wise: "Commerce is intercourse. One of its most ordinary ingredients is traffic. It is inconceivable that the power to authorize this traffic, when given in the most comprehensive terms, with the intent that its efficiency should be complete, should cease at the point where its continuance is indispensable to its value. To what purpose should the power to allow importations be given, unaccompanied with the power to authorize a sale of the thing imported. Sale is the object of importation, and is one essential ingredient of that intercourse, of which importation constitutes a part. It is as essential an ingredient, as indispensable to the entire thing, as importation itself. It must be considered as a component part of the power to regulate commerce. Congress has a right not only to authorize importation, but to authorize the importer to sell." Here then is a positive affirmation that the right to sell, by the importer, is a component part of the power to regulate commerce, and that Congress may, in disregard of state legislation, authorize the importer to sell. Now, the right to sell by the importer, implies the right to purchase by some other person, because there can be no sale if there is no person to purchase. Had the state of Maryland, in place of prohibiting sales by the importer, gone further, and prohibited purchases from the importer, by its own citizens, can there be a doubt, that such a prohibition to purchase, would have been held equally void, as the prohibition to sell, and equally hostile to this exclusive right of Congress to regulate commerce? When, therefore, a citizen of the state of New York, becomes the purchaser of foreign liquor, from the importer, he acquires a right of property, under the paramount law of the United States, as sacred and secure from legislative invasion and aggression, as rights of property, which were vested at the time the law under consideration took effect.

If the judgment in the case of Brown vs. The State of Maryland, and the reasoning of the Chief Justice is entitled to any weight as authority, it is decisive of the question so far as sales of foreign liquors by importers is concerned. The right of importation, we see, means the right to introduce foreign goods into the country, and to sell them to those who may choose to become purchasers. If state legislation can substantially take away from the mass of its citizens the power to become purchasers, a state can, in effect, impede foreign trade and put an end to foreign importations. It has only to declare-what the act under examination declaresthat the importer shall only sell in the original packages, to such persons as the state may license and authorize to become purchasers. Sale is no longer incidental to importation. The importer's right to dispose of his goods in the market, no longer depends upon the authority given to Congress to regulate commerce and intercourse with foreign countries. But it depends, also, upon the disposition of the states to suffer their citizens to become purchasers of foreign commodities. I am unable to

perceive any difference between state resistance to foreign importation, by interdicting sales by, and purchases from, the importer, and resistance by a preventive force stationed upon its own borders. Either mode is an unwarrantable interference with a subject of legislation over which Congress has exclusive control and dominion.

The laws which prohibit intermural interments, referred to upon the argument, stand upon the intelligible and constitutional ground of police regulations to prevent nuisances.

Coats vs. The Mayor, &c., of New York, 7 Wendell 585.

And the statutes which authorize the destruction of buildings to arrest the progress of fire or the ravages of pestilence, are justified by the law of overruling necessity, and is the exercise of a natural right, to avert a great public calamity.

2 Kent's Com. 338; Russell vs. The Mayor of New York, 2 Denio 461.

I therefore arrive at the conclusion, that so much of the first section of the act under consideration, as declares that intoxicating liquor shall not be sold, or kept for sale, or with intent to be sold, except by the persons, and for the special uses, mentioned in the act-so much of sections six, seven, ten, and twelve as provide for its seizure, forfeiture, and destruction-so much of the sixteenth section as declares that no person shall maintain an action to recover the value of any liquor sold or kept by him, which shall be purchased, taken, detained, or injured, unless he prove that the same was sold according to the provisions of the act, or was lawfully kept and owned by him-so much of section seventeen as declares, that upon the trial of any complaint under the act, proof of delivery shall be proof of sale, and proof of sale shall be sufficient to sustain an averment of unlawful sale and so much of section twenty-five as declares that intoxicating liquor, kept in violation of any of the provisions of the act, shall be deemed to be a public nuisance-are repugnant to the provisions of the Constitution for the protection of liberty and property, and absolutely void.

The proceedings in both the cases are reversed and set aside, and Philip Berberrich is discharged from his arrest.

DECISION OF

HON. JAMES M. SMITH, JR.,

RECORDER OF THE CITY OF NEW YORK.

In the Court of Sessions, Recorder Smith rendered the following Decision in the case of the People, &c., ex rel. Martin vs. Dowd:

On the tenth day of July inst., Mary Martin made an affidavit before Police Justice Wood, in which she alleged, that on the 8th day of July aforesaid, intoxicating liquor, to wit, brandy, was sold to her by the defendant, Thomas Dowd, in violation of the provisions of the act entitled: "An Act for the Suppression of Intemperance, Pauperism, and Crime, passed April 9, 1855," and that she paid for said liquor, and drank the same on the premises of the defendant.

Upon this affidavit, Justice Wood issued a warrant for the defendant; the defendant was arrested, taken before the justice, and held to bail to answer the charge at the Special Sessions. On appearing in this court, the defendant waived his right of trial by jury, and interposed a plea of not guilty. Upon the trial, the defendant admitted that he sold brandy to the witness, Martin, at the time specified by her in her affidavit, but coupled the admission with the averment that the brandy sold was imported.

Notwithstanding the admission of the defendant, the witness, Martin, was sworn on behalf of the people, and confirmed the facts as to the sale of the liquor by the defendant to the witness, as stated in the affidavit upon which the warrant was issued, and in reply to a question by the defendant's counsel, she stated that she did not know whether the brandy was imported liquor.

I regret, that no counsel was present to represent the prosecution upon a question of so much interest as the one involved in this case. It would have been gratifying to me to have had the question on both sides fully presented and discussed.

Previous to the passage of the act above referred to, the power to grant licenses to sell liquor, &c., in the city of New York, was vested in the Mayor and Common Council. The same act that conferred upon them the power to grant licenses, also imposed specific penalties for the violation of the excise law-penalties that could be enforced by civil remedy, and also fine and imprisonment to be enforced by a criminal prosecution as for a misdemeanor. The statutes of this state, imposed penalties for selling without such a license, as was provided in the then existing laws.

The licenses then authorized are expressly abolished by the

twenty-fifth section of the act of April 9, 1855. And no license can be granted except the license mentioned in the second section of that act.

I know it has been contended that the penalties under the statutes, existing before the act of April are still in force, and are not affected by the last mentioned act. That the penalty imposed there was for selling liquor without a license, and that now, when no license can be obtained to sell, the old statute is still operative. I do not so understand the law. The penalty under the old statute was a specific penalty, imposed for selling without the specific license mentioned in that statute.

The statute imposing the penalty is repealed by the twentyfourth section of the act of April. The penalty expires with the law that created it and we must seek in the new law, in the act of April, and that only, for the license and for the penalty. The twenty-fourth section of that act is broad and sweeping in its terms; it repeals "all the acts and parts of acts, and all charters and parts of charters" inconsistent with the act.

The Legislature in framing that section clearly intended to effect such repeal, and for the purpose of preventing actions then in progress from being effected by it, enacted that no suit commenced, or indictment found before the act took effect, should in any measure be effected thereby.

There would have been no necessity for the last paragraph of the twentieth section, if the Legislature intended that the old penalties for selling liquor without license should remain operative. The question, then before the Court is, has the defendant violated any of the provisions of the act of the 9th of April, and if so, what penalty has he incurred? The first section of the act reads as follows:

"Intoxicating liquor, (except as hereinafter provided,) shall not be sold, or kept for sale, or with intent to be sold, by any person, for himself, or any other person, in any place whatsoever; nor shall it be given away, (except as a medicine, by a physician pursuing the practice of medicine as a business, or for sacramental purposes,) nor be kept with the intent to be given away, in any place whatever, except a dwelling-house in which, or in any part of which, no tavern, store, grocery, shop, boarding or victualing-house, or a room for gambling, dancing, or other public amusement or recreation of any kind, is kept; nor shall it be kept or deposited in any place whatsoever, except in such dwelling-house as above described, or in a church or place of worship, for sacramental purposes, or in a place where either some chemical, mechanical, or medicinal act requiring the use of spirituous liquor is carried on as a regular branch of business, or while in actual transportation from one place to another, or stored in a warehouse, prior to its reaching the place of destination. This section shall not apply to liquor, the right to sell which in this state, is given by any law or treaty of the United States."

Had the section ended at the word "destination," the question presented by the counsel for the defendant could not have arisen. But, it is now contended by the counsel, that, although his client has sold liquor without license, he has not violated any of the provisions of the act of April, or of any existing statute; that the latter clause of the first section in terms excepts imported liquor from the operation of the act; that the right to import liquor into this state, under the law, and under treaties of the United States, is conceded; and that the right to sell is incident to the right to import. The fact, I think, cannot be disputed, that this law was not passed as originally framed. That it was not the offspring of one mind, but, on the contrary, that section after section was framed by different persons; that it was altered and remodelled to meet different views, and to silence prejudice against certain sections; and that the necessity for these frequent alterations, additions, and amendments, arose from the fact, that without them the bill would never have become a law. What may have been the intention of the framer, or framers, of the latter clause of the first section, we can only derive from the language embodied in it.

The judicial construction must be predicted upon that and that alone, whatever the intention of the Legislature might have been, is a matter of no moment in the consideration of penal statutes, unless that intent is clearly and distinctly expressed. In other words, if the disputed point is so ambiguous as to admit of two constructions, that construction most favorable to the party to be effected by it, is the construction that must prevail.

The laws which restrain, such as those that forbid any thing that is not in itself unlawful, or which derogate in any other manner from the general law; the laws which inflict punishments for crimes and offences, or penalties in civil matters; those which prescribe certain formalities; the laws which appear to have any hardship in them; those which permit disinheriting and others; the like are to be interpreted in such a manner as not to be applied beyond what is clearly expressed in the law, to any consequences to which the laws do not extend.

And, on the contrary, we ought to give to such laws all the temperament of equity and humanity that they are capable of. Is not this act one to which this rule of law applies? It is an act in derogation of the common law, highly penal in its nature, destructive to property in its consequences, jeopardizing liberty, and inflicting the loss of social position and civil rights, summary in its execution, granting extraordinary powers to irresponsible persons, and affording no adequate redress to the parties injured.

Applying the doctrine which I have above stated to this act, the justice of which cannot be fairly questioned, has the defendant violated any act of its provisions, and if so, what is the penalty incurred? The first question which arises is, Is there