Clement v. May , 120 N.Y.S. 588 ( 1909 )

Sewell, J.:

The main question presented by this appeal is whether the -provisions for. a -seizure, forfeiture and destruction of liquors kept or ■stored for the purpose of sale and distribution in violation, of the statute are constitutional.

It is well settled that the Legislature has power to enlarge the catalogue of public nuisances and declare places or property used to the detriment of public interests of to the injury of the health, morals or welfare of the community public nuisances, although not such at the common law.

In Lawton v. Steele (119 N. Y. 226) it was said: “ The right of the Legislature by a new statute to impose upon property held or used in the violation of law, the character of a public nuisance is generally admitted.”

The appellant does not seriously question this power of the Legislature, but he insists that the manner or course of proceeding provided in the statute for declaring the forfeiture is not due process of law.

It is clear that if 'the Legislature had power to direct the summary destruction of liquors kept or stored for the purposes of sale in violation of law, the objection to the judicial proceeding provided for in the act has no application.

It was a principle of the common law. that any one might abate or remove a public nuisance, without staying to have the thing abated or removed, found to be a nuisance by a jury, or in, or by, any preliminary legal proceeding. (Hart v. Mayor, etc., of Albany, 9 Wend. 571; Coe v. Schultz, 47 Barb. 64; Cartwright v. City of Cohoes, 39 App. Div. 69; Rockwell v. Nearing, 35 N. Y. 308; Lawton v. Steele, supra.)

In Coe v. Schultz, Sutherland, J., speakig of the constitutional provision that no person shall be deprived of life, liberty or property without due process of law, said: “Ho one has probably ever suggested that Magna Charta interfered with the process of-.summarily abating a public nuisance. If the abatement involved the deprivation of property, the owner was deprived of his property ‘by due process of law’ if the thing abated was a public nuisance, for then the summary process of abatement was authorized by the common law, and any process authorized by law must be due process. The common law was adopted by our State Constitution, and if this summary process of abating a public nuisance was ‘ due process’ within the meaning of Magna Charta, there is not a room for doubt that it is due process’ within the meaning of our State Constitution.”

In Lawton v. Steele the court said: “The right of summary abatement of nuisances without' judicial process or proceeding was an established principle of the common law long before the adoption of our Constitution, and it has never been supposed that this common-law principle was abrogated by the provision for the protection of life, liberty and property in our State Constitution,' although, the exercise of the right might result in the destruction of property. * * * But as the Legislature may declare nuisances it may also, where the nuisance is physical and tangible, direct its summary abatement by executive officers,- without the intervention of judicial proceedings, in cases analogous to those where the remedy by summary abatement existed at common law.”

There aré many statutes directing the summary seizure- and destruction of property kept or used in violation of law as a nuisance de facto,.demanding to be abated. I can see no distinction, as to the power of the Legislature in respect to liquor, kept, stored Or deposited for the purpose of unlawful sale or distribution, and gambling implements, lottery tickets, infected beds and cargoes, impure and unwholesome food, obscene prints or other articles of an indécent character. The law destroys all these for the public good, upon the principle that they are kept in violation of law; that they are not protécted as property by the Constitution, and, therefore, the seizure and physical destruction, without resort to judicial proceedings, interferes with no right of the owners.

’ This case differs from Wynehamer v. People (13 N. Y. 378), cited by the appellant. There the question was whether “ An act for the prevention of intemperance, pauperism and crime” (Laws of 1855, chap. 231), which declared intoxicating, liquors a nuisance per se, and substantially destroyed property in liquors owned dr possessed at the time the act took effect, was constitutional, and it was held that where liquors were acquired by a citizen under an existing law there is bo power in any branch of the government to take them away. That case impliedly, if not necessarily, affirmed the power of the Legislature to destroy intoxicating liquors acquired subsequent to the passage of the act. Judge Johnson there said: “The future acquisition the Legislature might, in my opinion, control, and I am not disposed to deny that, they could have subjected such future acquisitions to the prohibitions this act imposes.”

I am, therefore, of the opinion that it was not necessary to provide, in the statute in question, for a judicial determination in order to destroy the right of property in liquor kept or stored in violation of its provisions.

If, however, we assume that the Legislature had no power to declare the liquors forfeited without the intervention of judicial authority, the act is not in conflict with the constitutional provision that no person shall be deprived of his property “ without due process of law.” ^* It provides for a judicial proceeding in rem,, according to the rules and forms which have been established for the protection of private rights. It is no objection to the validity of the proceeding that it does not require personal service of a notice or process upon the party whose property is in question. It is sufficient if a kind of notice is provided by which it is reasonably probable that the party proceeded against will be apprised of what is going on or against him, and an opportunity is afforded him to defend. (Matter of Empire City Bank, 18 N. Y. 199; Rockwell v. Nearing, 35 id. 302; Happy v. Mosher, 48 id. 317; Hiller v. B. & M. R. R. R. Co., 70 id. 223; Matter of Union E. R. R. Co. of Brooklyn, 112 id. 61.)

The Legislature has uniformly acted upon that understanding of the Constitution and has provided for the service of process or notice upon natural persons by posting, publication, by mail, by leaving the notice at the parties’ place of residence or by leaving it with the person in whose possession the property may be found.

I think that the service prescribed by the present statute is reasonably calculated to inform the owner of the proceedings against his property, and that the learned county judge was right in holding that it invaded none of the constitutional rights of the defendant. It follows that the judgment and order of the County Court should be affirmed, with costs.

All concurred.

Judgment and order of the County Court affirmed, with costs.

* See Const. art. 1, § 6.— [Rep.