may originally have formed a part of the foreign commerce of the country. Such a prohibition, restrained by the right of the importer to sell imported liquor in its original packages, is substantially the end of all laws relating to the sale of liquor, whether of license or prohibition. If, therefore, the power of prohibition, when exercised, can be exercised against the article "in rem." it appears to me that an exception of proviso, in terms as broad as the one under consideration, should receive a similar construction as to the extent of the permission, and should exist in favor of the exempted article in whose hands soever the same may be-importers and purchasers from them, dealers and retailers-for this is a statute restrictive of the rights of persons and property, highly stringent in its remedies, penal in its consequences, and therefore must be construed most strictly against the prohibition, and liberally in favor of the permission to sell. Taken literally, the permission is general, broad, and clear, allowing imported liquor to be sold generally, and not limiting its sale to the importer. It is an express permission of the thing to be sold, and not a permission of sale given to the importer or any class of persons. In other words, it declares in effect that the act does not apply to imported liquors; and there is no other section that I can find which limits or restrains the general permission in the first and great enacting clause. On the contrary, the provision in the latter part of the seventh section, that "on the trial of such claim the Custom House certificates of importation, and proofs of marks on the casks or packages corresponding thereto-shall not be received as sufficient evidence that the liquors contained in said casks or packages are those actually imported therein," strongly confirms my position that imported liquors are exempted from the operations of the act, but requiring that additional evidence shall be given of its foreign character besides the Custom House marks on the cask in which it is contained. It also appears to me, as if, after the bill had been framed, the last clause of the first section had crept into the act, and that the friends of the law did not see its effects in exempting imported liquors from the operations of the act. I conclude, therefore, that the prohibitions, penalties, and forfeitures in the act contained, have no application to the sale or keeping of such liquor, as pursuant to the commercial regulations of the United States, is a subject of importation, whether it be in the hands of the original importer or retail dealer. The third question-"Is the keeping in a storehouse other than a bonded warehouse, of a stock of liquor on hand previous to the 4th of July, 1855, within any of the prohibitory clauses of the act, the same not being intended to be sold or given away." I answer that I think it is intended by the Legislature so to be, but am of the opinion that the provisions of the law which affect the general right of property in these articles, and direct its destruction, are unconstitutional and void, for the reasons presently given. The fourth question-"Does the act, in terms or by necessary implication, prohibit the manufacture of liquor, as defined by section twenty-two, for export to other states, or the sale within this state of liquor manufactured in other states?" I answer, as to the first branch, that the manufacture of liquor in this state is not, in terms that I can perceive, expressly prohibited, nor its export; yet that the practical operation of the seizure clauses of the law, were they constitutional, would virtually put an end to the manufacture or production of domestic liquor. But if these are unconstitutional, and therefore void-and I think they are a distiller or brewer has, for aught I can perceive, a right to make and export liquor to be sold in other states, if he does not make it to be sold within this state-and this view seems to be supported by the exemption of the prohibitory words of the first section, to the case of its transportation from one place to another, or its being stored in a warehouse prior to its reaching the place of destination. This is the best conclusion I can come to on this branch of the case, the different clauses being exceedingly obscure and inconsistent. On the last branch of the query, I am of opinion that in the license cases in 5 Howard, 504, the majority of the Court in effect decide that it is within the power of the states virtually to annul the importation from other states of domestic liquor, by prohibiting its sale when landed in their limits, there being no existing regulation of Congress, special or general, to which such a regulation of internal traffic would be repugnant. See opinion of Ch. J. Taney, 5 Howard, 586. And Nelson, J., concurring, p. 618.. And I think, therefore, that none such domestic imported liquor of American manufacture can be sold within this state. Having arrived at this conclusion from the examination I have given the case in 5th Howard, and entertaining the views I have above expressed in reference to the exemption of foreign liquors, I am of the opinion that there is nothing in the clauses relating to the sale and importation of foreign and domestic liquors, thus construed, "repugnant to, or in conflict with, the section of the Constitution of the United States, whereby Congress is empowered to regulate commerce with foreign nations and among the several states and with the Indian tribes." And I therefore answer the fifth question in the negative, merely remarking, by way of addition in this place to what I have before said on the effect of the concluding words of section one, that if they are not to receive the construction I have given, the sale of foreign liquors is not prohibited; that "restricting the importer to sell only to persons authorized by the act to re-sell, as found in the twenty-second section," is a restriction against the constitutional right of the im porter to sell to any body and every body, as the right is laid down in the case of Brown vs. the State of Maryland, 12 Wheaton, 419. In reply to the seventh question: "Does section twenty-four repeal the power now vested in the Mayor, Aldermen, and Councilmen, for the wards respectively, as Excise Commissioners? If it does, is the power, as exercised by them, one which the Legislature is capable of withdrawing or curtailing?" My views are in accordance with those expressed by the Counsel of the Corporation in his recent communication to that body on this subject, and I am of the opinion that whether the original right conferred by the Montgomerie charter be treated as a mere grant of political power, which is always subject to legislative action, or as lost by acquiescence in legislative interference, the result is the same, and that the Legislature possessed full power to repeal it altogether. The answer to the sixth question: "Are any of the provisions of said act repugnant to the Constitution of the State of New York?" leads me to the conclusion that the law, in its spirit and mode of operation, is opposed not only to the provisions of our own Constitution, but to certain inalienable rights of person and property, which lie at the foundation of the social compact, and which no legislation can impair or destroy. If I read the act aright, it not only undertakes to prohibit the sale of ardent spirits, as an article of general trade, but it makes the possession of the same, without even the intent to sell it, an offence punishable by crime and imprisonment; subjects it to confiscation and destruction, baptises it a public nuisance, restrains actions for injuries to it, or the collection of debts incurred in its sale; provides for the execution of a roving and inquisitorial process, issuing on mere suspicion, and limited only by magisterial discretion; and to crown the whole, violates a fundamental principle of law in applying to jurors under the act, a moral qualification hitherto unknown to the law and inapplicable to other cases. No one recognizes more fully than myself, the evils of intemperance, and were the act confined to the legitimate and proper purpose of regulating the retail liquor traffic, there would be no one who would give it a heartier support than myself, or regret to be compelled to pronounce any of its provisions void; but "intemperate legislation is the great legal curse of the age," and defeats much good that might be done, by essaying to step beyond the constitutional bounds and legitimate scope of its authority. Liquor is lawful property, a fact admitted in the law itself, and if not there conceded, one standing on too broad a platform of common sense and justice to be questioned or denied. In the language of Mr. Justice Catron, "ardent spirits have been for ages, and now are, subjects of sale and lawful commerce, recognized as such by our treaties with foreign powers, and by the dealing in them among the states of this Union." Legislative power has its limits, and on principle, in accordance with the fundamental maxims of a free government, is always inhibited from interference with, or attack on the rights of persons or property; and the framers of the Constitution, anticipating the evils which might flow from intemperate legislation, have jealously guarded these rights, by providing in the most explicit language, that "no person shall be deprived of life, liberty, or property, except by due process of law," which terms have acquired a distinct and definite meaning, and as judicially construed, form a perfect barrier against legislative encroachments on private rights, like the present act. It is said, however, that in the exercise of its police power, the state may, and often does-as in the case of gunpowder and quarantine laws-destroy private property for the public good. The reason of this, however, is, that at the time such an authority is exercised, the subject is in itself, from its own intrinsic character, directly dangerous to life, or health, or in a position from which, by the operation of other causes, the like results might flow. Putrifying merchandise, stored in a warehouse, would be an illustration of the former, gunpowder of the latter view. The theory of the law on this subject, says Chief Justice Shaw in the case of Fisher vs. McGirr, American Law Register, vol. 2, No. 8, p. 467, seems to be this: "That property of which noxious and injuri ous use is made, shall be seized and confiscated, because either it is unlawfully used by the owner or person having the power of disposal, or by some person with whom he has placed and intrusted it, or that by his default it has fallen into the hands of those, who have made and intend to make the noxious and injurious use of it, of which the public have a right to complain, and from which they have a right to be relieved. "Therefore, as well to abate the nuisance as to punish the offender, the property may be forfeited or destroyed as the circumstances of the case may require and the wisdom of the Legislature direct." Now, grating that it may be competent for the Legislature to provide, as a means of aiding in the enforcement of a prohibitory law, that liquor kept for sale should be a nuisance and liable. to be destroyed, (which I deny,) it is impossible that the Legislature could constitutionally direct such power to be extended so as to embrace the case of liquor not intended for sale, but held in store for such purposes, other than sale, as the interest of the owner may suggest, such as waiting for the repeal or the modification of the law, or an opportunity of shipment to other states or countries. Liquor is not in itself injurious to any person or thing, it is its improper use, or rather abuse-its consequential moral operation, rather than any direct physical effect-against which the policy of these laws undertakes to provide, and as a means of preventing which, when it is intended to be a matter of traffic, the remedy of seizure is given. But in the act under consideration that process extends to all that is "kept or deposited," without even limiting it to that which is kept for sale. Such a provision, in my judgment, apart from all other considerations, renders the law unconstitutional in its application to liquor in that position. There are other portions such as the manner and method of seizure and search-provided by the sixth clause, the manner of trial of claims, the limitation on the qualification of jurors contained in the sixteenth clause, and of the right to maintain actions to recover the value or possession of liquor imposed by the sixteenth clause, equally objectionable and avoid. All of them have been, in the laws of other states, the subject of judical investigation, and held invalid; and it will, therefore, be sufficient for the present purpose to refer to some of the cases: Green vs. Briggs, 1 Curtis, U, S. Circuit Court Reports, p. 336. The Monthly Law Reporter, vol. 5, No. 9, p. 433. Preston vs. Drew, vol. 5, ibid No. 4, p. 191. In a word, my opinion is: 1.-That imported foreign liquors may be sold by any body, in any place within this state. 2. That the seizure and destruction clauses are void, whether applicable to foreign or domestic liquors. 3.-That the act does not, in terms, prohibit the manufacture or exportation of domestic liquors, but that the practical operation of the seizure clause, if constitutional, would, in effect, destroy, the business of manufacturing. 4. That as the seizure clause is void, liquors made in this state may be exported, and if not intended for sale, kept here without risk of destruction. JAMES W. GERARD. New York, April 24, 1855. |