chaser may be compelled to answer under oath as to whether he made the purchase.1 XII. CONSTITUTIONALITY OF LAWS RESPECTING. License laws to be strictly § 1530. Legislative zeal has led to provisions in this relation. which have not infrequently provoked grave constitutional issues. Of these it is at present possible only to notice a few results. It will be generally conceded construed. that an act directing the forfeiture of intoxicating liquors without process of law is unconstitutional, on account of its summary and arbitrary disregard of the ordinary safeguards of trial.2 In Texas it has been ruled that an act is unconstitutional which provides that the indictment need not negative license. A similar decision was made in Maine, as to a statute which provided that a form of complaint for keeping with intent to sell should be good, without averring to whom the sale was to be made.1 In Vermont a contrary decision has been pronounced as to a statute providing that it shall be sufficient to allege "that the respondent became a dealer in intoxicating liquors without having license therefor." 5 In Massachusetts, as has just been seen, a statute declaring that delivery is primâ facie evidence of sale has been declared constitutional. So far as concerns the general question, laws which " assume to regulate only, and to prohibit sales by other persons than those who should be licensed by the public authorities, are but the ordinary police regulations such as the State may make in respect to all classes of trade or employment."7 But statutes which undertake altogether to prohibit the manufacture and sale of intoxicating drinks as a beverage have been held, by a majority of the judges of the Supreme Court of the United States, 1 Supra, § 179; Hill v. Spear, 50 N. H. 254; State v. Rand, 51 N. H. 361; Com. v. Downing, 4 Gray, 29; Com. v. Willard, 22 Pick. 476. Doran's case, 2 Parsons, 467; and State v. Bonner, 2 Head, 135, were under statutes making vendee specially responsible, in which case he cannot be compelled to answer criminating questions. See Whart. Crim. Ev. § 468. 2 Fisher v. McGirr, 1 Gray, 1. See Greene v. Briggs, 1 Curtis C. C. 311. Compare Life of Curtis, ii. 191. 8 Hewitt v. State, 25 Tex. 722; State v. Horan, 25 Tex. (Suppl.) 271. 4 State v. Learned, 47 Me. 426. 5 State v. Comstock, 27 Vt. 553. 6 Com. v. Wallace, 7 Gray, 222. 7 Cooley's Const. Limit. 581. to prohibit the sale of imported liquors in their original packages, and hence to conflict with the Constitution of the United States. It is otherwise when the original package is broken for use or retail. It was also held that a law of New Hampshire was not void which punished the sale in that State of gin bought in Boston, notwithstanding the gin was in the cask in which it was imported.2 2 Ibid. 1 License Cases, 5 How. 512, 574, Pond, 29 Conn. 479; People v. Haw631. ley, 3 Mich. 330; People v. Gallagher, 4 Mich. 244; Jones v. People, 14 Ill. 196; State v. Prescott, 27 Vt. 194; Lincoln v. Smith, Ibid. 328; Gill v. Parker, 31 Vt. 610. Compare Beebe v. State, 6 Ind. 501; Meshmeier v. State, 11 Ind. 484; Wynehamer v. People, 13 N. Y. 378." See also State v. Allmond, 2 Houst. 612; 1 Green's C. R. 304. " In Reynolds v. Geary, 26 Conn. 179, it was held that the state law forbidding suits for the price of liquors sold was to be applied to contracts made out of the State, and lawful where made. "It would seem, from the views expressed by the several members of the court in these cases, that the state laws known as Prohibitory Liquor Laws, the purpose of which is to prevent altogether the manufacture and sale of intoxicating drinks as a beverage, so far as legislation can accomplish that object, cannot be held void as in conflict with the power of Congress to regulate commerce, and to levy imposts and duties. And it has been held that they are not void, because tending to prevent the fulfilment of contracts previously made, and thereby violating the obligation of contracts. People v. Hawley, 3 Mich. 330; Reynolds v. Geary, 26 Conn. 179. "The same laws have also been sustained, when the question of conflict with state constitutions, or with general fundamental principles, has been raised. They are looked upon as police regulations established by the legislature for the prevention of intemperance, pauperism, and crime, and for the abatement of nuisances. Com. v. Kendall, 12 Cush. 414; Com. v. Clapp, 5 Gray, 97; Com. v. Howe, 13 Gray, 26; Santo v. State, 2 Iowa, 202; One House v. State, 4 Greene (Iowa), 172; Zumhoff v. State, Ibid. 526; State v. Donehey, 8 Iowa, 396; State v. Wheeler, 25 Conn. 290; Reynolds v. Geary, 26 Conn. 179; Oviatt v. "It has also been held competent to declare the liquor kept for sale a nuisance, and to provide legal process for its condemnation and destruction, and to seize and condemn the building occupied as a dram shop on the same ground. One House v. State, 4 Greene (Iowa), 172. See also Lincoln v. Smith, 27 Vt. 328; Oviatt v. Pond, 29 Conn. 479; State v. Robinson, 33 Me. 568; License Cases, 5 How. 589. But see Wynehamer v. People, 13 N. Y. 378; Welch v. Stowell, 2 Doug. (Mich.) 332. "And it is only where, in framing such legislation, care has not been taken to observe those principles of protection which surround the persons and dwellings of individuals, securing them against unreasonable searches and seizures, and giving them a right to trial before condemnation, that the courts have felt at liberty to declare XIII. UNITED STATES REVENUE LICENSE. § 1531. A license to retail liquors under the United States revenue laws, sustained by proof of payment of the revenue tax, is no defence to a prosecution under the state law for the illegal sale of intoxicating liquor.1 that it exceeded the proper province of police regulation. Hibbard v. People, 4 Mich. 125; Fisher v. McGirr, 1 Gray, 1. But see Meshmeier v. State, 11 Ind. 484; Wynehamer v. People, 13 N. Y. 378. "Perhaps there is no instance in which the power of the legislature to make such regulations as may destroy the value of property, without compensation to the owner, appears in a more striking light than in the case of these statutes. The trade in alcoholic drinks being lawful, and the capital employed in it being fully protected by law, the legislature then steps in, and, by an enactment based on general reasons of public utility, annihilates the traffic, destroys altogether the employment, and reduces to a nominal value the property on hand. Even the keeping of that, for the purposes of sale, becomes a criminal of fence; and, without any change whatever in his own conduct or employment, the merchant of yesterday becomes the criminal of to-day; and the very building in which he lives and conducts the business, which to that moment was lawful, becomes the subject of legal proceedings, if the statute shall so declare, and liable to be proceeded against for a forfeiture. A statute which can do this must be justified upon the highest reasons of public benefit; but, whether satisfactory or not, they address themselves exclusively to the legislative wisdom." Cooley's Const. Lim. 582 et seq. See, generally, State v. Lovell, 47 Vt. 493; Com. v. Clapp, 5 Gray, 97; Com. v. Fredericks, 119 Mass. 199; State v. Wheeler, 25 Conn. 290; State v. Wilcox, 42 Conn. 364; Metrop. Board v. Barrie, 34 N. Y. 657; People v. Commis. 59 N. Y. 92; Fell v. State, 42 Md. 71; Jones v. People, 14 Ill. 196; Streeter v. People, 69 Ill. 595; State v. King, 37 Iowa, 462; Rohrbacker v. Mayor, 51 Miss. 735; Hurl, ex parte, 49 Cal. 557. As to "local option " see Com. v. Weller, 14 Bush, 218; State v. Cooke, 24 Minn. 247. 1 Com. v. McNamee, 113 Mass. 12; Com. v. Sanborn, 116 Mass. 61. 341 CHAPTER XXV. RIOT, ROUT, AND UNLAWFUL ASSEMBLY. I. UNLAWFUL ASSEMBLY. Unlawful assembly is an assembly II. ROUT. Rout is attempt at riot, § 1536. III. RIOT. Unlawful Riot is a tumultuous disturbance of Such purpose is essential, § 1538. Riotous tumultuously to assert le gal right, § 1540. Riot Act need not be read, § 1541. Enough if individuals only are ter- Three or more persons are necessary System must be proved in order to introduce other riots, § 1547. Order of evidence is at discretion of court, § 1548. Force excusable in defence of home, § 1549. May be conviction of lesser offence, § 1550. IV. AFFRAY. Affray is a sudden free fight, § 1551. Quarrelsome words are no affray, § 1552. Otherwise as to wearing dangerous weapons with violent language, § 1553. Indictment must contain technical averments, § 1554. V. POWER OF MAGISTRATE IN DIS PERSING. Magistrate may disperse unlawful assembly, § 1555. VI. DISTURBANCE OF MEETINGS. Such disturbance indictable, § 1556. VII. WEARING CONCEALED WEAPONS. Indictable by statute, § 1557. VIII. MILITARY DRILLING, § 1558. I. UNLAWFUL ASSEMBLY. § 1535. AN unlawful assembly is an assembly of three or more persons who, with intent to carry out any common purassembly is pose, assemble in such a manner, or so conduct thembly threat- selves when assembled, as to cause persons in the neighening a tu-borhood of such assembly to fear on reasonable grounds an assem multuous disturb ance of public peace. that the persons so assembled will disturb the peace tumultuously, or will by such assembly needlessly and without any reasonable occasion provoke other persons to disturb the peace tumultuously. Persons lawfully assembled may become an unlawful assembly if they conduct themselves with a common purpose in such a manner as would have made their assembling unlawful if they had assembled in that manner for that purpose.1 In determining the question of terror, it has been said that the jury are to consider whether rational and firm men, in charge of families, would have, under the circumstances, cause for anxiety; and in testing this it is necessary to take into account the hour at which the parties meet, the language used by them, and the acts done. An unlawful assembly does not in itself involve any overt act. If overt acts of violence are attempted, the offence is a rout; if such acts of violence are executed, the offence is a riot. II. ROUT. § 1536. A rout is an attempt at riot made by an unlawful assembly. Such preparatory steps must have been taken as would lead, if carried out, to a riot. At least three persons are essential to constitute the offence.3 66 1 The definition in the text is taken from the Draft Report of the English Commissioners of 1879. See article on Riot," &c., Am. Law Mag. for July, 1844; 2 West. L. J. 49; R. v. Hunt, 1 Russ. on Cr. 388; R. v. Hunt, 3 B. & A. 566; R. v. Hughes, 4 C. & P. 373; R. v. Birt, 5 C. & P. 154; R. v. Neale, 9 C. & P. 431; 4 Penn. L. J. 31. For an exposition of the difference between unlawful assembly and riot see R. v. Kelly, 6 Up. Can. (C. P.) 372, where a conviction of riot was set aside on proof that there was no overt act of public disorder. Rout is attempt at riot. Sir J. Stephen thus illustrates the guage as to lead persons of ordinary topic in the text: "Sixteen persons meet for the purpose of going out to commit the of fence of being by night, unlawfully, upon land, armed in pursuit of game. This is an unlawful assembly. R. v. Brodribb, 6 C. & P. 571. The meeting in this case was in a private house. firmness and courage in the neighbor- 2 R. v. Vincent, 9 C. & P. 91. |