The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-06-08
The Liquor Law.
? JAMES n WHITING, ESQ.,, ON TEE In

toxicatSg liquor, o. ticle Of commerce and
cbAndize cannot Be questioned II is inherent
right This right may be regulated or taxed BY
else duty imposed by Congress- but not BY the States
Art. L. Sec s, sub. div. Of the constitution Of the
United STATES declares that Congress shall have power
ito lay and collect duties, imposts and excuses
but all duties and excuses shall be uniform throughout
the United sate The power Of imposing taxes, other
than imports exports and excses the States possess
copcurrent)y with Congress- but the States have no
power to lay imposts or excuses. II they had TINS
power, the uniformity could not be maintained. Inc
power conferred upon Congress- as to excuses Is wen
imposts is for this essentially exclusive An
excise duty specific tax upon the article, and wnen
in its liquid form upon its whether 1t be
An article of import export to be consumed at home
This rule exclu i've Interpretation in regard to the
delegation OF power upon Congress under the constu-
ion OF the United States has been adopted in regard to
he Judicial power conferred upon the courts OF the
United States The constitution declares that the in.
dicai DO shall extend to all ae sting ambassa
and consuls and that those the Supreme
Court shall have original Jurisdiction" Under this pro-
vision supreme the United States decided
that the State courts Rave no Jurisdiction over consu
the conferred being essentially exclusive SO In re-
gard to that section (o4 TO sablsh an untfor RUE
OF naturalization and uniform laws on the suoJect OF
bankruptces the uniformity OF the rules In THESE cases
10 held 10 render the conferred necessarily excu
latter movers than in the levy collection Of duties,
imposts and uniformity required in all those
thai in this State excise law at least in regaid 70
strong intoxicating liquor has ever been passed oy
the Legislature Although the statutes of State
regulating the sale OF liquor denominated excise
laws they are really nothing more than license lava
This distinction existed IN England when the wine Ii
settled the crown N the 18th year OF the reign OF
Charles H. and, together with the hereditary excise,
made the equivalent in value for the losses sustained
nv the prerogatve in the abolition OF military tenuras,
and belonged to the nary revenues Of the king The
excise al separate and 6stiuct duty imposed by
Parliament gwen the siug part Of his extra
ordinary revenue Our former statutes, as police
or spirisuous liquors by retail through the in
strumentaity Of license t6is being power not dele
gated to the United States oy the constitution nor Sy
prohibited to the States They we're not laws OF prohib
ton nor Of revenue They neither touched the manu-
faoturer, importer Wholesale dealer Between i'm
ported and domestic liquor they made no discucton-
these articles beng alike the control and protec
ton of the same system ndee' the Massachusetts acts
the other ian act rning licensed houses and the
aais of intoxicating liquors. They regulated the sale
ty provided what they protested to csn lcsnse sys-
teG-they were internal police regulations and were SO
in the celebrated csses IN 9Th Howard aud are
thske called ths license cases" Our laws were simply
nterna police equations Intended to restrain the in
dscrimnate sale of liquor and to control and modify
this evils arising from tempsrance Thus stood the Ia
on the 9th Of spr is when the anou ~
under the constitution let us examine some OF the pro-
Its puryew ana declared in eut ia to prevent the sale
of intoxicating liquor "to be used as beverage" l,
strikes at the ssuse. 1t is neither csnse
else Law. abolshes licenses 1t authorizes agency
save compose of 26 sections. The 25h
into operative existence on the 1st day Of May
just three weeks after the balance OF it is to havs
birth the Legislature seemed 10 think betting such
hydra. AIDED monster 1t is then tocogoyerament of
stature and proportions au law loving and law aoid.
aIee ana aus full advent Is to cast it's dark and fore
6eaipg shadows tire State its natal cay, when
the fhackles Of nilar depotisn were suntersd whso
danIa pal. III ia
liberty ana the pursuit OF bsppness declared to
be smoDg the inalienabe rights Of men; when it was
declared that long tram OF abuses and usurpstlons
evncirg design to reduce under the sway OF ab.
solute despotism transformed into duty the right to
eusds ~ for aber future security rheu is to be pro-
claimed in the streets aud upon the housetops from
the pulpit the press ana the new edict de-
pyipg to the citzens OF this stat the privileges aud i'm
munies to citizens other States-unba-riog
doors and inviting The spy inormer aud petty
stable to come n expo ing our families our houses AMI
effects the rude OF tbs ntru Ter there aud
then is property to be taken from us without trial
--witbcut beipg informed of the nature OF the
accusaion-wi,hout bang CONFRONTED With the
witnesses then and there ue may be arrest
ed By warrant disgged before justice anu
peaceful citizen, who h. permitted his zeal to out
his judgment, we'll auo consider whether thsse
far outweigh all the evils which this law proposes to
NEEDY The day that ushers Is truly fitting for Its
yortoned Limbs and the tsst Of constitutional limss
then let it stsnd-f not, then the destruction of hu
man hopes in the establishment Of we'll regulated lber
ty, has not yet been begun.
what then are Us provisions by which it can stand
without constitutional impeach rentS
The 18th section abolspes the whole license systsm,
and declares all LIQUOR Kept in violation Of the act
public nuisance The second section provides an agency
to sell intoxicating liquor for mechanical che micsl and
in terms makes the "sae," excepting for sale or
"keepng with intent to b sold except under this new
agency. and except such liquor the right to sell which
IN THE State Is given BY any Law or OF zoe United
States, public nuisance No sales OF the prohibited
qu be wfuy made, can It be kept with in-
tent to be Sold except under the new systs after the
FIRST day of May.
without license agency, under the net bet ween the
FIRST of May and the fourth OF july without in:urrng
penaltyS think 1t may, because no penalty attaches
until then The 2sth se.tion declares all q uors kept In
violation of this act to be paolic nuisance. Tbs first
section declares spat no intoxicating qnor shall be 30
kept for SALE Does the 25ta :ton draw and incor
porAte into it, the provisions OF the FIRST and make this
prohibition operative before July No, for the reason
that the rst secon no vitality until the fourth OF
July The act so de ,ares There ia therefore, penal
ty for eel ing without license under this att un theo
ing license therefor grated as therein directed To
sell t'metheglin, currant wine cider" without II
cense is no offence under tnat act-under this it is
Under that any strong OF liquor may sold
to be drank in the house or carried away and USED as
bsyerage-by this 1t csnuot be- Che penalties no In ex
sterce violating that not for the vio
latng this. sale OF toe ci err and wines aoove enums
rated is offence under that actunter this 49, is
sanction or in Other words penalty or for
disobedience AN aware thas the doing an act PROFIT
Dtted by STATUTE declared 10 o. msucmeauor AZ
made so by ID Revised Stsute Sd edition, 1884, section
So 1t Is made Punishable however only in casel when
the statute itself some other statute has failed co
impose the per atty Thi. statute doe, impose the
penalty, and fixes ths tina for its infetion, AM
therefore it not punishable offence to sell to
keep liquor for sale duIiog the time stated. Again,
no penalty attaches because the former acts
pealed by this by Implication. TOTS act is afrna
tive act in dsrogation 81 the common Law. The sale
of liquor wa not prohibited az common Law Every az
rmatve statute Is repesl % Implication of prscs
dent Affirmative statute far 1t is contrary threto.
This ia contrary on che su ec Of license aad sale It
for bids both 1t does not regulate lit prohibits. Notsx
Is imposed the article toe right +, sell consump
ton can take place ex ept chemical mechanical
scna or theological purposes Toe penalties are dit
fsSent new and susl puu shmsuts are inflicted no
scr, zion Is LOGGED AM to the graft ola rght
70 sell Any person Who comply with the term, OF
the act land they II ne lev any, can sen TIE acts