New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-05-25


Gtjec Of the foundness Of my decision shall briefly
state the reasons which lead me to this result
In the first place the penalty given by the act Of
1897 cannot be regarded repealed by the 9th
ton Of the act under consideration providing THAI al
acts and paris Of acts, Gnd all charters and parts Of
charters inconsistent with II rcpeacd this
ton does take effect until July 4. Even when tho
provisions OF revisng act are to take effect NJ ig-
ture period and the statute contains clause repeating
the former statutes upon the subject the repeal
ing clause does not take effect until the other provs
IONS Of the repeating act come into operation. smith
Com. on Constn, 1884, lSpaulding W. The lnnaOii-
ants of Afford Pick 80 Bur we're II otherwise. ~
there anything in The right of action giving TO the
Corporation Of New-York penalty oi - Tor sching
liquor without license inoOasistct s-ih the Vre-e u
law II il against the policy offho law 10 favor repeais
Of statutes by implication, smith Com, 49,, shi
they are never allowed but when The inconsistency M
rpuguaDcy plain ana unavoidable; andi by inter-
pfetation both acts may stand together they shall 70
stand "a Gill and j., Oh and when il not maiiesty
the intention that subsequent act shall control the
provision Of former, the subsequent shGl not be CON
strued as having such operation, even Tough the
words taken stricily and dramatically could n"M
the former act. Same, ISL The first enactment
Ia ihs declared that person should sen without
iicenre. and provision made for procuring II
cese the pr sent law declares that no such Incense
shall be hereafter granted and these, when taken To-
geiier, may be construed "lihout violence ehhcr 70
the letter spirit OF The laws, and without nGnest
Inconsistency with the Intention OF the Legislature
declaring that pcrsou shall hereafter se by retail
as prohibited in the first act The result Is the same
'loei sed according TO law" had been Expressly o.
hteraied There il no irrCconc ability, repugnaucy
abeurlity here. Tie example Of summary proc .ei
hgs 10 recover possession OF lands u similar us ance
of legislation. Formerly the landlord was
obliged to show IN application for process 20 re-
move bis tenant for non-payment of rent. among the
otter facts and circumstances, that satisfaction for
"such rent could not be obtained by distress Of any
"goods." y II. $, Sd Ed, COZ, 2-.l Subsequently,
under the amended Constitution, the entire system OF
distress for rent prohibited and Abolished and
this alternative being N law impossible Of perform
nnce, such fact u now required to DE shown.
There being legal praotcabity of obtaining salts
faction by distress, the remedy by dspossesson be-
comes applicable IN every case, although 20 extensive
a remedy not perhaps contemplated BY the Legis-
lsure when the original act passed. SO IN the present
case the penalty originally applied only to those who
sold without license, allowing to certain class the
privilege of getting such license The Legislature
abolish and prohibit the license, and thereby leave
the former law 10 apply to oil who sell therein de-
scribed prohibiting substantially all such sales even
though, az coniended by the DEFENDANTS counsel no
prohibition originally cOncml lated or intended.
To say that the license system repealed, ani there
fore the penalty must fall with it, seems to merely
to change the statement Of the proposition without cs-
sentially altering the meaning. The license system
has not been repealed but merely changed and made
more stringent; the ability Of obaiuing license has
been taken away and only the inconsistent features
have been repealed.
The idea that il was the sale, coupled with the abil-
lily TO obtain license and the omission or impractica-
bty of doing so, which constituted the oifensc, ron
dered the party liable to the penalty, and that without
such ability 10 penalty can now be enforced, seems TO
In all respects taGcOus as applicable 10 the qucs
ton under consideration. The oiiensc formerly
sisted in the sale merely. The party selling if he had
no license be said 10 have had the legal ability
10 get ore any more than now. The granting of
license matter of pure discretion, which, whether
Rrauted refused, could not be compelled
strained. And the license itself was mere personal
privilege, which could not be the subiectof legal
al. i'm of right whatever might be the qualifications Of
he MnVOr a Mason.
Pleas Gen. Term. Lcighv Westervclt, sc. Comm.
Of Ninth Ward, Superior Court. The People V. The
Mayor Of n. Y, How. II. II. And such dis
creiion even wien exercised as in The case first cited
by absolute refusal of all licenses amounting TO pro-
hbition of the sale subjects the parties TO the penalty
for selling without license. There seems 10 be no
essential difference whether such prohibition Is
effected by the exercise of this discretion on tie part Of
The Excise Commissioners or 10y the direct act of the
Legislature from whom their powers were derived
lie legal inability to obtain the license Is the same.
An alien or leIson of VIGOROUSLY bad and infamous
character could not legally obtain a license formerly,
ard as 10 him there certainly legal impo,sb.hty
of obtaining license. Still II was never commended
ibet the attempt 10 enforce the penalty for selling
with out license was an absurdty as TO him when the
law afforded HIM no means of becoming licensed. MOI
wGs il material to inquire 70 what cause the omis
sion 10 obtain license owing; the Oflensc was the
w ether the narfv competent or ncompe-
ie1i--whether he had made an uusuccessu or no APP
r alton fer licei sc-whe,hcr he was Gpersyn ,9od
SlsTse:tr otherwise it was equally sale without
Lss4se snd {, u; lly within the law.
Tis Iosi,n is further illustrated by the act of1s43,
essss. law ?. 3s2 which declared that in the towns
vbsie he ele tore specified tune OF election should
wee Nc Ltelse, no person should sell by retail.
And tsbOUlh he Legislature for greater certainty
Ia Dc If rel 20 the penalties ltsculed 10y the Re
zHEd SsEfuts yet il ives held that had the &C, omit
tet ia; gfuyison al persons selling In towns where
DE sses thus absolutely prohibited would be liza
lie % IL Oh i.uties 10th civil and criminal. The
Pent5e v Tc,srsey 5 DEMO, 20, - The Same V. SAT
fcfd. Demo, ll2, the same ads. HOdgman, DEMO,
~. Ntlstce Y. King, Barb, 54s.
TIE &C. i'ss'f Conclusivey shows by expressly APP
Tlyng tie former penalties n at there Is inconsis
iei o> or slsudlty in pTOlbiing the license and still
prosecuting fOs the sale without T. anu that The two
tnaciueuis may stand. And Il was conceded in the
IGtseui case nai had the act Of 1855 expressly
enacted tie former penalties they might still be recov-
eTAhle.
Thee views seem to me to dispose entirely Of the
objection that the penalty Of S25 given 10y the act OF
ls7 hes been repealed by the 2it section Of the act
OF Afril = ls55. II is not to be believed that the lc
Clsiaiure designed to rlaX the excise laws as 10
allow such unrestricted and unrcguaicd traffic, and
that too when they expressly declare by section -
that such traffic Is public nuisance, and had the Ian
xuaee of the law been susceptible by plain nierpreiG
ton OF such construction, Il would still be the duty
of Courts TO enforce what appears TO be the intention
&C tie Legislature. More unavoidable Is that duty in
th present case when no Other result, as Il 10
me- can be reached even by any however strained and
unnatural reading. Although, general rule,
penal statutes are 10 be construed strictly yet II
equally well settled that they not 10 be construed
strictly to defeat the obvious intent of the Legis
lature. smiths Com. 40. Oh. j. Marshall.
Wheat. 10.
suggestion has been thrown out that he chartered
rights and franchises Of This City had been nterered
with In an unconstitutional manner 10y the act OF 1855.
IN deprN ing the corporate officers of the power issue
hcenses and of the revenues derived from granting
them.
1t appears however TO be clearly settled that this