Opinion
Argued March 14, 1904
Decided May 17, 1904
William Travers Jerome, District Attorney ( Howard S. Gans of counsel), for appellant.
Louis Marshall for respondent.
The Constitution of this state vests the legislative power in the senate and assembly, and subjects it to certain important limitations, one of which is that no person shall be "deprived of life, liberty or property without due process of law; nor shall private property be taken for public use without just compensation." (Const. art. 1, § 6.)
In Wynehamer v. People ( 13 N.Y. 378) Wynehamer was convicted of selling liquors contrary to a statute entitled "An act for the prevention of intemperance, pauperism and crime." This court holds in that case that if the statute was limited in its operation to the sale of liquors manufactured or imported after the act took effect it would be valid; but as the act goes further and substantially destroys the property in intoxicating liquors owned and possessed by persons within the state when the act took effect, it offends against the constitutional provisions quoted supra and is void, and may not be sustained in respect to any liquor whether existing at the time the act took effect or acquired subsequently.
This case and its doctrine is referred to with approval in Matter of Townsend ( 39 N.Y. 171, 180) and again very recently in People v. Orange County Road Cons. Co. ( 175 N.Y. 84, 93).
It is settled in this state, therefore, that a statute which attempts to destroy an existing property right is void.
The statute under which McPike was convicted provides that "Any person, who in any manner, for exhibition or display, shall place or cause to be placed any word, figure, mark, picture, design, drawing or any advertisement, of any nature, upon any flag, standard, color or ensign of the United States or state flag of this state or ensign, * * * or who shall expose to public view, manufacture, sell, expose for sale, give away, or have in possession for sale, or to give away, or for use for any purpose, any article, or substance, being an article of merchandise, or a receptacle of merchandise upon which shall have been printed, painted, attached, or otherwise placed, a representation of any such flag, standard, color, or ensign, to advertise, call attention to, decorate, mark, or distinguish the article, or substance, on which so placed, * * * shall be deemed guilty of a misdemeanor * * *."
The statute in express terms, therefore, applies as well to articles manufactured and in existence when it was lawful to manufacture them and have them in possession as to those thereafter manufactured or acquired. It attempts, therefore, to destroy existing property rights, and whether the value thereof be much or little the legislature is powerless to effectuate such a result. It follows that so much of the statute as precedes the provision affecting those who "shall publicly mutilate, deface, defile, or defy, trample upon, or cast contempt, either by words or act, upon any such flag, standard, color or ensign," is void.
It was under that portion of the statute which we hold the Constitution prohibits that McPike was convicted, and it follows that the order of the Appellate Division should be affirmed.
GRAY, O'BRIEN, HAIGHT, MARTIN, CULLEN and WERNER, JJ., concur.
Order affirmed.