New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-07-18

Thai II was not the offspring OF one ihiuu ou on ne
CONTRARY that section after section was posed by dii-
go, ror.ors that II was altered aud emodeled to
,rect daerent views and 20 silence prejudice against
1esin sections and that the necessity for these ire
event Alterations additions and amendments arose
49,, ,be fsc, that without them the bin would never
have become law. What may have been the inten-
fop OF the amer trainers of the latter clause OF Inc
ant section, we can noN only derive rom tho IAN
ouaee embodied in Il.
The judicial construction must be predicted upon
That ard hat alone whatever the intention o. tue Leg
islature might have been, il matter o. no moment
in the confederation Of penal statutes, unless that m
tent IL clearly aud distinctly expressed. In oiheT
words II the disputed point Is so ambiguous a. 20
admit Of two constructions that constructor inV7
favorable 10 the party 10 be affected oy IL Is 'hc ooh-
structioD that must prevail 1870. e.uA;,
The laws which restrain, such a. tnose tIa. TOT O.u
ANYTHING that l. not in itself unlawful or which dero
gase in anv other manner from the genera ~ .be
laws which iufct punishments Tor crimes abu Oshses
OF penalties in civil matters those Whlch prescribe
certain fornoliiies: the laws which appear 10 have
INV bsrdshiu In them; those which permit dsnhert-
ipS nd others; the ike 10 be interpreted 10 such
manner os not 10 be applied beyond what Is clearly
expressed n the law 10 any consequences 10 "hch
tho laws do not extend.
And o. the contrary we ought 10 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 II on act in derogaton Of the CON-
mon law highly penal in its nature destructive TO
property in s consequences eoparczing liberty, and
nictDg the loss Of social position and clVil nights,
70 irresponsible persons, and ahording no adequate
redress to the parties injured.
Applying the doctrine which have above stated
10 tbs act the justice Of which cannot be fairly cues
TONED has the defendant violated any OF ts PROVISIONS
md If 20 what is the penalty incuredi Tho first cues
lion which arises is is there any law or treaty OF tbe
United States which gives the right to sell imported
Bquor in this StateY
Ihe affirmative of this question il too well settled
10 he sorously contested. But it is coutended that
though the night To import carries with it the right 10
,oft I,oy syt,t ia
packages and that when the liquor leaves the hands
of the importer and gets into the hands Of the jobbe
or consumer the right 10 regulate the traffic in the
article IL vested in the State Government, and Is sub
ice cd TO such excise laws and regulations by the
State Government may be adopted.
That question has been 40 decided in the United
States Courts and il The settled law of the land
But does the question involved in those decisions arise
In this cese The first section of the act says II does
not apply to liquor the right to sell which Is given,
&C. The exception in the section Is In favor OF the
louor-inpOrted liquor; and therefore the decisions
Of the United States Courts 10 apply to the CUES
ton before this Court upon the construction of tbs
statute.
We have no right to say in constituting penal stat
ute that the insertion of cause in the law that was
entirely unnecessary to carry out what ia now alleged
wac the intention of the Legislature was inserted
merely for the purpose of avoiding the oft-agtated
question relating TO the sale OF imported liquor, when
had heretofore embarrassed the law of prohibitions
and that the latter clause Of the first section was In
serted for the purpose of declaring that the law was
not in conflict with the decisions in the United States
Courts on that question Effect must be given 10
the Legislature to exempt imported liquor from the
operation Of the act it would have been very easy by
leaving ont entirely the latter clause OF the first section
or by a slight change in the phraseoogy to have OBJ
waited all difficulty as to the effect of the latter clause
so far as that auction is involved. Suppose the
ton had read thus " This section shall not apply to
" the sale of imported liquor in original packages in
" the bands of the importer in any case where the
" right to import such liquor Is given by any law or
treaty of the United States" then the statute would
beve been clear aud free from this embarrassment.
Ii has been claimed that the act should be construed
as If il read az last stated. cannot consrue II.
Judicial officers do not possess legislative powers, and
where liberty reputation and property are at stake,
courts have no right to assume doubtful ones. IL is
therefore resolved into this: The section exempts i'm
ported liquor that being the liquor the right to sell
which given because the right to import implies the
right TO SELL and the exem )on being absolute 1t Is
taken out of the restriction imposed upon other liquor
Although the ed section of the act declares that the
act sh all not be construed "a 10 prevent the mn
porter Of foreign liquor from keeping or selling the
kame in the original packages to any persons author
lied by the ac, to sell liquor this refers TO the imported
sueciGcally The insertion of that section was wholly
The right existed without State leglsa
tive Ien.itsion.
orerstion and refers as have before stated, TO the
LIQUOR itself in It's broadest and most general terms.
Al common law az before have had occasion TO re-
mark the traffic IN liquor Is tree. It's Oy statutory
regulations that It is restrained.
The statutory regulations that existed in this State
up 10 the passage OF the act OF April last are all re-
pcued except that imposing penalty Tor tle SAFE OF
liquor on Sunday and the act OF Apri is substituted
In that act imported liquor as understand H. Is eX-
enpt FROM its operation by express enactment, and
the only license that Is TO be required 10 the license
under tie second section, which, IN my opinion, aP-
plies 10 intoxicating liquor other than that which is
suppose. by way of illustration, the last clause of
tie fret section had read; This section shall not apply
TO cider" instead of TO liquor" would it be con-
teudod that any penalty would attach TO the sale OF
cider, without license The word hquoT implying, as
II does from the context, imported liquor, is equally
exempt cider would have been had the word cider
been inserted in the place OF liquor.
Tie ped section does not in any way tend to author
ize adiferent construction. 1t s merely declaratory
OF an existing rgh,-a right which no State legislation
could interfere with. IL probably inserted before
the last clause of the first section was added and
il at most only decHratory OF then existing rlght
under the law Of the United States regulating COM
merCe.
have examined this question with great are, know
ing the deep interest felt by the community IN the
question at ISSUE. have consulted the authorizes
bearing upon the question involved and applying the
principles of the law as to the construction OF penal
statutes 10 the act under consideration, nave come
to the following conclusions:
That it is no oense to sell imported liquor without
having obtained tie license mentioned IN the ac' OF
April.
As this case is presented II is unnecessary to pass upon
other quesOns arising under the act, they are not
necessarily involved in the merits OF the case under
consideration.
The defendant is discharged.
In the other case tried before me, the People on
complaint Of Henry liih vs.: Charles l.: smith, the
same principles involved, and the facts are sub
stantialy the same. The defendant in that case IS
also discharged The statute in these cases allows
costs TO the prevailing party.
LIQUOR PROSECUTION CORRESPONDENCE.