State v. Circuit Court of Gloucester County

Decision Date10 August 1888
Citation50 N.J. 585,15 A. 272
PartiesSTATE (PAUL, Prosecutor) v. CIRCUIT COURT OF GLOUCESTER COUNTY. STATE (HART, Prosecutor) v. SCOTT, City Clerk, et al.
CourtNew Jersey Supreme Court

(Syllabus by the Court.)

Error to supreme court.

Learning & Black, F. W. Stevens, H. C. Pitney, and Ex-Gov. Abbott, for plaintiffs in error. John I. Blair and Samuel H. Grey, for defendant in error.

VAN SYCKEL, J. The principal question in these cases is as to the constitutionality of an act passed at the last session of our legislature, entitled "An act to regulate the sale of intoxicating and brewed liquors." The law consists of two parts. The first part establishes a minimum license fee for the several townships, towns, boroughs, and cities of the state, graduated according to population, and is called the "High License Law." The second part of the law provides for a vote in each county on the application of one-tenth of the legal voters, to determine whether or not any intoxicating or brewed liquors shall be sold within the county, and is styled the "Local Option Law," in the discussion of the ease. The Paul Case involves the validity of the local option part of the law; the Hart Case that of the high license feature.

The constitution of this state provides that "to avoid improper influences, which may result from intermixing in one and the same act such things as have no proper relation to each other, every law shall embrace but one object, and that shall be expressed in the title." Upon this part of the fundamental law of the state the first attack upon this legislation is based. The contention is that the object of the act is not expressed in the title; that the effect of the act is to prohibit the sale of liquors; and that the object is not indicated by the title, "An act to regulate." The case principally relied upon to support this view is the Hauck Case, 38 N. W Rep. 269, in the supreme court of Michigan. The law there provided that, when the majority vote in the county was cast against the sale, it should be thereafter unlawful to manufacture, sell, give away, or furnish malt liquors or intoxicating liquors of any kind, or in any quantity. This case was well decided. The enactment clearly and expressly prohibited the sale of liquors, and that purpose was not manifest in the title. Mr. Justice DIXON, in State v. Fay, 44 N. J. Law, 477, tersely states the true view in this way: "Intrinsically regulation and prohibition range in different spheres. No sale which is prohibited is regulated, and none regulated is prohibited." If, therefore, the law under review prohibits the entire traffic in case of an adverse vote, there could be no hesitancy in pronouncing it a violation of the constitutional mandate. The first three sections relate expressly to the sale by small measure. They provide for the license fee, and regulate the sale under the license. In our law no provision has been made for requiring license to sell by greater quantity than one quart, unless to be drank upon the premises. Section 4 authorizes a vote, "to determine whether or not any intoxicating or brewed liquor shall be sold within the county." This language is broad enough to include the entire traffic, but the section forbids nothing,—it makes nothing unlawful. Nor is there anything in sections 5 or 6 which declares any sale to be illegal. Section 7 expressly states what shall be the effect of the majority vote against selling, in these words: "Whenever it shall appear that a majority of the votes cast in such county are against the sale of intoxicating liquors, no license shall thereafter be granted to any person within the limits of such county to keep an inn or tavern or saloon, or to sell spirituous, vinous, malt, or brewed liquors, to be drunk on or about the premises." This unquestionably relates only to sales for which license is required. If it had been intended by the vote to prohibit the sale generally, the seventh section would have said, in the language of section 4, that no intoxicating or brewed liquors should thereafter be sold. The legislature having thus distinctly stated what the effect of the majority vote shall be, the maxim expressio unius, exclusio alterius, clearly applies. Other or different effect cannot by judicial interpretation be given to the vote, unless some after-language in this statute plainly indicates that such was the intent of the law-maker. The only remaining section bearing upon this topic is the eighth. It provides that "any person who shall traffic in, sell, expose for sale, or give away, with intent to violate any of the provisions of this act, or shall suffer to be trafficked in, sold, or exposed for sale, or so given away, any liquors mentioned in the seventh section of this act, by whatever name called, shall be deemed guilty of a misdemeanor." This section is badly drawn, and does not indicate with clearness what the purpose of the draughtsman was. The words "so given away" show that the object in the mind of the framer will be promoted by transposing the words "with intent to violate any of the provisions of this act," and reading it in this way: "That any person who shall traffic in, sell, expose for sale, or give away, or shall suffer to be trafficked in, sold, or exposed for sale, or so given away, any liquors mentioned in the seventh section of this act, by whatever name called, with intent to violate any of the provisions of this act, shall be deemed guilty of a misdemeanor." This construction harmonizes the previous sections of the act, and restricts its bearing to the liquors mentioned in the seventh section of the act; that is to say, to the sale of liquors in such quantities as there must, under our laws, be license to sell. If total prohibition was intended, it cannot reasonably be conceived that the legislature would have failed to use the simple language necessary to express that purpose, without restricting the prohibition to the liquors mentioned in the seventh section.

Due regard must also be given to the title of the act in determining the scope which the legislative will has imparted to it. In Hendrickson v. Fries, 45 N. J. Law, 555, this court held that a statute which made void a power of attorney inserted in the body of a note or bond, did not apply to such a note made in this state for the purpose of entering judgment by confession in Pennsylvania, for the reason that the section containing this provision was in a statute entitled "An act to regulate the practice of law," and could not therefore be construed to affect such instruments, when not designed to be used to enter judgments in our own courts. In State v. Inhabitants of Northampton, decided at the last term of court, and reported in 14 Atl. Rep. 587, Mr. Justice DEPUE said: "The constitutional mandate that the object of every law shall be expressed in its title, has given the title of an act a twofold effect. It has added additional force to the title as an indication of legislative intent in aid of the construction of a statute couched in language of doubtful import, and it also operates as a constructive limitation upon the enacting part." The legislature, in the title adopted for this act, has indicated its purpose to restrict it to regulation, and not to extend it to prohibition of the entire traffic. Conceding that there is some doubt as to the extent of the prohibition, this will not overthrow the law. The expressed will of the lawmaker cannot be set aside by the judiciary unless it is clear that he has transcended his constitutional prerogative. To be in doubt is to be resolved in favor of the law. Upon what language in this act could an indictment for selling by larger measure than one quart be maintained? A criminal offense will not be created by doubtful construction; there must be something equivalent to expression to justify the punishing as a crime that which has hitherto been a legitimate business in which hundreds are engaged. The act before us will certainly bear the construction I have given it, and in a case of doubt that interpretation must be adopted which will uphold the law. Assuming that the extreme effect of this legislation is to forbid the sale by small measure, in my judgment it must be regarded as a law regulating the sale of intoxicating and brewed liquors. It regulates the sale by prohibiting it in small quantities. Every license law is to some extent a prohibitory law; it prohibits the sale by all persons who have no license. But it is said that the prohibition is absolute within the sphere in which the law operates; that is, as to the sale by small measure. So is the law which absolutely forbids the sale by the small measure on Sunday, or on election day. So would be a law which prohibited the sale to minors, or within a certain distance from a college. Such laws are therefore none the less regulations of the liquor traffic. They operate as a check; as a partial restraint upon the sale, not an absolute inhibition; and are in the strictest sense regulation. The regulation becomes more or less stringent as you increase or diminish the extent to which it operates to prevent sales; but it reaches the point of prohibition, and ceases to be regulation, only when it wholly inhibits the traffic. Unless this view is accepted, we cannot stop short of maintaining that every law which prohibits any portion of the traffic is a prohibitory law. This would give to the word "regulate" no substantial significance. It may be that, if this law forbade the sale in less quantity than 10,000 hogsheads, this court would pronounce it null and void; but it would be because the title would be manifestly and intentionally misleading, and would show that the accepted quantity was inserted as a mere subterfuge to evade the constitutional mandate. The soundness of legal principles cannot be tested by such instances. The fees for license to sell by the small measure, when granted, and under what...

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