OPINION OF THE

HON. SAMUEL BEARDSLEY,

ON THE PROHIBITORY LIQUOR LAW.

NEW YORK, May 8, 1855.

My opinion upon various questions arising on the recent Prohibitory Liquor Law having been asked, I have given to the subject that earnest care and attention which its character and importance so fully demand. The main design, in the enactment of this statute, may have been to eradicate or check admitted and great evils, which it cannot be denied that the mode adopted, if fully carried out, must lead to the sacrifice of an immense value of individual property, and reduce many from a condition of reasonable competency to that of comparative want. The anticipation of such results cannot fail to excite a deep feeling of hostility to the measure, and to arouse the strongest efforts to oppose its execution. These are natural and inevitable results, and while opposition is kept within the limits of the law of the land, no one has any right to object that it is unsuitable or improper. The act, too, draws in question the relative powers of the general and state governments, and may present a case where those powers are brought in conflict with each other, so too, the act, in all or some of its provisions, may violate the Constitution of this state. It is, therefore, in every aspect, a subject of the gravest character, and I have considered and reflected upon it as such. Of the policy of the act I have nothing to say, at this time. It may be thought in this, as in many other instances, that an excess of zeal, even in an effort to effect a great good, is not attended by the needful amount of discretion in adapting means to the desired end-but I shall confine myself strictly to the provisions of the act and their legal meaning and effect.

In examining this subject, the first inquiry would seem to be, whether a state of this Union has power to prohibit, totally or qualifiedly, the sale of spiritous liquors, and to enfore the observance of such a law in any manner; and the second, as to the validity of the measures provided in this act for its enforcement. I shall first examine the naked question of power, reserving what I have to say on the vindicatory part of the act for a separate consideration.

It is but reasonable to suppose that this act was intended to em

brace three distinct classes of property, to each of which different laws may apply, and dissimilar rights exist.

For the first class, may be taken wines and other liquors, imported from foreign countries.

These are brought into the United States under the authority of the general government, and in conformity with various treaties and laws on the subject. The states have no power to prevent or impede the importation of property from foreign countries, for the treaty-making power is vested in the President and Senate of the United States, and Congress is expressly authorized "to regulate commerce with foreign nations."

Constitution of the United States, Art. 1., sect. 8, sub. 3.

This power has been exercised by Congress in the passage of laws, which provide for the introduction of liquors and other property, on the payment of certain duties to the United States. These treaties and laws are parts of the supreme law of the land.

Constitution, Art. 3.

The right to import is therefore conferred and secured by a law paramount to all state authority, and it carries with it a right, on the part of the importer, to sell what he has thus imported. This has been adjudged by the Supreme Court of the United States, and may be taken as a point entirely at rest.

Brown vs. the State of Maryland, 12 Wheat., R. 419. But this right to sell, irrespective of, and even in hostility to, state authority, is limited to sales made of the import in the form and condition in which it may, by the law of the United States, be brought into the country. Dry goods may be sold in the original package, as wines may in cases, and other liquors in casks, for they may thus be imported under the laws which regulate forreign commerce. But when the import passes from the importer, as by sale to a customer, or is broken up for retail by the importer himself, it ceases to be any longer under the protection of the law of the U. S., and falls at once into the general mass of property within the state which is subject to the exclusive control of the state laws. Some very distingushed judges have held, that a state is competent to regulate and even prohibit the sale by importers of their original packages; but, notwithstanding these exceptional opinions, the right to sell all imports in that condition, may, as I think, be regarded as the settled law of the land. The authority of the state, however, is no further restricted by the paramount law of the United States, than is required to secure an absolute right on the part of the importers to make sales of their imports in that condition; far beyond this, a state may regulate, and even prohibit, the sale of imported property of every description, as fully as it may property of domestic growth or production.

Brown vs. the State of Maryland.

Supra the License cases, 5 How., S. C. United States, R. 504.

The second class of property, which it may be supposed the act was intended to embrace, is composed of liquors brought in from other states of the Union.

As Congress has power to regulate commerce "among the several states,'

Constitution, Art. 1, sec. 8, sub. 3,

the introduction of such property from one state into another may, unquestionably, be thus authorized, so that a state act, prohibiting its introduction would be of no force. Such a law of Congress would, as in respect to imports from foreign countries, confer a right to sell what was thus authorized to be carried from one state to another. But Congress, although authorized so to do, has not yet passed any law regulating commercial dealings among the states.

The License cases, supra, p. 578.

That power has not yet been exerted, and until it shall be, the several states of the Union will not have been deprived of their original power, as sovereign states, to prohibit the introduction from other states of such articles as may be thought injurious to the public welfare, or to regulate or prohibit their sales within the limits of the respective states. These principles will be found fully asserted and sustained in the cases above cited.

The third class of property referred to, is wines and other liquors of the growth or manufacture of this state, or which, being the production of some foreign country or other state of the Union, have been brought into this state and incorporated with the general mass of property within its limits, and which, as to sale and use, is subject to the exclusive control of state laws.

That a sovereign state has power to regulate the manufacture and production of whatever may be deemed noxious or adverse to the public interest, and that it may even prohibit such manufacture or production, will not, I suppose, be denied by any one. And as the state has power to prevent the manufacture or production of such articles within its limits, it may, undoubtedly, regulate or prohibit, totally or qualifiedly, their sale or consumption. These are but truism to which all will assent when looked at merely in reference to the question of power. Doubtless the public authorities of a state may act in such matters, as in others, unwisely, and in a manner which cannot fail to retard, if it do not defeat, the end in view, but this will not show, nor tend to show, that the state, as a sovereign power, may not do in these respects what shall, in its own view, seem best calculated to promote the public weal.

I have said that it may be supposed this act was intended to embrace the three classes of property to which reference has been made; and, if such is its effects, I have already vindicated, in a general way, my opinion of its vitality and force so far as respects the power of a state to regulate or prohibit the sale of such property, although the modes by which the prohibitory clauses of

this act are to be enforced present very different questions. That this act applies to wines and other liquors, brought in as articles of commerce from other states, and to such as are of domestic production, is clear enough. But the doubt is, whether the act, fairly construed, can be made to apply to wines and other liquors brought into the state as imports from foreign countries, and that question will now be examined.

There are but three prohibitory sections in the act-the first, third, and eighteenth-of which the last two have very little, if indeed any, significance in reference to the question in hand. The last section named relates to the transportion of liquor, and prohibits this being done, unless the package or cask in which it may be contained is marked in a particular manner. The third section prohibits persons licensed under said act from doing certain things, but contains nothing material now to be stated or considered.

But the important section is the first, for we there find the only prohibition in the act against the sale, keeping for sale, and giving away, or keeping to give away, of wines or other liquors.

1. As to their sale, or being kept for sale.-This can only be done by a person authorized as the act provides, and in the manner and for the purposes specified therein.

2. As to giving away wines or other liquors, or keeping them for that purpose-They can only be given away by physicians in their practice, or for sacramental purposes, nor can they be kept with intent to be given away in any place except a dwelling house, in which there is no tavern, &c. There is an express prohibition against keeping or depositing wines or other liquors in any place except such a dwelling house, " or in a church or place of worship, for sacramental purposes, or in a place where either some chemical, mechanical, or medicinal art, requiring the use of liquor, is carried on as a regular branch of business, or while in actual transportation from one place to another, or stored in a warehouse prior to its reaching the place of its destination." Every violation of these provisions is declared by the act to be a misdemeanor, and subjects the offender to severe punishment, by forfeitures, fines, and imprisonment.

That these prohibitions are wholly void as to importers, in reference to liquors in original packages, must follow from what has already been stated, if the principles applicable to property in that condition have not been mistaken. Importers may sell or keep to sell, may give away or keep to give away, and may deposit their imports wherever they can find a place for their reception, notwithstanding these prohibitions. Their rights in these respects are secured by constitutional acts of Congress, against which state legislation is powerless. This I should hold to be sound law, even if the prohibitions in the first section could be understood to apply to imported liquors. But this section at its

close has these words: "This section shall not apply to liquor, the right to sell which in this state is given by any law or treaty of the United States." This is a broad exception, for it takes out of these prohibitions liquor of every description, the sale of which is authorized by the United States. By the law of the United States there is an absolute right to sell all liquors imported from foreign countries under the authority of that law; they are therefore, by the very words of the exception, excluded from every provision contained in said section. Looking outside of the act, it is probable the law makers did not intend to confine these prohibitions to domestic liquors. But the act is strongly in derogation of common right and of that freedom from external restraint which all men prize and desire to enjoy. The words of the exception are explicit, and in their ordinary, and indeed only signification, necessarily exclude imported liquors from the prohibitions in the first section. The words of the exception cannot be understood otherwise, and there is nothing in any other part of the act which can be made to abrogate or change their meaning. True, the eighteenth section may be said to regulate the transportation of foreign as well as domestic liquors; but this will not prove that their sale, keeping or giving away is prohibited. So of the twenty-second section, which declares that this act shall not be construed to prevent "the importer of foreign liquor from keeping or selling the same in the original packages to any person authorized by this act to sell such liquors." This section also declares that it shall not "be lawful to seize, sell, or destroy any liquors deposited or found in any bonded warehouse within the limits of this state, nor prevent any liquors imported into the United States from being taken from such bonded warehouse to any place beyond the limits of this state." These clauses it must be admitted, indicate that the Legislature supposed imported liquors fell within the provisions of the first section of the act, but they cannot be made to nullify an exception, explicit and plain in its terms which takes them out of that section, and which would be wholly senseless unless made to have that effect. If the exception does not mean this, it has no meaning at all.

These provisions of the twenty-second section may, with much more reason, be rejected as superfluous and nugatory, than to hold that this exception is void and of no effect whatever. Such, in my opinion, is the result at which every court would arrive.

As to the prohibitory provisions of the first section of this act, my conclusions are:

1. They are void so far as respects imported wines and other liquors, in the hands of importers while in the condition of imports, and he may keep or sell them in that condition, in entire disregard of every thing contained in the act.

This right is secured to the importer by the law of the United States.

2. The state has power to regulate, and may prohibit, the sale