ERROR to the Superior Court of the Commonwealth of Massachusetts.
This was a proceeding in the Superior Court of Suffolk County, Massachusetts, for the forfeiture of certain malt liquors, belonging to the Boston Beer Company, and which had been seized as it was transporting them to its place of business in said county, with intent there to sell them in violation of an act of the legislature of Massachusetts, passed June 19, 1869, c. 415, commonly known as the Prohibitory Liquor Law. The company claimed that, under its charter, granted in 1828, it had the right to manufacture and sell said liquors; and that said law impaired the obligation of the contract contained in that charter, and was void, so far as the liquors in question were concerned. The court refused to charge the jury to that effect, and a verdict was found against the claimant. The rulings of the Superior Court having been affirmed by the Supreme Judicial Court of the Commonwealth, the company brought the case here. The statutes of Massachusetts bearing on the case are referred to in the opinion of the court.
Mr. H. W. Paine and Mr. F. O. Prince for the plaintiff in error.
Although the franchise of the company, when granted, was subject to the provisions of the act of 1809, and might, while they continued in force, have been modified or revoked, after due notice, the legislature, by repealing that act, relinquished the power thereby reserved, and rendered the grant absolute and unqualified.
The franchise was that of 'manufacturing malt liquors in all their varieties in the city of Boston.' The power to sell, although not expressly given, was clearly implied, as otherwise the charter would have been utterly worthless. Co. Litt. 56; Shep. Touch. 49; Thayer v. Payne, 2 Cush. (Mass.) 327; Pomfret v. Ricroft, 1 Saund. 321; Darcy v. Askwith, Hob. 234; Planters' Bank v. Grant, 6 How. 318; United States v. Babbitt, 1 Black, 55; Huidekooper's Lessee v. Douglass, 3 Cranch, 1; Charles River Bridge v. Warren Bridge et al., 11 Pet. 420; People v. Platt, 17 Johns. (N. Y.) 215.
The Commonwealth having made a contract with the company, that its chartered rights and immunities should not be revoked, or its franchise essentially impaired, subsequent legislation cannot, directly or indirectly, impair the obligation of that contract, and destroy vested rights under it. Cooley, Const. Lim. 278, and cases cited; Terrett v. Taylor, 9 Cranch, 43; Trustees of Dartmouth College v. Woodward, 4 Wheat. 518; The Binghampton Bridge, 3 Wall. 51; Wales v. Sutton, 2 Mass. 143; Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray (Mass.), 1; Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; Thorpe v. Burlington & Rutland Railroad, 27 Vt. 140; Farrington v. Tennessee, 95 U.S. 679.
If the police power of a State, as defined in Commonwealth v. Alger (7 Cush. (Mass.) 53), be 'the power vested in the legislature by the Constitution to make, ordain, and establish all manner of wholesome and reasonable laws, statutes, and ordinances, either with penalties or without, not repugnant to the Constitution, as they shall judge to be for the good and welfare of the Commonwealth and the subjects of the same,' the taxing power is clearly of that character. If the legislature may, as the adjudged cases affirm, grant an immunity from taxation, and thus part with that power, why may it not with any other? It cannot, in the pretended exercise of the police power, violate, without a breach of the Constitution, the provisions of an existing charter, nor, under the guise of regulating, take from a corporation any of its essential chartered rights and privileges. Cooley, Const. Lim. 576, and cases cited.
The company does not invoke the aid of the Fourteenth Amendment to the Constitution, but submits that the statute of 1869, under which the liquor was seized and condemned, impairs the obligation of the contract contained in its charter, and is therefore unconstitutional and void. The court below having expressly decided otherwise, there can be no doubt as to the jurisdiction of this court.
Mr. Charles R. Train for the defendant in error.
The case was tried on the general issue, and the record does not present any matter of law. The opinion of the court below showing that a Federal question was considered is not decisive that it was actually raised or necessarily involved. Moore v. Mississippi, 21 Wall. 636.
The act of 1869 does not impair the obligation of a contract, inasmuch as the charter of the company, being subject to the reservation of the act of 1809, is amendable and repealable. The State may, therefore, in the exercise of her police power, subject the company to the same restraints in the use of its property as may be imposed upon natural persons. Bartemeyer v. Iowa, 18 Wall. 129; Peik v. Chicago & North-Western Railway Co., 94 U.S. 164.
Conceding that the charter is not repealable, it is not fairly susceptible of the interpretation that it confers the absolute right to manufacture malt liquor, free from all legislative control. Ohio Life Insurance & Trust Co. v. Debolt, 16 How. 416; Providence Bank v. Billings, 4 Pet. 514; West Wisconsin Railway Co. v. Board of Supervisors of Trempealeau County, 93 U.S. 595; Farrington v. Tennessee, 95 id. 679; Thorpe v. Rutland & Burlington Railroad, 27 Vt. 142; Commonwealth v. Hamilton Manufacturing Co., 120 Mass. 383.
The legislature could not, under the State Constitution, make a binding contract, that the police power should not be thereafter exercised so as to limit this company in the matter of manufacturing malt liquors. Commonwealth v. Bird, 12 Mass. 443; Boston & Lowell Railroad v. Salem & Lowell Railroad, 2 Gray (Mass.), 1; Eastern Railroad v. Maine Railroad, 111 Mass. 125.
The distinction between the power of the legislature in regard to the law-making and other sovereign powers on the one hand, and in regard to the property of the public on the other, is a sound one. Boston & Lowell Railroad v. Salem & Lowell Railroad, supra; Piscataqua Bridge v. New Hampshire Bridge, 7 N. H. 35; Brewster v. Hough, 10 id. 138; Brick Presbyterian Church v. New York, 5 Cow. (N. Y.) 538; The Binghampton Bridge, 3 Wall. 51; State v. Noyes, 47 Me. 189.
The abstract proposition that a person has not the constitutional right to apply, in violation of a statute, his property to those uses which are injurious to the common welfare, though not forbidden by the common law, is, as matter of authority, established law. Fisher v. McGirr, 1 Gray (Mass.), 1; Blair v. Forehand, 100 Mass. 136; Lowell v. Boston, 111 id. 454; Oviatt v. Pond, 29 Conn. 479; State v. Keeran, 5 R. I. 497; State v. Allmond, 2 Houst. (Del.) 612; Commonwealth v. Alger, 7 Cush. (Mass.) 53; Coates v. New York, 7 Cow. (N. Y.) 585; State v. Noyes, 30 N. H. 279; People v. Hawley, 3 Mich. 330; Commonwealth v. Tewksbury, 11 Metc. (Mass.) 55; New Orleans v. Stafford, 27 La. Ann. 417; State v. Noyes, 47 Me. 189; Commonwealth v. Blackington, 24 Pick. (Mass.) 352; The License Cases, 5 How. 504; Bartemeyer v. Iowa, 18 Wall. 129; Munn v. Illinois, 94 U.S. 113.
It is clear, therefore, that the act of 1869 neither violates any provision of the Constitution of the United States, nor impairs any vested rights of the company.
The following cases hold that a prohibitory law, to the same effect as that here in question, does not interfere with the vested rights of a person who owned intoxicating liquors at the time of its enactment: State v. Allmond, 2 Houst. (Del.) 612; State v. Paul, 5 R. I. 185; State v. Keeran, id. 498; Lincoln v. Smith, 27 Vt. 328; Gill v. Parker, 31 id. 610; State v. Court of Common Pleas, &c., 7 Vroom (N. J.), 72; Fisher v. McGirr, 1 Gray (Mass.), 1; Commonwealth v. Huber, 12 id. 29; Commonwealth v. Logan, id. 136; People v. Hawley, 3 Mich. 330; People v. Gallagher, 4 id. 244; Our House No. 2 v. State, 4 Green, 172; Sauto v. State, 2 Iowa, 165; State v. Bartemeyer, 31 id. 601; State v. Wheeler, 25 Conn. 290.
MR. JUSTICE BRADLEY delivered the opinion of the court.