should be laid upon one than are laid upon others in the same calling and condition; and that, in the administration of criminal justice, no different or higher punishment should be imposed upon one than such as is prescribed to all for like offenses." The appellate division, applying this rule to § 640 of the Penal Code as amended in 1903, chap. 272, relating to the use of the flag of the United States in connection with trade labels or in the manufacture and sale of merchandise, say that the statute makes a clear discrimination "between citizens engaged in business, in the use of a representation of the American flag in connection with their business. The merchant and the manufacturer are made criminals for using such representation, while the book publisher, the newspaper proprietor, the jeweler, and the stationer are permitted to use the symbol in their business, to put it upon their merchandise, and to make profit by its use.”

The provision of chap. 625 of Laws 1903, amending the highway law by requiring the registration of automobiles used on the highway, but exempting from such registration automobiles kept in stock by a manufacturer, was not obnoxious to this provision of the Constitution. The mischief aimed at was the unregulated and dangerous use of highways by these vehicles; no such mischief can arise while the vehicle is in stock, and the manufacturer or dealer must register the vehicle before using it upon the highways. People v. MacWilliams (1904) 91 App. Div. 176, 86 N. Y. Supp. 357.

EVIDENCE.

Changing rules of evidence.-Rules of evidence are at all times subject to modification and control by the legislature. "The changes which are enacted from time to time may be made applicable to existing causes of action, as the law thus changed would only prescribe the rule for future controversies." In Howard v. Moot N. Y. 262, the court conceded that (1876) 64 a law making "evidence conclusive which is not so necessarily in and of itself, and thus preclude the adverse party from showing the truth, would be void as indirectly working a confiscation of property or a destruction of vested rights;" but said that this was not the "effect of declaring any circumstance or any evidence, however slight, prima facie proof of a fact to be established, leaving the adverse party at liberty to rebut and overcome it by contradictory and better evidence." The act of 1821, chap. 19, to perpetuate certain testimony respecting the title to the Pulteney estate, was sustained. See Supreme Lodge K. of P. v. Meyer (1904) 198 U. S. 508, 519, 49 L. ed. 1146, 1149, 25 Sup. Ct. Rep. 754

The legislature has power to change the rules of evidence or the details of the trial, both as to prior and as to subsequent offenses; applied in construing the act of 1872, chap. 475, in relation to challenges to jurors in criminal cases. Stokes v. People (1873) 53 N.

Y. 164, 13 Am. Rep. 492.

In People ex rel. Miller v. Ryder (1891) 124 N. Y. 500, 26 N. E. 1040, construing the sections of the Code of Civil Procedure, §§ 841 and 1582, relating to the disposition of the proceeds of a sale in partition, the court say that, conceding the power of the legislature to change rules of evidence as they have previously existed, and to provide other and new remedies, "laws of this character which are intended to have retroactive operation should be strictly construed, especially in so far as they provide for the vesting of property."

Physical examinations.-The act of 1893, chap. 721, amending § 873 of the Code of Civil Procedure by authorizing a physical examination of the plaintiff in an action to recover damages for personal injuries, was a constitutional exercise of power by the legislature. “The statute enacts a rule of procedure, the purpose of which is the discovery of the truth in respect to certain allegations which the plaintiff has presented for judicial investigation in the courts of justice. It prescribes a method of aiding the court and jury in the correct determination of an issue of fact raised by the pleadings, and does not violate any of the express or implied restraints upon legislative power to be found in the fundamental law." Lyon v. Manhattan R. Co. (1894) 142 N. Y. 298, 25 L. R. A. 402, 37 N. E. 113.

Presumptions.-In Wood v. Byington (1847) 2 Barb. Ch. 387, Chancellor Walworth, considering the act of 1843, chap. 172, which provided that, in a proceeding to mortgage a decedent's real estate for the payment of debts, a judgment recovered against the personal representatives shall be prima facie evidence of a debt, said it could not have a retroactive effect, and that it was "a matter of doubt whether the legislature can rightfully declare that the result of a litigated suit against one person shall be evidence against another, to affect rights of the latter which had accrued previous to the passage of the statute establishing such a rule of evidence."

"The legislature has power to determine by law what shall, in civil cases, be received by the courts as presumptive evidence." Hand v. Ballou (1855) 12 N. Y. 541, sustaining the act of 1850, chap. 183, which made the comptroller's tax deed presumptive evidence of the regularity of the sale.

This act was repealed in 1855, chap. 427, and in Hickox v. Tall

man (1860) 38 Barb. 608, it was held that deeds under it were not presumptive evidence of regularity in the comptroller's proceedings; that there was no vested right in a rule of evidence, but that the legislature might change it at pleasure; and that a grantee in a comptroller's deed given while the act of 1850 was in force was required to make full proof of every fact relating to the comptroller's jurisdiction.

White v. Wheeler (1889) 51 Hun, 573, 4 N. Y. Supp. 405, sustains a statute and cites others making a tax deed presumptive evidence The act of 1885, chap. 448, declaring the effect of conveyances by the comptroller on tax sales, was sustained in People v. Turner (1889) 117 N. Y. 227, 15 Am. St. Rep. 498, 22 N. E. 1022, in which the court say that "the power of the legislature to change rules of evidence as they exist at common law . . . has been uniformly held not to be affected or restricted by the constitutional provisions prohibiting the taking of life, liberty, or property without due process of law." See also Turner v. New York (1897) 168 U. S. 90, 42 L. ed. 392, 18 Sup. Ct. Rep. 38, where the court, sustaining the statute, say it is a statute of limitations, and does not deprive the owner of property without due process of law. Followed in Saranac Land & Timber Co. v. Comptroller (1899) 177 U. S. 318, 44 L. ed. 786, 20 Sup. Ct. Rep. 642.

Discussing the validity of the provision in the excise act of 1857, chap. 628, that whenever any person is seen to drink on licensed premises it shall be prima facie evidence that the liquor was sold by the licensee or his agent with intent to be drunk on the premises, the court, in People v. Lyon (1882) 27 Hun, 180, say that "if the legislature can declare that a certain fact is prima facie evidence of the defendant's guilt, such a declaration means that the jury must convict unless the defendant explains away this evidence; and if they can declare a fact to be prima facie, it would seem to follow that they might declare it conclusive evidence." But this law made an act which was always lawful done by one person, prima facie evidence that another person had committed a criminal offense. The jury, not the legislature, must judge whether the evidence proves the charge. The defendant was indicted and convicted for a violation of the excise law. The conviction was reversed and the provision in question held unconstitutional because it deprived the defendant of the right of trial by jury.

The same provision of the excise law was under consideration again in the court of appeals in an action to recover penalties (Board of Excise v. Merchant [1886] 103 N. Y. 143, 54 Am. Rep. 705, 8 N.

E. 484), and was sustained, the court saying that "the general power of the legislature to prescribe rules of evidence and methods of proof is undoubted. While the power has its constitutional limitations, it is not easy to define precisely what they are. A law which would practically shut out the evidence of a party, and thus deny him the opportunity for a trial, would substantially deprive him of due process of law. It would not be possible to uphold a law which made an act prima facie evidence of crime over which the party charged had no control and with which he had no connection, or which made that prima facie evidence of crime which had no relation to a criminal act, and no tendency whatever by itself to prove a criminal act. But so long as the legislature, in prescribing rules of evidence, in either civil or criminal cases, leaves a party a fair opportunity to make his defense, and to submit all the facts to the jury, to be weighed by them upon evidence legitimately bearing upon them, it is difficult to perceive how its acts can be assailed upon constitutional grounds." The court said that, under the circumstances, the drinking was good common law evidence of a sale in violation of the statute.

"Even in criminal prosecutions the legislature may, with some limitations, enact that when certain facts have been proved they shall be prima facie evidence of the existence of the main fact in question..., The limitations are that the fact upon which the presumption is to rest must have some fair relation to, or natural connection with, the main fact. The inference of the existence of the main fact because of the existence of the fact actually proved must not be merely and purely arbitrary, or wholly unreasonable, unnatural, or extraordinary, and the accused must have, in each case, a fair opportunity to make his defense, and to submit the whole case to the jury, to be decided by it after it has weighed all the evidence and given such weight to the presumption as to it shall seem proper." A provision of this kind does not in reality and finally change the burden of proof. People v. Cannon, People v. Quinn, People v. Bartholf (1893) 139 N. Y. 32, 36 Am. St. Rep. 668, 34 N. E. 759, sustaining the bottling act of 1887, chap. 377, as amended, Laws 1888, chap. 181, which made the possession by a junk dealer of certain bottles and kegs presumptive evidence of an unlawful use thereof.

The provision of the general village law of 1870, chap. 291, making the certificate of the second election for the purpose of incorporation "final and conclusive proof of the incorporation of such village, and the regularity thereof, in all courts and places," was

sustained in People v. Snedeker (1899) 160 N. Y. 350, 54 N. E. 659, the court observing that it was a "wise provision, for it prevents the confusion and danger which might reselt if the question of incorporation were left open to attack years after the village had been in existence for all practical purposes."

EXCISE.

The legislature has power to enact laws prohibiting the sale of intoxicating liquors, and to provide penalties for their violation. The prohibitory law of 1855, chap. 231, was sustained. People v. Quant (1855) 12 How. Pr. 83; Rome v. Knox (1856) 14 How. Pr. 268.

"A law prohibiting the indiscriminate traffic in intoxicating liquors, and placing the trade under public regulation to prevent abuse in their sale and use, violates no constitutional restraints." Licenses to sell liquor may be modified, revoked, or continued, as the legislature may deem fit. License laws fall within the legislative power exerted unremittedly since the origin of the government. Metropolitan Bd. of Excise v. Barrie (1866) 34 N. Y. 657; People ex rel. Presmeyer v. Board of Police & Excise (1874) 59 N. Y. 92; People ex rel. Einsfeld v. Murray (1896) 149 N. Y. 367, 32 L. R. A. 344, 44 N. E. 146 (liquor tax law of 1896).

The civil damage act of 1873, chap. 646, was sustained in Bertholf v. O'Reilly (1878) 74 N. Y. 509, 30 Am. Rep. 323.

The power of the legislature to regulate the traffic in liquor includes the power to determine the premises upon which liquor shall be sold, and for what other purposes the premises shall be used. People ex rel. Bassett v. City Prison (1896) 6 App. Div. 520, 39 N. Y. Supp. 582.

EX POST FACTO LAWS.

Quoting the definition of an ex post facto law given by Justice Chase in Calder v. Bull (1798) 3 Dall. 386, 1 L. ed. 648, as "one that punishes as a crime an act done before its passage, and which, when committed, was not punishable; and an act that aggravates a crime or inflicts a greater punishment than the law annexed to it when