The People agt. Quant.

opinions to which the court were cited, to find the first section or clause in the constitution of this state, which, by word or implication, restrains the legislature from passing laws regulating or prohibiting the traffic in intoxicating liquors, and providing penalties for its violation; nor have I been able to discover that the prohibitory clause of the act under consideration conflicts with any of the provisions of that instrument.

be

Third. It is next insisted that the conviction was wrong, cause "it was not proved that the liquor sold or given away was not liquor, the right to sell which in this state is given by any law or treaty of the United States." I had supposed the law well settled that, "in an action for penalty given by statute, it was not necessary for the prosecutor to disprove any qualification; that in such case the onus probandi lay upon the defendant." It was so held in Potter agt. Deyo, (19 Wend. 361,) and the principle recognized in Smith agt. Joyce, (12 Bar. R. 21, 26.) I regard such still to be the law; and in this case, if the liquor sold was for any reason privileged, the burden of establishing that privilege rested with the defendant.

But I deny that foreign liquors, when sold by any other than the importer, in the original package, are by the act exempted from the operation of this law. The first section prohibits the sale of all intoxicating liquor, except as provided by said act, and closes with 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." It is under this clause that foreign liquor is claimed to be exempt. There is no express law or treaty of the United States which gives the right to sell liquor in this state. The right to sell is only claimed as incident to the right to import; and the United States supreme court held, that as the right to regulate commerce with foreign nations is vested solely in congress, and as under that right congress admits the importation of foreign liquor in packages, that while such importation continues in the hands of the importer, in the form and shape it was introduced, it continues a part of the foreign commerce of the country; and that the authority to import necessarily carried with it the right to sell, in the form

The People agt. Quant.

and shape in which it was imported: but when the original package was broken up for use or retail by the importer, or had passed from his hands into the hands of a purchaser, it ceased to be an import, and became subject to the laws of the state. This is all the law, or treaty of the United States, on the subject. The clause of section first was added to avoid conflict with this decision.

But it is argued that the right to sell by the importer, even though it be in the original package, being conceded, it is liquor the right to sell which is given, and that being once exempted from the operation of the law, it so continues, no matter through how many changes it may afterwards pass. If such construction comported with the intent of the legislature, and fulfilled the purposes sought to be accomplished by the act, it might be adopted without doing violence to the language of that particular clause of the act. But it is apparent that such construction would be entirely foreign to the intent of the legislature, and operate to defeat the very object and purposes of the

statute.

In the construction of statutes the intention of the maker is to govern, although such construction may seem contrary to the letter of the statute. (1 Pet. Rep. 64; 2 id. 662; 15 J. R. 358; 3 Cow. R. 89; 1 Sel. 562.) So in statutes penal, as well as others, an interpretation must never be adopted that will defeat the purposes of the act if it will admit of any other reasonable construction. (1 Sel. 562; 9 Wheat. 381.)

Penal statutes are to be construed strictly, but not against the manifest intent of the legislature. (2 J. R. 379; 2 Cow. Rep 410; 5 Wheat. 76; 8 Pick. 370.) If the general meaning and objects of a statute should be inconsistent with the literal import of any particular clause or section, such clause or section should be construed according to the spirit of the act, if the intent of the legislature be clear and manifest. (1 Pick. 248; 10 id. 235; 20 id. 267.) Remedial statutes are to be so construed, if possible, as to suppress the mischief and advance the remedy. (1 Ham. 206, 385, 481.)

Many other authorities might be cited to the same effect.

The People agt. Quant.

Whether or not the language used in the last clause of section first was the most clear and explicit that could have been adopted, to enunciate the intent of the legislature, it is not now important to inquire. The intent is so apparent from the whole act taken together, that it can only be mistaken by the wilfully blind. If the usual mode of construing statutes is adopted for the construction of this act, foreign liquors, after they cease to be "a part of the foreign commerce," are no more exempted from its operations than are liquors manufactured within the

state.

Fourth. It was further insisted that "the legislature had no power to prohibit the pursuit of any of the common avocations of life, or of any of the ordinary means of obtaining a livelihood." I have already said all that is necessary of legislative power. Before the passage of this act, the sale of intoxicating liquor, in quantities less than five gallons, unless the vendor had a license, was prohibited by law; and it is difficult to distinguish the difference between prohibition in the present law, and the principle which lay at the foundation of the old excise law. The difference, I apprehend, is only in degree. Licenses to sell, as a beverage, are now prohibited altogether, while under the old law such licenses were permitted, and a commission created which might issue them; but the commissioners were not bound to license. (1 Hill's Rep. 655.) They might refuse, and sometimes did refuse; and when they did so, prohibition under five gallons, was as complete within their jurisdiction as now. By the present act, the legislature has assumed to themselves the discretion formerly vested in the board of excise, and said no license shall be granted.

Prohibition was a prominent feature of the old law, and yet it was never, for that reason, deemed unconstitutional. It is true, the old law did not interfere with the traffic in quantities above five gallons, but that does not affect the principle. If it was constitutional for the legislature to prohibit the traffic in quantities less than five gallons, it most assuredly is in quantities over five gallons. The power existing, it may be exer

The People agt. Quant.

cised at such times, and in such manner as the legislature shall see fit.

But supposing the act of 1855 void, the old excise law would then be left in full force. The defendant is shown to have sold gin, beer and whiskey at different times, to be drank in his house. This he had no right to do under that law without a license and it is not pretended that he had any such license. In such event, he would be liable under the old law for a greater penalty than was imposed by this conviction, although entitled to a discharge from this particular proceeding.

According to my understanding, certain sections of the old law still continue in force, notwithstanding the validity of the new statute. The act of April, 1855, only repeals those acts and parts of acts inconsistent therewith. Those provisions of the old law which prohibit the sale of intoxicating liquor without a license, are in no particular inconsistent with the present act, and therefore, by the well-established rules of construction, they are not repealed. In the language of Justice EDMONDS, 66 "The several statutes, operating upon the same subject, being in pari materia, are to be read together as one law, and they say no man shall sell without a license, and no man shall have a license."

Several points, preliminary to the principal questions, were made by the defendant, none of which I deem well taken.

My conclusions from these premises are, that the legislature of this state has the power to enact laws prohibiting the sale of intoxicating liquors, and to provide penalties for their violation.

That the act of April 9, 1855, so far as it prohibits the sale of intoxicating liquors, imposes penalties for its violation, and provides for their enforcement, is not in conflict with any article or section of the constitution of the United States, or of this state.

That foreign liquor, after it has passed beyond the hands of the importer, or the original package is broken for use or sale, so that it ceases to be foreign commerce, is not exempted from the operation of the statute by the last clause of section one.

O'Neil and others agt. Durkee.

That those sections of the old excise law, which prohibited the sale of all liquors in quantities less than five gallons without a license, are not repealed by the present act, but still remain in force.

The conviction and sentence of the special sessions should be affirmed.

[The decision was unanimous by the judges present, and is also said to be concurred in by the new judges, PAIGE and ROSEKRANS, of the same district.]

SUPERIOR COURT.

DAVID O'NEIL and others agt. FREDERICK F. DURKEE.

A motion to vacate an order of arrest, must be made, if at all, before the justi fication of bail.

And the justification of one of two sureties, as bail, is not sufficient. Both must justify; and such justification is not complete until the judge has endorsed his allowance on the undertaking, and filed it with the clerk. Before this is done, the defendant is in time to move to vacate the arrest.

Special Term, Feb. 14, 1856.

THIS was a motion to vacate an order of arrest, under § 204 of the Code.

The defendant was arrested on the 21st of December, 1855. On the 22d December he gave bail, with the usual justification on the undertaking. On the 29th of December, the plaintiff excepted to the sufficiency of the bail.

On the 8th of January the defendant gave notice of justification for the 18th of that month. On the 17th of January defendant gave notice of the motion to vacate the order of arrest for the 28th of that month. On the 18th the attorneys for each party appeared at chambers, in pursuance of the notice of justification; and on motion of the defendant's attorney, the justification was adjourned by order of the court to the next day.