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...