Opinion of the Court.

When attacked collaterally, should this judgment be held valid? The cognovit is in plain excess of the authority given by the warrant of attorney. It is not only the rule applicable to this case that, in entering up judgment on a warrant of attorney the authority given by it must be strictly pursued, but it is a rule applicable to all cases of special agency, that an agent constituted for a particular purpose, and under a limited power, can not bind his principal if he exceeds that power. The special authority must be strictly pursued. 2 Kent's Com. 621.

Lord COKE has laid down the rule in the following terms: "Regularly, it is true, that where a man doth less than the commandment or authority committed unto him, the commandment or authority not being pursued, the act is void. And where a man doeth that which he is authorized to do, and more, then it is good for that which is warranted, and void for the rest. Yet, both these rules have divers exceptions and limitations." Co. Litt. 258 a. Judge Story, in his work on Agency, sec. 166, says that Lord COKE is well warranted in suggesting that there are exceptions and limitations. "Where there is a complete execution of the authority, and something ex abundanti is added, which is improper, then the execution is good, and the excess only is void. But where there is not a complete execution of a power, or where the boundaries between the excess and the rightful execution are not distinguishable, then the whole will be void." Citing Harg. note (202) to Co. Litt. 258 a; Alexander v. Alexander, 2 Vesey, 644; Com. Dig. Attorney c, 15; Livermore on Ag. Ch. 5, sec. 1, p. 101, 102, (Edit. 1818.)

It is not necessary here to determine whether the boundary between the excess and the rightful execution are so far distinguishable in this case as that the cognovit should be held valid to the extent of the amount for which the attorney was authorized to confess judgment, because the clerk, not possessing judicial power, had no authority to determine that

Opinion of the Court.

question. He acts only as a ministerial officer. The plea of cognorit actionem was one of the papers to be filed, and was indispensable to his authority to make the entry of judgment, and when filed he must enter the judgment for the amount confessed, or not at all; because if he does not follow the cognovit as to the amount for which judgment is to be entered, that amount must be ascertained by an assessment of the damages, which requires the exercise of judicial functions by hearing and passing upon evidence, with which power, under our constitution, he can not be vested. To enter the judgment which was entered in this case, the clerk must first have decided that the cognovit was void as to the excess over the amount actually due, and then proceeded to ascertain from evidence what the amount actually due was. So it is the same, in legal effect, as if he had proceeded to enter judgment upon the warrant of attorney, itself, without any cognovit at all. The warrant of attorney is one thing, and the cognovit quite another; both were indispensable to the authority of the clerk to enter judgment. He must look to the cognovit alone for the amount, and has no capacity to determine it from evidence, which he must have done in this case. It is unnecessary, perhaps, to observe that, if the judgment had been entered in court at a term, very different consequences would attach; but the proceeding having been in vacation, conducted under a special statutory authority by a mere ministerial officer, we must hold that the entry of this judgment in the manner stated was simply void.

If the judgment and execution were void, it follows, of course, that neither McCune, the plaintiff in the execution, nor the sheriff, had any lawful authority to exercise control over the chattels in question, or to question the sufficiency of their delivery to appellants under the contract of purchase between them and Wood, the supposed judgment debtor. The sale was good as between the parties, and the contract gave them the right of possession.

16-61ST ILL.

Syllabus.

It is the opinion of a majority of the court that the judgment of the court below should be reversed and the cause remanded.

Judgment reversed.

DANIEL SULLIVAN

V.

THE CITY OF ONEIDA.

1. CITY CHARTER—ordinances—liquor nuisance. Where a city charter authorized the common council to declare the selling, giving away, or the keeping on hand for sale any spirituous or intoxicating liquors, etc., in the city, a nuisance, it does not authorize an ordinance making it an offense for any person within the city to have in his or her possession any intoxicating liquors, etc. The ordinance exceeds the power in the charter as it declares the possession, without the intent to sell, an offense.

2. The charter only contemplates a search in the event that liquors were in the possession of some person for sale within the city. The ordinance authorizes the search and seizure if the liquors were kept in the city, whether the intention was to sell them or ship them for sale else. where. Such an ordinance might interfere with general commerce, but when confined to the ordinary traffic between the city and its neighboring towns and cities, it is unjust and illegal, and the ordinance is ultra vires and void.

3. CITY ORDINANCES-presumption of innocence. It is no answer to say that the person whose liquor is seized may prove his innocence-may show the purpose to be lawful. The law ought not to be guilty of such harshness as to require a man to prove his innocence where there is not even a suspicion of his guilt.

4. LEGISLATIVE POWER-to restrain sale of spirits. It has often been decided that the general assembly may prohibit the retail of intoxicating liquors. But this charter has gone far beyond that, as it authorizes the council to license, regulate and tax the sale of such liquors; to declare the sale, and keeping on hand for sale, a nuisance; to provide for its summary abatement and suppression; and it empowers the police magistrate to issue his warrant to search the premises of persons suspected of selling. It makes the mere possession prima facie evidence of unlawful intent, and, without satisfactory explanation, evidence of sale and keeping on hand for sale.

Syllabus.

5. CITY ORDINANCE. The ordinance authorizes the police magistrate, on complaint that any person has such liquor for sale, more than one gallon, to issue his warrant for the search of his dwelling house, and if liquors are found they shall be seized, and the person arrested, and both brought before the magistrate, who shall at once proceed to try the person, and if he should not offer a satisfactory explanation and show that he had the liquors for a lawful purpose, he shall be fined, and ordered to the common jail until fine and costs are paid, and the liquors ordered sold on execution and the proceeds applied to the payment of the fine and costs.

6. The ordinance is objectionable because, while it professes to prevent the sale of liquors because they are declared to be a nuisance and should be abated, it requires the liquors to be sold by the officer.

7. SAME-objectionable. Another objection is, that both the charter and ordinance authorize the seizure of all liquors found, without reference to quantity; whilst the ordinance only authorizes a fine of $100, it authorizes a seizure of liquors to the value, it may be, of thousands of dollars, which would be ordered to be sold, as is supposed, to satisfy the fine, as it will not be presumed the sale would be ordered merely for the exercise of unusual or arbitrary power. Again, the ordinance does not require the surplus to be returned to the owner.

8. JUSTICE OF THE PEACE—jurisdiction. Whilst a justice of the peace could only render a fine not exceeding $100, yet, under this charter and ordinance, he is authorized to adjudicate to an unlimited amount of property, and this seizure is unreasonable and in violation of the Declaration of Rights.

9. CONSTITUTIONAL PROTECTION. Every man has the right to acquire and protect his property; to be secure against unreasonable searches and seizures; to a fair trial before he can be deprived of life, liberty or prop erty; and in all criminal prosecutions the right to be heard, to demand the nature and cause of the accusation against him, and to meet witnesses face to face. Under this ordinance a person may be deprived of his property without notice; condemned without witnesses; his premises subjected to unreasonable search, and his property seized to an unlimited

amount.

10. PROPERTY. Spirituous liquors, ale or beer, are property; they are chattels; are articles of consumption and of commerce; and the ordinance recognizes them as property and directs their sale, and permits druggists to keep them. Their abuse may be restrained and punishment inflicted on those who sell them to the injury of others. As well as other chattels, they may come under the designation of a nuisance, and to a certain extent lose their quality of property, but they can not do so per se.

11. LEGISLATIVE POWER-its exercise. The legislature may change the presumptions of guilt; it may, to a certain extent, declare acts evidence

Opinion of the Court.

of an unlawful intent which had before been innocent; it may declare possession of property, on account of its dangerous character, unlawful, but such laws must always have proper safeguards for the security of private rights.

12. It is within the power of the legislature to declare the possession of spirituous liquors, for the purpose of sale, a quasi nuisance, and to provide a well guarded system of suppression of its use; and that possession shall be prima facie evidence of unlawful intent. But in making such changes the utmost care should be observed so as to preserve the sacredness of the domicil.

APPEAL from the Circuit Court of Knox county; the Hon. ARTHUR A. SMITH, Judge, presiding.

Messrs. CRAIG & HARVEY, for the appellant.

Messrs. WILLOUGHBY & GRANT, for the appellee.

Mr. JUSTICE THORNTON delivered the opinion of the Court:

We propose only to consider the character and validity of the section of the charter, and the ordinances read in evidence.

The warrant issued commanded the officer to search the dwelling and out-houses of the accused, and if spirituous liquors were found to seize the same and bring them before the magistrate.

The ordinance greatly transcends the power granted to the council.

The charter empowered the council to declare the selling, giving away, or the keeping on hand for sale, of any spirituous or intoxicating liquors, ale, beer, or any kind of fermented liquors within the city, a nuisance.

The necessary import and plain construction is, that the liquors must be kept to sell within the city. It could never have been intended to prohibit the possession of liquors within the city, designed for sale elsewhere.

The corresponding sections of the ordinance are:

"Sec. 3. If any person shall, within the city, keep on hand for sale, any spirituous liquors," etc.