and forfeiture of liquors, are subject to several very grave objections; but these, with some other important questions, have been so fully considered, in opinions already before the public, that I shall not discuss them at present.

A plausible pretext is never wanting for violent measures of this kind. The prevention of intemperance is only one among the number. The public good is always put forward as the end to be attained, and that is so important that no one is allowed to question the means of reaching it. But this is a dangerous principle. Under such pretences the greatest enormities have been committed. The rights of all have been invaded, because some men abuse their privileges. The liberties of the people have been overthrown in many countries under color of promoting the public welfare; and under some such pretext men have even been denied the use of the Bible, and the right to think for themselves upon the most important of all subjects.

The law in question is none the less dangerous, because it is specially directed against a class of men, instead of the whole community. That is the usual course in the encroachments of power. The attack commences on the weak points and proceeds by degrees. It has rarely happened that the privileges of a people have been destroyed in one day or by a single blow. It becomes us to watch the first step. If other merchants, as well as those who deal in liquors, had been included in the prohibition against selling their goods, and the farmer and the mechanic had, under some plausible pretext, been denied the right to vend the fruits of their industry, all men would have exclaimed against the rank injustice of the measure. And yet the title to intoxicating drinks, is as perfect as is the title to any other species of property. If we allow the rights of a single class to be invaded, no one can be secure that his rights will not fall next.

II. If we assume that the law is valid, I think it does not apply to imported liquors. The first and general prohibitory section concludes by declaring, that "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," and it is settled by the highest court in the land that the laws of the United States give the importer the right to sell his merchandise in the original packages, in this and every other state. The saving clause which has been quoted, says nothing about sales by the importer, or in the original packages, nor about sales to a particular class of persons; but it extends, in effect and without any qualification, to all sales of imported liquors. There is a provision in the twenty-second section, that the act shall not be construed so as to prevent the importer of foreign liquor, from keeping or selling the same, in the original packages, to any person authorized by the act to sell such liquors. But this is nothing but a saving clause without any prohibition whatever, and I am unable to see how a general saving clause, which takes all sales of foreign liquors out of the

influence of the act, can be restricted in its operation, by a subsequent saving clause, which authorizes sales by the importer to a particular class of persons, but without forbidding sales by and to all other persons. There is undoubtedly some incongruity in the two classes; but as one permits, and the other does not forbid, the unrestricted sale of imported liquors, I see no principle on which the courts can declare a prohibition. They are not at liberty to guess that more was said than was intended in the first section; and if, in truth, there was a blunder, it is the business of the Legislature, and not of the courts, to correct the error. Many rules have been given for the interpretation of statutes, but none of them will authorize the courts to correct mistakes or supply omissions in the law. No rule of interpretation is more directly applicable to this case than the one which declares that penal statutes should be construed strictly.

III. Some judges have held, that the penalties of the old law may be imposed for sales without a license, between the first day of May and the fourth day of July of the present year. But there is one view of the question which, so far as I have observed, has not been considered. The case stands thus: the old law established a license system, from which a revenue was derived to the government, and penalties were imposed for selling without a license. That those penalties will fall, when the new law goes fully into effect, is agreed on all hands. But as nothing but the license clause has yet been repealed in express terms, it is said that the penalties remain. I do not think that entirely clear. The penalties were part and parcel of the license system, and there is much reason for saying, that when the license was denied, the whole system was at an end.

But this is not all. If both laws are held to be now in force, the case will stand thus: the old law forbids sales without a license, and the new law denies a license; and both together amount to a total prohibition against selling in any quantity less than five gallons. The prohibition acts upon existing rights to property. The owner is forbidden to sell the merchandise which he acquired under the old law, and which, by that law, he could sell in any quantity, on obtaining a license. He is, in effect, deprived of a large share of his beneficial interest in the property, and the case is subject to the objections which were first considered. It is a rule in the construction of statutes, that they should, if possible, be so interpreted that they may have effect. That can be done in this case, by holding, that the repeal of the license clause, carried with it the whole system of which the license was a part. Whereas, by holding that the old penalties are still in force, it is very questionable whether the new enactment can be supported. This view of the question seems not to have been considered by those who have held that the old penalties are still in force.

I will not close without expressing the hope, that nothing will

be done, either by way of enforcing or opposing the law, except by an appeal to the courts of justice. That is the orderly and legitimate way of settling the question. If the judges uphold the law, let it be obeyed so long as it remains in force, however unjust may be its operation. Forcible resistance can end in nothing but mischief.

I am well aware, from the past, that some of the advocates of the law will denounce any man, be he high or low, and whatever may be his calling, who either drinks a glass of wine, or differs from them in opinion. They have already attacked the judges, and threats are freely thrown out, that no man shall hereafter be elected to the bench who does not conform to their standard. If they hope to gain any thing, by such attempts at intimidation, it is not to be doubted that they will find themselves mistaken. I hope no man will distrust the judiciary, and make that a pretext for resorting to violence.

New York, June 26, 1855.

GREENE C. BRONSON.

OPINION OF

ROBERT J. DILLON, ESQ.,

COUNSEL TO THE CORPORATION,

ON THE PROHIBITORY LIQUOR LAW

OFFICE OF COUNSEL TO THE CORPORATION,

NEW YORK, April 19th, 1855.

To the Honorable the Mayor and the Common Council:

I have had the honor to receive several communications from the Common Council, the Mayor, and other departments, requesting the opinion of the Counsel to the Corporation upon many questions arising under the late act of the Legislature, entitled An act for the Prevention of Intemperance, Pauperism, and Crime," and, as many of these relate to the same points, I beg leave to make a general reply in one report.

First. By the charter of Montgomerie, in 1730, it was ordained and granted that "The Mayor of the city of New York, for the time being, and no other whatsoever, shall have power to give and grant licenses, annually, under the public seal of the said city, to all such persons as he shall hink fit to license, to keep a tavern, inn, ordinary, or victualing house, and to sell wine, brandy, rum, strong waters, cider, beer, ale, or any other sort of excisable or strong liquors, within the city of New York, by retail or the small measure, and to ask, demand, and receive, for every such license, such sum or sums of money as may be agreed upon, not exceeding the sum of thirty shillings for each license, all which moneys, so received, shall be used and supplied to the public use" of the corporation.

The twenty-fifth section of the late act of the Legislature, having provided that no license to sell liquor, except as therein pro vided, shall hereafter be granted, the question arises whether the act in that particular, unlawfully violates one of the rights of the city granted by the charter ?

The power to regulate the sale of liquors has been constantly exercised by the Legislature, in disregard of the charter, from the earliest period of the history of the state, after the adoption of the Constitution. By the act of 1801, a Commis

A

sioner of Excise was appointed by the state, without whose license no sale could be made. By the acts of 1824 and 1825, the Mayor was deprived of his exclusive privilege, and the Alderman and Assistant of each ward was associated with him in granting licenses, and no license could be granted without the consent of a majority of them; and by the act of 1853, the Councilmen were substituted in the place of the Assistant Alder

men.

In the case of Furman vs. Knapp, 19 Johnson, 248, an objection was taken to the validity of the act of 1801, as superseding the power of the Mayor, and in violation of the charter. The court, however, from the evidence in the case, presumed that the corporation had given their assent to the act, and did not deem it, therefore, necessary to discuss or consider how far the Legislature, without the consent of the corporation, might modify or change the charter.

In the case of the People vs. Morris, 13 Wen., 325, it appeared that the trustees of the village of Ogdensburg, were, by their charter, empowered to grant licenses for the sale of liquors, and that, by a subsequent act of the Legislature, the power was taken away, and it was contended that the act was illegal. The court, however, decided that it was a valid exercise of power on the part of the Legislature; that the power conferred by the charter was wholly political, and that it was an unsound and even absurd proposition, that political power conferred by the Legislature, can become a vested right as against the government in any individual or body of men. If the charter had granted rights of property, they could not be infringed; but political power, (and the right of licensing the sale of liquors is purely such,) were public trusts, to be executed, not for the benefit or at the will of the trustee, but for the common weal. How long it shall exist, or in what manner it shall be modified, are questions independent of the chartered corporations, and belong exclusively to the people to determine, through the Legislature, in the mode prescribed by the Constitution.

In the case of Satterlee vs. Sutton, in the Superior Court, (Kent's Charter, p. 243,) it was contended that the act of the Legislature, appointing measurers of grain for the city, and declaring that no other person should measure grain therein, was illegal, because it violated the charter of Montgomerie, which gave the appointment of such officer to the corporation and their successors forever, with the right to take and to receive all fees, profits, and perquisites arising therefrom. The court, however, decided that the grant to the corporation to appoint measurers, was a grant of political power coupled with no interest, save the fees, as a compensation for measuring; that the grant was not to be considered in the light of property, or intended as a source of revenue, and that, therefore, the legislative act was valid, and the charter so far controlled.