1902 Encyclopedia > Liquor Laws

Liquor Laws




LIQUOR LAWS may be divided into the three great systems of free trade, restriction, and prohibition. The system of free trade may mean either that no special licence is required by law for carrying on a traffic in intoxicating liquors, or that such a licence is required, but that the licensing authority is bound to grant it in every case in which certain conditions are complied with. Wherever the determination of these conditions involves an appeal to the discretion of the licensing authority, the system of free trade tends to pass into the system of restriction. For practical purposes it does not matter much whether the law says, " every man of good character is entitled to a licence for a properly constructed house in a suitable locality," or " the magistrate must consider the character of the applicant and of the premises, but is not bound to give reasons for his decision." But wherever the applicant can submit to a court capable of dealing with evidence the question of fact whether he has fulfilled certain conditions defined by law, the system of free trade may be said in theory to exist. Wherever, on the other hand, the law distinctly affirms an absolute discretion in the magistrate, or lays down a positive principle, such as the "normal number" or the fixed proportion between public-houses and population, the system is properly de-scribed as restriction, or monopoly. This system, again, in its extreme form, tends to pass into one of prohibition. Under one of the alternative plans permitted by the Swedish licensing law of 1855, generally known as the Gothenburg plan, the municipality begins by the partial, and advances to the total, prohibition of liquor traffic, except by servants of the municipality; and this plan is sometimes advocated merely as a step towards the suppres-sion of all trade in liquor. In nearly all countries the nature of the trade carried on in public-houses has sub-jected them to a much more rigorous police supervision than ordinary trades. All trades, however, must be carried on under the conditions required by the public comfort and safety; and to give unlimited licence in such matters to publicans would be to violate social rights not inferior to freedom of industry and trade.

Of recent years there has been a considerable increase M the amount of drunkenness in Europe generally. There are no means of determining the law of the increase by reliable statistics, but it seems probable that the increase is confined to the large towns and to the lowest classes. There has also been of late, both in the United Kingdom and on the Continent, a very earnest and animated discus-sion on the policy and results of the various systems of liquor law. It cannot be said that so far any decisive experience has been adduced on the subject. In fact the legislation of Europe is in a very uneasy and changeful state. Thus, prior to the federal constitution of 1874, the cantons of Switzerland were in the habit of directing the municipal authorities to observe a certain proportion between the number of licences and the population. The new constitution, however, laid down the general principle of free trade, and the federal council intimated to the various cantons that it was no longer lawful to refuse a licence on the ground that there was no public need of it. In the previous year precisely the opposite change took place in Denmark. The licence system rested on the law of 29th December 1857, but this was modified by the law of 23d May 1873, which increased the conditions to be fulfilled by those applying for a licence, and conferred upon the communal authorities the power of fixing the maximum number of licences to be granted. Similarly, in France, the liquor law rests upon the decree of 1851, but public opinion is turning against the absolute discretion reposed in the administrative authority, and the law pro-posed by M. de Gastó and approved of by the chamber of deputies on 22d March 1878 will probably lead to a system of greater freedom. In the German empire the various states are still permitted by a law of the confederation, dated 21st June 1869, to restrict the issue of licences to what the public seem to require, but except in Wiirtem-berg this permission seems not to have been used. In Austria the rapid growth of drunkenness in Galicia made necessary the severe police law of 19th July 1877, but in other parts of the empire the exceptionally lenient law of 20th December 1859 seems to be considered sufficient. In the midst of so many fluctuations of opinion, the practical questions of legislation must be decided on general principles and not by experimental evidence. Those who speak and write on the reform of the liquor laws are divided into two great classes—(1) the nephalists, who consider alcohol, in every form, whether in distilled or in fermented liquors, to be poison, and therefore wish the sale of it to be entirely suppressed ; (2) those who see no objection to moderate drinking, especially of the less alcoholic beverages, or at least regard the idea of suppression as an impracticable chimsera. In the United Kingdom the nephalists are at present agitating for Sir Wilfrid Lawson's Permissive Bill, which has latterly taken the form of a local option resolution. This means that in each burgh or parish two-thirds of the ratepayers may decide that no licences shall be given, a vote to be taken on the subject every three years. On 17th March 1879 the select committee of the House of Lords on intemperance reported emphatically against the scheme of the Permissive Bill. The committee did not examine witnesses from the United States with respect to the experiments in prohibi-tion which have been made there on a large scale; but it is generally admitted that the Maine Liquor Law has succeeded only in villages and rural districts; in towns it has failed. So also the Michigan Law, prohibiting the sale of liquor except for medicinal or mechanical purposes, was cendemned after twenty years' experience; and in 1875 a licence tax was imposed on dealers in liquor.





The result is the sanie under those celebrated '' local option laws " which are in force in some of the united States. These laws pro-ceed from the legislatures of the various States. They sometimes take the form of a general prohibition of the sale of intoxicants, subject to a vote of the inhabitants in each township or county, but more frequently they merely provide in general terms for the issue of licences in the usual way, unless the local constituency shall otherwise determine. Such laws are in force in Massachusetts, New Jersey (which had the Chatham Local Option Law of 1871), New Hampshire, Connecticut, and Vermont. But whether they are constitutional or not is a matter of serious controversy in the courts of the United States. On the one hand, it is said that such a law amounts to a delegation by the State of its legislative power, —that it leaves the hands of the ssnate and general assembly in an unfinished state, commanding nothing, prohibiting nothing. On the other hand, it is said this is a police regulation, which is properly entrusted to county commissioners, or boards of select men for the protection of the health and morals of the localities over which they preside ; and it is quite competent for a State to make a law delegating the power to determine some fact or state of things, upon which the law makes, or intends to make, its own action depend. In the case of the States already mentioned the constitutional character of the local option law has been upheld by decision, but in the cases of Delaware, Texas, Indiana, Cali-fornia (Wall's Case), Iowa, and Pennsylvania, it has been denied. The question has also been raised in the American courts whether in the case of intoxicants being imported from one State to another a local option law, which prohibits the sale of the imported goods, does not violate the freedom of commerce which is guaranteed to all the States by the American Constitution.

Among those who are not nephalists a variety of schemes has been suggested. A small minority are in favour of free trade subject to certain conditions. An experiment of this kind was tried by the Liverpool magistrates in 1853. " The premises were to be of high rateable value ; the excise duty was to be greatly increased; the licencee was invariably to reside on the premises; and a special police for the inspection of licensing houses was to be pro-vided." These conditions being complied with, no licence was refused. This experiment was made the subject of inquiry by Mr Villier's select committee of 1854. That committee, which included Sir George Grey and Lord Sherbrooke (Mr Lowe), reported unanimously in its favour. A similar experiment was made in Liverpool during the years 1862-66 without evil results, and also since 1862 in the Prescot division of the county of Lanca-shire. On the Continent the only countries where free trade prevails are Belgium, Holland, Greece, Spain, and Boumania. In certain parts of Bavaria communes possess breweries, the produce of which they are by custom entitled to sell without any licence; and the Bhenish Palatinate has never been subject to the restrictions mentioned below which apply to the rest of the empire. In Belgium licences are unknown. The only tax which the publican pays is the " patent" which is paid by every trade. So strong is the general law in Belgium that in 1866, when the muni-cipal authorities of Antwerp issued a regulation prohibiting the sale of alcoholic drinks in the streets, this was held to be illegal by the court of cassation. The Dutch law is the same as in Belgium. It must not be supposed, however, that the Dutch are satisfied with the present law. The Dutch " society for total abstinence from strong drink " is very active; and in 1880 the Government presented to the lower chamber a bill, introducing a licence and also the principle of the normal number, the proportion of licences to population varying according to the total population of towns. In Belgium the Association contre Vabus des boissons alcooliques is endeavouring to secure amendments of the law, chiefly of a fiscal and police character, but the introduction of the licence is not suggested. In Germany, with the ex-ception of Wurtemberg and those places where the licence is unknown, the liquor trade is practically free. The law of 1869 declares that a licence can be refused for two reasons only—if the police condemn the structure or situation of the premises, or if the applicant is likely to encourage drunkenness, gaming, reset of theft, or improper meetings. This system may be contrasted with those of Italy and Bussia. In Italy, under the law of 20th March 1865, a licence is obtained from the sub-prefect or autorita politica del circondario on the demand of the syndic (sindaco) of the commune and after consulting with the municipal giunta. In Bussia, under the decree of 1861 and the com-munal law of 28th June 1870, the licence is got from the municipal or communal council, or, in certain cases, from the owners of land, especially church land. In both countries the licensing authorities have unlimited discretion, which they have exercised so as to multiply public-houses>.enor-mously. Assuming that sufficient guarantees can be got for the respectability of the applicant and the good sanitary condition of his premises, the system of free trade, or of unrestricted licensing on defined conditions, is the only one which can be defended on principle. It is impossible for the magistrates to exercise a just discj»tion in deciding what public-houses are required for a locality. The fact that an applicant has invested capital in the business and is ready to begin is the best evidence that there is a demand to be supplied. There is, however, no prospect of free trade being established in the United Kingdom. The select committee of 1879 reported against it.

A larger number of licensing reformers support the scheme for introducing the " normal number " to the United Kingdom. This was embodied in the bills of Sir Kobert Anstruther and Sir Harcourt Johnstone (1876). No new licences were to be granted till the number had been re-duced to 1 in 500 of the population in towns, and 1 in 300 in country districts. At present the proportion is 1 to 173 of the population in towns in England and Wales. It seems impossible to determine any such proportion ab ante. Even were it possible, the rough classification of towns by population, and the failure to discriminate between various rural districts, would result in great injustice. In Mr Cowen's bill of 1877 and Lord Colin Campbell's bill of 1882 it was proposed to have in each locality a separate licensing board elected annually by the ratepayers. This proposal sins against the recognized principle in the reform of local government that authorities must be con-solidated, not multiplied. The select committee of 1879 suggested that the function of licensing might be entrusted to the proposed representative county boards.





Another scheme, which has the advantage of appealing to modern experience in Europe, was contained in Sir Bobert Anstruther's bills of 1872 and 1874 and Mr Chamberlain's bill of 1877. These were all modifications of the Gothenburg system, which Mr Carnegie, a Scotch brewer in Gothenburg, has done much to make known in the United Kingdom. In Sweden, prior to 1855, there was absolute free trade in liquor. The General Licensing Act, passed in that year, gave power to local authorities, subject to confirmation by the provincial governor, to fix annually the number of licences, and to sell them for three years on certain conditions. If a company, or " bolag," were formed for the purpose of taking all the licences, the local authority might contract with the company for three years. The Act did not apply to beer. The result of this Act has been twofold. In rural districts almost no licences have been issued. In towns, on the other hand, drinking has in-creased of late, and has led to the severe police laws of 18th September 1874 and 15th October 1875. In 1866 Gothen-burg set the example of transferring the whole public-house traffic to a bolag, which undertakes to appropriate no profit from trie business, but to conduct its establishments in the interest of temperance and morality, and to pay over to the municipality the profits made beyond a fair interest on capital. This experiment has been a great financial success, and if developed will relieve the town from the greater part of its local taxation. The example has been followed by every town in Sweden having a population above 5000; and in 1877, after long discussion, it was adopted in Stockholm, the capital, where the number of life licences presented unusual difficulties. Mr Chamberlain proposed that the work done by the Swedish bolag should be attempted by town councils in the United Kingdom. For this purpose he asked power to acquire the freehold of all licensed premises and the interests of the licence holders. The business would then be carried on by the town council, the profits being carried to the credit of the education and poor rates. The powers of the licensing justices would cease on the adoption of the scheme by the town council. The select committee of 1879 recommended that legislative facilities should be given for the adoption of this scheme. It is doubtful, however, if the burden would be generally submitted to, except on the understanding that the local rates would he pro tanto diminished ; and, were this realized, the tendency would be to support the municipality on the liquor trade by extending its operations.

The great mass of opinion in the United Kingdom, however, seeks some modification of the present licensing system. That system is extremely complicated. The wholesale licences are granted by the excise without a magistrate's certificate, but for nearly all retail licences such a certificate is required. Generally, the magistrates hare absolute discretion as regards licences to sell on the premises, but in England a licence to sell off the premises can be refused only for one or more of the following reasons—no satisfactory evidence of good character, disorderly house, previous forfeiture of licence by misconduct, want of legal qualification. The English law is contained in the Wine and Beerhouse Act 1869, and the Licensing Act 1872 and 1874. The great features of the legislation of 1872 were (1) the introduction of a confirming authority (viz., the licensing committee in counties and the whole magistrates in burghs) for the purpose of restricting the issue of new licences ; (2) the quali-fication of annual value in public-house premises for the purpose of raising the character of those engaged in the trade ; (3) the new regulations for closing ; (4) the new regulations of police penalties, especially with reference to the endorsement of convictions on the licence and the forfeiture of the licence. The Act of 1874 abolished the necessity of confirmation in the case of " off" licences, gave the magistrates absolute discretion as regards the endorsement of convic-tions, and removed from magistrates all discretion as regards closing hours. There are not many peculiarities in the licensing law of Ireland. Public-house licences are generally held by shopkeepers, and no qualification of value is required except in the case of beerhouses. Mr Meldon's Act of 1877 (37 & 38 Vict. c. 69) closed public-houses on Sunday. In Scotland prior to 1853 licences were regulated by the Home-Drummond Act (9 Geo. IV. c. 58), which authorized only one form of certificate for "common inns." Inl846 a select committee reported that the combination of the grocer trade with the sale of spirits to be consumed on the premises was productive of evil to the working classes. This led to the Forbes Mackenzie Act of 1853, which was amended in 1862, upon the report of a royal com-mission in 1860 (16 & 17 Vict. c. 67; 25 & 26 Vict. c. 35). It created three licences—(1) for hotels, (2) for public-houses, (3) grocers' licences. Under the hotel licence intoxicating liquors may be sold to lodgers and travellers. On Sundays the public-houses are closed, and on week days the sale is practically limited to the period between 8 A.M. and 11 P.M. Cameron's Act of 1876 (39 & 40 Vict. c. 26) makes the refusal of a certificate by the magistrate final, and in the ease of a new licence requires the confirmation of a county licensing committee or in burghs of a joint committee of magistrates and justices of licence for "alehouses."

Information on this subject is to be found chiefly in the Reparts of royal com-missions and select committees. It has been much discussed at the meetings of the Social Science Association, and there is a large literature of pamphlets and magazine articles, to which, among many others, Lord Sherbrooke, Mr Cham-berlain, and Mr Arthur Arnold have contributed. The reports of the various international congresses "pour l'étude des questions relatives à l'alcoolisme," may bo studied with advantage. See also Metman's Études sur les Legislations Européennes relatives aux débits de boissons alcooliques, Paris, 1879. (W. C. S.)


Footnotes

See Cooley, On, Constitutional Limitations, and On Taxation, p. 403 ; Dillon, On Municipal Corporations, i. p. 392 ; and the recent case of Boyd v. Bryant, 37 Amer. Rep. 6. In some States it has been attempted to prohibit indirectly by raising enormously the licence fee. The subject is frequently before the courts, and it is decided that where the licensing power is given for revenue purposes there is no limit to the discretion of the licensing authority, but where it is given for purposes of regulation the fee should not exceed the expense of issuing the licence and inspecting and regulating the licensed trade.




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