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or difficulties which it leates behind.
* We mination, but simply a case in which they are thus are not at liberty to dispense with any of the condi- divested by the treaty itself, subject to the constitutions or requirements of the treaty, or to take away tional requirement that a "just compensation" must any qualification or integral part of any stipulation be made. upon any motion of equity or general convenience or 6. Treaties, regarded simply as contracts between the essential justice. The terms which the parties have governments making them, take effect at and from the chosen to fix, the forms which they have prescribed, date of their signature, unless they otherwise stipulate; and the circumstances under which they are to have but considered as laws affecting the rights of citizens operation, rest in the exclusive discretion of the con- of the United States, they do not take effect until ratitracting parties. * * We can as little dispense fied and proclaimed. The first of these propositions with forms as with substance." What is sometimes was affirmed by the Supreme Court of the United States called "judge-made" law has no application to treaties in Davis v. The Police Jury of Concordia, 9 How. 280, between sovereign nations.
and both were affirmed in The United States v. ArreThe general rule for the construction of treaties is dondo, 6 Pet. 691. Both were again affirmed in Haver v. that furnished by the established sense of their words, Yaker, 9 Wall. 32, in which Mr. Justice Swayne said: unless the treaties themselves expressly define some of “It is undoubtedly true, as a principle of international the words in a different sense. Mr. Justice Daniel, in law, that, as respects the rights of either government United States v. D'Auterive, 10 How. 609, said: “Com- under it, a treaty is considered as concluded and biudpacts between governments or nations, like those being from the date of its signature. In this regard the tween individuals, should be interpreted according to exchange of ratifications has a retroactive effect, conthe natural, fair and received acceptation of the terms firming the treaty from its date. But a different rule in which they are expressed." This rule of common prevails when the treaty operates on individual rights. sense is alike applicable to all contracts, whether un- * * * As the individual citizen on whose rights it der municipal or international law. The rule rests operates has no means of knowing any thing of it while upon the assumption that the contracting parties un- before the Senate, it would be wrong in principle to derstood at the time of the contract the received hold him bound by it, as the law of the land, until it sense of the words they employed, and that they was ratified and proclaimed. And to construe the law, meant to make their stipulation with each other ac- so as to make the ratification of the treaty relate back cording to this sense. This is the sense which it is the to its signing, thereby divesting a title already vested, duty of courts to enforce, unless a different sense is would be manifestly unjust and cannot be sanctioned." expressly stated in respect to some word or words that This relates to a treaty considered simply as a law, may be used.
and, as such, affecting private rights. It fixes the date Courts, in applying treaties to specific cases, are to at which a treaty becomes operative as a law. The assume that nations, in making contracts with each reason for the rule lies in its obvious justice. Until other, intend to act in good faith, and hence that they ratified and proclaimed, a treaty has no form of pubnever intend to authorize or protect fraudulent trans- licity of which the private citizen can take notice; and actions under the color of these treaties. Mr. Justice to bind bim by it as a law, without any publicity, would Story, in The United States v. The Amistad, 15 Pet. 518, be manifestly wrong and might work serious injustice observed: “In the solemn treaties between nations it to his rights. is never to be assumed that either State intends to pro- 7. The competency of the contracting parties to make vide the means of perpetrating or protecting frauds; a treaty is not a question into which courts can inquire but all provisions are to be construed as intended to as a condition precedent to regarding it as a law. The be applied to bona fide transactions.” When a fraud President, with the consent of the Senate, is conis attempted under the color and protection of a treaty, stitutionally competent to make a treaty; and as to it is, as remarked by the learned justice, “the duty of the treaty-making competency of the party with our courts to strip off the disguise and look at the case whom the treaty is made, they are the sole judges. It according to its naked realities.” This is precisely is the duty of courts to accept their decision as final, what was done by the court in the case of The Amis- and apply the treaty as they find it. The question is tad.
not judicial, but political, and belongs to the treaty5. Rights of property acquired and vested under making power. treaties are not divested by their termination, even by Chief Justice Taney, in Doe v. Braden, 16 How. 635, war. Mr. Justice Washington, in The Society, etc., v. remarked that a treaty made by the President, with New Haven, 8 Wheat. 464, stated this doctrine as fol- the approval of the Senate, is “a law made by the lows: "The termination of a treaty cannot divest proper authority," and that “courts of justice have no rights of property already vested under it. If real es- right to annul or disregard any of its provisions, unless tate be purchased or secured under a treaty it would they violate the Constitution of the United States." be most mischievous to admit that the extinguishment He added: “It would be impossible for the executive of the treaty extinguished the right of such estate. In department of the Government to conduct our foreign truth, it no more affects such rights than the repeal of a relations with any advantage to the country, and to municipal law affects rights acquired under it. * fulfill the duties which the Constitution has imposed We think, therefore, that treaties stipulating for per- upon it, if every court in the country was authorized manent rights and general engagements, and profess- to inquire and decide whether the person who ratified ing to aim at perpetuity, and to deal with the case of the treaty in behalf of the foreign nation had power, war as well as of peace, do not cease on the occurrence by its constitution and laws, to make the engagements of war, but are at most only suspended while it lasts; into which he entered.” and unless they are waived by the parties, or new and In Fellows v. Blacksmith, 19 How. 366, an objection repugnant stipulations are made, they revive in their was made to a treaty with a certain tribe of Indians, operation on the return of peace.”
on the ground that the chiefs and head-men were not It was held by the United States Court of Claims, in represented in the negotiations: and to it Mr. Justice Meade v. The United States, 2 Ct. of Cl. 224, that the Nelson replied as follows: “But the answer to this is. United States may take private property for public use that the treaty, after executed and ratified by the by the terms of a treaty, or may release the choses in proper authorities of the Government, becomes the action of American citizens to a foreign government, supreme law of the land; and the courts can no making, of course, "just compensation " for the same. more go behind it for the purpose of annulling its effect This, however, would not be a case in which rights of and operation, than they can behind an aot of Con. property vested under a treaty are divested by its ter- gress."
The President, with the advice and consent of the be a part of “the supreme law of the land," and Senate, having exercised the power vested in him by hence, that this treaty enabled “British creditors to the Constitution in making a treaty, the treaty itself, recover debts previously contracted to them by our if constitutional, and if it does not require legislation citizens, notwithstanding the payment of the debts for its execution, is ipso facto a law for the government into a State treasury had been made during the war of courts. Their business is to apply it without any under a State law of sequestration." attempt to review the action of the President in The principle involved and asserted in this case is making it.
that the treaties of the United States are, as laws of 8. Treaties that require no legislation on the part of the land, paramount to all the forms of State authority, Congress to carry them into effect have the character and hence, that the latter are null and void, so far as of supreme laws when ratified and proclaimed; but if they are in conflict with the former. “A treaty,' said they require such legislation for their execution, then Mr. Justice Chase, “cannot be the supreme law of the they are not a rule for courts until the necessary legis- | land – that is, of all the United States --if any act of lation has been supplied. Chief Justice Marshall, in a State Legislature can stand in its way.'
." "The treaty," Foster v. Neilson, 2 Pet. 253, having adverted to the said Mr. Justice Wilson, “is sufficient to remove every fact that "the Constitution declares a treaty to be the impediment founded on the law of Virginia.” “The law of the land," proceeded to say: "It is, conse- treaty then as to the point in question," said Mr. Jusquently, to be regarded in courts of justice as equiva- tice Cushing, “is of equal force with the Constitution lent to an act of the Legislature, whenever it operates itself." of itself without the aid of any legislative provision. This early decision as to the paramount authority of But when the terms of a stipulation import a contract, treaties, when compared with State constitutions and when either of the parties engages to perform a par- laws has become the settled doctrine of American courts ticular act, the treaty addresses itself to the political, Ouings v. Norwood's Lessee, 5 Cranch, 344; Fairfax's not the judicial department, and the Legislature must Devisee v. Hunter's Lessee, 7 id. 603; Gordon's Lessee execute the contract before it can become a rule for v. Halliday, 1 Wash. 291 ; and Fisher v. Harden, 1 Paine, the court." The same doctrine was stated by Mr. 55. The Constitution admits of no doubt on this subJustice McLean, in Turner v. The American Baptist ject. It is the duty of all State judges to regard the Missionary Union, 5 McLean, 344.
treaties of the United States as supreme laws, and the Whether then a treaty is of itself a law of the land or same duty is devolved on the National judiciary. If not depends, according to these anthorities, upon its the former fail to do so there is a remedy for the failcharacter and this is to be determined by examining the ure in the powers of the latter. terms in which it is expressed. If by its terms it is an 10. The constitutional validity of treaties, considered executed contract, acting proprio vigore upon the sub- as municipal laws, is a question which courts, with ject-matter involved, then it is a part of the law of the proper cases before them, are authorized to consider land, and as such, is to be applied by courts in the ab- and determine. It is supposable that the President sence of any legislation to give it effect. If, however, might, with the advice and consent of the Senate, make the treaty is simply an executory contract, pledging an unconstitutional treaty, and should this be the fact, the faith of the Government to do certain things in the treaty would furnish no rule for the guidance of futuro, the doing of which requires legislative action, a court. The judiciary is as much bound by the Conthen it is not a law of the land for the purposes of ju- stitution when called upon to give effect to treaties as dicial administration until the requisite legislation laws, as it is when giving effect to the laws of Congress. shall have been furnished. If, for example, the stipu- The Constitution itself is in all cases the paramount lation be for the payment of money by the United authority, and no law in conflict with the Constitution States, then it is not operative as a law until Congress can bind any court, whether State or National. This legislatively appropriates the money.
doctrine was fully considered in the case of Marbury In Foster v. Neilson, supra, it was held that the v. Madison, 1 Crauch, 137, and has been repeatedly afeighth article of the treaty of 1818, between Spain and firmed by the Supreme Court of the United States in the United States was simply an executory contract, subsequent cases. not acting directly upon the subject-matter referred to, In Doe v. Braden, 16 How. 635, Chief Justice Taney, but pledging action on the part of Congress, and, after referring to treaties as supreme laws, proceeded hence, that until this action should be had, the court to say: "The treaty is, therefore, a law made by the was “not at liberty to disregard the existing laws on proper authority, and courts of justice have no right the subject." The article, until such action, was not a to annul or disregard any of its provisions, unless they rule for courts; that is to say, it was not a law, because violate the Constitution of the United States." This it was addressed to the legislative branch of the Gov- implies that a treaty may be exposed to this objection, ernment, and needed legislation to make it operative and indirectly asserts that such a treaty should not as a law.
by courts be regarded as a law. So, also, in The Chero9. Treaties of the United States abrogate all provis- kee Tobacco Case, 11 Wall. 616, Mr. Justice Swayne ions in State constitutions or laws in conflict therewith. said: “It need hardly be said that a treaty cannot To secure this result was the main, if not the sole, change the Constitution, or be held valid if it be in reason for making treaties a part of “the supreme violation of that instrument. This results from the law of the land." The great question before the court nature and fundamental principles of our Governin Ware v. Hylton, 3 Dall. 199, was whether the treaty
ment." of peace made with Great Britain in 1783, rendered in- Section 709 of the Revised Statutes of the United operative the law of Virginia enacted in 1777, confiscat- States provides that “a final judgment or decree in ing debts due from citizens of that State to British any suit in the highest court of a State, in which a desubjects, and discharging the former from any liability cision in the suit could be had, where is drawn in quesof payment to the latter. The treaty declared that tion the validity of a treaty," of the United States, ** creditors on either side should meet with no lawful "and the decision is against " its “ validity," "may be impediment to the recovery of the full value, in ster- re-examined and reversed or affirmed in the Supreme ling money, of all the bona fide debts heretofore con- Court upon a writ of error.” This supposes that a State tracted." 8 U. S. Stat. at Large, 80. The court held court may decide against the validity of a treaty, as a that this language applied to the debts which had been rule of guidance in the case pending before it, and confiscated by the Legislature of Virginia; that the should it do so, then the Supreme Court of the United treaty of 1783 came under the provision of the Consti- States is authorized to reverse or affirm the decision. tation which declares treaties of the United States to 'The Constitution, in both courts, would be the supreme and final test. A treaty transcending or contradicting tled “An act to suppress intemperance and to reguthe Constitution would not be a law which a court late the sale of intoxicating liquors," and the sixth should enforce or apply, and should the question arise section thereof no such license could be granted. before a court whether a given treaty is of this char- By chapter 856 of the Laws of 1869, however, which acter, it would be both its province and duty to decide both its title and provisions show was amendatory of the point.
the act of 1857, and by its fourth section it is provided: The above sketch, though by no means exhaustive, "All the provisions of this act as amended shall be presents a series of legal principles relating to the oper- held to apply to the sale of ale and beer, except so ation of treaties as laws, which have been established much thereof as forbids the granting of license to any by the courts of the land, especially the Supreme person, except to such persons as propose to keep an Court of the United States, in determining cases as inn, tavern or hotel, and the commissioners of excise between litigant parties. There is, in addition to these may, in their discretion, grant license for the sale of particulars, an interesting question in relation to treat- ale or beer, for a sum not less than ten dollars, to other ies and the laws of Congress, when in conflict with each than those who propose to keep an inn, tavern or botel, other, which the Constitution does not formally settle. and the provisions of this act shall extend to all porBoth are declared to be supreme laws, without any dis- tions of the State except the Metropolitan Police Distinction between them as to the degree of their author- trict." ity. Which then, in a case of conflict, shall prevail ? The reason of the exception of the Metropolitan The answer to this question is reserved for another and Police District from the provisions of the act of 1869 final article.
was this: By chapter 578 of the Laws of 1866 a separate act existed therefor, excepting the county of West
chester, which authorized a license within such disEXCISE LICENSES TO PERSONS NOT KEEP
trict, “ to any person or persons of good moral characING INNS.
ter, and who shall be approved by them, permitting
him and them for one year from the time the same NEW YORK SUPREME COURT CHAMBERS, JUNE, 1880. shall be granted, to sell and dispose of, at any one
named place within said Metropolitan Police District, PEOPLE V. MORRISON ET AL.
exclusive of the county of Westchester, strong and By Laws 1857, chap. 628, as amended by Laws 1869, chap. 856,
spirituous liquors, wines, ale and beer in quantities less in addition to a license perınitting the sale of intoxicat
than five gallons at a time, upon receiving a license fee ing liquor not to be drank on the premises of the seller,
to be fixed in their discretion, and which shall not be two kinds of licenses could be granted in all parts of the
less than thirty nor more than two hundred and fifty State of New York except the Metropolitan Police Dis- dollars." That act allowed licenses to “sell strong trict, namely, a license to sell strong and spirituous and spirituous liquors, wines, ales and beer in quantiliquors and wines, etc., to be granted only to persons ties less than five gallons at a time," to be granted who kept an inn, tavern or hotel, and an ale and beer
without the issuing of one to keep a hotel, to any perlicense to other persons. By Laws 1870, ch. 175, amend
son within the district to which such act referred. ing the act of 1857, such licenses were allowed in the Metropolitan Police District. Accordingly commission
People v. Smith, 69 N. Y. 175, see p. 179. ers of excise granting a license to sell ale and beer in
To return, however, from this digression to the act the city of New York to one not keeping an inn, tavern of 1857, and the amendments of 1869. By a well-kuown or hotel, do not violate any provision of the excise law. rule of law, the amendments made by the latter to the The act of 1870 declares that the provisions of the act of former became and were, from the date of the enact1857 "shall be taken and considered as a part of this ment, parts of the original act, so that when the act of act" (of 1870) and be and remain in full force through
1857 is thereafter referred to, unless there be some out the whole of this state." Held, to apply to the act of 1857 as amended in 1869, and not to the original act
words used indicating the contrary, the act as amended of 1857 only.
is intended, as much so as when a reference is made to
a physical object, which at the time of such reference PPLICATION for a warrant against Richard J. is in a changed or altered form, the object as so cbanged
Morrison, Philip Merkle and George W. Morton, or altered, is thereby designated. Dexter & Limerick for a violation of their duty as excise commissioners. Pl. R. Co. v. Allen, 16 Barb. 15, see pages 16, 17. This The opinion states the case.
doctrine is well illustrated in the quaint language of
an old case (Bayly v. Murin, 1 Vent. 246, cited with WESTBROOK, J. Application was made to me as a approbation in Potter's Dwarris on Statutes, page 190): a judge whilst holding court in New York city, to issue “Because the 14 Eliz. is a kind of appendix to the 13th a warrant against the above-named defendants, who of Eliz. and does not repeat it, but sub modo a little euare excise commissioners of the said city of New York, larging it as to houses in market towns; wherefore the upon a complaint charging them with having illegally 18th of Eliz., reciting the 13th, does by consequence reand contrary to law granted to John Knell, of 95 cite the 14th also." Maiden lane, in said city, “a license to sell ale and beer By chapter 175 of the Laws of 1870, the separate act in quantities less than five gallons at a time, to be (ch. 578, Laws of 1866), in regard to the Metropolitan drank on the premises where sold, the said John Knell Police District was repealed, “and the provisions of not being an inn, tavern or hotel keeper."
the act passed April sixteenth, eighteen hundred and The point upon which the charge depends is, do the fifty-seven (i. e., the act entitled 'An act to suppress inlaws of this State permit the granting in the city of temperance and to regulate the sale of intoxicating New York of an ale and beer license authorizing its liquors,' as it read in 1870 by force of the amendment sale to be drank on the premises, when the party sell- made in 1869), " except where the same are inconsisting is not licensed as a hotel keeper? In other words, ent or in conflict with the provisions of this act, shall can the excise board of the city authorize ale or beer be taken and construed as a part of this act, and be to be sold and drank on the premises of the seller and remain in full force and effect throughout the without granting to him a hotel license?
WHOLE of this State." The complaint involves a pure question of law de- That act now prevents not only in the city of New pending on the construction of statutes, which must York, but anywhere in the State, the granting of any be decided upon the laws as they are, without any re- license, except as part of one authorizing the keeping gard to my own notion of what they ought to be. of an inn, tavern or hotel, to "sell strong or spirituous
By the act of 1857 (ch, 628), as originally passed, enti- liquors or wines to be drank vnon the premises,” be
cause the provisions of the act of 1857 are still opera- licenses only became from that time operative over tive "except where the same are inconsistent or in the whole State, including of course the city and county conflict with the provisions” thereof; and the act of of New York, because said act of 1870 so expressly pro1857 having expressly forbidden the granting of any vides. such licenses except to hotel keepers, the Court of It follows, of course, that the defendants in granting Appeals in People v. Smith, 69 N. Y. 175, decided the license complained of violated no law, and were that that provision of the act of 1857 was not incon- | guilty of no offense, and that no warrant can issue to sistent with the act of 1870, and was therefore, by the bring them before me to answer. It is their duty to language of the act of 1870, to "bo taken and construed execute the law as it is, and both they and judges are as a part thereof."
to interpret it as it reads, and neither are responsible There is no direct provision in the act of 1870 for the for provisions which may not meet their approval as granting of ale or beer licenses as such, but authority citizens. is given "to sell and dispose of
* strong and The foregoing opinion was prepared to this point spirituous liquous, wines, ales and beer in quantities some days ago. Since its preparation my attention has less than five gallons at a time.” This general license, been drawn to a decision of a brother judge (Judge however, as wo have seen, the Court of Appeals have | Barnard), which, as reported in the public press, holds held could not be granted except to a hotel keeper, that there is no power now to grant anywhere in the because the restrictions placed upon the granting of
State a license for the sale of ale and beer only, sepalicenses to sell "strong or spirituous liquors or wines to rate and apart from a hotellicense. Thosincere respect be drank upon the premises " by the act of 1857 were entertained for his learning and judgment has induced not repealed, but were in full force. But the act of me to review my conclusion hereinbefore expressed, 1857 (as amended, for in 1870 the amendments were a but such review has not in the least shaken my convicpart of it) also provided for the granting of licenses tion. After careful and further reflection I am still " for the sale of ale or beer of * *
to other than constrained to hold that the act of 1870, when it dethose who propose to keep an inn, tavern or hotel," clares, “the provisions of the act passed April 16, 1857, and as that provision was not at all inconsistent with except when the same are inconsistent or in conflict the act of 1870, which, whilst it provided for a general with the provisions of this act, shall be taken and conlicense to sell all kinds of intoxicating drinks to be sidered as a part of this act, and be and remain in full granted, as held by the Court of Appeals, only in con- force and effect throughout the whole of this State," nection with a tavern or hotel license, did not abro- refers to the act of 1857 as it reads, when such language gate and annul the power to grant ale or beer licenses was used, and not to it as originally enacted. The only, it must now (for the act of 1870 so requires)“ be reference to the act is a general one and there are no taken and construed as a part” thereof, and be deemed words limiting and controlling the reference. The to be "in full force and effect throughout the whole of amendments of 1869 were then part and parcel thereof the State." In other words, the power to grant a gen- as much so as its original provisions. It is not the act eral license to sell intoxicating drinks including ale as passed in 1857, which is made operative over the enand beer, conferred by the act of 1870, which can only tire State, but the act” of 1857, or “passed" in 1857, be granted to a hotel keeper, is not inconsistent with, for either word — “of” or “passed” — in that connecand does not take away the power to grant an ale or tion has the same signification. If the act of 1870 had beer license only to a person not a hotel keeper, which declared that the act of 1857 was thereby repealed, it the act of 1857, as amended in 1867, authorized, and seems to me clear that the entire law as it read in 1870 therefore such provision of the act of 1857, because it with all its amendments engrafted thereon and then is not inconsistent with said act of 1870, is by said act forming integral parts thereof would have been abroof 1870 made applicable to "the whole of tho State." gated, and therefore, when the act of 1870 does not
The full argument, which has been for its proper un- profess to repeal that of 1857, but re-enacts all the proderstanding somewhat protracted, may be thus tersely visions of the latter not inconsistent with its own and stated. By the act of 1857 as amended in 1869, in addi- extends them over the entire State, that such enacttion to one permitting the sale of intoxicating drinks ment and extension apply not only to its original proin staall quantities not to be drank, however, upon the visions but to all others which had since become and premises of the seller, two kinds of licenses could be then were substantial and vital portions thereof. It granted. First, a license to sell strong and spirituous certainly, as it may be urged, would have been easy liquors and wines to be drank on tho premises of the for the Legislature, in speaking of the act of 1857, to persons licensed, to be granted only, however, to per- | have added the words “as amended,” and it would have sons who kept an inn, tavern or hotel; and second, an been equally easy if the amendments were not also ale or beer license “ to others than those who propose made applicable to the whole State, to have so declared to keep an inn, tavern or hotel.” This ale or beer in plain words. Neither, however, has been done, and license, however, was engrafted in 1869, upon the act the simple question then is, does a general reference to of 1857, and was not applicable to the Metropolitan a statute, which at the time of such reference is in an Police District, for which a separate and distinct amended form, intend the statute as originally passed license law existed, passed in 1866, under which a gen- or the statute as it reads at the time of such reference ? eral license to sell all kinds of intoxicating drinks This question can only admit of one answer, as shown could bo issued, although the person licensed kept no in the former part of this opinion, and that must be, inn, tavern or hotel. In 1870, however, another license such a reference is to the act as amended. law was passed, which repealed the local Metropolitan There is also another answer to any assertion, if such Police District act, and made such act of 1870, and the has been made, that there is no authority now in act of 1857 as changed and amended in 1869, when not boards of excise to grant an ale or beer license in any inconsistent with the act of 1870, applicable to the whole part of tho State outside of the old Metropolitan PoState. Tho act of 1870 did not profess to take away the lice District, and it is this. The question before me is, power to grant a license for tho sale of ale and beer was the act of 1869, because amendatory of the act of only, nor was the right to grant a general license to 1857, expressly extended over the city of New York by sell all intoxicating drinks, including ale and beer, in- | the act of 1870? Unless this question can be answered consistent with tho special license allowed by the act in the affirmativo the complaint against the police of 1857 as amended in 1869, for the sale of ale and beer commissioners of the city of New York is well founded, only, and because not repealed or inconsistent with for the act of 1869 excepted such city, as a part of the the act of 1870, such authority to grant ale and beer | Metropolitan Police Distriot, from its provisions. Sup
pose, however, I am wrong in the conclusion that the
CONTRACT IN RESTRAINT OF TRADE act of 1870, by extending the provisions of the act of
FOREIGN JUDGMENT. 1857 over the whole State, thereby also necessarily extended the act of 1869, which was simply amendatory
ENGLISH HIGH COURT of that of 1857, over the same territory, when and
OF JUSTICE, CHANCERY where was the provision of such act of 1869, permitting
DIVISION, FEBRUARY 23, 1880. the commissioners of excise to “grant licenses for the sale of ale or beer * to other than those who
ROUSSILLON V. ROUSSILLON. propose to keep an inn, tavern, or hotel," and which
The plaintiffs were champagne merchants at Epernay, provision was declared to “extend to all portions of in France. The defendant, whose name was the same the State except the Metropolitan Police District," re- as that of the plaintiffs, having entered their house pealed ? There certainly is no statute which directly and learnt the business, acted for two years as their repeals it, and as repeals by implication are not favored representative in England, and then wrote a letter to in the law, it must be shown that some later statute them, by which he undertook not to represent any contains provisions necessarily inconsistent therewith,
other champagne house for two years after leaving the before a right so clearly and expressly conferred can
plaintiffs' employment, and not to establish himself or be taken away. A careful search by me has failed to
associate himself with other persons or houses in the
champagne trade for ten years after leaving them. The discover any subsequent enactment which is repugnant defendant left the plaintiffs' employment in March, thereto. Plainly the act of 1870 is not inconsistent 1877, and in May, 1878, commenced business in London therewith, for that, as we have shown in the former as a retail wine merchant, and sold champagne as well part of the opinion, only confers the power to grant a as other wipes. In his circulars and advertisements, general license for the sale of all intoxicating drinks to and on the labels and corks of the champagne bottles a hotel keeper, and such general license is not incon
were the words “Ay Champagne," but he had no essistent with the special one for the sale of ale or beer
tablishment anywhere except in London. Held, that
the defendant had committed a breach of the agreeonly by an individual who is not a hotel keeper. The
ment. Held, also, that the agreement was valid, as the two licenses are of course different, but difference and
restriction was not larger than was necessary for the repugnance are not synonymous expressions. A power reasonable protection of the plaintiffs. There is no to do several acts under circumstances clearly pre- hard and fast rule that a contract in restraint of trade scribed is not incompatible with or repugnant to an unlimited as to space is invalid, but the validity de authority to do only one of those acts under a different pends on the reasonableness of the contract. Leather condition of things, though the two are unlike. This
Cloth Company v. Lorsont, 21 L. T. Rep. (N. S.) 661; L. proposition is too clear to admit of discussion, and the
Rep., 9 Eq. 315, followed. Allsopp v. Wheatcroft, 27 L, T.
Rep. (N. S.) 372 ; L. Rep., 15 Eq. 59, disapproved. question may therefore well be repeated, When and
A contract against public policy will not be enforced by Engwhere was the authority given by the act of 1869 to
lish courts, though the contract is valid in the country grant an ale or beer license anywhere in the State, ex- where it is made, and is entered into between foreign cept in the Metropolitan Police District, taken away? traders. A judgment by default was obtained in France If it has been, I have been unable to discover the re- against a Swiss, domiciled in England, on a contract pealing statute. Indeed it was plumply decided as
entered into by him while on a temporary visit to early as December, 1874, by the General Term of the
France. No notice had been given to him of the acSupreme Court for the Third Department, held by
tion. Held, that the judgment was not binding on Judges Bockes, Countryman and Landov (O'Rourke v.
him. Schibsby v. Westenholz, 24 L. T. Rep. (N. S.) 93 ;
L. Rep., 6 Q. B. 155, considered. The circumstances People, 3 Hun, 225), that the power to grant ale or beer
which impose a duty upon a defendant to obey the delicenses still existed. The opinions of Judges Bockes cision of a foreign court stated. and Countryman in that case are so exhaustive as to leave nothing to be said, and are therefore referred to THIS was an action to restrain the defendant from as conclusive upon the question at issue. Now if, to carrying on the business of a champagne mermake the argument applicable to the case before me, chant, and for an order for the payment of certain it be conceded, as it seems to me it must, that the damages awarded by a French court. power to grant such licenses anywhere in the State The plaintiffs were Jean and Gustave Roussillon, except in the Metropolitan Police District exists, why
who carried on the business of champagne merchants should the act of 1870 be so construed as to make that at Epernay, in France, under the name of J. Roussillon district an exception to the rest of the State? The act
& Co. of 1870 certainly repealed its local excise law, and in- In 1866 they took the defendant, Auguste Roussillon, tended to extend all the provisions regulating the sale who was a nephew of Jean Roussillon, into their emof intoxicating drinks in the residue of the State over ployment as a clerk, in order that he might learn the that locality. If it has not done so, it is because of a business. After ho had been two years in their serfailure to express tho plain purpose. No proper con- vice at Epernay he was sent to England in order that struction of language used as we have endeavored to he might learn English, and they afterward employed show, makes such a conclusion necessary, and the evi- him as their traveller in England, Scotland, and other dent propriety of so construing statutes as to work places. This necessitated his being introduced to equally rather than unequally over the whole State many of the customers of the firm, and the plaintiffs fortifies the argument already made to demonstrate accordingly suggested to him that for their protection that the act of 1870 in extending the provisions of that he should enter into an engagement not to compete of 1857 over its entire territory, necessarily carried with them in the event of his employment with them those of 1869, which had become a part of such act of being terminated. 1857, with them. To prevent any misapprehension as In accordance with this suggestion on the 9th Octoto the scope of the foreign opinion, it should be added ber, 1869, the defendant wrote a letter to the plaintiff, that whilst in my judgment the parties complained of J. Roussillon, in French, of which the following is a committed no crime in granting a license for the sale translation : of ale or beer; it is not held that any obligation “As a return for the kindness and care of which I to grant licenses of that character devolves upon have beeu the object, and the trouble you have taken boards of excise. No such question is involved in the in my commercial education, I address this letter to proceeding before me, but as the act is very clear ($ 4, you as a proof that I undertake not to represent any ch. 856 of Laws of 1869), it may not be improper to say other champague house for two years after having left in its very words, that such licenses are “in their dis- you, if at any time I leave your house for any reason cretion."
whatever, whether it be on your part or my own. I