the police force in his department, should guard against any infraction of that portion of the law which declares that the first section of the act "shall not apply to liquor, the right to sell which, in this State, is given by any law or treaty of the United States." None of the penalties of the act apply to such liquors, and policemen will not be authorized to seize any such liquors, or the vessels in which they shall be contained. It becomes important, therefore, to inquire what liquors are allowed to be sold by any law or treaty of the United States.

The Supreme Court of the United States, in the case of Brown vs. The State of Maryland, (12 Wheaton, 419,) have decided that an article authorized by a law of Congress to be imported, continued to be a part of the foreign commerce of the country while it remained in the hands of the importer, for sale in the original bale, package, or vessel in which it was imported. That the authority given to import, necessarily carried with it the right to sell the imported article in the form and shape in which it was imported, and that no State, either by direct assessment or by requiring a license from the importer before he was permitted to sell, could impose any burden upon him, or upon the property imported, beyond what was imposed by the laws of Congress; but that when original packages were broken up for use or for retail, by the importer, and also when the commodity had passed from his hands into the hands of a purchaser, it ceased to be an import, and became subject to the law of the State, and might be taxed for State purposes, and the sale regulated by the State, like any other property.

It is very clear, therefore, that the act does not apply to liquors in the original packages, or to importers who sell them. It will be observed, however, that the act contains. a general exemption of "all liquors" the right to sell which is given by any law of the United States.

Now, the laws of the United States allow all imported articles of foreign commerce to be sold; but the several States may, if they think proper, forbid or regulate their sale, after the articles have been broken up from their original packages, and have entered into domestic commerce. If this law had simply declared that it should not apply to imported liquors after they had been broken in bulk and sold

by the importers, it would simply have been a provision in accordance with the Constitution of the United States, as expounded by the Supreme Court of the United States-it would have been merely a lawful exercise of the sovereignty of the State-but it goes beyond such a declaration, and provides that it shall not apply to the sale of any liquors allowed by the laws of the United States to be sold, and makes no exception whether such liquors be in the original packages of importation, or in the hands of the importer, or subsequent purchasers. If it had been intended to limit the exception to the original packages, or to the importer, it would have so declared. The exception applies neither to the form in which, or the persons by whom, or the times at which the liquors shall be sold, but is general in its terms, and applies to all liquors which may, at any time, be sold by the laws of the United States.

I am, therefore, of opinion that the police will not be justified in attempting to enforce the penalties of this act against imported liquors, or their sale, by whomsoever made.

But upon the exemptions arising under the treaties of the United States, I beg leave to defer any opinion until I have had more time to examine them than I have been able yet to bestow.

As the penalties can not be enforced until after the fourth. of July next, no injury can result from the delay.

Sixth, as no parts of the act go into effect until the fourth of July next, except the 2d, 25th and 26th sections before referred to, it is important to inquire whether any penalties are attached to the sales of liquors prior to the fourth of July next. On that day, and for offenses subsequently committed, the penalties provided by the act apply, and not before. And if the penalties enforced by existing laws be inapplicable, then the sales of liquor between the first of May and the fourth of July next, are wholly unrestricted. A delicate and important question arises whether this be so, the solution of which must depend upon a close examination of the statutes on the subject.

The sales of liquors by retail were never free within the city of New York. By the charters of 1686 and 1730, no such sales could be made without license. The acts of 1801, 1824, 1825, and 1827, after providing for the mode in which

licenses may be obtained, declare in effect, that if any per son shall sell liquors, with certain exceptions, without being licensed, he shall be subject to certain penalties. The present act has abolished the licenses mentioned in these sections of the existing laws-such licenses can not now be granted or obtained and the question is whether, by abolishing the license, the act has also abolished the prohibition, or whether the prohibition remains in full force. The present act has nowhere expressly repealed the existing laws; it simply declares that "all acts or parts of acts, and all charters and parts of charters, inconsistent with this act, are hereby repealed." The existing laws prohibit sales without a license the present law abolishes the license, or rather substitutes. a modified and restricted license, and imposes penalties for its violation. Does the act thereby repeal the existing prohibition? Is the continuance of the prohibition necessarily inconsistent with the act?

Inasmuch as the violation of the existing laws are declared to be misdemeanors, their prosecution belongs to the criminal department of the government, and the consideration of this question belongs appropriately to the District Attorney, who has delivered to his Honor the Mayor an opinion upon the subject.

Seventh, the Common Council, by the authority of the Legislature, has passed an ordinance establishing extra rents for the use of the Croton water, and has therein provided that hotels, porter-houses, taverns, and groceries shall be charged the extra rates.

It is a general principle that no person can recover at law for any work done, or services rendered, or supplies furnished, which he shall have done or rendered knowingly in aid of a business or undertaking illegal by statute.

It does not follow, however, that the occupations specified in the ordinance will be necessarily engaged in any business in contravention of the statute. Indeed it must be presumed that such portions of their business as are declared to be illegal by the act, will be abandoned. Water is a necessity of life, and is not used in such establishments exclusively in aid of the sale of liquors. No contract for the use of it could be avoided, unless it were clearly proved that it was made by both parties, with the criminal intent to aid in an unlawful traffic. No such intent would ever be entertained by, or could be proved against, the Corpo

ration; and I consider the idea quite chimerical, that any such defense to an action for the use of water could be sustained. Respectfully submitted,

ROBT. J. DILLON.

The following opinion, given by EDWARD WELLS of Peekskill, is in opposition to that of the District Attorney and the Counsel to the Corporation.

To the Editor of the Peekskill Republican:

SIR: Having received various written, as well as verbal, applications for an expression of my views on several questions arising out of the "Act for the Prevention of Intemperance, Pauperism, and Crime," lately passed by the Legislature of New York, I take this mode of returning a general answer to all such inquiries touching the two following questions:

1. What is the effect of the exception expressed at the end of the first section in favor of imported liquors?

2. What is the effect of section twenty-five, (which for bids the granting of licenses, except as therein provided, after the passage of the act,) on the right to sell liquor between May 1 and July 4, on which last day the act is to go into full operation?

The first section of the act, after forbidding the sale or gift, or the keeping for sale or gift, of any intoxicating liquor, (with certain specified exceptions,) closes as follows: "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."

The liquors here referred to are those imported into the United States from foreign countries, under an act of Congress, or a treaty with the country whence the liquors come. Such laws and treaties, made in pursuance of the Constitution, are the supreme law of the land, and the right secured by them can not be invaded by State legislation; hence the necessity for the exception in the first section of this act. But to what extent do the laws of the United States, which impose duties on imported articles, protect the sale of them after they are imported? This question was settled by the Supreme Court of the United States, in the case of Brown against the State of Maryland, 12 Wheaton's Rep. 419. That

case decides that an act of Congress which authorizes the importation of any article into the country, also thereby authorizes the importer to sell such article while it remains in its original form, package, cask, etc., in which it was imported; that up to this point it remains a subject of the foreign commerce of the nation, not to be controlled or prohibited by State legislation—there being no difference in effect between a power to prohibit the sale of an article and' a power to prohibit its introduction into the country; the one would be a necessary consequence of the other—but that when the importer has either sold the imported article in the package or cask, etc., in which it was imported, or has broken it up to sell in parcels, it ceases to be an article of foreign commerce-it is no longer protected by the laws of the United States-it has become a part of the internal property of the State, and is subject to the control of the State laws. This case draws a clear and tangible line, on one side of which the article is an object of foreign commerce, subject only to the law of Congress, and on the other side of which the article is an object of domestic trade, subject only to the law of the State. That line is passed when the importer has changed the form of the article, or transferred it from the bale, package, cask, etc., in which it was originally imported, or when, without such transfer, he has sold it to another person. The laws of Congress in effect say to the importer: We guarantee to you the right to import and to sell the article in the form and condition in which it was imported, but beyond this we do not go; we do not guarantee that your vendee shall have a market; that is beyond our jurisdiction, and must depend on the good pleasure of the State of which he is a citizen.

I observe that the Counsel for the Corporation of New York, in a communication to the Mayor, of April 19, argues that, because the recent law does not confine the exception to foreign liquors while remaining in the original packages, therefore such liquors may be sold at any time, in any quantities, and by any persons.

With all due deference to the opinion of the learned Counsel for the Corporation, I suppose that such an interpretation is inadmissible.

It is manifest that this first section is a sweeping prohibition of the sale and gift of intoxicating liquors, and this exception out of the general prohibiton of the section.