprived of his life, liberty, or property, unless the legislature pass a law to do so.’ A proposition so plain upon reason and principle hardly needs to be buttressed by authority Chancellor Kent says, that “the better and larger definition of due process of law is, that it means law in its regular course of administration through courts of justice. - 2 Kent, 13. Chief-Justice Puffin states the construction of these words with marked emphasis and directness — “The terms ‘law of the land,’ do not mean merely an act of the general assembly. If they did, every restriction upon the legislative authority would be at an end.” * * “The clause itself means, that such legislative acts as profess in themselves directly to punish persons, or to deprive the citizen of his property without trial before a judicial tribunal, and a decision upon the matter of right, as determined by the laws under which it vested, according to the course, mode and usages of the common law as derived from our forefathers, are not effectually laws of the land for those purposes.” Hoke v. Henderson, 4 Dev. 15. Without now endorsing that part of the opinion just quoted, which implies that the trial must be ‘ according to the course, mode and usages of the common law,’ it may be laid down, that an act of the legislature is not, and nothing less than a regular judicial trial is, ‘ due course of law’ within the meaning of this clause of the constitution. — Taylor v. Porter, 4 Hill, 140 ; Jones v. Perry, 10 Yerger, 59; Fisher v. McGirr, 1 Gray, 37; Embury v. Conner, 3 Coms. 511; Greene v. Briggs, 1 Curtis, 311; Wynehamer v. The People, 3 Kernan, 392, 425.

Does the 4th section of the act incorporating ‘the Southern University,’ deprive any citizen of his property in intoxicating liquors ? The form in which the question is stated, assumes that spirituous liquors are property. Of this there is no doubt, and we will not waste words upon a proposition about which there can be no reasonable dispute. — 3 Kernan, 384. All property is equally sacred in the view of the constitution. And hence we are not permitted to listen to a suggestion, that this particular species of property is so pernicious in its influences upon society, that the best interests of the State would be promoted by its destruction. The description of property to which this act refers, has nothing to do with this controversy ; for a statute, depriving a citizen of his property in spirituous liquors, is just as clearly in conflict with the constitution, as one which should take from him his lands, houses, and slaves.

When, in the constitutional sense of these terms, is a citizen ‘ deprived of his property ?’ The answer to this question demands the ascertainment of that shadowy line separating regulation from destruction, which courts have found so much difficulty in defining, and which is, perhaps, destined forever to remain in the catalogue of disputed boundaries. The power to regulate, and the restriction on it not to destroy, though quite distinguishable when they do not approach each other, ‘ may yet,’ (to borrow the striking! illustration furnished by Chief-Justice Marshall,) ‘like the intervening colors between white and black, approach so nearly as to perplex the understanding, as colors perplex the vision in making the distinction between them.’ It is not surprising, therefore, that judges should have differed in their opinions upon a question, the intrinsic difficulties of which are so numerous.

We readily assent to the rule, that the constitutional provisions for the protection of life, liberty, and property, are to be largely and liberally construed in favor of the citizen. “ A constitution,” says Chief-Justice Gibson, “ is not to receive a technical construction, like a common-law instrument, or statute. It is to be interpreted so as to carry out the great principles of the government, not to defeat them.” The maxims of political ethics, and the fundamental principles of government, while they cannot be resorted to for the purpose of controlling the constitution, may yet be very properly kept in view, as guides or helps in the interpretation of it. It is right, therefore, to read tbe provisions of the constitution designed for the protection of property, in the light of this plain maxim of political ethics, that the right of the citizen to his private property ought not to be interfered with by the State, except to satisfy the demand of some public exigency, or for the protection of life, liberty, or property itself. It is undoubtedly the duty of courts, to so construe the constitution as to make it conform, as nearly as possible, to this cardinal rule of civil polity. At the same time, we are not to wrest the words from the plain and obvious meaning which belongs to them ; for that would be to alter the boundaries of the field which the people have declared the legislative power may occupy. — Hamilton v. St. Louis Co. Ct. 15 Missouri, 23.

It has been said, that an act of the legislature, prohibiting entirely the sale of an article whose commercial value depends mainly on its vendible quality, would, in the sense of the constitution, deprive a citizen then owning it of his property without due course of law. The line of argument by which this conclusion is reached, may he thus stated: The term 'property, although frequently applied to the thing itself, in strictness means only the rights of the owner in relation to it; and these are the rights of use, enjoyment, and disposal. These essential characteristics enter into every legal notion of property, and any article or thing eliminated of these attributes ceases to be property. To take away entirely the power of sale, although it does not physically destroy an article of merchandise, does annihilate the right which is its chief characteristic, and from which it derives its principal value. The property, in an article of merchandise which is shorn of its vendible quality, is, therefore, practically destroyed. The provision of the constitution must he supposed to have been made with reference to the known rights of possession, use and sale, incident to, and inseparable from property, and designed alike for the protection of all of them, especially of those without which it would be valueless. In addition to this, one of the purposes of instituting the government, as declared on the face of the constitution, was to “ secure to ourselves, and. our posterity, the rights of life, liberty, and property.” And, inasmuch as any protection of property, chiefly valuable as an article of commerce, which would leave the owner completely stripped of the right to dispose of it, would be merely nominal and illusory, it caunot be supposed, that the words of this guaranty were used in a sense so narrow and technical, as to authorize the legislature to take from such property its vendible quality, and thus destroy the most important of the rights attached to it. — 3 Kernan, 396-7, 456; 20 Barb. 195-6, 216, 221.

Ou the other hand, it is declared to be an abuse of the term, to say that a man is deprived of property, the possession and use of which are left with him ; that this provision has relation only to the title and possession of the substance of property; that it was not designed to take from the legislature the power to declare and limit the uses to which property may be applied ; that the existence of such a power iu the legislature is essential to the well-being of society, and is lodged with government in all free states, and iu every civilized country; that the power to prohibit tbe traffic in articles deemed injurious to the health or morals, or dangerous to the peace and good order of society, belongs to the class of those police powers which fall within the necessary functions of civil government; and that it is derived, not from a narrow interpretation of this constitutional guaranty, but from a “principle of the common law older than constitutions, and coeval with the earliest civilized ideas of property, namely, that every man shall so use his own as not to injure another, and especially that the use which he makes of his property shall not work a public evil.”

"With great force it is said: “This provision has no application whatever to a case where the market value of property is incidentally diminished by the operation of a statute, passed for an entirely different object, and a purpose in itself legitimate, and which in no respect affects the title, possession, personal use, or enjoyment of the owner. * * *' Deprived is here used in its ordinary and popular sense, and relates simply to divesting of, forfeiting, alienating, taking away property. It applies to property in the same sense that it does to life and liberty, and no other. * * * When a person is deprived of his property by ‘due process of law,’ the thing itself, as we all know, with the legal title, is taken away. All his rights in respect to it are entirely extinguished, and transferred with the myous to another. The very language and subject, therefore1, of the limitation upon the power, explain and define exactly the nature and character of the deprivation intended. * * * * The constitutional provision was intended to protect property from confiscation by legislative enactments, and from seizure, forfeiture, and destruction, without a trial and conviction by the ordinary modes of judicial proceeding.” — Opinion of Justice T. A. Johnson, in Wynehamer v. People, 3 Kernan, 466-7.

The same judge places the argument on this side of the question in a strong light, by declaring, that it would be only a grave absurdity, “to hold that a statute which forbids a person selling an article of use and consumption, and renders it necessary for him to keep it for his own use and consumption, instead of selling .it to other’s to be used or consumed by them, really takes it away from him, and deprives him of it contrary to the constitution.” — 3 Kernan, 469.

It is also said, that the word deprived, as used in this provision, is employed in the same sense, and is to receive the same construction, as the word taken in that provision which is common to all of our State constitutions, and which declares that private property shall not be taken for public use, unless compensation be made therefor. — Sharpless v. Mayor of Phila., 21 Penn. St. R. 147, (166 ;) Grant v. Courter, 24 Barb. 238.

“The word take” says Chief-Justice Black, “is one of •the commonest and plainest in the language, and cannot be easily misunderstood, either by a lawyer or a layman. As used in the constitution, it has universally, iia this State and elsewhere, been interpreted to mean a taking altogether, a. seizure, a direct appropriation, dispossession of the owner.” — 21 Penn. R. 166; 23 Vermont, 361. If these positions are correct, it would follow that a citizen cannot be said to be deprived of his property, when he is left in the undisturbed possession and personal enjoyment of it, though prohibited from selling it. — See 21 Penn. 167; Hooker v. Canal Co., 14 Conn. 146.

It is not to be denied, that the majority of the adjudged cases favor the proposition, that a statute which entirely prohibits the sale of spirituous liquors, does not, in the sense of this clause, deprive the owner of his property in them. — See the opinions of several of the judges in Wynehamer v. People, 3 Kernan, 435-6-8, 413-14, 442, 451, 466-7, 481; Fisher v. McGirr, 1 Gray, 26-7; Jones v. People, 14 Ills. 196 ; Goddard v. Jacksonville, 15 Ills. 588 ; People v. Hawley, 3 Gibbs, 330 ; Preston v. Drew, 33 Maine, 559; State v. Noyes, 10 Foster, (N. H.) 279; State v. Snow, 3 R. I. 68; State v. Peckham, 3 ib. 293; State v. Wheeler, 25 Conn. 290; Lincoln v. Smith, 27 Verm. 328; Sante v. State, 2 Clarke, (Iowa,) 165; State v. Gurney, 37 Maine, 149. See, also, Perdue v. Ellis, 18 Geo. 586 ; Intendant. &c. v. Chandler, 6 Ala. 899 ; 30 Ala. 461, 469; 28 Ala. 577.

But upon this question we expressly abstain from the expression of an opinion. The exigencies of the case before us do not demand that we should announce an opinion on this point, and we prefer to remain uncommitted. Wherever it has been asserted that a prohibition of sale is equivalent to deprivation, a total prohibition is meant, or one so nearly so as to show that the exceptions are merely colorable. The prohibition must be of such a character as, in effect, to annihilate, within the entire domain covered by the legislative authority, the quality of sale which makes the property valuable to the owner, and thus to sweep it, as an article of traffic, from the commerce of the State. If any substantial right of sale within tbe State is left untouched by the law, this, it is admitted, will save its validity. A law, less extensive in its inhibitions Hian such as is here referred to, might, by lessening tbe facilities and opportunities of sale, diminish the market value of the property, but would not entirely destroy any one of the known incidents attached to it; and the court would be bound to consider such an act as designed fox' the regulation, not the destruction of property. 3 Kernan, supra, pp. 397, 399, 421, 456, 405, 435.

"Waiving the consideration of the question, whether the privilege reserved by the act, of selling for medicinal purposes, is so trivial and insignificant as to be merely color-able, (3 Kernan, 435-6,) and assuming that the act is tobe considered as tantamount to the absolute and unqualified limitation of the sale of spirituous liquors within the limits specified in the act, it is obvious that the entire domestic market is not closed against the owners. A substantial and valuable right of sale within the State is preserved. The prohibitions of the law cover a space of about eighty square miles — the rest of the State, embracing more than 50,000 square miles, is, with a few unimportant exceptions arising out of similar local enactments,' left as an open market for the sale of the property.

It has been said, with truth, that “the foundation of the right of acquisition, alienation, and transmission of property, is not in imaginary contracts, or a pretended state of nature; but in their subserviency to the subsistence and well-being of mankind.” — Sir J. Mackintosh, Law of Nature and Nations. Man was born for society, and with him the state of nature is the social state. Property, and the rights incident to property, having their origin in the exigencies of civil society, are properly held in subordination to the necessities which give them birth. Hence it may be safely asserted, that the right to dispose of property, as an absolute, unqualified, indefeas-ble right, is one which has never existed since governments were organized among men. It is a right which has always been held subject to such regulations as, in the judgment of the law-making power, the interests of society required should be imposed upon it. — 20 Barb. 179, 232; ib. 603.

In every well ordered State, property is held subject to the tacit condition, that it shall not be so used as to injure the equal rights of others, or the interests of the community. Such injurious uses of property may be prevented by such regulations and restraints as the legislature may think proper to impose; and in the establishment of these, the only limits to the legislative authority which we can recognize, are those which are declared by the written fundamental law. — Commonwealth v. Tewksbury, 11 Metc. 57; Commonw. v. Alger, 2 Cushing, 85; People v. Berberrich, 20 Barb. 232 ; Wynehamer v. People, 20 Barb. 603; Shelton v. Mayor, 30 Ala. 540; Mayor v. Yuille, 3 Ala. 137 ; 2 Kent, 340 ; License cases, 5 Howard, opinion of Woodbury, J. ; State v. Wheeler, 25 Conn. 292, 297. Excise laws, retail and license laws, laws in relation to lotteries and lottery-tickets, laws for the regulation of taverns and public houses, sanitary laws, usury laws, Sunday laws, laws against perpetuities and for the registration of titles, are all so many illustrations of the principle, that the manner in which the owner of property shall hold, use and dispose of it, is a legitimate subject of legislative regulation. — Cases supra.

Upon this principle rests the power of the legislature to prohibit entirely the sale of spirituous liquors to minors and students. In the exercise of this undoubted power, the legislature is not confined to direct, but may adopt indirect measures of prohibition. The prevention of such sales to students attending an institution of learning, would doubtless be more effectually secured by prohibiting any sale of liquor within the limited space of country likely to be frequented by the students, than by the simple inhibition of its sale to the students themselves. Such a general prohibition of all sales would, it is true, injuriously affect the rights of some citizens in relation to their property. But the question, whether the public benefits to result from the prevention of intemperance among the students are entitled to more consideration than the personal inconveniences and losses to which third persons would be subjected by the denial of their accustomed right to sell spirituous liquors within the territory to which the act applies, is one of discretion, rightfully belonging to the legislature. With that question, we, as judges, have nothing to do, and about it we have nothing to say.

This law leaves the owner in the undisturbed possession of his property, at full liberty to rise and enjoy it himself, and tbe only place within a State embracing 50,000 square miles, at which he is by this act prohibited from selling it, is a.small portion of a single county, in the immediate neighborhood of an important seat of learning. This is neither a confiscation of the corpus of the property, nor the annihilation of any one of the attributes with which it is invested by law and usage. Even upon the supposition that the exchangeable value of property is the property itself, this is, by the act before us, only diminished, not destroyed — the owner is injuriously affected in his right, but not deprived of it; and, as we have seen, it is one» of the appropriate functions of legislation to determine when public necessity demands the sacrifice of individual convenience, and government cannot be restrained in the exercise of its legitimate powers because private rights will be thereby injuriously affected.

We do not perceive the force of the argument, that -if this act is sustained as constitational, the general assembly may, at different times, and under various pretenses, pass similar laws, until the entire area of the State is covered by enactments prohibiting the sale of this species of property. If such a general prohibition would he unconstitutional, we are hound to presume that the legislature will never attempt it. But it is sufficient to say, that the general assembly has not, in fact, done what it is suggested it may hereafter do. We are here to decide actual, not possible cases. All that we can, or ought to do, is to determine whether this particular law is constitutional. We are certainly not prepared to hold, that a legislature shall not exercise a constitutional power to any extent, because some succeeding general assembly may exercise it beyond tbe proper limit. That would be to say, that a lawful power must not be used at all, because it may he abused.

Our conclusion is, that this act does not deprive any person of his property, in the sense of the* constitution. Nor are we able to perceive that it is in conflict with any other provision of that instrument.

By the 3d clause of the 8th section of the constitution of the United States, the power to regulate commerce with foreign nations, among the several States, and with the Indian tribes, is delegated to congress. In pursuance of this power, cougress has passed laws regulating- the importation of liquors, fixing the duties to which they are subject, and the quantities in which they shall be imported. By these laws, malt liquors may be imported, in casks of not less than forty gallons, brandy in casks of not less than fifteen gallons, and other liquors in quantities of not less than ninety gallons. — Brightley’s U. S. dig. 359, § 166, 366, § 199. It is insisted, that the act under consideration is in conflict with these laws of congress, and therefore unconstitutional. The argument made is, that under these laws, the importer is clothed, not only with the right to bring liquors into the- State in the quantities designated, but also with the right to sull them in the form or package in which they are imported; that this right of the importer is not arrested at the exten-nal boundary of the State, but enters its interioi’, and extends to every part of it; that bj' the terms of this act, no exception is made in favor of the importer, but the prohibition is general, including all persons, whether mere domestic dealers, or direct importers from foreign countries; and that this prohibitory clause not being susceptible of division, so as to separate the words which apply to the importer, from those which refer to the domestic dealer, the whole of this portion of the act is void.

In Brown v. The State of Maryland, 12 Wheaton, 419, Chief-Justice Marshall held, that the right to import includes the right to sell; and, consequently, that the laws of cougress authorizing the importation of liquors in certain quantities, clothed the importer with the right to sell the same in the form in which they are imported, that is, in the original casks or packages; and that the State government could not deprive the importer of this right of sale, or burthen its exercise by requiring him to purchase.a license to sell from the State authorities. But it was further held, that rvhen the commodity had passed from the hands of the importer, into the hands of a purchaser, it ceased to be an import, ora part of .foreign commerce, and became subject to the laws of the State, and might be taxed for State purposes, or its sale regulated just as any other property. It was also said, that the power ot congress to regulate commerce is co-extensive with the subject on which it acts, and cannot be stopped at the external boundary of a State, but must enter its interior.

The same principles were substantially announced by Chief-Justice Taney, in the license cases, 5 How. 572-6, and seem to have been approved in the main by a majority of the judges who delivered opinions in those cases. See the opinions of Justices McLean, Catron, and Nelson, 5 Howard, pp. 589, 601, 618.

But the proposition, that by virtue of the laws of congress the importer acquires a right to sell in the original packages, of which he cannot be deprived by State legislation, has been considered open to grave question, and was, in effect, distinctly repudiated by three of the judges in the license cases. (See the opinions of Justices Daniel, Woodbury, and Grier, 5 Howard, pp. 611, 618, 631.) By these judges the cases of Brown v. Maryland, supra, was not deemed an authority for such a rule, inasmuch as the question was not necessarily involved in that case. Nor in fact was it involved in the license cases; and it may be doubted whether it is not still open to discussion upon principle. — See Wynehamer v. The People, 20 Barb. 601.

Plowever this may be, there is no doubt that each State has reserved the power to regulate its internal commerce. 9 Wheat. 195. Not only is this so, but all those powers which relate to merely municipal legislation, or wbat, perhaps, may be more properly called internal police, are reserved to the States; and, in relation to these, their authority is complete, unqualified, and exclusive. — City of New York v. Miln, 11 Peters, 102, 139; Gibbons v. Ogden, 9 Wheaton, 195, 203, 205, 208; 5 Howard, 574. Upon the retention by the States of these police powers rests the validity of all those quarantine, health and inspection laws, which have been uniformly sustained as constitutional, although they do, to some extent, interfere with and regulate foreign commerce. The inspection laws authorize the detention and examination of merchandise ; the quarantine laws direct possession to be taken of vessels, and require their cargoes and passengers to be stopped, and forbid intercourse with the shore; the health laws provide, in some instances, for the destruction of the cargo. — See 12 Wheaton, 443.

IIow far the State may go in the-conservation of tbe health, morals, or safety of its citizens — what is the dividing line between a mere police law and a regulation of commerce — is a question of exceeding delicacy and difficulty. We take it for granted, that a State can undoubtedly prevent even an importer from selling intoxicating liquors upon the Sabbath, or to minors or slaves. Such a law, although it would incidentally, in one sense, regulate commerce, would, upon its face, be a police regulation, designed to protect the morals and good order of society. It would be the exercise of a power which the State has never surrendered, and without which it would have but meagre claims upon the respect and affection of its citizens. So the States may prohibit the sale of obscene books, or infected goods, imported from a foreign country, notwithstanding the duty may have been paid upon them, and they may remain in the original package. — 5 How. 592, 581, 628, 631-2. See Holmes v. Jeamison, 14 Peters, 568; Gibbons v. Ogden, 9 Wheat. 203 ; City of N. Y. v. Miln, 11 Peters, 102, 133, 141-2; Passenger cases, 7 How. 524, 551.

There is certainly great force in the suggestion, that this provision in the charter of the Southern University must be considered as a mere police law, and not as a regulation of commerce ; and that its validity should be sustained, even if it were shown that the defendant was an importer, and that the liquors were sold by him in the casks in which they were imported. This subject is ably discussed by Mr. Berrien, in his opinion as attorney-general, on the South Carolina police bill. — See 4th vol. Att’y Generals’ Opiuions, p. 432, &c. See, also, opinion of McLean, J. 5 Howard, p. 592.

But we need not place our decision on this ground. The argument made upon this point mistakes the princi-pie applicable to such cases. A State law is not unconstitutional and absolutely void, because, in its practical operation, it may sometimes conflict with a law of congress passed in pursuance of the power to regulate commerce with foreign nations. If the provisions of the act be such that they may be assigned to a-power not surrendered by the State, and have a legitimate field of operation without coming into collision with the law of1» congress, there is no doubt that, to that extent at least, they are a valid and constitutional exercise of power, and will be enforced. The most that 2ias ever been said is, that whenever, in the enforcement of such a law, it is brought into actual collision with a law of congress passed in pursuance of the constitution, then, so far as the collision extends, but no further, the law of congress excludes and displaces that of the State. The validity of the State law cannot be questioned, except by those who show that they have rights and privileges derived from an act of congress, of which they will be deprived if the law of the State is enforced against them. — 5 How. 574, 585-6, 581-2, 589, 595-6, 601, 608, 619 ; 5 Wheat. 49-50; Passenger cases, 7 Howd. 552-3 : State v. Peckham, 3 Rhode Island, 293; State v. Robinson, 39 Maine, 153; Duer’s Const. Jurispr. 256-7; State v. Gurney, 37 Maine, 149.

The license cases, in 5 IIow. supra, illustrate this principle. The terms of the State laws there considered were as general as the words of this act. In neither one of the acts before the court was there an exception saving the rights of the importer; and the point was made in the argument by Mr. Webster and the other counsel, that by the terms of the laws, even the importer was prohibited from selling, and that consequently the acts were unconstitutional. — lb. p. 502, 538, 515, 535. But in neither of the cases was it shown that- the defendant was an importer, and he was, therefore, not in a condition to insist that the State law should yield to those of the Federal government, which clothe an importer with the right to sell. See 5 How. supra; also, State v. Gurney, 37 Maine, 149; State v. Robinson, 39 Maine, 153-4.

The power to regulate commerce with foreign nations is not so exclusive in congress, as to prevent all State legislation upon tbe subject. It belongs to the class of concurrent powers; and every such power may be exercised by the State, subject to the single limitation that, in the event of actual collision, the law of congress prevails, and the State law ceases to operate; but only so far as the collision extends. — City of N. Y. v. Miln, 11 Peters, 102; Commonw. v. Kimball, 24 Pick. 359; Commissioners, &c., v. Steamboat Cuba, 28 Ala. 185, 197; Freeman v. Bobinson, 7 Inda. 321; Newport v. Taylor, 16 B. Mon. 699; Weaver v. Fegley, 29 Penn. 27 ; Cooley v. Board of Wardens, 12 Howard, 299, 318; Houston v. Moore, 5 Wheat. 1.

It does not appear that, in the application of this act to the defendant, any collision has ‘taken place with the laws of congress. He has therefore no right to call upon us to arrest its execution.

2. The demurrer to the indictment should, however, have been sustained, if for other reason, because it failed to name or in any way describe the person to whom the liquor was sold. Francois v. State, 20 Ala. 84 ; Brown v. Mayor of Mobile, 28 Ala. 722 ; Starr v. State, 25 Ala. 38. The provisions of section 1059 of the Code have no application to a prosecution founded on the special act under which this indictment was found, and the general form there prescribed is not sufficient in sucha case. — Camp v. The State, 27 Ala. 53.

The judgment is reversed, and the cause remanded.