38 N.H. 225 | N.H. | 1859
The license under which the defendant justified his sale of spirituous liquors was granted under
Under the Revised Statutes, the town-clerk had a fee of twenty cents for recording a taverner’s or retailer’s license. I find no express provision of any statute which requires a fee to be paid for recording a license, under the act of 1849; hut it was necessary that licenses under that act should be recorded, and it may be fairly implied that the fee was to be paid as under the former statute, and paid by the party who took the license.
The argument for the defendant has been placed on the ground that this fee of twenty cents, to which the clerk is entitled for recording the license, is to be regarded as a pecuniary consideration, paid for the right to sell during the time limited in the license; that a contract is made on that consideration between the State and the party licensed, giving a vested right which is protected on general principles, and by the Constitution of the United States, against subsequent legislation. ¥e are not able to agree in this view of the question.
The selectmen of towns were required by the statute of 1849 to license one or more persons in each town to sell wine and spirituous liquors for certain specified purposes.
The statute under which the license was granted was a genei’al law, applicable to all towns, and intended to establish a uniform system for the regulation of the traffic in spirituous liquors throughout the State; and selectmen, in granting the licenses, acted as public officers, charged with the duty of carrying this general law into effect. They were required to license one or more suitable persons in their respective towns; and under the act of 1855, providing for the appointment of agents to sell spirituous liquors, it was held, in State v. Woodbury, et als., selectmen of Wilmot, 35 N. H. 230, that it was the duty of selectmen to appoint agents under that statute, and that selectmen were liable to indictment for wilful neglect to perform this official duty. The provisions of the statute plainly show that the object was to provide, by a general law, on the public account and on public considerations, for the regulation of the trade in spirituous liquors, and not to make contracts with individuals, giving them vested rights beyond the reach of subsequent legislation.
If we could suppose that the legislature intended to surrender the control which the Constitution entrusts to them, over a subject of such general public concern, by granting vested rights to individuals trammelling future legislation, their power to do so is more than doubtful. If binding contracts could be made, conferring a vested right to sell for one year, why not for two years, or any indefinite length of time ? There is a strong opinion on this question in Baxter v. Pennsylvania, 10 How. 416. In that case Mr. Justice Daniel says : “ The contracts designed to be protected by the 10th section of the 4th article of the Constitution, are contracts by which perfect rights of property are vested. They are clearly distinguishable from measures or engagements adopted or undertaken for the body politic or State government, for the benefit of all, and from the necessity of the case, and according to universal understanding, to be varied and discontinued as the public good
In Horn v. The State, 1 Ohio 15, the defendant in the original prosecution was licensed, under the Ohio statute of 1831, for one year, and had paid for his license, under the provisions of that statute, fifteen dollars into the county treasury. Yet the court in that case say they are not disposed to question the power of the legislature to revoke the license before the expiration of the year; and this opinion they place on the ground that the subject matter of the statute was connected with the public policy of the State. In that case there was much stronger reason than in the present for holding that a pecuniary consideration was paid for the license, and a contract made with the public, which conferred a vested right; for fifteen dollars were paid into a public treasury, under the Ohio statute, and nothing but an insignificant office-fee under ours.
The recently published case of Calder v. Kurby, 5 Gray 597, would seem to be an authority precisely in point. In that case a fee of one dollar was paid, under the Massachusetts statute, on taking a license to sell till April 1, 1853. The sale was made before the expiration of the time limited in the license, and after the repeal of the statute under which the license was granted, and the enactment of a law prohibiting sales under such licenses. The court held that the license was annulled and revoked by the subsequent legislation.
This question arose incidentally in Adams v. Hackett, 27 N. H. (7 Fost.) 289 ; but the point does not appear to have been material to the decision of that case; and we do not feel pressed by that authority, as we should if the question had been there presented in a way which called upon the court to give it a careful and extensive examination.
Judgment on the verdict.