Evening star. [volume] (Washington, D.C.) 1854-1972, 1893-06-06

should receive new licenses under this law.
Such intention would possibly not appear 70
unreasonable if the taking out of new license 3
was but matter of form that could be trans
acted without delay. but under the new law
this process is necessarily attended with delay
| as well as uncertainty.
Moreover, that it is not the intention to sus-
pend sale in tine future even until permanent
licenses can be applied for, considered and
granted by the excise board is apparent from
the 18th section, whereby the holder Of a
license under the new law may, on or before
the day OF its expiration, deposit the fee for
another year and continue the business law
fully until such time as the board shall have
passed upon his application and refused it.
AN OHIO CASE.
In Ohio it has been held in a case that has
not since been questioned, 80 far as We are ad-
vised, that the repeal of liquor license law
and its substitution by a prohibitory enactment,
without an express abrogation Of the unex xpired
licenses under the repealed law, did not take
away the right II sell hereunder until their
expiration. (Hirn agt. State. l Ohio, st. 15)
This decision did not proceed upon the idea
that there was any vested right in the license
which the state could not take away, for the
court expressly held to the contrary.
To the same effect substantially, see Davis
agt: State, Tex CT. App, 425.
The repeating clause Of the Ohio act reads
thus: "All laws or parts OF laws licensing the
sale OF spirituous liquors which are inconsist-
ent with the provisions of this act be, and the
| same are hereby, repealed"
Constituting this the court said ''This repeal
Ing clause affects nothing but the power TO
grant licenses in future after the law took effect
1t repealed the authority in the law Of 1881 to
grant any more licenses to retail spirituous
liquors, but nothing further.
There is no language employed expressive
OF any intention to revoke or annul the unex-
gired licenses previously granted under it.
lhe license was privilege, IN acquired right,
which. during its term. was not dependent on
the continuance Of the law under which it had
been granted.
''If license had been granted and taken out
under the act OF 1881 on one day, and the next
day the entire law had been repealed, it could
not be claimed that the license to keep tavern
was revoked. The repeal of the law would sim
ply take away the authority to grant future
licenses. 1t Is clear that the unexpired licenses
were not expressly repealed or revoked by the
act of 1884,
We do not wish to be understood, by quoting
it, as adopting IN full the language of the Ohio
case, for 1t is different one to this in ma
terlal particular. In that case a radical change
OF public policy was made, while in this there
has been none.
A MASSACHUSETTS DECISION.
The view we have take Of this case is sup
ported by United Hebrew Association against
Benshinol 13O Mass, $3.50, in which it was held
that an act repeating the former incorporation
oct and substituting another for it with many
details, did not repeal the charter Of s
corporation formed under the repealed law
The court concluded that it could not be held
that the legislature intended to destroy corpor-
atoms created under the repealed law, when
the repeating statute only extended the provis-
ions of the old and perfected its details without
changing its general policy.
In the application OF the it must be
borne in mind that the charters taken out un-
der the repealed law were not contracts beyond
the power OF the state to annul, because the
law contained an express reservation Of power
In the state to alter, amend or abolish at its
pleasure all charters granted Hereunder.
Under such astatute charter is but license
to do business in certain way. II can no
more be called contract, in the legal sense Of
that term, than license to sell liauor or to
pursue any other taxable calling can be SO
called.
THE QUESTION OF CONTRACT.
Call it q conditional contract, IL you will,
still there is ndshnie mat distinguish It, in
point OF law, from q license to pursue a call
ing. II any difference, the license has the
stronger claim, because the pursuit of the call
ing Is thing of common right in the absence
Of regulatory statute, while the corporation
never could exist without grant Of the fran
chise
involved in this case and of the able and earn
est argument on behalf Of the District we deem
1T proper to review the leading cases that have
been relied on to support the judgment Of the
court below.
THE CASES CITED.
Q.) Moore agt. Indianapolis, 120 Ind. 49,
This case is not in point because the repeating
ordinance therein construed made express
provision for taking up the old licenses
and crediting the sums due for the unexe-
plred terms upon the new. The case there
fore, is authority only for the propositions
now scarcely denied anywhere-that a license
to carry on business is not contract which
it Is beyond the power of the state to apnul
The same may be said Of Metropolitan Board
OF Excise against Barrie, 81 n. Y, 657; for in
it also there was no question but that the new
law was intended to abolish all licenses under
the one that was repealed
In the case OF Pleuber against state, IL Neb..
SAT, the court did not decide that the license
issued under the repeal law could not
ton to the contrary in the repeating
act. The language of the statute
Is not set out in the report Of the case, but IN
holding that the new law did repeal the former
licenses the court said: '.We do find in the BODY
of the new law satisfactory evidence Of such
Intention
REMANDED FOR NEW TRIAL
VIC are VI tue opliilOn tn3t the court below
erred in excluding the license wnen offered in
evidence, and that the judgment should be re-
versed and the cause remanded for new trial
Chief Justice Alvey's Dissenting Opinion.
Chief Justice Alvey did not concur in the
opinion given above and delivered dissenting
opinion as follows:
regret exceedingly my inability to concur
with my brothers In the view that they have
taken OF this case And, differing from them
SO radically as l do, deem it proper to state
the grounds upon which my judgment is
founded.
This case has been transferred to this court
from the general term of the Supreme Court of
the District Of Columbia, where it was pending
on writ Of error to the Police Court of the Dis
trict. The plaintiff in error was convicted in
the Police Court OF the alleged offense of
violating the present license law of the District
In keeping bar room and selling therein in
toxicating liquors, without license obtained
therefor, contrary to the provisions Of the re-
cent act OF Congress, approved March 8, 1898,
entitled IAN act regulating the sale of intoxr-
eating liquors in the District of Columbia
1t is conceded that the act took effect and
went into operation from the date of its pas
sage, that is March 3, 1893. 1t does not pro-
TESS to be amentatory of or supplementary to
any previous or then existing legislation upon
the subject Of its provisions, but it
processes to be, as it doubtless is, an act to
regulate fully and completely the snbiect of