Bancroft v. Dumas , 21 Vt. 456 ( 1849 )

The opinion of the court was delivered by

Keílogg, J,

This is an action of book account, which was submitted to an auditor, who returned a special report, upon which the county court rendered judgment for the plaintiffs, — disallowing, however, a portion of their account. It appears by the report, that a portion of the plaintiffs’ account consisted of charges for ardent spirits, sold to the defendant between the sixth of March, 1846, and the ninth day of April, 1847, amounting to the sum of $119,32, during which time the plaintiffs had no license authorizing the sale of spirituous liquors, as provided by the license laws of 1844 and 1846. This part of the account was disallowed by the county court.

The decision of the court below is resisted upon two grounds;— 1. That the laws of 1844 and 1846, relating to licenses, are unconstitutional and void. 2. That if the laws are constitutional and valid, the sale of the liquors, without a license, would only subject the plaintiffs to the penalty imposed by the statute, and would constitute no objection to their recovery.

If the acts of the legislature, which are now under consideration, are clearly repugnant to the constitution, it becomes the duty of the court, however delicate the task, to pronounce them void. But, in order to justify the court in such an adjudication, the case must be clear and free from doubt. The opposition between the law and the constitution should be so clear, as to produce a settled conviction of their incompatibility with each other. Nothing short of this will warrant the court in declaring, that the legislature has transcended its constitutional power.

The statute of 1844 provides for the election of commissioners in the several counties, who are authorized to grant licenses to such suitable persons, as they shall think proper, to keep inns, or taverns, and to retail spirituous liquors, in the several towns in their respective counties; and it imposes a penalty upon such as shall sell without a license therefor. It is difficult to perceive any valid objection to this law. It has, indeed, been said, that the law had not an uniform operation throughout the state; that while in some counties the commissioners were liberal in granting licenses, in others they wholly refused them. If such were found to be the operation of the law, it is conceived, it would rather constitute an objection to the administration of the law, than to the law itself; for the state contemplates no such diversity. The commissioners of the several counties might entertain different views in relation to the propriety of licensing certain persons as innkeepers, or granting any licenses at all, and this would necessarily lead to a want of uniformity in the administration of the law. The same objection might be urged, and with equal propriety, to the former license laws, which authorized the selectmen and civil authority of the several towns to approbate suitable persons to keep taverns, and restricted the county courts to the licensing of such only as were approbated. This necessarily produced some inequality and want of uniformity in the administration of the law; and yet this was never supposed to render the law invalid. The license law of 1844 was general in its character, providing an uniform system in relation to the licensing of inn-keepers and retailers throughout the state. The subject was unquestionably within the constitutional power of the legislature, and the fact, that the law did not operate alike in all parts of the state, does not, in the judgment of the court, impair its validity. Nor are we aware of any sound objection, which can be urged to the constitutionality of the statute.

The unrestricted traffic in intoxicating liquors has been found, by sad experience, to produce the most demoralizing influence upon society, ‘and hence the public solicitude upon the subject, and the interference of the legislature from time to time, by the enactment of laws regulating and restraining the traffic. The statute of 1S46 was passed with the view of conforming the law upon the subject of licenses to what was supposed to be the wishes of the people. The statute provides, that the sense of the freemen shall be taken annually upon the subject, and if a majority shall vote no license, then no licenses are to be granted during the year; and if a majority shall vote license, in that event the several county courts are authorized to grant licenses.

It is objected to the validity of this law, that its vitality is made to depend upon the will of the people, expressed at the ballot box, and hence it is urged, that it is not a law enacted by the legislature. Is the law subject to this objection l It has all the forms of a law, and was enacted by the legislative department of the government; but whether it shall be a prohibition to, or an authority for, the granting of licenses is made to depend upon the expressed will of the people. Can this feature of the statute invalidate the law ? Is a law to be adjudged invalid, because it is conformable to the public will ? It is in accordance with the theory of our government, that .all our laws should be made in conformity to the wishes of the people, Surely, then, it can be no objection to a law, that it is approved by the people. We believe it has never been doubted, that it is competent for the legislature to constitute some tribunal, or body of men, to designate proper persons for inn-keepers and retailers of ardent spirits. Such was the character of all our early laws relating to licensing of inn-keepers by authorizing the selectmen and civil authority to approbate suitable persons, and restricting the county courts to the licensing of such as should be approbated; and we are not aware, that the constitutionality of these laws was ever questioned. And at one period, during the continuance of the license law of 1S38, the power of determining whether licenses should be granted was vested in the selectmen and civil authority of the several towns. If the legislature could legally and constitutionally submit the question, whether licenses should be granted, to the determination of a portion of the people, could they not, with equal if not greater propriety, submit it to the decision of the whole people ?

The case of Rice v. Foster, decided by the supreme court of Delaware, is relied upon as an authority to establish the unconstitutionality of the statute of 1846. The brief report of the case published in the Law Journal, to which we have been referred, does not show, in terms, what the statute was, which was adjuged to be unconstitutional. Enough, however, appears in the brief extracts from the opinion of the court, published in the Journal, to satisfy us, that it differs materially from the license law of 1846. The court say of the Delaware law, “ The legislature are invested with no power to pass an act, which is not a law in itself, when passed, and has no force or authority as such, and is not to become or be a law, until it shall have been created and established by the will and act of some other persons, or body, by whose will, also, existing laws are to be repealed, or altered, or supplied. The act of the 19th of February, 1847, is of this character.” Such is the description of the Delaware statute, as given by the court; and are those remarks applicable to our statute of 1846 ? Was not our statute a law in itself, when passed by the legislature? Had it not the force and authority of law, independent of any action of the people ? Can it be said, that, before it receives such force, it is to be created and established by the people? We are entirely satisfied, that the law of 1846 is subject to none of these objections. The law was complete in itself, when passed by the legislature, and did not require the creative power of the people, or of any body, to give it vitality, or force. The second section of the statute imposed a penalty upon any person, who should deal in the selling of distilled spirituous liquors without a license therefor, as provided in the statute. This amounts to an implied prohibition of such sale, without a license. Roby v. West, 4 N. H. 285.

If the people had never voted upon the question, as provided by the statute, the only consequence would have been, that licenses could not have been obtained, the statute would have remained in force, and consequently those who engaged in the traffic would incur the penalty imposed by the statute. The case of Parker v. The Commonwealth of Pennsylvania, 6 Barr, has been urged as an authority decisive of this question. In that case the Supreme Court of Pennsylvania held a law, relating to the sale of ardent spirits in some two or three counties, to be unconstitutional. The decision of the court is based upon the ground, “ that the law depended, for its validity and efficacy within the counties named, upon the popular vote of certain designated districts in those counties, — that without this popular expression, the act was inert. Possessing no innate force, it remained a dead letter, until breathed into activity by the people. Until then it prohibits no act, creates no offence, fixes no penalty, — that if the people should vote negatively upon the question submitted to them, the act, as a statute, had no existence, — it was not to be a law within the district, where such vote was cast.” Such is declared to be the character of the Pennsylvania statute; and can the objections, which were urged against that law, be justly applied to our law? We think not. The Pennsylvania law depended, for its life, force and existence as a law, upon the vote of the people. Whereas our statute of 1846 was complete as a law, when it came from the hands of the legislature, and did not depend, for its force and efficacy, upon the subsequent action of the people. The distinction between the two statutes is very obvious and material.

Laws are often passed, and, by the terms of the statute, made to take effect upon the happening of some-event, which is expected to occur; and we are not aware, that such laws, for that reason, have been regarded as invalid. So it has not been unusual for the legislature to pass laws altering the lines of towns, with a proviso, that the same should not take effect, until the several towns in interest should by vote signify their assent to the same. And we are not aware, that such a law has ever been adjudged invalid. The assent of the towns in interest, to the alteration of their jurisdictional lines, is not necessary to the exercise of that power by the legislature. Towns are quasi corporations, created for public purposes, and -over which the legislature have power to legislate, as the public interest may require.

The result of our deliberation upon this part of the case is, that the license laws of 1844 and 1846 are not repugnant to the constitution, but are binding and obligatory upon the people.

The license laws being valid and obligatory, the question arises, how are contracts, made in contravention of those laws, to be regarded ?

The statute aforesaid subjects any person, who shall, without a license therefor, deal in the selling of distilled spirituous liquors, to a penalty, to be paid to the county treasurer for the use of the county. The sale of the spirits charged in the plaintiffs’ account, without license, being in violation of the license laws, was an illegal act, and the contract an illegal one, which a court of justice will never lend its aid to enforce. It was so held in Armstrong v. Toler, 11 Wheat. 258. And it has long been settled law, that a promise, made in consideration of an act which is forbidden by law, is void. Tt was so held in Craig v. The State of Missouri, 4 Peters 426, and in Roby v. West, 4 N. H. 285, and in Pray v. Burbank, 10 Ib. 377, and in numerous other cases. And it is held in the cases above cited, that, where a statute imposes a penalty for the doing of an act, the law, by implication, prohibits the act and makes it illegal ; and it is at this day uniformly held, that no suit can be based upon such illegal act.

It is objected, that the court below erred, in not applying the payments, made by the defendant, to the plaintiffs’ account generally. The county court applied the payments to that portion of the account, which was legal and could be enforced against the defendant; and we think the court was right in making such application, it not appearing, that the defendant gave any directions as to the application, at the time the payments were made. The principle is well settled, that a party making a payment to his creditor has the right to direct its application at the time of payment. If the debtor omit to direct how it shall be applied, the creditor may make the application. This right of the creditor, however, is understood to be limited to an application upon such demands, as are legal, valid claims, the payment of which can be enforced against the party, provided the creditor hold such demands. The payments will be presumed to have been intended to be applied upon such demands, in the absence of proof to the contrary. The application, therefore, was correctly made by the court below.

The result is, that the judgment of the county court must be affirmed.