Marasso v. Van Pelt

Ellis, J.,

concurring. — I concur in the conclusion reached in the' opinion of Mr. Justice Whitfield, for the following reasons: The phrase “inalienable rights” and the words “acquiring,” “possession,” “protecting,” “property,” as used in the first section of the Declaration of Eights of the Constitntion of 1885, are not terms which express a single, definite, unqualified meaning. Their meaning is subject to certain qualifications. “Inalienable” for instance does not mean that which one cannot be deprived of without his conesnt. The meaning more properly defines the word indefeasible. Webster’s International Dictionary The word is defined by the same lexicographer as meaning that which one cannot give away or part with even with his own consent, and yet one’s life or his liberty is taken from him by the authority of the Slate for an infraction of a rule or regulation of society. Thus while one may not sell his life or liberty to another, he may forfeit it to the State. The word “right’’ as a noun is defined to be, that to which one has a “just” claim; a power, privilege, condition of existence or the like to have or enjoy which one has a, natural claim; a power or privilege to which one is entitled upon principles of morality, religion, law or the like.

An inalienable right as applied to life or liberty, may mean a power, privilege or .condition of existence to have or enjoy which one has a natural claim. Life and liberty may be a condition of existence which one may not lawfully give away or part with, but it is not such a condition of existence that he may not forfeit by an infraction of the rules of society; that he may not part with by an unlawful act. As applied to property, however, the word “right” can not with the same propriety be said to be a “condition of existence,” but rather it is a power or privilege to which one is entitled upon principles' of law — a just claim. The phrase “inalienable rights” therefore d( es not have the same meaning when applied to property as when applied to life and liberty. In the nature of things it cannot have the same meaning. In the one case the right is a natural claim, in the other a just claim resting upon principles of law. In the one case the right attaches as soon as one comes into existence; in the other it attaches when sanctioned, authorized, supported by law. Whether the term is applied to life, liberty or property, the right which it defines yields to the superior right of the body politic and means such privilege or power to which an individual is entitled under the law. There is no express constitutional provision for the infliction of capital punishment or imprisonment for crime, but such statutes are held to be valid. The right in the people of enact laws for the pubilc good is recognized by the constitution, but whether contained in the constitution or not the right cannot be denied in a democratic form of government- So it is very evident that the words used in the constitution to define the individual’s right to life and property are not words of such clear, definite,' single meaning as that all persons may say this or that power, privilege or right is absolutely, unqualifiedly secured by the provisions of the constitution and announced in the Declaration of Rights. The word “property” is a word of such doubtful meaning as that on definition which satisfactorily .answers all requirements has yet been furnished. There have been many attempts to define the word, and it would be a work of supererogation to quote authors and decisions. The word may be broad enough to embrace anything upon the world capable of possession, yet it is clear that it is not in that sense that the word is used in the Declaration of Rights. One may have no property right for instance in spurious coin or illicitly distilled alcoholic liquors. The word does ont mean anything that may be produced by cultivating the soil, working the mines, fishing in the seas or fresh waters of the earth, or that may be grown upon its surface, or manufactured by man, yet all these things occupy space, are capable of possession, may be acquired and transferred to another by barter and sale or exchange; yet there are some things which man may have no right to acquire, possess or defend — some things which are therefore not property within the meaning of the term- as used in the constitution.

Now property in the sense of the thing acquired, has certain attributes. It may be legally acquired' by purchase, barter or exchange, or it may be manuf actured. Indeed as was said by the court of last resort in New York: “If any one can define 'property’ eliminated of its attributes, incapable of sale and place, without the protection of law, it were well that the attempt be made.” See Wymehamer v. People, 13 N. Y. 378.

The word as used in the constitution so far as it applies to anything made or manufactured by man, means something that may be manufactured, bought, sold, bartered or exchanged legally, that is to say within the protection of the law If it may not be legally be acquired by manufacture, purchase, barter or exchange, it cannot legally be possessed or defended. The claim therefore to the possession of anything that cannot be legally acquired is not a just claim. The word “acquire” as used in the Bill of Eights does out mean “to gain by any means” as defined in Webster’s International Dictionary, but it means lo gain by legal means; that is to say by a means recognized, sanctioned and approved by law. The inalienable right to acquire, possess and defend' property, therefore, means a just claim to anything that may be legally gained. But 36 gallons of alcoholic liquors could not legally acquired by one person on January 1, 1919. The constitution as amended at the election of November, 1918, forbade it. That amendment divested alcoholic liquors, a manufactured article, of the attributes of property. It could not be legally manufactured after a certain date; that is to say, it could not be legally brought into existence on that day; it could not he purchased', bartered, sold or exchanged. It could not be legally acquired, therefore it cannot be legally possessed or defended. Being divested of the attributes of property it was without the portection of the law, and in obedience to an express command of the legislature, by Chapter 7736, Laws of 1918, enacted a law to make the amendment effective.

The argument of those who support the theory that the above mentioned Act of the legislature is unconstitutional as being in conflict with the first section of the Bill of Eights, rests upon the following syllogism:

Major: Every man has an inalienable right to acquire, possess and defend property.

Minor: 36 gallons of alcoholic liquor (quantity named in information) on the 1st day of January, 1919, was property.

Conclusion: Therefore on January 1, 1919, Marasso (a man) had an inalienable right to acquire, possess and defend 36 gallons of alcoholic liquors.

But the fallacy of the argument lies in the second premise.