New-York tribune. [volume] (New York [N.Y.]) 1866-1924, 1866-07-19
EXCISE.
THE OPINION OF JUSTICE GILBERT IN THE CASE or
j. P. RgrcHUM-THB RIGHT OF THE LEGISLATURE
TO REGULATE TIE SALE or INTOXICATING
LIQUORS.
In ne John Il. Ketchum.


TO REGULATE TIE SALE or INTOXICATING
LIQUORS.
IN re John Il Ketchun.
GILBERT 1.-THE return IL the writ OF habeas cor
pu shows that petitioner held under warrant Of arrest
1g b oo ne 7ts y u. in the CIV Of Brookiyn in
tins County Kings The petitioner clio nnawfny and pgbcy
keep sell end dispose of quantity 81 strong and sptuoIs
taon contrary 10 the provisions OF toe third and eighth
OF the Act 90 Regulate the sale OF intoxicating LII
quors passed April a. 1900 The discharge OF the petit
TONER ground that the statue in question
is unconstitutional and void /. 4. Is said thai the statute
does not conform section l6 article " the Constitution
which requires the subject local ball be expressed In the
title TANK this objection has no blss IN Ae'. feopls
agt Licierman, 90 Barb l77) Besides the act Is not
local within the meaning OF the Consttu-
ton. The counsel for tho petitioner admitted, Us
all admit that tho prohibition against selling strong or
without License valid but he conended that the whole
rested section three which oontsns this prohb
On and that because that section contains and distinct
prohibitions which the Legislature had not the power TO i'm
pose the whole statute void cannot assent 70 t1s propo
ston II unsound logic assweI m law. Tho third
section OF in question provides that no person shall
pahey keep sell give away or dispose or any strong or
spirituous liquors &c without license and makes every
violation u nsdemeauor. The petitioner Is charged with
selling glass OF gin without license Inc power OF tne
Legislature this oense and TO punish IL IN the mode
prescribed unguesonahle il was indeed SAID on ne
argument that the right OF disposition Of quo on hanu az he
time OF passage the absolute and that the Legs
ature had power TO impair this right by requiring
a license to be taken out az condition OF sehng
II In quantities less than five gallons But this proposition
pressed and needs argument TO prove that has
foundation In law 10 beng understood then inst the ae
with which petitioner charged legal ohense ana
punishable snch the precise question presented whether
e circumstance the Legislature Incorporated IN the
other and distinct provisions which they had no
power yated the whole staute No authority for
this proposition cited except the OF Wymhance IN Is
" y r. On looking at the case find tnat so far as IL con-
ans any apson to tns SUBJECT Is en- authority Tor lhe re
verse proposition The rule ooneadsd for would be repug
uant 20 reason and sense and satisfied no such
rule has been ought 20 be established Mr. sedgwieE In
his treatise statutory and constitutional law says Inc
principle void only far ITS provisions are
epugnnni the Constitution that provision may thus be
void this affect other provisions OK the statute has
been frequently declared" [Scdgwiok. Const Law 49,
THE principle well understood says the
Supreme Court Of Massachusetts, that when statute mas
passed part Of which not within the competency
Of legislative power such part thereof viii be sdudged
void while all other Of the act obnoxious 70 tho same
objection viii be held valid. (tsher ag hcGee Gray W
II be admitted them that the Legislature bas not ne power
10 prohibit publicly keeping the gvsg away OF liquors
the selling TO miGors &C. or 10 authorize the summary
enforcement the manner md by the means pro-
yided does rot follow that transcribed Jus powers "
making sale OF gin by the glass without license an oneLse
punishable according the ordinary forms OF law Inc ques
lion OF the validity OF the other provisions Of the Saate
which illusions have been made is not before me- Whle
have decided convictions respecting them do not Tor THIS
reason think proper them Tho petitioner must
- I'D.