Raftsman's journal. [volume] (Clearfield, Pa.) 1854-1948, 1858-06-02
THE NEW LICENSE LAW.

q
ion relative to the effect of the new license |
law, as to the duties imposed upon the power
with its execution. The main diff
Guilty seems to be as to the degree of discre-
tion which may be exercised by the granting
power, as to the matter of the number to be
licensed, and the inquiry as to the necessity
for comforting such right to sell in each par
ticular case. 1t is alleged that Judge Gal
braith, of the Erie district, so interprets the
new Liquor Law to authorize every tavern
keeper to procure license without publication
or certificate, and he has granted licenses ac-
cordingly.
In Northampton county, the Kansas ex-
Governor, Reeder, contends that the granting
power is compelled to look into and to pass
upon the necessity of the tavern, in each case
where license is granted, and as the subject is
one of some considerable interest, give,
below, an outline of his argument, as prepar
ed by himself for the Philadelphia Press.
The Court in this case, did not pass upon the
point raised, as has been stated in some pa
pers. We commend this view to such parties
as are interested in the matter. We might
ilu IL Is HOt tHc VIC" HClu ny SOluS VI
those who were instrl mental in securing the
passage of the law, and we believe Mr.. Reeder
was opposed in his argument by member of
| the last Legislature, who had taken much in
terest in the legislative action respecting it.
EAsToN, May Is, 1888.
| Ny DEAR SIR: OF course 1 have not the
| least objection to comply with your request to
state the reasoning on which L have based my
argument Dpon the question to which you re-
| fer. The argument was made in court, and
of course, is already public property; and
| give it the more willingly as have the most
| thorough confidence in it, and cannot conceive
| how ii can be answered. Briefly, it is this
The third section of the Act of 1884 pro-
| vides that no tavern shall be licensed unless
| it is necessary for the accommodation of the
| public, ard the entertainment of strangers
| and travellers. This section remained in force
| until it was repealed by the act of Iith April,
| 1855, which swept away all the provisions in
regard to tavern licenses, well as all tavern
| licenses themselves. BY the Both section of
| the general license law of 31st March, 1856,
this repeating act was itself expressly repealed.
The certain consequence OF this repeal of
repeating law was to revive the Sd section of
the act of 1854, by the operation of simple
rule of construction known TO everybody.
The act of 1856 might have prevented this
result, if it had contained any provisions ir-
reconciable with the section revived. The
most careful examination of that act, howev-
er, can discover such provisions whilst,
on the other hand, the Sth, 1ith, and 9th
| sections (Which | shall not stop to quote
| comment upon) strongly Indicate a contrary
intention. Indeed, L have never heard it
doubted that, under the act of 1856, the
courts possessed discretion to pass upon the
| necessity of the proposed tavern to the accom-
| mediation of the public; and, so far as have
| learned, the courts did not hesitate TO exer-
| else it, and to receive evidence to guide them
| in doing SO. The 9th section fixed mar
| imum number of licenses, (by reference to
| the number of taxables,) which they were
| forbidden to exceed ; but, Uifhin this limit,
they possessed, beyond all question, the pow
er to grant or reject, according to their opin-
ion of the necessity in each particular case.
If this is so-and L cannot imagin how it can
be denied-whence can the power be derived,
except from the Sd section of the act of 1884,
which have already shown to have been
vived and in force? This power is given there,
and it it given nowhere else. Enough, how
ever, that the power existed under the act of
1856. 1t was one of the ssTequirenents Of the
idU, )" that the applicant should satisfy the
court of the necessity of his proposed tavern.
The 9th section did nothing more than to I'M
pose a restraint or qualification upon the 9TH
ergise general discretion of the court, to IL
cense when necessary, by forbdding them to
| go OSJOflH u Certain Illus SlODu Tic
| law up to the act of April Sth, 1858. and |
| have never been more mistaken than am now
| if that act has taken away this discretion from
| the court. The question turns entirely upon
| the sixth section, which is mandatory upon
| the court in certain circumstances. 1t provi-
des that the court shall grant licenses, &c,
&c, s.wheneyer the requirements of the iGIcS
on the subject are complied with by such ap-
plicants.'' One of these requirements was
that the application should appear to be for a
tavern necessary to the accommodation of the
public, &C., as L have already shown; and
how this particular requirement is to be dis
penSed with, and all others insisted on | am
at loss to understand. The very restraint
imposed upon this discretion of the court by
the twenty seventh section of 1856, is express
ly repealed by the 22nd section of the act of
1858, and the discretion itself is left untouci.-
ed; so that the Legislature by thus restoring
the general and unlimited character of the
discretion, gave the strongest recognition of
its existence, and of their purpose not to dis
turb it. The act of 1858 is nowhere supple
tory of, or inconsistent with, this previously
existing provision and, upon this point, ex-
cuSe me for quoting the language of the Su-
prcme Court, in 10 Barr, 448, where they
say SIT is in general necessary that the in
tention to repeal be expressed in clear and
unambiguous language, and not left to be in
ferred from the subsequent statute. >.
An ancient statute will be implicitly repealed
by more modern one, only when the latter
is couched in negative terms, or when the
matter is so clearly repugnant that it necessa-
rily implies a negatives for implied repeals
are not favored by the law. When both acts
are merely affirmative, and the substance such
that both may stand together, both shall have
concurrent efficacy"
Such was my main argument, besides two
minor ones, which, however, / considered su-
perfuous and unnecessary. In one of them,
nevertheless, L have much confidence. The