77 N.Y. 331 | NY | 1879
But for the Behan Case (
The question is whether the Behan Case (supra), should be regarded as authoritative in this. The point in that case was whether selling liquor in quantities less than five gallons without a license was a criminal offence punishable by indictment, and this court held that it was, and while some of the reasoning of the opinion would apply to the offence prescribed by section eighteen, much stress was laid upon the fact that the offence of selling liquor without license had in previous excise laws been made a criminal offence, and that the general scope of the statute, especially sections sixteen and twenty-nine, implied that the Legislature intended to continue it as such. In Hill v. The People (
In Foote v. The People (
There is ample room for the application of the provisions of the sixteenth and twenty-ninth sections if they are confined to offences declared in the act to be criminal, but in view *335 of the previous legislation of the State, and the implication contained in these sections, a legislative intent to make the unauthorized selling of liquor a misdemeanor, might naturally be inferred, and to that extent we regard the Behan Case, as a binding authority, but here we have an independent provision, complete in itself, making a specific act for the first time unlawful, and affixing to its commission a specific penalty, and prescribing the mode of enforcement. In the absence of any provision declaring the act to be punishable as a crime, and without any light thrown upon the intent of the Legislature by previous legislation, I am unable to see how it can be held a crime without overturning fundamental rules of law, and establishing a dangerous precedent. The intent of the Legislature to elevate an act to the importance of a crime, cannot be imputed by loose inferences, and doubtful implications, but must be made to appear with reasonable certainty. We may guess that the Legislature intended to make all prohibited acts, criminal offences, but it is impossible to so affirm with any degree of certainty, and the fact that they did not so declare, is indicative that they did not so intend.
In the Foote Case it was argued that the offences declared to be misdemeanors in the twenty-ninth section was intended to embrace all the offences against the provisions of the act because other offences were not elsewhere declared crimes, and that it must be inferred that the Legislature intended to make them all crimes. This view did not prevail, and it was held that the clause in the twenty-ninth section referred only to offences specified therein.
I am of opinion that the authority of the Behan Case, should not be extended, and that it is not controlling in this case.
The judgment must be affirmed.
All concur.
Judgment affirmed. *336