theory that the local license can be granted. They are in compatible with the new legislative provisions, and must fall. (Hoff. Treat. on Corp., page 43. Mayor vs. Nichols, 4 Hill, 209.)

Upon Sunday, the State law, which applies to New-York city, prohibits the retail and sale of liquor on that day; a penalty is given. But this is a matter exclusively for the cognizance of the Corporation Attorney. The new ordinance regarding Sunday traffic is so inseparably connected with the license provisions, now null and of no effect, that it is inoperative.

The nuisance clause, although said to take effect immediately is not operative until July 4, because not until then will the keeping of liquor be in contravention of that or any other act.

With great respect, your ob't serv't, To His Honor the Mayor.

A. OAKEY HALL. ́

At the Monday evening (April 16) session of the Board, the following resolution, offered by Ald. Williamson, was adopted:

Resolved, That the Counsel to the Corporation be asked his opinion as to whether the Liquor Law recently passed by the Legislature, interferes with the rights of the Mayor and Aldermen and Commonalty of the city of New-York, as granted to said Corporation by the 25th section of the Montgomery charter, and subsequently confirmed by various acts of the Legislature; and also whether, in his opinion, the Commisssioners of Excise of said Corporation have not the right to continue to grant licenses for the sale of spirituous liquors, and collect fees from persons to whom said licenses may be granted, as guaranteed by the special provision of the charter of the city of New-York.

OPINION OF THE CORPORATION COUNSEL ON
THE NEW LIQUOR LAW.

LAW DEPARTMENT, OFFICE OF COUNSEL TO
CORPORATION, April 19, 1855.

To the Honorable the Mayor and the Common Council:

I have had the honor to receive several communications from the Common Council, the Mayor, and other Depart

ments, requesting the opinion of the Counsel to the Corporation upon many questions arising under the late act of the Legislature, entitled "An Act for the Prevention of Intemperance, Pauperism, and Crime," and as many of those relate to the same points, I beg leave to make a gen eral reply in one report.

First, By the charter of Montgomerie in 1730, it was ordained and granted that "The Mayor of the city of New-York, for the time being, and no other whatsoever, shall have power to give and grant licenses, annually, under the public seal of the said city, to all such persons as he shall think fit to license, to keep a tavern, inn, ordinary, or victualing-house, and to sell wine, brandy, rum, strong waters, cider, beer, ale, or any other sort of exciseable or strong liquors within the city of New-York, by retail or the small measure, and to ask, demand, and receive for every such license, such sum or sums of money as may be agreed upon, not exceeding the sum of thirty shillings for each license, all which moneys, so received, shall be used and applied to the public use" of the Corporation.

The 25th section of the late act of the Legislature, having provided that "no license to sell liquor, except as therein provided, shall hereafter be granted," the question arises whether the act in that particular unlawfully violates one of the rights of the city granted by the charter?

The power to regulate the sale of liquors has been constantly exercised by the Legislature, in disregard of the charter, from the earliest period of the history of the State, after the adoption of the Constitution. By the acts of 1801, a Commissioner of Excise was appointed by the State, without whose license no sale could be made. By the acts of 1824 and 1825, the Mayor was deprived of his exclusive privilege, and the Alderman and Assistant of each ward were associated with him in granting licenses, and no license could be granted without the consent of a majority of them, and by the act of 1853 the Councilmen were substituted in the place of the Assistant Aldermen.

In the case of Furman vs. Knapp, 19 Johnson, 248, an objection was taken to the validity of the act of 1801, as superseding the power of the Mayor, and in violation of the charter. The court, however, from the evidence in the case, presumed that the Corporation had given their assent to the act, and did not deem it, therefore, necessary to dis

cuss or consider how far the Legislature, without the consent of the Corporation, might modify or change the charter.

In the case of the People vs. Morris, 13 Wend., 325, it appeared that the trustees of the village of Ogdensburg were, by their charter, empowered to grant licenses for the sale of liquors, and that by a subsequent act of the Legislature, the power was taken away, and it was contended that the act was illegal. The Court, however, decided that it was a valid exercise of power on the part of the Legislature; that the power conferred by the charter was wholly political, and that it was an unsound and even absurd proposition, that political power conferred by the Legislature can become a vested right as against the government in any individual or body of men. If the charter had granted rights of property, they could not be infringed but political powers (and the right of licensing the sale of liquors is purely such) were public trusts, to be executed not for the benefit, or at the will of the trustees, but for the common weal. How long it shall exist, or in what manner it shall be modified, are questions independent of the chartered corporations, and belong exclusively to the people to determine through the Legislature, in the mode prescribed by the Constitution.

In the case of Satterlee vs. Sutton, in the Superior Court, (Kent's Charter, page 243,) it was contended that the act of the Legislature appointing measurers of grain for the city, and declaring that no other person should measure grain therein, was illegal, because it violated the charter of Montgomerie, which gave the appointment of such officer to the Corporation and their successors for ever, with the right to take and receive all fees, profits, and perquisites arising therefrom. The Court, however, decided that the grant to the Corporation to appoint measurers, was a grant of political power, coupled with no interest, save the fees as a compensation for measuring-that the grant was not to be considered in the light of property, or intended as a source of revenue, and that, therefore, the legislative act was valid, and the charter so far controlled.

Numerous cases might be cited to the same effect, and it may now be considered well-established law, that all grants of political power to municipal corporations are held at the will of the Legislature, who may abolish, abridge, or modify them at their pleasure.

The Constitution of the State contains no provision tak. ing away this power. It simply declares that "nothing in the Constitution shall affect any grants of land within this State, made by authority of the king or his predecessors, or shall annul any charters to bodies politic or corporate, by him or them made." This, it will be seen, imposes no prohibition upon the Legislature, and was probably inserted from abundant caution, that the charter of the cities should not be considered as swept away by the Revolution, which had abolished the crown and substituted a new government, (19 Johnson R., 249.)

But political powers must not be confounded with rights of property, such as the grants of land, the rights of ferry, the franchise of the streets, and other valuable rights granted to the city by the charters from the crown. Such rights are protected by the Constitution of the United States, which regards them as contracts, and prohibits the Legislatures of the States from passing any law impairing their obligation. (Dartmouth College vs. Woodward, 4 Wheaton, 518.) Over such rights the Legislature has no more control than over the private rights of property held by individuals.

The right to license the sale of liquors being a political right, I am therefore of opinion that the late act of the Legislature is not an unlawful invasion of the charter.

Second, Under the existing laws, the Mayor, and the Alderman, and the Common Councilmen of a ward, or a majority of them, have the sole right to grant and revoke licenses for the sale of liquors. The 25th and 26th sections of the late act declare that "no licenses to sell liquor, except as therein provided, shall hereafter be granted," and that this prohibition shall take effect immediately. The second section, to go into effect on the 1st of May next, provides that citizens and electors may keep for sale and sell liquors for certain specified purposes, upon the performance of certain conditions, approved by the Judges of the Common Pleas.

I am of opinion that no license can hereafter be granted by the Mayor, Aldermen, or Councilmen, and that no existing licenses can be extended-the prohibition against granting is equally effectual against the extending of licenses, all of which, by their terms, expire on the 1st of May next.

1

Third, The third section of the act provides that "every Justice of the Peace, Police Justice, County Judge, City Judge, and in addition, in the city of New-York, each Justice of the Marine Court, and the Justices of the District Court, and the Recorder, shall have power to hear and determine charges and punish offenses under the act," and the question is whether the Mayor and Aldermen are embraced within these designations. They are, by virtue of their offices, Justices of the Peace, (Charter, sec. 26,) and this power has not, been restricted by subsequent legislation, except in regard to the Aldermen, who, by the amended charter of 1853, are not allowed to sit as Judges in the Courts of Oyer and Terminer, or in the Courts of General and Special Sessions, but may exercise the power of magistrates in the arrest, bailing, or commitment of offenders. (Laws of 1853, p. 411.) But similar powers, as Justices of the Peace, also belong to Justices of the Supreme Court and the Judges of the Superior Court, who are, like the Mayor and Aldermen, Justices of the Peace, ex officio; (2 R. S., 704, 706,) and if the duty of executing this act is devolved on the Mayor and Aldermen, it must be shared in the like manner by the Justices of the Supreme and Superior Courts. The act, however, specifies the particular officers to whom the power is confided, and, by a well-established rule of construction, the mention of one is the exclusion of others.

I am, therefore, of opinion that neither the Mayor nor the Aldermen are empowered by this act to hear and deter mine the charges and punish the offenses arising under any of its provisions. People vs. Mayor, etc., 25 Wend., 9: Morrison vs. McDonald, 21 Maine, 551.

Fourth, By the twelfth section of the act, certain duties are imposed upon "every sheriff, under sheriff, deputy sheriff, constable, marshal, and policeman," and by the amended charters of 1830 and 1849, the Mayor is declared to be "the head of the police department" of the city, and is required "to exercise a constant supervision and control over the conduct and acts of all subordinate officers."

I am of opinion that the Mayor is not authorized to perform any other duty under the act than to require all policemen in his department to perform the duties enjoined upon them by the act.

Fifth, It is important that the Mayor, in his directions to