The Pamphlet Collection of Sir Robert Stout: Volume 36
Penalties for Unlicensed Selling
Penalties for Unlicensed Selling.
Section 13, act of 1857, enacts that "Whoever shall sell strong or spirituous liquors or wines in quantities less than five gallons at a time, without having a license therefor granted as herein provided, shall forfeit $50 for each offence."
Note 1. Few liquor dealers, and not all magistrates even, understand the very serious peril into which unlicensed traffic brings an offender. He is first page 4 liable in a civil action, and required to par $50 for each violation. He is then held on a criminal offence (see Section 29), and thus dealt with: "If an unlicensed person sells intoxicating liquor, such selling is, under the act of April 16, 1857, an indictable offence, and is to be punished as a misdemeanor. The rate of punishment is, by statute, fixed at three months' imprisonment in the penitentiary, work-house, or jail, besides the tine of $100; and no discretion is left to the court as to the extent of the punishment," 4 Parkers Crim. Rep., p. 27.
Last May, Justices Miller, Parker, and Potter, in General Term of the Supreme Court at Elmira, reaffirmed the above decision. Still later, Judge Morgan, another of the Supreme Court justices, has given the same opinion of the law, to wit: that retailing intoxicating liquor without license subjects an offender to three months' imprisonment and $100 fine; and that courts have no discretion in regard to this penalty. More recently still, different courts in Westchester, Rensselaer, Oneida, and Oswego Counties are understood to have pronounced the same identical judgments.
Note 2. Nor is the whole penal force of our Excise Law yet seen. Many of the offences against its provisions subject one to cumulative penalties. There is a sense in which an offence is treated as a civil action, the damages imposed being a debt due; and then, for the same offence, one is held to be a criminal, and punished for wrong done; just as is the practice in every penal code. For example, if one commits assault and battery, he is liable to be punished: first for breach of public peace; then, secondly, he is held for personal damages to the injured man. So with a licensed dramseller. If he sells on the Sabbath, to an apprentice or to one intoxicated, he is liable, first, to go to jail and lose his license for the Sabbath offence; then, secondly, to line for selling to persons forbidden; and if these customers, maddened by drink, injure person or property, the seller is "liable for all damages sustained." Or suppose one unlicensed keeps a dram-shop: for every sale he is liable in a civil action to pay $50; then, secondly, he may be taken on criminal indictment, sent three months to the penitentiary, and fined $100.
Note 3. There is a delusion in some minds that, when one has paid license on liquors to the General Government, he has a right to sell where and how he chooses, without regard to State regulations. But this is the law as explained in Waifs Digest of N. Y. Reports, p. 716: "The Supreme Court decide that an importer can sell liquor in packages and in condition in which it is imported, and in no other manner. This is the extent of the right. When the importer parts with property, or changes its condition, his right and all right to sell it, derived from the laws under which it is imported, ceases."