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Subject Area: Law
Topic: The American Revolution and Constitution

§ 171.: Prohibition of possession of certain property.— - Christopher G. Tiedeman, A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, vol. 2 [1900]

Edition used:

A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint (St. Louis: The F.H. Thomas Law Book Co., 1900). Vol. 2.

Part of: A Treatise on State and Federal Control of Persons and Property in the United States considered from both a Civil and Criminal Standpoint, 2 vols.

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§ 171.

Prohibition of possession of certain property.—

In the first place, the very possession of personal property, coupled with an intent proven or presumed, may be such a public evil as to justify the prohibition of such a possession. Thus, a Rhode Island statute forbade the possession with intent to sell or exchange, of adulterated milk, and it was declared to be constitutional.1 But the unlawful intent would, in such a case, have to be proven. Without this intent, the possession of the adulterated milk neither produces nor threatens any harm to the public; and since adulterated milk may be put to some other use, which is not, and cannot, be prohibited, the unlawful intent to sell cannot be presumed from the mere possession. A New York statute makes the possession of stamped bottles or cans, prima facie evidence of unlawful use or purchase of the same, in violation of the statute and of the right of property therein of the owner.2 And the statute authorized the owner to empty the contents into the street.1

But it is different when the thing cannot be put to any unobjectionable use. In such a case the thing cannot be presumed to be of any value to its owner except on the hypothesis, that he intends to make this injurious use of it, and hence the wrongful intent may be presumed from the act of the possession. Thus the constitutionality of a statute was sustained, which imposed a penalty upon any one who should have in his possession any dead game in certain seasons of the year.2

A New York statute, aiming to put a stop to the fraudulent sale of silver articles, as sterling, and marked “sterling,” which do not contain the proportion of silver which the trade requires to make an article sterling, makes the possession of such fraudulent articles a criminal misdemeanor. The proportion of silver, which is required by the statute to authorize the use of the stamp “sterling” is 925/1000.3

[1]State v. Smyth, 14 R. I. 100 (51 Am. Rep. 344).

[2]People v. Cannon, 139 N. Y. 32; People v. Quinn, 139 N. Y. 32; People v. Bartholf, 139 N. Y. 32.

[1]Monroe Dairy Association v. Stanley, 65 Hun, 163.

[2]Phelps v. Racey, 60 N. Y. 10 (19 Am. Rep. 140).

[3]People v. Webster, 40 N. Y. S. 1135; 17 Misc. Rep. 410.