New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-05-07
n Mnr.. sehsres.aa. KaLiea. b.

T. Mesg. Sehsressas. HALTED r..
GEsrLEsES: duly received your note. in which
you request statement Of NY views OF the opinon-
recently published BY the Di.trict-Attorney OF this
CITY and the Counsel TO the Corporation on several
questions proposed to those gentlemen arising under
the new statute Of this State called in common par
lance the Prohibtory Liquor Law"
You have directed my attention, particularly % two
Of those questions and the responses made 70 them
Although my time, since the receipt Of your note,
la. necessarily been much occupied in the discharge
# professional engagements which could not be post
poned. yet have been enabled D. study those opn-
ions with care, and 10 tei them by the proyis-
lois Of the statutes 10 which they refer.
Those published expositions Of the law have doubt
been read by the majority Of readers, not only in
this City but throughout the State and. yol init
mate the sentiments there promulgated will materially
influence the action Of thousands Of eowcitizens
IL reference TO IL requirements.
Office coners influence on its pos-cssors, and gives
to their opinions tie semblance at east of auhorta-
tive declarations In this country the people are edu-
Gated to respect such opinions, and are prone to be
controlled by them in the affair Of life. L. in conse
quence Of this difference they suffer either durance or
penalties they feel with 10 rhng degree Of reason.
that tie inhiotion is unjust.
Again: official documents and opinions are public
property Notwithstanding the respect to which their
source entities them every citizen is at liberty TO re-
view them in a candid and courteous spirit.
Thee considerations have induced me To comply
with your request and assent with the more freedom,
for the further reason, that "eor can work no injury
while truth Is left free 10 combat it, and, therefore
tie failure Of ms own effort II il shall prove failure.
eet fond Ia render the Suuulup~s
of .he opinions reviewed. and thus 10 augment Their
claim to public confidence.
The two points TO which YOU specially refer are the
following. viz:
First. Tie Disfrict-Aitorncy saws:
q OPINION that the aw vii stand from Nay 20
July with the old licenses expiring Msy ani no new ones
i-ies attached these latter defunet Until July .hi
there exists by aw no prohibition against 'ls AMI nor
Tie permit OF section two j. yet bald and besiows Do
Second. The Counsel to the Corporation advises
thus:
lam therefore Of opinion that the police viii not be just;
fed H. attempting 20 enforce he penalties OF b ~, against m
II is not difficult be discovered, that If the Dis
tric-Attoney is correct in his construction of the law,
the fOod-gacs of tie great of nicmperancc are
thrown more widely open m tins State than they have
ev,r before BEEN for tie time embraced between the
frst Monday of MAY aud the fourth day 81 July, 800
During those two months, saws, in substance, this
officer the vending Of intoxicating liquors Is untram-
melcd in this City by any of those proibfory re-ric
tons which existed under the old law.
II tie Counsel TO the Corporation has given sound
advice the swollen stream of dcsoati0n aud death VIII
be- hut slightly checked in It's onward sweep over
broken hearts, crushed hopes, and ruined fortunes Tor
an indeemmate period OF the future because liquors
imported under the laws and treaties OF the United
States are not embraced within the prohibition created
by The new statute.
such sad results, then, are 10 follow under the
ton If tie law enacted expressly 10 dtoH all trg1c
in the article Of ntOx eating liquors as bfrefdge :
Has the Legislature thu siultited itself L. the sound
usss Of these official opinions pablc that cautious
citizens will venture to act Oh theml These are quc-
ton- worthy of the Iteration OF such persons be-
fore they incur respons biliiies which may Ultimately
prove 10 be more troublesome than profitable IN their
consequence Let ~, then, briefly examine the two
points TO which YOU have referred.
As a preliminary remark W.. here state that the
Excise roy ons of the Revised Statutes 10 which the
Dsric-Attomey refers, (tHle . part ], chap. ",
titled III Erase" Sc. Demos 3D. and the stat
utcs and ordinances relating 10 the same subject IN the
CIV o Now-York. (Sess. ls2i-j-7 and l-33, ant CITY
Ordnance are very similar In Their language, and
almost identical IA the substance. The arrangement
Of subjects also uniform all OF them, the pcual sec
tons beng separate from those which regulate the sub
bccnse- Every argument and Inference there
fore, Itch may be drawn from the arrangement,
language matter Of one, is equally deiucible from
tie OiheIs.
F,rst. The other question being laid Of view for
the present, tie penalties, prescribed BY the OLD
T.
,noricafing liquors rhick could not be made without
the license abroga,cd by the statute, that such
saLes m0y h. made ruth tmDuHay bc,reeH the trst
Monday Of May and Juiyi
In my opinion those penal sections vet in force,
and persons selling contrary 10 the prohibition be-
tween the times indicated, will incur the same punish
meuts that would have been heretofore inflicted for the
same act.
Nv first reason in support OF this opinion IS that in
all those statutes and ordinances the sections imposing
.aTsa
comforting the power 10 grant licenses 20 sell. In sub
stance the language OF the former provisions is that
"whosoever shall sell any strong or splriiuous
Liquors, sc, to be drank &c, rthom hariEg OBJ
" fasHed license nfrefOr, as provided by thus act,
"siaN forfeit, &c Now. surprising the Legislature,
from accident any other cause had omitted TO pro-
vide for the granting of the licenses The ease would
be anomalous but not unprecedented IN the history OF
legislation. And could sprituous liquors have been sold
without subccting the vendcr 10 the penalty He
had no license when he sold the spirits. And would Il
have been good answer, in action brought
against him. 20 plead that the Legislature had not
made i; possible for him TO obtain one by the ex
press of the statute the possession of the license
Is made precedent 10 the accruing Of the right
of salc. Until that precedent act r done, the ught
cannot exist and If no power has been creaed by law
10 which application can be made for the bense, ne
ot.blfiOu must BE- rerpetHai H. then the statute
would have been operative had no provision By which
the license could be obtained been made Il seems 20
be strange logic 10 insist that the repeal Of q al prov
non Should abroga'e section OF the law whrh would
have been operative had the repealed provision never
been enacted. IL i reasonable 70 hold that the
euiy effect OF the license sections the penal. the
law formerly Stood. vas 10 qualify or ahri-e TIE ap
pcaton OF the latter and that the repeal OF the form
renders Their application universal extending the
PENALTIES 20 ali those sales which were ustihel hy the
License sections before tie repeal such va doubt
les tie intention Of tie Legislature. whose obect IN
the enactment OF the new law. was tie total prohbi-
tou - tie traffic IN ardent = Irts beverage.
llrrfr
authority for the DOa that the )enal sections of
liz. .-n-mla 40 n-.-rn,LA.- q law NJ. nun.aln