THE

MONTHLY LAW REPORTER.

JANUARY, 1853.

:

THE NEW HAMPSHIRE, LIQUOR LAW.

Ar the June session of the New Hampshire Legislature, "An act for the suppression of drinking houses and tippling shops," substantially similar to what is known as the Maine Liquor Law, passed the House of Representatives, but was postponed in the Senate until the November session of the Legislature, and a resolution of the Senate was passed, referring the bill to the people, to be voted upon by yeas and nays on the day of the Presidential election. The returns show that the question was acted upon only in seventy-nine out of the two hundred and thirty towns in the State, and that in these towns, there were some ten thousand votes cast; and that the majority against the bill was upwards of fourteen hundred votes. By another resolution of the Senate, a copy of the bill was sent to the Justices of the Supreme Court, who were requested to give the Senate their "written opinion upon the constitutionality of the bill." In answer to this resolution, the Justices of the Superior Court, in November last, presented to the Senate their opinion, in which they point the attention of the Senate to those particulars which they "suppose may interfere with constitutional limitations, and which for that reason they presume the Legislature would wish to avoid." These particulars are eight in number, and we give them below in full.

Upon the general question of the constitutional right of the Legislature to pass laws regulating the sale of spirituous liquors, the Justices affirm the previous opinion of the court, the soundness of which they think "can admit of

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no question," and they refer to the case of State v. Pierce, (13 N. H. Rep. 536,) as containing their opinions upon that subject. As is well known, this case settles the point in that State, that the Legislature has such a constitutional right. Upon the question referred to them by the resolution of the Senate, the Justices express the considerable embarrassment they feel because of the general terms in which the inquiry is made; and of the nature of the bill, which is of great length, and has "many new and untried provisions; and no person, from even a careful examination of it, could safely express an opinion that some parts of it, when they should be brought to the test of practical application, would not be found to be in conflict with the Constitution," and because they have not had the aid of arguments of counsel. Upon these considerations," they say, "we feel it due to ourselves in justice to say, that whatever opinions we might express upon this bill, must be regarded as impressions by which we should not feel ourselves bound, if the bill should become a law, and if the rights of a citizen should depend on its construction." They also add at the conclusion of their opinion, "We have endeavored to state briefly the constitutional objections which seem to us to exist to the bill in its present condition. It is possible that our impressions might be modified upon further investigation; but some of the objections we have stated to the bill seem to us to be of the most serious character. We may have omitted some views which might be taken of the questions that will arise, but the foregoing opinion, embracing such matters as have occurred to us, is respectfully submitted to the Senate."

As we have said, the bill was substantially the same as the Maine Liquor Law. It enacts in its first section, that "No" person shall be allowed at any time to manufacture or sell, by himself, his clerk, servant, or agent, directly or indirectly, any spirituous or intoxicating liquors, or any mixed liquors, a part of which is spirituous or intoxicating, except as hereafter provided." Provision was made for the appointment of a town agent, to sell "for medicinal, and mechanical purposes, and no other;" but in the copy of the bill before us, there is no section authorizing the licensing of manufacturers. The rest of the bill contains the details, which were probably designed to give it efficiency, and which have attracted the animadversion of the Justices.

With these remarks, we give the points made by the Justices, and subjoin in notes the clauses of the act, referred to by them, when necessary for explanation.

First. The language of the bill seems designed to confer upon Justices of the Peace an extent of authority not contemplated by the Constitution. Their jurisdiction is limited to actions wherein the sum demanded in damages does not exceed thirteen dollars and thirty-three cents. Constitution, Part 2, Sec. 77. The penalties imposed by this act are made recoverable by action of debt before a Justice, though the fines after the first offence must be twenty dollars. Sections 4 and 6. The bill also authorizes Justices of the Peace to declare liquors seized for a violation of the law, to be forfeited, whatever may be their value, and this seems hardly consistent with the limited power intended to be conferred upon them by the Constitution. By limiting the extent of their jurisdiction, it would seem to be the intent of the Constitution, that for larger amounts the people should have the benefit of more stable and experienced tribunals, which aim to be regulated by more settled rules of law.

Second. No provision is made for a trial by jury before a Justice, or for an appeal and trial by jury before a Superior Court, or for any original proceeding in a higher court, in relation to liquors forfeited, though the value of the property may be hundreds or thousands of dollars. By the Constitution, Part 1, Sec. 20, it is provided that In all controversies concerning property the parties have a right to a trial by jury," but for the exercise of this right the act makes no provision.

Third. The 17th sect. of the act contains provisions directly in conflict with the Constitution of the United States. This section enacts that "all conveyances, mortgages, &c., which either in whole or in

1 Sect. 4. "If any person &c. shall sell &c. he shall forfeit and pay, on the first conviction, ten dollars and costs of prosecution, and stand committed until the same be paid; on the second conviction he shall pay a fine of twenty dollars and costs of prosecution, and shall be imprisoned in the common jail not less than thirty days nor more than sixty days; and for the third and every subsequent conviction he shall pay a fine of twenty dollars and costs of prosecution, and shall be imprisoned in the common jail not less than three months nor more than six months. * And two or more acts of violation of the provisions of this section may be alleged in the complaint, in separate counts, and tried at the same time; and conviction thereon, or on any of them, shall have the same effect upon the convicts or convict as if the proceedings had been upon separate complaints, and the trials had at different times, and said convictions shall be adjudged the second, third or other convictions, as the case may be, and judgment shall be rendered accordingly."

Sect. 6. Any forfeiture or penalty arising under the foregoing sections may be recovered by an action of debt, or by complaint before any justice of the peace or judge of any municipal or police court in the county where the offence was committed."

2 The 17th Sect. is in these words "All payments or compensations for liquors sold in violation of law, whether in money, labor, or other property, either real or personal, shall be held and considered to have been received in violation of law and without consideration, and against law, equity, and a good conscience; and all sales, transfers and conveyances, mortgages, liens, attachments, pledges and securities of every kind, which either in whole or in part shall have been for on account of spirituous or intoxicating liquors, shall be utterly null and void against all persons, and in all cases, and no rights of any kind shall be acquired thereby; and in any action either at law or equity, touching such real or personal estate, the purchaser of such liquors may be a witness for either party. And no action of any kind shall be maintained in any court of this State either in whole or in part for intoxicating or spirituous liquors sold in any other State or country whatever, nor shall any action of any kind be had or maintained in any court in this State, for the recovery or possession of intoxicating or spirituous liquors or the value

thereof."

part shall have been for or on account of spirituous or intoxicating liquors, shall be utterly null and void against all persons and in all cases," and "No action of any kind shall be maintained in any court in this State either in whole or in part for intoxicating or spirituous liquors sold in any other State or country whatever." By the 14th article of the Bill of Rights, it is declared that" Every subject of this State is entitled to a certain remedy by having recourse to the laws for all injuries he may receive in his person, property, or character." By the Constitution of the United States, Art. 4, Sec. 2, it is provided that " The citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States." Now a refusal to pay a debt is an injury to the property of the creditor. The right to a remedy for such injury is secured to our citizens by the Bill of Rights, and the Constitution of the United States gives the same privilege to the citizens of the several States. But this act excludes all persons whomsoever from the remedy specified in the Bill of Rights. The lawfulness of a debt is determined by the law of the State or country where it is contracted, or where it is to be paid. A debt or contract legal and binding by the law of the country where it is to be paid or performed, and not made with a view to evade the statutes of any other State, is a debt and property everywhere, and no law of this State can deprive a citizen of the United States of the right to enforce it in our tribunals.

Fourth. The 17th sect. of the act also provides that no "action of any kind shall be had or maintained in any court of this State for the recovery or possession of intoxicating or spirituous liquors, or the value thereof." It seems impossible to reconcile this provision with the 14th article in the Bill of Rights, above referred to. Such liquors are property. The bill itself treats them as property. License is to be given to sell them for certain purposes. The rights of towns and mechanics to such as are kept in conformity to the bill are protected. Legislation cannot change the nature of things. That which was property in the second section of the bill, and of which ownership may be predicated as well as of any other thing, cannot by force of a few phrases lose its peculiar character in the 17th section, and we think that persons injured in their property of this kind, are entitled to a remedy by recourse to the laws-that is, by an action.

Fifth. The bill designs to subject a party appealing from a judgment of conviction by a Justice of the Peace, to a double penalty, (sect. 7,) or to an increased penalty, (section 16,) if judgment be rendered against him in the court above. The bill contemplates that proceedings may be commenced by action, indictment, or complaint, (section 11.) The Constitution of the United States, amendment 6, provides that "In all criminal prosecutions, the accused shall enjoy the right to a speedy and public trial by an impartial jury." Unless the right of appeal can be wholly taken

1 The provisions of the second section upon this point are -"The selectmen on the first Monday of April annually, or as soon thereafter as may be convenient, may appoint some suitable person as the agent of said town to sell, at some convenient place within said town, spirits, wines, or other intoxicating liquors, to be used for medicinal and mechanical purposes, and no other; and said agent shall receive such compensation as the board appointing may prescribe; and shall, in the sale of such liquors, conform to such rules and regulations as the selectmen as aforesaid shall prescribe for that purpose."

2 Upon appeal, Sect. 2 provides that "In the event of a final conviction before a jury, the defendant shall suffer and pay double the amount of fines, penalties and imprisonment awarded against him by the justice or judge from whose judgment the appeal was made." And Sect. 16 enacts that "If on such appeal the verdict of the jury shall be against him, he shall, in addition to the penalty awarded by the lower court, pay a fine of twenty dollars."