entitling him to have in his possession four gallons of intoxicating liquor was a fact peculiarly within his knowledge. The mere production of a prescription by the defendant would terminate the case. To hold, under such circumstances, it was incumbent upon the People to subpoena every physician who might possibly have issued such a prescription, and establish by testimony that no prescription had been issued by him to the defendant would render the law nugatory and lead to absurdity in the administration of justice.

The contention of the defendant that the People were bound to prove he had no physician's prescription entitling him to possess four gallons of intoxicating liquors, in view of the authorities cited, cannot be sustained.

The defendant also claims the statute charged to have been violated is unenforceable and void because of uncertainty in that it does not define the amount of liquor which constitutes the quantity a person is permitted to possess. The language of the legislative enactment must be given its ordinary meaning. The words "in any quantity after the word "liquors" in subdivision P of section 30 is to all intents and purposes mere surplusage. The language should be given the same meaning as is given to similar provisions throughout the Liquor Tax Law, and it must be held the legislative intent was to prohibit the possession of liquor. The objection of the defendant in this respect must be overruled.

The defendant argues the people were bound to prove the liquors found in defendant's possession were not manufactured and stored by him as authorized and permitted by subdivision P of section 30 of the Liquor Tax Law. The provision referred to is in a subsequent part of the statute. If such liquors were manufactured and stored by defendants under circumstances permitted by the section in question it was clearly a matter of defense which the defendant was obligated to prove. (Cases cited supra.)

It is earnestly urged that subdivision P of section 30 of the

Liquor Tax Law is unconstitutional in that it deprives a person of liberty and property without due process of law in violation. of section 6 of article I of the State Constitution.

Prior to the adoption of the fourteenth amendment to the Federal Constitution, personal rights and rights of property were exclusively matters of state cognizance, and the state courts were the ultimate tribunals for the determination of all questions arising under the constitutional guarantee of life, liberty and property which was found only in the State Constitution. Upon the adoption of the fourteenth amendment there was introduced into the Federal Constitution the provision "nor shall any state deprive any person of life, liberty or property without due process of law." Since the adoption of this amendment to the Federal Constitution, the question. whether a state statute infringes the constitutional guarantee when it arises in a state court involves the consideration of both the Federal and State Constitutions, although the ground of construction and decision is identical under either instrument.

In the determination of the question whether a statute violates the provisions of the State Constitution the decision of the state court is conclusive. If the statute is held to be in violation of the State Constitution no federal question is involved. If the state court sustains the statute federal jurisdiction then attaches, where, as in this case, the point under consideration involves the almost identical language of the State and Federal Constitutions. While, therefore, the decisions of the United States Supreme Court involving the consideration of the fourteenth amendment are not binding, yet as the ground of construction and decision is identical, the respect due to the decisions of our highest judicial tribunal, the fact that to it has been committed the final vindication of all our rights and liberties, and the eternal fitness of things emphasize and enforce the conclusion that its determinations must be given more than mere passing consideration. At the outset of any consideration of legislation relative to the liquor traffic stands

the fundamental principle that some natural rights must be and are surrendered or qualified in entering into the social and political state. Such surrender and modification is essential

to good government and the proper regulation and well being of society. This primary principle is comprehended under the police power of the state. In the consideration of liquor legislation it must always be borne in mind that the police power is one of society's rights of self-protection and that intoxicating liquors are essentially subject to it. (Mugler v. Kansas, 123

U. S. 623; Pabst Brewing Co. v. Crenshaw, 198 id. 17; Carlston v. Rugg, 149 Mass. 550; Bertholf v. O'Reilly, 74 N. Y. 509; People v. New York Carbonic Acid Gas Co., 196 id. 421, 436.)

The police power which exists in every sovereign state is but another name for that authority to pass all laws for the internal regulation and government of the state necessary for the public welfare. The existence of the power is universally recognized, and all persons, all property, all business and other private interests may be affected by it. Given this power, the Legislature regulates the uses of property, prescribes rules of personal conduct, and in numerous ways supervises and controls the affairs of men in their relations to each other and to the community at large to secure the mutual and equal rights of all, and to promote the health, morals, general welfare and interests of society. (People v. Budd, 117 N. Y. 14, 7 N. Y. Crim. 189; People v. Lochner, 177 id. 145, and cases cited.)

The police power has its limitations. It cannot be arbitrarily exercised so as to deprive the citizen of his liberty or property, but a statute enacted under the power does not work such a result in a constitutional sense merely because it imposes burdens, abridges freedom of action or regulates occupations or subjects individuals or property to restraint in matters that affect the public interest and general welfare or the rights of others. Legislation under the police power only infringes upon the constitutional guarantees when it extends to subjects not

within its scope as that power was defined and understood when the Constitution was adopted. (Cases cited supra.)

It is a well-settled principle that the Legislature has the power to enlarge the catalogue of public nuisances and to declare places or property used or possessed to the detriment of the public interest or to the injury of the health, morals or welfare of the community public nuisances. 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. (Lawton v. Steele, 119 N. Y. 226.)

The exercise of the police power may incidentally affect property rights, and according to established usages and recognized principles familiar to courts, even these powers are not without limitations, as they can be exercised only to promote the public good and are always subject to judicial scrutiny. (Forster v. Scott, 136 N. Y. 584, and cases cited.)

The defendant relies chiefly upon the case of Wynehamer v. People (13 N. Y. 378). In that case the indictment was for a violation of the Prohibition Act of 1855. The defendant was convicted and the conviction was affirmed by the Supreme Court. The Court of Appeals, however, reversed the judgment holding the entire act was unconstitutional because it substantially destroyed property rights in liquors owned at the time the act took effect. In deciding the case, however, the Court of Appeals distinctly held that it would be competent for the Legislature to pass such an act if it was plainly and distinctly prospective as to the property on which it should operate.

The only reported case in this state which considers the constitutionality of subdivision P of section 30 of the Liquor Tax Law is the case of People v. Blanchard (105 Misc. Rep. 401), in which a demurrer to an indictment for a violation of such subdivision upon the ground it was unconstitutional because defendants were deprived of their property in liquor without due process of law and their privileges abridged, was overruled. The court, in overruling the demurrer in the Blanchard case

66

(supra), says: Many decisions and legislative enactments since the Wynehamer case recognize that, in the exercise of the police power, the government may prohibit the sale or possession of liquors, as well as other kinds of property, without violating the Constitution, whenever such property was acquired."

The United States Supreme Court, in the case of Purity Extract & Tonic Co. v. Lynch (226 U. S. 192), in the opinion. delivered by Mr. Justice Hughes, said: "That the state in the exercise of its police power may prohibit the selling of intoxicating liquors is undoubted (citing cases). It is also well established that, when a state exerting its recognized authority undertakes to suppress what it is free to regard as a public evil, it may adopt such measures having reasonable relation to that end as it may deem necessary in order to make its action effective. It does not follow that because a transaction, separately considered, is innocuous, it may not be included in a prohibition the scope of which is regarded as essential, in the legislative judgment, to accomplish a purpose within the admitted power of the government (citing cases). With the wisdom of the exercise of that judgment the court has no concern; and unless it clearly appears that the enactment has no substantial relation to a proper purpose, it cannot be said that the limit of legislative power has been transcended. To hold otherwise would be to substitute judicial opinion of expediency for the will of the Legislature, a notion foreign to our constitutional system."

In the leading case of Mugler v. Kansas (123 U. S. 623), in passing upon the right of a state to prohibit the manufacture or sale of intoxicating liquors, and also upon the right of a state to prohibit any citizen from manufacturing for his own use intoxicating liquor, Mr. Justice Harlan, delivering the opinion of the United States Supreme Court, said "it is difficult to perceive any ground for the judiciary to declare that the prohibition by Kansas of the manufacture or sale, within her limits, of intoxicating liquors for general use there as a beverage is not