Smyrna times. [volume] (Smyrna, Del.) 1854-1987, 1856-06-11
OPINION OF THE SUPERIOR COURT
ON THE
Constitutionality of the ProhibitOry
Liquor Law of Delaware,
MAY 3lst, 1856.
GENERAL SESSIONS, New Castle, May term, 1856.
The State Us. Charles M. Almond.

GENERAL SESSIONS, New Castle, May term, 1856
The State Us. Charles M. Almond.
Legislative power is an attribute of sove
reignty belonging TO the people, to be exercis
ed only by their representatives. The eXten
of the grant Of it TO the legislature, with it,
reservations and restrictions are to be found
only in the Constitution ITSELF
The Legislature has power, as police regu
lation, to prohibit the sale of intoxicating IL
quor; subject only to the laws of the United
States regulating imports and these protect il
only in the hands of the importer, in the origi.
nal cask or package.
Though state is bound to admit an article
thus imported under the laws of Congress, il
is not bound TO find market for its sale.
When sold by the importer in the origina
cask or package, or when broken up for retail
sale, it becomes subject to the State laws: and
may be taxed, or the sale of it prohibited.
Property i'll an article is the right TO have ard
use 1t subject TO lao. The right of sale is moi
an essential ingredient that may not be separa.
ted from he ownership; and law regulating
or prohibiting the sale, does not take away any
vested right of property.
In the social state individual property is ne
cessarily held subject to such laws of regula-
ton as are required for tie we'll being of socie-
ty; and in sovereign state, the Legislature
having the power to pass such laws, must Judge
of its limits and extent.
The Act of 1855 prohibiting the sale of in.
toxicating liquor for any other Than .mechani
cal, chemical aud medicinal purposes only, and
pure wines for sacramental use f." saving the
rights of the importer of foreign liquor under
the inn 81 l,.p 10 al
The defendant, who keeps first Class hotel
in the city of Wilmington, was indicted fol
selling intoxicating liquor contrary to law
His case was selected, from many others of the
same kind, to test the constitutlonality Of the
Act of last session known as the prohibitory
liquor law. 1t was tried at New Castle during
the past week, before Judge Harrington, Woot
ten and Houston, and excited great interest
from the delicacy of the questions, and ma ni
tude of interests, involved. IL was argued a
length, and with great ability, by Hon. J. A
Bayard and J. Wales, Willard Salisbury an,
J. p. Comegys, Esquires, against, and by Hon
re. s. La ion and Mcssrs. Bradford, Bates ant
| Smithers, for the law. Tie opinion of tn
Court was delivered by Chief Justice Harring
| tom
The defendant moves, on constitutional
grounds, to quash an Indictment found agains
him for unlawf,!ly selling Intoxicating liquor
contrary to the Act of Assembly Of February
81, 1855, entitled, An Act for the Suppression
Of lntemperance," without having valid an
/ subsisting license as a tavern keeper, under tn
Act of 1858: and without having certifcat
to sell liquor under the Act of 1855. This mo
tion brings in question the validity of the Ac
last referred to; and has opened up the Who'll
subject Of constitutions power OF Legislation
with It's restrictions and qualifications, as we
as the particular exercise Of it in the provision
of the Act which the defendant is supposed t
have violated.
proceed TO express the opinion of the couI
on these questions.
The particular provisions of the Act to whic
reference was made in the arguments, are III
following:
Section l prohibits the sale of intoxicatin
liquors, except as afterwards provided, an
makes it indictable; and makes proof of I'll
disposal of such liquor by any person who
the keeper of or interested in tavern or oths
place of public entertainment, primo .facie an
presumptive evidence that such liquor was so
} contrary to this act.
Sec. prohibits the giving or in anywise di
posing of such liquor to any intoxicated persC
or persons of incorporate habits, as a beve
age, and makes it indictable.
! Sec. 8 makes it unlawful and indictable
/" own or keep" any such liquor " with inte
, to sell the same" contrary to the act; al
makes the possession of such liquor by the a
cussd 10 a tavern or other place Of public e
tertainment, presumptiye and prina Jacie e'
e dence that the liquor is kept for sale,
: Other sections provide for the oppointme
. of a limited number Of persons to purchase al
sell liquor for certain purposes: and for furnif
ing to every voter authority to sell TO such pr
sons liquor MANUFACTURED by him of fruit
grain the growth Of land in this State. u
Q no license to purchase and sell shall be grant
I, to any one @who uses Intoxicating liquor as
beverage" nor to any person who is at the tn
the keeper Of or interested in any tavern
: other public house Of entertainment. L
; persons so appointed are required to give sec
Is rity for duly observing the law.
Soc. Z Furnishes the making false statemeI
: with regard to the use of liquor bought Of
e censed vendors; and
y Soc. provides that " if any intoxicated p
son shall be found in any public place, or d
turbing the public peace and quiet" he sh
: be fined, and for non-payment, imprisoned.
= The offences under Sections and 8 are
be tried before Justices of the Peace, with
2 right Of appeal to this court, at any time wi
in FIVE days after conviction, on entering i
recognizance with surety TO appear and alb
its Judgment.
Sec. 16 provides that the law shall not ap
to the importer in respect to liquor impor
under laws of the United States, and remain
in the original casks or packages aud SO (
on posed OF; but that " the Custom House ceF'
NJ Gates Of importation and proofs Of marks on
casks or packages corresponding thereto 81
ID not BE received as sufficient evIdeHce that
M liqucr contained in said casks OF packages
IN thoss actually imported therein, bot the per
= to be benefited thereby shall be required to
leoe and prove suoL fact aliunde."
~ Sec. 10 excerpts from the operation Of the
lse aeidse or vine manufactured frsm fruits t
beinss the growth Uf land in this State owne
10 occubied BY the manufactures" and sold
az. him Ill The place where made, ~ quantity
ten less lhnn one gallpn az time.
he See. u exeppts ne use o. liqn9f nledic'
lly byEphgsicmns; and