The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-05-09
THE LIQUOR QUEs TIoN.
Opinion OF James w. Gerard on the Prohibi-
tory Liquor Law OF 1855.

"
porsrs and dealers foreign and domestic liquors. on
various questions submitted BY them arising under the
Prohibory Liquor law passed at the Last of the
Legislature involving constr of its pro-
visions and the constitutionality of others.
The first and second Of these questions-viz.:
lst What is the effect extsnt and application OF he
following words, at the conclusion of section viz
This section shall not apply to liquor the right to sell
which in this State is given by any law treaty OF the
United States; and
liquor is and then is that right gene
raj in its nature or It limited and confined to any par
t'cular persons and if so, to whom?
II propose TO consider together.
am not aware that there is now in force any treaty
to se hquor in this state The right OF ntrod uction
however Ia independent of State legislation and is per-
ssvey derived from the practical operation treaties
OF commercial amty and intercourse substiog between
the United States nd uropean nations exporting
wines and spirits from those into this and the
the privilege Of Importation and that privilege it has
been udicialy determined, carries with it in favor of
the original importer the unresrictabe right of sale
The words, "lhis section shall apply, &c" there
fore in the position in which they stand need not
which no State legislation could Affect but are sntsei
to receive more extended application, founisd the
context and the power Of the g-lature in relation
the internal traffic in ardent spirits OF every kind.
derstand IT to be substantially established by various de-
csions Of the Supreme Court OF the United States
internal traffic is concerned regulate, possibly
She extent of prohibition the sale Of any article which
morals OF its citizens, though the inhibited ar
tcle may originally have formed . part Of the
restrained BY the right Of the importer to sell
liquor in its original packages ia substantially the end
Of all laws relating to the sale OF liquor whether of IL
cepse or prohibition.
IT, therefore, the power Of prohibition when exercised
can be exercised aiDt the article " it appears
to me that an exception provso in terms broad
the one under confederation, should re ,eive similar
construction as to the extent Of the permission and
should exist favor OF the exempted article ia whose
ers from them dealers and retailers for this is sta
tue restrictive Of the rights Of perso1s and property
highly stringent in its dies, penal in
uences and therefore mutt by construed most strictly
against the prohibition and bersy in favor of the per-
mission to SELL Taken literally the permission is gene
raj broad and clear wing imported liquor sold
generally and not limiting Its sale to the importer 1t
permission OF sale given to the importer any Of
persons In other words 1t declares in effect that the
other section that nnd whicn limits restrains
the general permission in the first and great cnactng
Of @ Of ush es s
Custom House certificates of importation, and proofs of
marks on the casks packages corresponding thereto
shall not be received sufficient evidence that the Ii
quors contained in said PACKAGES those
tualy imported strongly confirms my position
that imported liquors are exempted from the operation
of the act but requiring that additional evidence shall
be given Of les foreign character besides the Custom
Rouse marks the casks in which it il contained. II
also appears to If after the bill had been framed,
the last clause of the first section had crapt into the
act and that the friends Of the law did not ses it's effect
in exempng imported liquors from the operation of the
conclude therefore, that the prohibitions penalties
and forfeures in the act contained, have applca
ton to the sale or keeping of such liquor to
the commercial regulations OF the United States, is
subject importation whether it be in the hands Of the
original importer or retail dealer,
Tho third questionsIs the kesping in . storehouse
hand previous the 4th July, 1885, within any Of
prohbitory clauses Of the act the not being in
tended to be sold or given awayS'
that think it is intended by the legislature
30 to but am Of the opinion that the provisions Of
these and direct its are unconsu
tonal and void, for the reasons presently given.
The fourth qusstsn-DSss tns act in terms OF
quor defined by section % for export to other States
the sale within this State of liquor manufactured in
aDswer, as to the first branch, that the manufac.
ture of liquor in this State is not In terms that
perceive, expressly prohibited its export yet that
ahe practical operation Of the clauses OF the law
were they constitutional, would virtually put end to
the manufacture production OF domestic liquor. Bat
II these unconstitutional and therefore vod-and
thnk they dstller brewer has for augat can
perceive right to make and export liquor to be sold in
this State-apd this view to be supported by the
exemption Of the words Of the first section
ther. ts being stored in warehouse prior to It's
reaching ths place Of destination.
This is the best conclusion can come to on this
branch of the case, the different clauses being exceed
ingly obscure and inconsistent.
nths license cases in Howard so4 the majority Of the
Court in effect decided that is within the power OF the
importation
States Of domestic liquor BY prohi0itng it's when
landed in their limits, there being existing regulation
Of Congress special or general to which such regula
ton Of internal traffic would be repugnant (Ses opinion
Of Ch. J fancy, Howard, $50; Catron, p. sos, 6o9
and Nelson J. concurrDg p sis and think therefore,
manufacture can be sold within this State.
Having arrived at this conclusion from the examna-
tion have given the in 5th Howard, and entertain
ing the views have above expressed reference to the
exemption Of foreign liquors, am Of the opinion that
importation Of foreign and Domestic liquors. thus
sfrued epugnant to- or In conflict with the section OF
the constitution Of the United States whereby Congress
10 empowered to regulate with foreign nations
and amony the several States and with the Indian
tribes" And therefore answer the aftn question in
the negative merely Iemarking by OF addition In
this place what have before said the effect Of the
concluding words Of section that II they not to
foreign liquors is not prohibited, that restricting the
importer sell only to authorized by the act to
against the constitutional right Of the importer to sell to
anybody and everybody as the right is laid down in the
In reply to the 7th question se:tion XIV re.
peal the power vested in the Mayor, Aldermen and
4 sSs m
one which the Legislature is capable Of Withdrawing
curtailng f'-my views are in a'cordance with those
communication to that body this subject and am Of
the opinion that whether the original right conferred by
political power which is always subject to legislative
action, or lost BY acquescence In legislative inter-
possessed fun power to repeal II altogether.
The answer to the sixth question:" Are any of the
provisions of said act repugnant to the constitution Of
the State of New York?''-leads me to the conclusion
that the law in its spirit and mode OF operation op
posed not only to the provisions Of own constitution
but to certain naenable rights Of person and property
which lie at the foundation of the social compact and
which NO legislation can impair destroy.
hibit The sais ~ rasnt s;,, % ~ .rs;ns - oe,prsi
trade but it makes the possession Of the same without
even the intent to sell It, offence punishable by fine
and imprisonment subjects IL to con6scation and des
tructon, baptises public nuisance restrans actions
Tor injuries to It, the collection OF debts incurred In
s sae provides for the execution Of rowing and in
quistorial process issuing suspicion, aad limit
ed only by msgisterial discresn; and to crown the
whole violates fundamental principle Of law in apply
Ing to jurors under the act moral qualification hther-
to unknown to the law and nappcabe to othsr cases.
NO one recognizes more fully than myself the evils of
iutemppranca nd ri dusA 81 ~.