Wynehamer v. People of New York 13 N.Y. 378 (1856)

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WYNEHAMER v. PEOPLE OF NEW YORK 13 N.Y. 378 (1856)

Although out of joint with its times, Wynehamer became a classic case of pre-1937 American constitutional history, exemplifying our constitutional law as a law of judicially implied limitations on legislative powers, drawn from the due process clause for the benefit of vested rights. The case involved the constitutionality of a state prohibition act. More than a dozen states had such legislation before the Civil War. The New York law involved in Wynehamer prohibited the sale of intoxicating liquor and the possession of liquors for sale, and it ordered the forfeiture and destruction of existing supplies as public nuicances. The fundamental issue raised by such legislation was whether property which had not been taken for a public use could be destroyed in the name of the public health and morals, without any compensation to the owner. Everywhere, except in New York, the state courts held that a mere license to sell liquor was not a contract in the meaning of the contract clause, and that a charter to make and sell liquor was subject to the reserved police power to alter, amend, or repeal it. Moreover, liquor, like explosives or narcotics, was a peculiar kind of property, dangerous to the public safety, morals, and health. Legislatures could never relinquish their control over such matters, not even by a contract in the form of a charter. As Chief Justice roger b. taney had said in the 1847 license cases, nothing in the United States Constitution prevented a state from regulating the liquor traffic "or from prohibiting it altogether."

The New York Court of Appeals, however, held the state prohibition statute unconstitutional on the grounds that it violated the due process clause of the state constitution. The various opinions of the state judges used the novel concept of substantive due process about half a century before the Supreme Court of the United States accepted that concept. The conventional and previously sole understanding of due process had been that it referred to regularized and settled procedures insuring mainly a fair accusation, hearing, and conviction. And, the doctrine of vested rights notwithstanding, the orthodox view of the police power authorized the legislature, as Chief Justice lemuel shaw of Massachusetts had said, "to declare the possession of certain articles of property … unlawful because they would be injurious, dangerous, and noxious; and by due process of law, by proceeding in rem, to provide both for the abatement of the nuisance and for the punishment of the offender, by the seizure and confiscation of the property, by the removal, sale or destruction of the noxious article" (Fisher v. McGirr, 1854). Accordingly the opinion of the New York court was startling when it said, "All property is alike in the characteristic of inviolability. If the legislature has no power to confiscate and destroy property in general, it has no such power over any particular species." The court showed that the prohibition statute simply annihilated existing property right in liquors. The crucial lines of the opinion declared that the right not to be deprived of life, liberty, or property without due process of law "necessarily imports that the legislature cannot make the mere existence of the rights secured the occasion of depriving a person of any of them, even by the forms which belong to "due process of law.' For if it does not necessarily import this, then the legislative power is absolute."

Thus even if the legislature provided all the forms of due process by laying down proper procedures for prosecuting violators of the statute, as in this case, due process had still been denied. The court, in effect, looked at the substance of the statute, found it denied persons of their property, and then held it unconstitutional for denying "due process," even if it did not deny due process. One can make sense out of this by realizing that the court had rewritten the due process clause to mean that property cannot be deprived with or without due process. The Court in effect redpenciled the due process clause out of the constitution, or as edward s. corwin said, Wynehamer stands for "nothing less than the elimination of the very phrase under construction from the constitutional clause in which it occurs." The difficulty, however, is that the court had to its own mind kept and relied on the due process clause. It added a new meaning to supplement the old one. It constitutionally changed process into substance by holding that the statute's infirmity lay in what it did, not how it did it. Due process as a substantive limitation on legislative powers was then an absurd concept. Substantive process was oxymoronic, like thunderous silence.

Another way of understanding Wynehamer 's substantive due process is to realize that the court believed that due process had substance. The court in effect accused the legislature of retaining the forms of due process without its substance, that is, of providing mere empty formalities and labeling them due process, because the effective deprivation of property was not by judicial process but by legislative fiat.

Wynehamer, an aberration at the time, was everywhere repudiated yet destined for ultimate acceptance by the highest court of the land and destined, too, to become the source of a major doctrine in American constitutional history.

Leonard W. Levy
(1986)