OPINION OF A. O A KEY HALL, HALL, ESQ., DISTRICT ATTORNEY, ON EXCISE PENALTIES. DISTRICT ATTORNEY'S OFFICE, The excise provisions of the Revised Statutes never applied to New York city. (See section 29 of title 9, ch. 20, part 1.) Chartered privileges substantially regulated our excise to the year 1824. Until the recent act, the statutes of 1824, 1825, and 1833, provided excise regulations and penalties. (Hoffman's Treatise on Powers of Corp. pp. 54 and 62.) By acts of 1824 and 1825, a peculiar Board of Excise was established to give license for sale of liquor. They who were not "licensed as aforesaid," or according to the provisions of the act hereby amended," and they who sold in defiance of that act, were liable to penalty and indictment. The act of 1833, page 14, gave to corporation ordinances, which regulated licenses, &c., the effect of statutes, and raised their infraction to the grade of misdemeanors. In the absence of prohibition, or of a license system, with penalties attached, the sale of liquor is free. It is the necessity for the license, coupled with the ability, if one chooses to obtain license, which creates the excise offences. Selling liquor-an act lawful in itself becomes unlawful when it is transacted contrary to prescribed forms and regulations, and in the face of declared penalties of the local Board of Excise. Section twenty-five of the recent act, (which section is now in force,) provides that "no license to sell liquor, except as herein provided, shall hereafter be granted." There is prescribed no mode of license, under this exception, until May first, (even if it be admitted that the permit of section two is a license,) when the section second comes into effect. These two sections will constitute our excise law until July four, when the entire prohibitory law becomes operative. The penalties attached to selling without the permit of section two, are embraced by sections one and four, not to be in force until July. The penalties of our late excise laws, attach to the neglect to take out the old specific license, (see section two of 1824, and section two of 1825,) and they cannot be applied in place of the suspended penalties of the new act. It was, perhaps, an omission in the Legislature when founding a new license, to give no immediate penalty. I suppose the confusion and defect to have arisen through the change from the original reading of section twentyfifth, (which gave the act effect May one, and placed license and penalties in concurrent operation,) to the present reading, which throws the prohibition and penalty sections, necessary to give vitality to section two, into July, and this change was not material in respect to the penalty under the state law, but only as it affected the local excises of New York city. It may be well conceived, that a naked abrogation of pilot licenses, ferry licenses, pedler licenses, etc., etc., without a substitution of new ones, or if substituting new ones, in no wise aiding them by penalty, would have the effect to make those privileges as free as by the common law they were before license regulated them. I am of opinion, that as the law will stand from May one to July four, with the old licenses expiring May one, and no new ones permitted upon the old system, to which the late pains and penalties attached, these latter are defunct. Until July fourth shall come, there exists by law no prohibition against selling, and not until this date are the new and suitable penalties to be in force. The new permit of section two is yet bald, and bestows no privileges. The ordinances of the Common Council operate upon the theory that the local licenses can be granted. They are incompatible with the new legislative provisions, and must fall. (Hoff. Treat. on Corp., page 43. Mayor vs. Nichols, 4 Hill, 209.) Upon Sunday, the state law, which applies to New York city, prohibits the retail and sale of liquor on that day. A penalty is given. But this is a matter exclusively for the cognizance of the Corporation Attorney. The new ordinance regarding Sunday traffic is so inseparably connected with the license provisions, now null and of no effect, that it is inoperative. The nuisance clause, although said to take effect immediately, is not opetative until July four, because not until then will the keeping of liquor be in contravention of that or of any other act. A. OAKEY HALL. OPINION OF D. D. BARNARD, ESQ., ON THE PROHIBITORY LIQUOR LAW. R. V. DE WITT, ESQ.: ALBANY, May 26, 1855. MY DEAR SIR-You have requested me to give you, in writing, the substance of the views which I have, on several occasions, expressed to you in conversation, respecting the validity, or want of validity, of the recent act of the Legislature for the suppression of intemperance. You do not seek my opinion on account of any property or pecuniary interest of your own involved in this measure, nor, I am sure, because you do not feel a deep solicitude, in common with every good citizen, for the suppression, by all competent and proper means, of the evils of intemperance. What you want is, if possible, to be settled and grounded in your personal opinions, respecting a measure of the gravest public importance, and about which such differing judgments are expressed, in eminent, if not equally eminent, quarters. If my views can be of use to you, I am quite willing to give them to you, in a form more expressed and defined than conversations could supply. I think this act cannot be sustained; I think it ought not to be sustained. No body ought to desire the success of any great measure of benevolence or of reform, which sets out with the violation of principles which lie at the very foundation of human rights and of free government. I think this act does exactly that. It commits a great and grievous wrong a wrong which, if the like could be committed by one individual upon other individuals, the law would be prompt and severe to redress and punish. And society and government have no moral or legal dispensation to perpetrate a great wrong more than private persons. The vice of this act is, that it proposes to inaugurate its great scheme of benevolence by the sacrifice of an immense amount of private property. Whether this is five millions or forty, it is not material to inquire. That the amount falling within the operation, direct or indirect, of the act must necessarily be very great, no body can doubt. If the jurisdiction of the state over the subject matter had been as broad and unrestricted as the will of the Legislature, the sacrifice ould have been greater. The 1 policy of the act, if it could be sustained, and be taken as an established precedent, would not leave a dollar of private property in the state, of any description, real or personal, safe from the rapacity, or the fanaticism, of any dominant faction in the government. When, a few years ago, the British government thought the time had come for the abolition of negro slavery in their West India possessions, by the substitution therefor of a system of forced apprenticeship, one hundred millions of dollars was appropriated from the imperial treasury to make compensation to the owners of slaves. The rights of private property, or of that which the law had hitherto recognized and protected as property, were respected. No just government in the world would act otherwise. No government is either just, or wise, or safe, which would act otherwise. And no legislative measure, proceeding on a policy the reverse of this, can be sustained—at least in a free, constitutional country. When the case is once fairly and plainly stated, as it seems to me to be presented on the face of this statute, I think that little will remain to be said, by me at least, in the way of argument. If any one thinks he can maintain its soundness and validity after that, why, I hope he will try. I shall be glad to learn what principles there are on which it can be sustained. At present, I do not believe, there are any which an enlightened and really sane man would like to advocate. The Legislature proposed to itself the task of putting an end to the use, as a beverage, of what is called "intoxicating liquor;" a term which is understood to include all wines, the produce of grapes, and all ales or malt liquors, as well as all ardent spirits. The practical question was, how a design of such magnitude and difficulty was to be effected. Drinking was to be stopped; not only drinking to excess, but, as far as possible, all drinking. And this was to be done on a set day, close at hand. With millions of gallons of liquor of all sorts in the hands of lawful owners, and widely distributed among or within reach of three millions of people, vast numbers of whom were accustomed to use it freely some quite too freely; with this state of things existing on the third day of July, how was the use of it to be made to cease, universally, from the dawning of the day on the fourth? This was a difficult problem to solve. In the first place, there were liquors which the arm of legislative power was not long enough, or strong enough, to reach. Liquors imported under the authority of the United States could not be reached, at least while they remained in the original packages; and it would be dangerous to attempt to lay violent hands on all liquors remaining in private dwellings. Whatever measure, therefore, should be adopted, to stop the drinking of liquor, it was evident that the whole ground could not be covered. Importers must still be allowed to bring liquors into the state, and to sell them; and those who should have private stocks on hand, or should lay them in, in their own dwellings, must be tolerated in the personal use of them. So much is admitted by the act. Besides, it was indispensable that authority should be given for the supply of such moderate demand as might arise for liquor "for mechanical, chemical, or medicinal purposes, and wine for sacramental uses." This exigency, however, could be met, as it is met in the act, by authorizing persons, qualified in a very special manner, to keep and dispense liquors for those specified objects, with very stringent provisions against their use in any other way. But the task of stopping the use of liquor as a beverage was still to be accomplished, to the extent of the assumed power of the Legislature over the subject, and much remained for a bold measure to operate upon. The life-long and traditional habits of a whole people, with some necessary exceptions, were to be changed in a single night by the operations of a statute. It was proposed that none should escape, except the comparatively few who might be rich enough to hoard the forbidden commodity in private dwellings, which, it was acknowledged, must be, to some extent at least, held sacred from the right of search. All others must be reformed; and this reform was proposed to be completed in the single night between the third and the fourth day of July. The act was passed in April. It was not the fault of the friends of the measure that a much earlier day than the one named was not fixed upon for the act to take full effect. It was not the purpose, or desire, of its friends to give men time to prepare to change, or even to think soberly about changing, either their habits of life, or their habits and plans of business. On the third of July, there would be in the warehouses of manufacturers of the brewers, for example; in the stores and shops of dealers, grocers, restaurauteurs, and keepers of places of public entertainment; and in the cellars of hotels and boardinghouses, millions of gallons of liquor, all accessible to the people, and from which consumers would be enabled to draw their accustomed supplies. It was necessary to bring such an ordinance to bear on the fourth of July, on these liquors, not coming under any necessary exception, that, if not instantly destroyed, their destruction should be effectually provided for and secured, and in the meantime, every cask, flagon, and bottle should be so sealed up, by the will and fiat of the law, that not one drop should be suffered to escape to touch the lips of any human being, on any consideration, or for any purpose whatever. The case was not without difficulty. These liquors would be private property, of very great value, in the hands of their lawful owners: as much private property, and as much under the protection of the public law of the country, as houses and lands, |