New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1855-05-12
THE RECORDER On LIQUOR.

| We have duly published the decision of Mr..
| Recorder Smith in the case of Patrick Boylan,
who was arraigned before him for selling liquor
without license. No doubt all persons in
terested in the question have made themselves
familiar with this specimen of Judicial wisdom,
and some may perhaps now be willing to
hear word on the other side.
| In this case Mr.. Boylan, the party accused.
admitted the act, but was discharged the
ground that he had done nothing requiring pun
| ishment Such was the Recorders judgment,
and in assigning reasons for it he thus expressed
| himself:
Are not these the only penalties which attach to the ofen.e
ofseins liquor wh or without cense Are not 81 other pen.
al and Of ats and all charters and parts OF charters
Inconsistent. with the &C under consideration When an act
cosfenng powers ard jurisdiction repealed the penalties i'm
posed the exist The penalties under the license
of April specific penalties for selling liquor without obtain
rg the Board Of Excise Thar law having been
repealed by the act OF Apn last a licenses except those pre-
.cbed the Of Apn also repealed and the penalty be
ing specific penalty for the violation OF an excise Law" winch
repealed follows that penalty can be indicted under
the sboeaed law"
The penalties to which the reference is made
in the queries of the Court, contained in
the above extract. are those of the Pro-
|
which can be given to the first one is No Those
penalties are not yet in force, and consequently
they cannot attach before the 4th of July next
to the act of selling liquor without the license
provided in the new statute. Besides on the
principles adopted by the Court, that act is not
an oifense against any existing law; and, even II
the penal enactments of the new statute were
operative at this time, it is difficult to conceive
how the sale Of liquor, with or without IL
"cense," could subject the yender to the pay
ment of the penalty.
| negative is the only proper answer which
| can be made 10 the second interrogat0ry con-
| tanned in our extract. The oath section of the
| new statute will not become the law of the land
before the 4th of July next, and consequently it
cannot operate before that time TO abrogate
call acts and parts of acts" The only question
now il: What is the law at this time mot
What will be the law after the 4th of july 1t
is true, as stated by the Recorder that "when
IAN act comforting power and Jurisdiction is re-
"pealed, the penalties imposed by the act cease
"to exist" and although it is not easy to see
the distinction between the power and the Juris-
diction of tribunal, yet il is evident position
that the penal sections of the old excise laws and
ordinances have inherent in them the elements
of the power or Jurisdiction of punishment fer
infraction of their respective prohibitions Those
sections are perfect enactments; they prohibit
sales and prescribe penalties for every violations
but that cannot be affirmed of the sections which
regulate the granting of licenses to sell. Stand
ing alone these would have been totally inoper
atiye, but in connection with the penal sections
they serve as exceptions to the scope of those
sections, az qualifications abridgments of
their operation. Prohibition is the rules License
the exception; and the repeal ola mere exception
never abrogates the rule. Hence the 18th sec
tion of the Prohibitory Law, operating only on
the provisions regulating licenses under the old
Excise system, leaves the penal enactments of
the latter in full effect until the 4th of next July.
1t is true also in the language of the Court:
THAT where the Legislature penalty for Of
nse without express terms repeating old penalty; that
the old pensly repealed by implication far contrary
and thereto Even where the legislature impose
Ieusy for otnse whether smaller larger than
tie former cannot be allowed to the other
n Bis option
But the new penal provisions must go into
operation before they can either I" in express
"terms" or by necessary implication" repeal
"the old ones" and as the :" new penalties" in
this instance do not take effect before the 4th of
July, they cannot justly be held to operate as
repeal before that time.
1t must also be conceded, as the Court declare
that
The rule seemed be well settled tha; penalty must a.
BE- eesieo BY express words and that cannot be raised
By Implication"
Such is the reasonable doctrine laid down in
"Smith's Commentaries on Constitutional Con-
"struction," cited by the Court and from it is
deduced the proposition equally authentic that
as the license sections of the old Excise Laws
contain no penalties "created by express words"
none can be raised by implication to give force
to them. Hence We reach legitimately the same
conclusion that these are but incidents TO the
penal enactments, and that the repeal of them
can in no respect abridge but must necessarily
extend the application Of the penalties TO all
sales of intoxicating liquors as d beverage.
IL must also be conceded, as the Court afirms
that
There can be no doubt Of the principle that penal status,
should escape punishment than that they should convicted
contrary 10 law
The application Of this rule to the 25th section
of the new statute will confne the repeal which
results from its enactment to the license see
tiOns only of the old laws. The licenses being
the only subject mentioned in the repeating Sec