LIQUOR LAWS 689 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 tlie 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. 1 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 1862-60 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 lloumania. In certain parts of Bavaria communes possess breweries, the produce of which they are by custom entitled to sell without any licence ; and the* Rhenish 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 I abus 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- 1 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. ception of Wurtembergand 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 Russia. In Italy, under the law of 20th March 1865, a licence is obtained from the sub-prefect or autorita politico, del circondario on the demand of the syndic (sindaco) of the commune and after consulting with the municipal giunta. In Russia, 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 un restricted licensing on defined conditions, is the only one which can be defended on principle. It is impossible for the magistrates to exercise a just discretion 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 King dom. This was embodied in the bills of Sir Robert 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 Robert 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 loth October 1S75. In 1866 Gothen burg set the example of transferring the whole public-house traffic to a bolag, which undertakes to appropriate no profit XIV. 87
