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was in Church, though the former sometimes "talked politics" when not on the bench; but Chief Judge Church never did. He did not possess the salient mental qualities, the striking, unique, original mind that gave such interest to the character of Martin Grover. But the ability of Church exhibited a more steady, commanding power. The frankness with which Grover expressed his opinion upon all occasions was not acceptable to many, and if he did not thereby incur their hostility, he certainly failed to attach them to him as friends. His ambition, conceit and egotism, though tempered by plausibility and good sense, were not among the characteristics of Church, or if they were he held them under better control.

Grover had a constitutional buoyancy, an elasticity of mind that could not subside into repose nor rest on one side of a question. By a sort of mercurial habit, he anticipated an argument, foreshadowing his opinion in advance,

As a speaker at the bar, in the popular assembly, he was always singularly attractive. He had the faculty of weaving, with great effect, words into any form he pleased, and he ranked with the most eloquent men of his day. If occasion required he had wit, sarcasm and ridicule at his commaud, which he used with the spontaniety and art of Randolph.

In the early professional career of Martin Grover his contempt of mode and fashion in regard to dress rendered him as famous as did his acknowledged talents. For many years he was termed -not inappropriately -"the ragged lawyer." As his means were ample it is difficult to find any satisfactory explanation for the dilapidated dress in which he always appeared in those days. It has been suggested that he adopted it to gain notoriety. But as "the apparel oft proclaims the man," Grover was frequently subjected to embarrassments, resulting from his apparel.

On his first appearance at the General Term of the Supreme Court, then sitting at Rochester, he took his seat within the bar. The sheriff, believing him a man of all work from some farm in his every-day dress, informed him that he was in the place designed for lawyers only, requesting him to take a seat outside with the spectators. Grover assured him that he was a lawyer. Declining to believe this, the sheriff was on the point of resorting to more urgent measures for the removal of the intruder, when the late Governor Young, who knew Grover, informed the official that he was addressing Martin Grover. "What, the ragged lawyer?" asked the sheriff. "It is Mr. Grover, from Angelica, and he is a very eminent lawyer," said Young. "Then why don't he dress like an eminent lawyer?" muttered the sheriff as he was leaving the bar.

When, in 1845, Judge Grover took his seat in Congress, he was an object of general interest. But he had learned the truth of the Roman poet, Juvenal's remark, pluriuma sunt quæ non andant homines pertusea dicere lana-" there are many things which a man in a ragged coat dare not say "- and few members of the twenty-uinth Congress were more tastefully dressed than Judge Grover.

In the stormy, exciting debates of that Congress he took a conspicuous part. His powers in debate exceeded the expectation of his friends. A prominent feature in his congressional career was his political and intellectual independence. As was said of Edward Burke, "he leaned on no other man's understanding, however great, and in the true sense of the term, he never borrowed an idea of an image. The impression he made was owing, in a great degree, to the remoteness of the ideas he brought together, the startling novelty and yet justness of his combinations,

the strong power of his contrasts." He believed, with many leading northern Democrats, that the extreme limits of justifiable concession to slavery had been reached, and he ardently sustained the Wilmot proviso. In the memorable discussion on Dixon H. Lewis' motion to strike the proviso from the original resolution, Grover greatly exasperated that powerful adherent of the nullifying doctrine of Calhoun.

When Grover was addressing the House in support of the proviso Lewis rose in his place, exclaiming, "I desire to say to the gentleman that the principles he is advocating will compel the south to a course that will astound him and all adherents to such incendiary sentiments!" "May I ask what the gentleman thinks the south will do?" asked Grover. "It will dissolve the Union, sir!" "Dissolve the Union, will you? Let me tell the gentleman, and all the south, that when the the south attempts to dissolve the Union, the southern people, after an awful drubbing, will find out that the Union is of a great deal more consequence to them than they are to the Union."

Denunciatory cries, threatening gestures and hisses on one side of the House, cheers and applause on the other, followed this bold and somewhat prophetic retort.

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As politicians, Church and Grover knew how to "catch the tunes of the times;" both exercised a controlling influence on public opinion and affairs. But their manner of doing this widely differed. Church, while attaining this object, gained the respect and confidence of the people. Apparently he did not exert the skill of the politician, but wielded the influence of a patriot. Grover compelled the attention and support of the people by his versatility and singular knowledge of the sovereigns, as he always called the people, and his artifice in approaching them with the ambiguous, guarded language of the schooled politician. He did not possess the sincerity of manner and the impressive bearing of Church. And yet no man at heart was more sincere, more conscientious, more fearless in supporting the right, than Martin Grover. It has been alleged that he was not a close student, not extensively or deeply read in the learning of his profession. This is a mistake. Few men read more industriously, more profoundly, than Grover.

In his student days and in the earlier years of his practice, he emphatically "o'er books consumed the midnight oil." Later in life, amid his engrossing professional and judicial duties he found time to devote to legal reading and to the more solid literary productions.

His favorite authors were Voltaire, Junius, Swift and Pope. We have sometimes thought he drew his powers of eloquent vituperation from these writers. He used to say that Pope's attack on the Earl of Wharton was not equaled in the language of sarcasm, not even by the attack of Junius on Sir William Draper or the famous diatribe of Voltaire on Maupertius, and he defended Voltaire from the charge of infidelity with singular ingenuity.

His memory may be compared to a capacious store-house. He was a delightful talker. His conversation was blended with flashes of wit and merriment, and his laugh was electrical. The artist who painted his portrait, now in the room of the Court of Appeals, by a happy thought, represents his features lighted up and animated in conversation.

It was one of his faults, however, to engross the whole conversation. We recall a remark of the late A. P. Lanning, of Buffalo, a particular friend of Grover: "Grover is a fine talker," he said, "if you will allow him to do all the talking himself, but I should like to see the man whose lungs are strong

enough to break in upon him when fairly under way in his talk."

The portrait of Chief Judge Church in the same room, not far from Judge Grover's, looks down from the "speaking canvass," as though intently listening to an argument. It is excellent in pose, in execution, and in truthful representation of its distinguished orig. inal. Around it are the portraits of the many eminent jurists who once occupied the bench of our great court of last resort, and who like him, have left the scenes of earth The effect these beautifully executed paintings produce on the mind is singularly impressive, causing the spectator to reverently acknowledge the "oracles of art."

Judge Grover bad a much more extended experience on the bench than Chief Judge Church. As he was elected a justice of the Supreme Court in 1857, he had been on the bench thirteen years when Church assumed his judicial duties. It is no exaggeration to say that Martin Grover's judicial career was successful. As a judge at nisi prius, he was happily adapted to the task of disentangling complex questions of law and fact. Though he did not escape some criticism, he was very popular with a great majority of the members of the bar.

The large number of opinions written by him when a judge of the Supreme Court and of the Court of Appeals exhibit the extent of his labors; they are marked by a sure indication of an elevated mind. Their style is plain and succinct. If it is wanting in polish, it is strong in argument. His judgment was always open to appeal, and be acknowledged no finality in his opinions.

Both Grover and Church regarded the members of the bar with great respect. As the friends of the court, both had great contempt for those who brought discredit upon it by sharp practice and trickery, but Church had a different manner of expressing his contempt. As he never presided at the Circuit, he saw less of sharp practice and trickery in lawyers than Grover.

Grover's address to his first grand jury impaneled at Buffalo was much admired, and it outlined his views of the judiciary, the bar and juries.

"While the administration of the law flows in pure channels; while judges are incorruptible and independent, and are watched by the scrutinizing eyes of an enlightened bar, and by the jealous circumspection of the people; while jurors continue to know and to exercise their high functions with diligence, honor and purity, our safety will be beyond the reach of demagogues, corrupt politicians and their venal allies in Legislatures, who are responsible for the existence of the putrid lobbies that surround them."

The manner of these eminent judges differed on the bench. While it cannot be said that Grover was really wanting in judicial dignity, his humor, his wit, and his overflowing good nature often brought expressions that convulsed the bar with laughter. Many of them have gone into legal history. Some of them were witty, condensed expressions of learning. If counsel indulged in too many excursions of eloquence, if it was apparent that he was talking for effect, the manner in which Grover would, by some quick, good-natured sarcasm, rebuke him was always effective, while it left no sting with it. A record of his judicial repartees and humorous remarks to counsel would fill a volume.

The manner of Chief Judge Church on the bench was a model of judicial dignity and courtesy. "Whether

the counsel was eminent or little known, he listened with the same attention and respect. He was endowed by nature with patience that was never surpassed; patience to hear that which he knew already, that which he disapproved, that which he questioned." His opinions will always be regarded as valuable con

tributions to legal learning. Though without any display of learning, they rank among the most learned of modern judicial opinions. As we have seen, both Church and Grover went to the bench ardent contestants in the political arena-champions of their party, fresh from fields of political strife - yet so effectually did they ignore the sword and shield of partisan warfare, that none of their opinions were ever warped by political influence: and their success was attained by no sacrifice of integrity or of judicial independence. Their biographer is spared the duty of making unpleasant deductions from their characters. Their faults are so easily eliminated that they leave no stain; and any candid, truthful review of their character is of itself the highest eulogy. To both we may apply the Roman maxim, sed sine labe decus; honor without stain. L. B. PROCTOR.

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CONSTITUTIONAL LAW - EXCISE-LOCAL OPTION.

GEORGIA SUPREME COURT, MAY, 1887.

MENKEN V. CITY OF ATLANTA.

1. As long as the owner of liquors retains possession of them, intending to deliver them on an uulawful contract of sale, such possession is within a municipal ordinance which prohibits the keeping of such liquors for unlawful sale. An agent having the actual possession, and participating in the unlawful purpose is equally guilty with his principal. 3. That the offender will be liable to prosecution under a statute for unlawful selling, when the sale is consummated, will not hinder his being punished under the ordinance for keeping for unlawful sale.

4.

5.

The local option legislation of this State being constitutional as a valid exercise of the police power, it follows that the incidental effect upon the value of property, such as a brewery and its fixtures, resulting from the inability of the owners to adjust their old business to the new law, is damnum absque injuria. The law does not take or damage their property for the use of the public, but only prevents them from taking or damaging the public for their use.

The express saving of vested rights in the local option act embraces previously acquired rights to sell by virtue of license already taken out and paid for, but comprehends no right either to obtain new license, or to sell without license, whether on the part of natural persons or corporations. The act is not a scheme for stopping the sale of liquors by natural persons, but leaving the business to be carried on by chartered companies

BLECKLEY, C. J. The statute of this State known as the local option law was passed September 18, 1885. Session Laws 1884-5, p. 121. It took effect in Fulton county, the county in which the city of Atlanta is located, as the result of a popular election held for that county, as the act prescribes.

The act declares, under certain penalties, that "it shall not be lawful for any person within the limits of such county to sell or barter for valuable consideration, either directly or indirectly, or give away or induce trade at any place of business, or furnish at other public places any alcoholic, spirituous, malt or intoxicating liquors, or intoxicating bitters, or other drinks which if drank to excess will produce intoxication." The manufacture, sale and use of domestic wines or cider, the sale of wines for sacramental purposes, and the sale or furnishing by licensed druggists of pure alcohol for medical, art, scientific and mechanical purposes are excepted from the operation of the statute, save that wines or cider shall not be sold by retail in bar-rooms.

This act being in force, the city of Atlanta, on the

21st of June, 1886, by the mayor and general council, passed an ordinance declaring "that on and after the first day of July, 1886, any person, firm or corporation who shall keep for unlawful sale in any store, house, room, office, cellar, stand, booth, stall, or other place, any spirituous, fermented or malt liquors, shall on conviction be punished by fine not exceeding $500 or imprisonment not exceeding thirty days, either or both, in the discretion of the court."

Menken, the plaintiff in error, was tried, convicted and fined for a violation of this ordinance, in September, 1886, upon a charge of keeping for unlawful sale spirituous and malt liquors. He petitioned the judge of the Superior Court in due form, for a writ of certiorari, which was denied, and this denial is the error assigned.

At his trial in the municipal court, Menken made affidavit of certain alleged facts, which affidavit the prosecution conceded to be true. The material contents of the affidavit were substantially as follows:

When arrested, Menken was acting as agent of the Atlanta City Brewing Company, a corporation organized under a charter from the Legislature authorizing it to manufacture and sell malt liquors. As such agent he was in possession of bottled beer which he was delivering at the residences of citizens of Atlanta for private use of such citizens, in quantities of a quart and more. The beer was the property of the corporation, and he was acting simply as its hired agent. The charter of the corporation was granted long before the passage of the local option law. Under this charter several years ago, and whilst it was lawful to manufacture and sell malt liquors in the city of Atlanta and elsewhere in Georgia, the corporation invested in its beer manufactory $125,000, to-wit: real estate, $3,100; buildings, $18,000; bottling bouse and machinery, $7,000; vaults, $50,000; vats and tanks, $15,000; springs, $2,000; general machinery, $20,000; kegs and half barrels. $9,900. This large investment is so specialized and localized that it is available alone at the place where the brewery is situated and for the one special business. Except for the brewing business, the whole property, though costing $125,000, is not worth more than $16,000. A brewing business in Atlanta cannot be conducted so as to compete with establishments of the west without a market for fresh beer in and near the city, and the course of dealing is such that sales, even on orders for shipment by railway, have to be consummated within the city, if made at all. To prohibit delivery of beer in the city will necessarily stop the business of the corporation, and take from it and its stockholders their property, to the value of over $100,000.

In addition to what Menken stated in his affidavit, it appeared that he was arrested while in the act of delivering some bottles of beer at the house of one Bliley, in the city of Atlanta, and that he had already fold the same to Bliley. Bliley himself, testified that he purchased a number of bottles of beer from the Atlanta City Brewery, which he ordered delivered at his house, and that afterward delivery was made accordingly.

1. Though the accused was not the owner of the malt liquors in which he dealt, we may for the present treat him as owner, and consider the question of agency afterward. It does not appear from his affidavit whether his occupation was only to deliver on past orders or whether it was partly that and partly to obtain orders and deliver at the time of receiving them. Of course, his affidavit is to be construed most strongly against him, as to any thing which ought to have been denied, or which naturally would have been denied, if not true. The testimony outside of his affidavit shows with reasonable certainty that in one instance they

took the order, and made the delivery afterward. But treat the case in either aspect. If he had possession of these liquors to deliver them in the city on future orders, it would be possession for unlawful sale, and if to deliver on past orders, it would be possession for the consummation of unlawful sale. The title to beer ordered in a city for family use would not pass until actual delivery to the customer, unless delivery were dispensed with by express contract. Certainly it would not pass where the seller undertook to make delivery at the residence of the buyer. Destruction of the article whilst on the way would be the loss of the seller, and any conversion of it or injury done to it by another, would give the seller a right of action, but none to the buyer. So long as the owner retains possession for the purpose of consummating a sale, past or future, he should be regarded as keeping the article for sale. The property is his, the possession his, and they remain his until delivery is made in pursuance of the contract of sale. Accordingly, we hold that so long as the owner of liquors retains possession of them, intending to deliver them on an unlawful contract of sale, such possession is within a municipal ordinance which prohibits the keeping of such liquors for unlawful sale.

2. That the accused was not the owner, but only the hired agent of the owner is no excuse for him. The agent's possession is that of the owner; and if the agent participate in the unlawful purpose, he is equally guilty with his principal. In dealing with crime the law gives no heed to a plea of agency. In criminal transactions all voluntary agents are accomplices.

3. The position of counsel that the city cannot, with or without an ordinance for the purpose, punish as an offense against the municipality any thing which by statute is an offense against the State, is quite sound. But the statute, though it makes the unlawful sale of liquors an offense, does not make the keeping of them for unlawful sale an offense. The ordinance does the latter but not the former. It hovers on the margin of the statute, and no where overlaps the text. If there is keeping for unlawful sale the ordinance is violated, whether any sale is made or not. In case a sale ensues, the statute is also violated; but this does not cancel the violation of the ordinance. An offense committed against one jurisdiction cannot be wiped out by committing another against another jurisdiction. The only object of the ordinance is to prevent preparation for violating the statute. It would be singular if those who prepare but go no further, could be punished under the ordinance, while those who prepare and then go on to violate, could not. So.to rule would be like holding that to carry a pistol concealed is an offense only when there is nobody shot. That an offender will be liable to prosecution under the statute for unlawful selling, when a sale is consummated, will not hinder his being punished under the ordinance for keeping for unlawful sale. Mayson v. The City of Atlanta, Nov. Term, 1886.

4. If it has not been heretofore sufficiently decided, we decide now that the local option legislation of this State is constitutional as a valid exercise of the police power. Historically considered, there is no subject. more completely amenable to this power than the sale of intoxicating liquors. Georgia is upon record as being familiar with the exercise of the power, both before and since the Revolution. Her governing authorities long ago branded distilled spirits as dangerous" to the public, and even malt liquors have from the dawn of her history been subjected to some degree of public control.

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Oglethorpe, the founder of the colony, was instrumental in procuring the passage of an act "to pro

hibit the importation and sale of rum, brandy, and other distilled liquors within the limits of Georgia." As early as November, 1733, the common council, "resolved that the drinking of rum in Georgia, be absolutely prohibited, and that all which shall be brought there be staved." Jones' History, vol. 1, p. 189. Amongst the inducements held out by the trustees, in 1735, to attract emigration to the province, was the following: "Negroes and rum are prohibited to be used in the said colony." Id. 195. A curious and minute observer, writing of Savannah says: "They have some laws and customs peculiar to Georgia, oue is that all brandies and distilled liquors are prohibited under severe penalties; another is that no slavery is allowed, nor negroes." Id. 220. It seems that the policy of excluding negroes and rum continued until 1749, and was then abandoned under a strong pressure from the inhabitants. Id. 419-427. These two "coutrabands" being admitted into the colony, it soon became necessary to regulate their intercourse with each other, and it was provided by statute that any person selling to a slave without the consent of his owner or manager, beer or any spirituous liquors was subject to a fine of twenty shillings for the first offense, and double that amount for the second. Id. 482. It should be stated that during the period of exclusion, the authorities placed no restriction upon the moderate use of English beer and the wines of Madeira. "With these the trustees' stores at Savannah were regularly supplied, and the magistrates there were empowered to grant licenses for retailing beer both of foreign manufacture and home brewing." Id. 189.

Thus much for the exercise of the police power over the liquor traffic under the early colonial government. I turn now to an act passed by this State in December, 1791, the sixteenth year of Independence, found in Watkins' Dig. 453. This act provides that "any person wishing to keep a tavern or house of entertainment shall petition the justices of the inferior court held for the county where such petitioner resides, and the court to whom such petition shall be exhibited shall thereupon consider the convenience of such place intended for a tavern, and having regard to the ability of such petitioner to keep good and sufficient accom. modation for travellers their horses and attendants, may at their discretion grant a license to such person or persons, for the term of one year next ensuing the date of such license, and from thence to the next inferior court held for the said county, and no longer; which license, upon petition, may be renewed from year to year. if the court think proper." The act then goes on to require the recipient of a license to enter into bond with security; to require the justices of the inferior court to establish annually the rates and prices to be paid at taverns for liquors, diet, lodging, provender, stabling and pasturage; and to prescribe a penalty or forfeiture for demanding and receiving prices above the rates so established. It then provides "that if any person shall presume to keep a tippling house, or retail liquors, or sell by retail any wine, beer, cider, brandy, rum, or other spirits, or any mixture of such liquors, in any house, booth, arbor, stall or other place whatsoever, without license first obtained as aforesaid, he or she so offending and being thereof convicted, shall forfeit and pay the sum of ten pounds, onehalf to the informer and the other to the use of the county. Provided always, that nothing herein contained shall extend to prohibit any merchant from retailing liquors not less than one quart; nor to prevent any planter or other person from disposing of such brandy, rum or whiskey, as they may make from their own grain, orchards, or distilleries, so that it be not sold in a less quantity than one quart, nor drank or intended to be drank at the house. store

or plantation where the same shall be so sold, except in the counties of Chatham, Liberty and Effingham, wherein it shall not be lawful for any merchant to dispose of any quantity less than one gallon." The fee for each license is fixed at two pounds, to be paid by the applicant. The act concludes with a repealing clause as to all prior acts on the same subject, and adds a proviso saving to the corporations of Savannah and Augusta the sole regulation and power of governing and directing taverns and granting licenses within their several jurisdictions. This act, by its whole tenor aud tone, is assertive of plenary power over its subject.matter. It confines to licensed innkeepers the right to sell in quantities less than one quart; it denies to all others, except merchants and producers, the right to sell at all by retail, it denies to producers the right to sell at all for consumption on the premises where sale is made; it discriminates between places in fixing the minimum quantity which merchants are allowed to sell, limiting the quantity to one gallon in three counties, and to one quart in the other counties of the State; and it leaves to the corporate authorities of Savannah and Augusta complete local jurisdiction, so far as sale at taverns in these cities is concerned. Observe also that the mild beverages, wine, cider and beer, are embraced in this act, as well as the more fiery fluids, brandy, rum, whiskey, etc.

The licensed sale of liquors continued to be a branch of the hotel business exclusively, until 1809. In that year the Legislature provided that an applicant might obtain license to retail liquors without being obliged to keep other public entertainment. Prince's Dig. 840. Whilst various other modifications of the old act of 1791 have been made, yet the Legislature of this State has ever held, and still holds, with a firm and steady hand, police control over intoxicating liquors. Several public and numerous local acts on the subject. of more or less importance, might be cited, but it is unnecessary. Until recently, the tendency has been to tolerate liquors and temporize with their misbehavior, but now there is a disposition to turn most of them once more out of the State. The local option law is the result, and it simply empowers each community to protect itself, not indeed against the presence or consumption of liquors, but against the sale or distribution of them within the given locality. In the nature of things, this cannot be done without affecting unfavorably the business interest of the makers of the proscribed articles, and of those who deal in them.

According to the record before us, the effect upon the Atlanta City Brewing Company has been calamitous in the extreme. Out of an investment of $125,000, the loss of the company has aggregated over four-fifths of that amount or will do so if the law is upheld and enforced. We treat the record, in this respect, as importing verity for the purposes of a decision of the case. Moreover, we make no question, as corporations can only carry on their business through officers and agents, that the plaintiff in error can avail himself of this loss as a defense to the same extent (no more and no less), as the corporation might, were it a natural person and under a like penal charge. It is quite certain that the law makes no provision for compensating the corporation for this immense loss or any part of it, and on that account, the constitutionalty of the act is denied. The provisions of the Constitution of the United States which it is supposed to violate are as follows: "Nor shall any person * * be deprived of life, liberty or property without due process of law. Nor shall private property be taken for public use without just compensation. Nor shall any State deprive any person of life, liberty or property without due process of law." And those of the State of Georgia (in addition to a provision like the first one above

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cited), are as follows: "Private property shall not be taken or damaged for public purposes without just and adequate compensation being first paid."

Has the corporation been deprived of its property? Or has its property been taken? Or has its property been damaged? If these questions can all be answered in the negative, the objection fails. Of course, the deprivation, the taking, the damaging, must be in a legal sense, not in a loose popular sense; and the inquiry is about the brewery, not the beer. Where there is no deprivation of title, or of possession, or of use (including the jus disponendi), it cannot be said with legal propriety that the owner is deprived of his property. Here there is no invasion or abridgment of the title, possession or use of this brewery, or the right to dispose of it. All these stand and remain precisely as they were before the law complained of was enacted. This being so, the question as to deprivation must be answered in the negative. For the same reason, the question as to taking must also be answered in the negative. Taking is only one mode of deprivation. Nothing can be more manifest, than that none of the plant or investment of this corporation, real or personal has been taken.

The remaining question is, whether the property has been damaged within the true intent and meaning of the State Constitution? There has been no physical interference with the brewery, no trespass or tort upon it, no change in its physical surroundings, or in the means of ingress and egress. It is as sound and complete in every respect, and as fit for enjoyment, use and disposition with this law in force as it would

be without it. No doubt its value is greatly impaired, and impairment of value is often the essence of legal damage. No doubt too, that the impaired value of this property is a remote consequence of the law, and that were the law repealed the value would be reinstated as it was before. But while to lessen the value of property by changing its physical condition, or by subjecting it directly to new physical conditions of a hurtful character is to damage it, to reduce its value indirectly and incidentally by the casual effects of a law passed for a wholly different object, is not to damage it, within any legal or constitutional sense of the term. Rarely, perhaps, does any new law which acts with vigor upon commerce, local or general, fail to impair the value of more or less property. Surely the damage clause in our new Constitution was not intended to make the State or the Legislature an insurer against all shrinkage of values that might result

from the passage of laws intended for the public good. Can it be seriously thought that the State must literally pay its way to the establishment of a sound and wholesome system of internal police and public order? The local option law rests in no degree upon the power of eminent domain. It does not contemplate either the taking or the damaging of any thing. It is an exercise of the police power of this Commonwealth, pure and simple. The incidental effect upon the value of this brewery and its fixtures result not from any interference with the property but solely from the inability of the owners to adjust their old business to the new law. These effects if they can be called damage at all, are damnum absque injuria. The law does not take or damage the property of these owners for the public use, but only prevents them to a certain limited extent, from taking or damaging the public for their use. This is their real grievance, and for that they have no remedy. Where business and law conflict it is the business that must give way, not the law.

5. A question raised on the construction of a particular clause of the act, remains to be considered. It is the clause, in the fourth section, which saves vested rights. The rights contemplated, we think, are pre

viously acquired rights to sell by virtue of license already taken out and paid for. The saving comprehends no right either to obtain new license after the act has gone into effect, or to sell without license, whether on the part of natural persons or corporations. The act is not a scheme for stopping the sale by natural per sons, and leaving the traffic to be carried on by chartered companies. The charter of this company was granted in 1876, and was therefore subject to modification, as declared in the Code, § 1682. Judgment affirmed.

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Marshall Montgomery, State's attorney, H. C. lde and Alex. Dunnett, for State.

POWERS, J. Although authorities can be found that lay down the rule that felonies and misdemeanors, or different felonies cannot be joined in the same indictment, still the rule in this and most of the States is otherwise.

It is always and everywhere permissible for the pleader to set forth the offense he seeks to prosecute in all the various ways necessary to meet the possible phases of evidence that may appear at the trial. If the counts cover the same transaction, though involving offenses of different grade, the court has it in its power to preserve all rights of defense intact. Commonwealth v. McLaughlin, 12 Cush. 612; State v. Lincoln, 49 N. H. 464; State v. Smalley, 50 Vt. 736; State v. Thornton, 56 id. 35; Rex v. Ferguson, 2 Stark. 489. Moreover the motion to quash is addressed to the discretion of the court, and its refusal is not the sub

ject of revision here. Commonwealth v. Eastman, 1 Cush. 189; Commonwealth v. Ryan, 9 Gray, 137; 1 Whart. Crim. Law, § 519.

The respondent's counsel argue that the first and second counts do not cover the offense of criminal conspiracy at common law. But we think, upon a careful examination of the English and American cases cited in argument, and we suspect that none have been overlooked on either side, that it is clear to a demonstration, that a combination of the character set forth in these counts was a conspiracy at the common law; and further, that the subject-matter of the offense being the same in this country as in England, namely, an interference with the property rights of third persons, and a restraint upon the lawful prosecution of their industries as well as an unlawful control over the free use and employment by workmen, of their own personal skill, and labor, at such times, for such prices, and for such persons, as they please, the common law of England is "applicable to our local situation and circumstances " in this behalf, and is, therefore, the common law of Vermont.

In England and here it is lawful, and it may be added commendable, for any body of men to associate themselves together for the purpose of bettering *See 35 Alb. L. J. 208: 224; 348.

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