In re De Vaucene

31 How. Pr. 289

• Court: New York Supreme Court
• Decided: July 15, 1866
• Status: Published

Opinion

Lott, J.

It appears by the return to the habeas corpus in the. matter, that De Yaueene is in custody on a complaint on oath made to a police justice, of the city of Brooklyn, alleging that he, the said De Yaueene, did on the 10th day of July, 1866, at the city of Brooklyn, unlawfully sell and dispose of a quantity of strong and spirituous liquors, to wit: a glass of applejack whiskey, contrary to the provisions of the third and eighth sections of an act entitled an act to regulate the sale of intoxicating liquors within the metropolitan police district of the state of New York, passed April 14, 1866.

None of the facts alleged in the return are denied, and it becomes necessary for the proper understanding and consideration of its effect to refer to some of the provisions of the act mentioned in the complaint. The first section of it constitutes and creates the persons who are and from time to time shall be commissioners of the metropolitan board of health, a board of excise in and for the metropolitan police district, excepting and excluding the county of Westchester, and declares that from and after the passage of this act they alone shall possess the powers and perform the duties of commissioners of excise within said metropolitan police district, except in said county of Westchester.

The third section then declares that from and after the 1st day of May, 1866, no person or persons shall within the said metropolitan police district, exclusive of the county of Westchester, publicly keep or sell, give away or dispose of any strong or spirituous liquors;, wines, ale or beer, in quantities of less than five gallons at a time, unless as he or they may be licensed pursuant to the provisions of this act, and may be permitted by it; and the fourth provides that the said board of excise shall be subject to further provisions hereof; have power to grant licenses to any person or persons of good moral character, and who shall be approved by them, permitting him and them for one year, from the time the same shall be granted, to sell and dispose of at any one named place within the said metropolitan police district, exclusive of the county of Westchester, strong and spirituous liquors, wine, ale and beer, in quantities not less than five gallons at a time, upon receiving a license, fees to be fixed in their discretion, and which shall not be less thap. $30 nor more than $250.

The eighth section prohibits the sale by persons having such licenses on Sundays, and also on any day upon which a general or special election or town meeting shall be held, within one quarter of a mile from the place where the same shall be held.

The sixteenth section declares that every person who shall violate any of the previous provisions of the said act, shall for such offense be guilty of a misdemeanor, and on conviction thereof, shall be punished by a fine of not less than $30 nor more than $100, or with imprisonment for not less than ten days nor more than thirty days, or by both such fine and imprisonment, and in addition. thereto, shall be liable to a penalty of $50 for each offense, recoverable in a civil action in the name of said board of excise; and the twentieth section makes it the duty of every magistrate to entertain complaints for a violation of the provisions of this act made by any person under oath. The twenty-third section provides what disposition shall be made of the license fees and penalties, expressly declaring that nothing contained in the act shall divert from the state inebriate asylum such proportion of license fees as is now set apart for said institution by existing laws.

The act also contains several provisions prescribing the duty and regulating the conduct of the persons who may receive licenses under the said act, and in reference to the sale and other disposition of strong and spirituous liquors, wines, ale or beer, and imposes upon sheriffs, constables or officers of the police the duty of enforcing the said act, and confers upon them certain powers for the execution of that duty which, in the view I have taken of the case, it is necessary to refer to in detail, and concludes by declaring that all acts and ¡3 arts of acts inconsistent with the provisions of the said act are thereby repealed, so far as the same shall apply to the said metropolitan police district, except the county of "Westchester, and that the said act shaU take effect immediately.

It appears to have been passed on the 14th day of April, 1866, and had, if valid, taken effect when the act complained of was committed. I have already stated that none of the allegations in the return were denied, and I here add that it was admitted by the counsel of De Vaueene on the argu- ■ ment, that at the time of the sale mentioned in the complaint made against him, he had no license from any excise board whatever authorizing him to make such sale, but he claimed and insisted that the act referred to therein, was unconstitutional and wholly void, and that consequently such sale did not constitute an offense for which he could be taken or detained in cusfody.

I will briefly examine such objections against the validity of the act as appears to be applicable to the case before me.

First. It is said that this act is in violation of section 16, article 3 of the constitution of this state, which provides that no private or local bill which may be passed by the legislature, shall embrace more than one subject, and that shall be expressed in the title. The objection assumes that the act in question is of the character referred to in that section. This assumpton is not warranted or authorized by the provisions of the act. It is in no sense a private one. Nor is it, in my opinion, local within the meaning of the constitution. It is true that it applies in its practical operation to a limited district of the state, but it relates to a subject affecting the general welfare and interest of the whole state, and not of that district only. At the time of its passage the excise act of 1857 (chapter 628 of Laws, 1857), entitled “ an act to suppress intemperance and to regulate the sale of intoxicating liquors,” which was applicable to the whole state, was in full force, and it is apparent from the provisions of the act in question, that its general scope and object were to alter the general law in reference to the board of excise, and to the other .matters in which they are inconsistent. The effect of the change is to regulate a subject of vital interest and importance to the whole community by two acts instead of one, and it is substantially the same in its operation as a single law would be, which declared that the sale of ardent and spirituous liquors in one portion of the state should be regulated in one way by certain regulations, and in the residue in another way by different regulations.

If, however, it be conceded that the act is a local one, it is nevertheless valid. It does not embrace more than one subject, which is the regulation of the use of ardent and spirituous liquors, wines, ale or beer, mentioned in the act, within the metropolitan police district and exclusive of Westchester ; its different provisions all tend to that end, and the title sufficiently expresses that subject. Although it refers to the whole of the metropolitan district, and does not except the county of Westchester, that omission is no objection. The' district does, in fact, include all the territory to which the act especially relates, and the title also declares in general terms that the act regulates the sale of intoxicating liquors. This is sufficient; an abstract of all its provisions is not necessary. (See The Sun Mutual Insurance Company agt. The Mayor, &c. of New York, 4 Selden, p. 242; and Brewster agt. The City of Syracuse, 19 N. Y. Rep. p. 117, &c.; see also The People agt. The Supervisors of Orange, 17 N. Y. Rep. p. 235.) It has been decided that if any subject is embraced in the act which is not expressed in its title, that does not render the act void ; it is still valid as to the subject that is expressed therein. (The Town of Fishkill agt. The Fishkill and Beekmantown Plankroad Company, 22 Barb. Rep. 634; The People agt. The Same, 27 Id. p. 445, &c.; The People agt. McCann, 16 N. Y. Rep. p. 58, &c.; Williams agt. The People, 24 Id. p. 405, &c.; The People agt. Lawrence, 36 Barb. p. 184, &c.)

Second. It is claimed that the third section of the act divests the owner of his property without due compensation. Such is not the effect of its provisions. So far as relates to the sale of liquors specified therein, it is substantially the same as the old escise law, and is merely a regulation of such sale, and it is entirely different from the prohibitory law entitled “an act for the prevention of intemperance, pauperism and crime,” which was declared to be unconstitutional in the cases of Wynehamer agt. The People and The People agt. Toynbee (3 Kernan, p. 378, &c). It must be deemed as a settled law that it is competent for the legislature to regulate the sale and disposition of spirituous liquors. That principle was fully recognized by the court of appeals in the two cases last cited, and cannot now be questioned.

Third. It is insisted that certain provisions of the law regulating the conduct of persons having licenses, and giving the power of arrest to public officers, and to close and keep closed, any place in which there shall have been any violation of the act, are unconstitutional, and that the entire act is therefore void. I do not deem it necessary or proper to consider or express any opinion on these questions. Those provisions are distinct and have no necessary connection with that under which the question is raised by the return in this case. It is well settled that a law invalid in some of its provisions may, nevertheless, be valid, and enforced as to the residue. The rule on that question is well stated by Judge Selden in the case of The People agt. Toynbee (3 Kernan,p. 441). He there says: “The general rule on this subject is, that where a part of a law is in conflict with the constitution, and that part is entirely separable from the residue, so that the other portion of the law can be enforced without any reference to it, there the unconstitutional part only will be condemned; and it was said by the court in Commonwealth agt. Ketchings (5 Gray’s Report, p. 486), that “ the constitutional and the unconstitutional provisions may even be contained in the same section, and yet be perfectly distinct and separable, so that the first may stand though the last fall. The point is not whether they are contained in the same section, for the distribution in sections is purely artificial, but whether they are essentially inseparable and connected in substance. The only question raised by the return is, whether the sale by De Vaucene of ardent and spirituous liquors mentioned therein without a license granted by the commissioners of the metropolitan board of health, subjected him to arrest and imprisonment upon the complaint made on oath against him. Such sale is in express terms prohibited by the act, and is declared to be an offense punishable by fine or imprisonment, or both. The act constitutes this a distinct and separate offense, having no connection with any other, and if the views above expressed are correct, it follows that De Vaucene was properly held in custody under such complaint, and that he was not improperly detained and restrained of his liberty, and consequently that he is not entitled to a discharge. He must, therefore, be remanded, and all further proceedings in the court be discontinued.

In re John H. Ketchum—Gilbert, J.

The return to the writ of habeas corpus shows that the petitioner is held under a warrant of arrest issued by the justice upon the sworn complaint of a policeman, that on the 7th of July instant, in the city of Brooklyn, in the county of Kings, the petitioner did unlawfully and publicly keep, sell and dispose of a quantity of strong and spirituous liquors—-to wit: a glass of gin, at his place of business, No. 12 Fulton street, contrary to the provisions of the third and eighth sections of the act to regulate the sale of intoxicating liquors, &c., passed April 14, 1866. The discharge of the petitioner is demanded on the ground that the statute in question is unconstitutional and void.

1. It is said that the statute does not conform to section 16 of article 3 of the constitution, which requires the subject of a local bill to be expressed in the title. I think this objection has no basis in fact (People agt. Liederman, 36 Barb. 177). Besides, the article is not a local one within the meaning of the constitution.

2. The counsel for the petitioner admitted, as ah must admit, that the prohibition against selling strong or spirituous liquors, in quantities less than five gallons at a time, without a license, is valid, but he contended that the whole statute rested on section three, which contains this prohibition, and that because that section contains other and distinct prohibitions, which the legislature had not the power to impose, the whole statute is void. I cannot assent to this proposition. It is unsound in logic as well as in law. The third section of the act in question provides that no person shall publicly keep or sell, give away or dispose of, any strong or spirituous liquors, &c., without a license, and makes every violation of it a misdemeanor. The petitioner is charged with selling a glass of gin without a license. The power of the legislature to create this offense, and to punish it in the mode prescribed, is unquestionable. It was indeed said, on the argument, that the right of disposition of liquor on hand at the time of the passage of the act was absolute, and that the legislature had no power to impair this right by requiring a license to be taken out as a condition of selling it in quantities less than five gallons. But this proposition was not proved, and it needs no argument to prove that it has no foundation in law. It being understood then, that the act with which the petitioner is charged is a legal offense and punishable as such; the precise question presented is whether the circumstances that the legislature incorporated in the same act other and distinct provisions which they had no power to enact, vitiate the whole statute. No authority for this proposition was cited except the case of Wynehamer, in 13 N. Y. R. On looking at that case I find that, so far as it contains any allusion to this subject, it is an authority for the reverse proposition. The rule contended for would be repugnant to reason and common sense, and I am satisfied no such rule has been or ought to be established. Mr. Sedgwick, in his treaties on statutory and constitutional law, says : “ The principle that a statute is void only so far as its provisions are repugnant to the constitution, that all provisions may thus be void, and this not affect other provisions of the statute, has been frequently declared” (Sedgwick, Const. Law, 489). “ The principle is now well understood,” says the supreme court of Massachusetts, “that when a statute has been passed, some part of which is not within the competency of the legislative power, such part thereof will be adjudged void, while all other parts of the act not obnoxious to the same objection will be held valid (Fisher agt. McGee, 1 Gray, 29). If it be admitted then, that the legislature has not the power to prohibit the publicly keeping or the giving away of liquors, or the selling to minors, &c., or to authorize the necessary enforcement of the law in the manner and by the means provided, it does not follow that it transcended its powers by making the sale of gin by the glass, without license, an offense punishable according to the ordinary forms of law. The question or the validity of the other provisions of the statute to which allusions have been made is not before me. While I have decided convictions respecting them, I do not for this reason think it proper to express them.

The petitioner must be remanded.