State ex rel. Henshall v. Ludington , 33 Wis. 107 ( 1873 )

DfxON, C J.

Counsel for the respondent frankly concede the constitutional power of the legislature to entirely prohibit the selling or giving away of ardent or intoxicating liquors or spirits to be used as a beverage, and attack only certain provisions of the act as being inconsistent with the authority to. sell conferred, and repugnant to the constitutional rights of the citizen engaged in an authorized and lawful traffic and business. The point thus yielded, and as to which there would seem to be little room for controversy at the present day, of the general power of the legislature over the subject acted upon, not only very much narrows the field of contest and investigation, but, as it appears to us, also takes away all grounds of constitutional support for the objections specially urged against particular clauses and portions of the act Assuming the general power of the legislature over the subject to the extent of prohibiting entirely the traffic in intoxicating, liquors or drinks, necessarily involves, as it seems to us, the admission of the utmost limit of legislative discretion in prescribing tbe conditions of sale, and establishing tbe liabilities, both civil and criminal, of persons engaged in tbe trade, in case tbe legislature sees fit in any manner or under any circumstances of restriction or responsibility to authorize such sale or trade. The law being prospective only in its operation, the legislative power to prohibit all sales must carry with it, as it seems to us, that of declaring the precise terms and conditions upon which any particular sale may take place. This would seem to be so by .the familiar principle ' upon which the greater is always said to include the less. Possessed of the power of absolute prohibition under the constitution, it seems to follow that any relaxation from a plenary exercise of such power, or qualified or conditional enactment by the legislature by which license to sell may be obtained in the way and subject to the liabilities imposed by* the act, cannot be an encroachment of legislative authority, unless indeed the legislature should transcend some settled principle of fundamental law, respecting the trial or mode of prosecution or punishment of the party charged with an infraction of the provisions of the act, or with having incurred some liability under it. Acting in obedience to those fundamental principles, in accordance with which the guilt or liability of the party charged must first be ascertained and established, and the judgment of the law rendered against him, it seems competent for the legislature to attach such consequences, civil or criminal, to the mere act of sale, as it pleases, even when such sale is made in pursuance of an authority of the legislature,- quali-fiedly given for that purpose. Empowered to prohibit entirely, the legislature may license sub modo, or conditionally only. It may affect the licensee with such restraints, conditions and responsibilities as ft pleases, growing out of the act of sale. It may visit him with such consequences as it sees fit, proceeding from the same act. It may couple the license with conditions so oppressive, burdensome and unjust that no citizen can afford to apply for or accept the privilege and engage in the business, and thus the act, though nominally otherwise, may amount to a prohibitory law. These conclusions seem unavoidably to flow from the position, admitted or not denied, that the legislature possesses the unqualified power of prohibition. The legislature may not take away the right of trial by jury, or of proceeding by due process of law to ascertain the fact of violation, or of liability incurred. It may not require the accused to plead guilty, to confess judgment, or to give evidence against himself. Neither may it create any arbitrary or violent presumption of guilt upon facts equally or more consistent with innocence. It may not change the rules of evidence, or the burden of proof established according to the principles of the common law, and secured and made perpetual by the constitution; nor destroy vested rights, nor punish one man for the delinquencies or misconduct of another, nor, without his consent, make him answerable in damages for the injurious consequences of the acts of another, in which he had no participation, or with which he was wholly disconnected. These and other like things the legislature may not do; but with respect to the act of sale, over which the power of legislation is conceded to be unlimited, and in respect to the responsibility which shall attach to the doing of that act or the conditions under which it may be done, the way seems open-for the legislature to enact whatsoeverit pleases. As already more than once observed, this conclusion seems clearly to result from the unrestricted and arbitrary nature of the discretion vested in the legislature in the exercise of what is termed the police power of the state, which is said to be a right to regulate all such matters, found in the first principles of good government and self-protection. The legislature may say to all citizens and persons within the state, that they shall not sell, give away or traffic in at all, as a beverage; or it may say that they may do so, being responsible for all the injurious consequences of their acts, which consequences are pointed out and defined by previous law. The power of the legislature in this respect is like that which it possesses in creating and conferring rights and franchises upon a corporation, which must be such, and such only, as it prescribes. It may declare, for example, that a railway company applying for a franchise shall be an unqualified insurer of the safety of all goods entrusted to its care. Eire, though a very useful, is at the same time a very dangerous element, and the legislature may declare, as it has done in Massachusetts and several other states, that any railroad corporation shall be absolutely responsible in damages for any injury done to any building or other property, by fire communicated by a locomotive engine of such railroad corporation. Ross v. Railroad Co., 6 Allen, 87.

And herein, as this court conceives, consists the chief defect and fallacy of the position assumed and argued with so much ingenuity and research by the learned counsel for the respondent. They forget, as it appears to us, that the subject with which we are dealing is not one of those pertaining to the primary and fundamental rights of the citizen, and as to which no unlimited control has been vested in the legislature. They seem to overlook this principal ground of distinction, and argue as if the action of the legislature was an infringement of the natural and inalienable rights of the citizen, declared and guarantied by the constitution, instead of the exercise of a discretionary power against which no limit has been set by that instrument. And this, we think, is the very turning point of the controversy, namely, that the legislature may grant or withhold authority to sell at its pleasure, and, granting such authority, it is held by the licensee at the mere pleasure or grace of the body granting it. It is held by him, not as a matter of primary and absolute right, but as a favor, which, like all favors, must be received upon such terms and conditions, and subject to such burdens and inconveniences as the donor thinks proper to impose, and the donee elects to accept Unlike other trades and employments which it is the right of the citizen to pursue, undisturbed by arbitrary legislative interference and control, the person who engages in this, must, within the limitations above indicated, do so subject to such disadvantages and restraints as may be prescribed by the law making power which authorizes it.

It is fallacious, therefore, to argue from the incompetency of the legislature in other cases, that there exists no legislative power to make harsh and unjust discriminations, or to enact inequitable and oppressive conditions, upon a subject like this. Conceding that the operation of the law will be what counsel say, and that their criticisms of its provisions are well founded and true, still these do not annul the law or affect its validity in a constitutional sense, but only render it “ void in its obligatory quality on the mind, and therefore determine it as the proper object of abrogation and repeal, so far as regards its civil existence.” They are proper arguments to be addressed to the legislature, but not to this court. This court must accept the law, as counsel must, and as all citizens must, just as the legistature has deemed expedient to enact it. Speaking in the sense of that “immovable principle” of natural justice which should govern all legislative bodies in their enactments, but not in that restricted sense of the constitution which leads to the disregard or abrogation of the expressed will of the legislature by any other than the legislative body itself, it has been observed by one of the greatest statesmen and wisest political philosphers of modern times, that “in reality there are two, and only two, foundations of law; and they are both of them conditions without which nothing can give it any force ■ — I mean equity and utility. With respect to the former, it grows out of the great rule of equality, which is grounded upon our common nature, and which Philo, with propriety and beauty, calls the mother of justice. All human laws are, properly speaking, only declaratory; they may alter the mode and application, but have no power over the substance of original justice. * * * Law is a mode of human action respecting society, and must be governed by the same rules of equity which govern every private action.” — Burke’s Works, vol. 6, p. 22.

If, therefore, the legislature has exceeded the limits of natural equity by the statute in question, in imposing conditions and declaring liabilities for acts done under the license granted; if it has made the licensee liable for damages which are remote or consequential, when by the rules of the common law and the principles of natural justice he should only be held responsible for those that are proximate or direct; if it has made him answerable in full damages, when in truth his act was only in part, and it may have been in a very small part, the cause of the injury complained of; if it charges him with the consequences as of an act partially or wholly wrongful or criminal in its nature, but which he innocently performed; and if, in fine, the statute is justly subject to all the objections urged against it by counsel still the answer must be, that the remedy is of a kind which must be sought in the legislative, and not in the judicial department of the government. They may constitute the best of reasons for legislative modification or repeal, but are none whatever for arresting the operation of the law by the judgment of "this court.

The foregoing observations, we believe, meet all the constitutional objections which have been urged, and leave only one of that kind, concerning which more particular notice and comment seem to be required. It is assumed that the law legalizes or sanctions, in an unqualified sense, the act of sale by the party who has complied with the formal requirements prescribed, and obtained a license in the manner provided for by it; and then it is argued that the legislature has no power to inflict penalties or mulct the party in damages for the performance of a lawful act. The difficulty with this proposition is, as will be seen from the course of reasoning above adopted (if such reasoning be correct), that it assumes that to be an absolutely lawful act, which is so conditionally, or with qualifications only — expressly so made by the very terms of the law which authorizes the sale. It enters into and becomes a part of the license or authority to sell, that the individual accepting tbe same, bestowed ex mero motu by. tbe legislature, takes it subject to tbe burdens thus lawfully imposed. Tbe terms and conditions annexed by tbe law and qualifying the authority, inhere in and run with tbe license, and bind and restrain tbe licensee. He consents to them by accepting the license. Tbe law is to be construed as a whole, and all its parts looked to ■with a view to their operation and effect on each other, conform-ably . to the intention of the legislature. The form of enactment, being that by way of proviso appended to the clause granting authority to sell, is such as to make tbe conditional nature of the license most clear and indisputable. The person or persons licensed are permitted to sell, but not otherwise than upon the conditions named in the proviso of the first section. He or they must enter into the bond therein prescribed, and submit to the obligations thereby imposed, and to the liabilities fixed and declared by the sixth section. For, as we read and understand the statute, and as we think the legislature evidently intended, the first and sixth .sections are to be construed together. The bond provided for in the first section is to secure the liquidation and payment of tbe damages recovered under the sixth. The language of both sections sufficiently indicates this, so that the sixth section, which is more specific in its terms and accurate in the definition of the liabilities imposed, operates as a limitation upon the general words contained in the first, and restricts the general obligation of the bond to the class of cases or kind of damages mentioned in the sixth.

The court has thus, at the urgent solicitation of counsel on both sides, considered and expressed its opinion upon the constitutional questions presented and argued upon the motion to quash the alternative writ of mandamus, and it has done so without first adverting to the question, preliminary in its nature, whether the case made by the petition is in any way a proper one for the application of ■ the remedy, which question, bad it first been considered, would have resulted in the decision of no other.- No writ of mandamus can properly issue in such a case as this.

The licenses issued without the giving of the bond being void, of course no revocation of them by the mayor is necessary. It would be a merely idle act for him to do so, and a still more idle act for the law or this court to require it to be done. But whether the licenses were void or not, there existed ample remedy by suit or prosecution at law to test the questions and settle the controversy, which of itself is always sufficient cause for refusing the writ, or for quashing it, if it has been improperly issued. /

It is a circumstance not perhaps unworthy of observation here, that almost at the commencement of our existence as a state a law was enacted the very same in principle as that under consideration, although in some respects far more stringent and exacting in its provisions, and that it remained upon the statute books for the period of two years or thereabouts, without, so far as we know, its constitutionality being in any manner brought in question. It will be found in chapter 29, of the R. S. of 1849, the first systematic code of, laws enacted by the state after its admission into the Union.

By the Court.— Motion to quash denied.