The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1853-06-27

Before Justioe woodruff
jun ssLs MsySs e., e e. G ;y,; q Ne Mss
Der r. .us e recover oa sns d.s Ss
dants ffty dollars, the penalty annexed to breach
Of certain bylaw ordinance alleged TO have bean
passed BY the Common Council Of tho city Of New
keeping Of an intelligence Office in the city Of New
York without license. The complaint set forth
l. The general power given by the ancient charter
of the city to the Common Council consisting OF the
and four or more Assistants, to make bylaws, or
dinances, &C.. which to them shall seem to be good
for the good rule and government OF the city ana o.
the inhabitants, citizens and residents, &C., thereof
| 2. That by act Of the Legislature, duly passed
on the 4th Of February, 1922, entitled, &C., It is
among other things enacted that the Mayor, Alder
/! man ssa Hs"-"a"altv AZ tia oits Of Ne1 York, In
Common Council convened shall have power to
make and pass such bylaws and ordinances AZ they
shall from time to time deem necessary and proper
for the regulation of intelligence offices in the city,
or to prohibit them, and for requiring that
shall keep such Office without license, &C.,
and to impose penalties not exceeding $3.50 for each
offence. g. That by act Of the Legislature passed at
the session held in 1890, it was enacted that the
legislative power of the Corporation of New York
shall be vested In the Board Of Aldermen and the
Board Of Assistants, who together shall form the
Common Council of the city," and also that "every
act ordinance or resolution which shall have passed
the two Boards Of the Common Council, before it
shall take effect, shall be presented, duly certified,
to the Mayor OF the city for his appreciation. Ii he
approve, he shall sign it; If not, he shall return it
with his objections" &C.. and then points out the
manner in which reconsideration shall be had and
if, on such reconsideration approved by majority
OF all the members elected to each Board respective
y at shall take effect as law Of the Corporation"
and further that If the Mayor do not return the act
&C., within the time limited therein, at shall take
effect in the same manner as II he had signed IT,"
4. That by virtue of the charter and the above
recited acts, at o meeting and assemblage Of the
said Common Council, duly held and convened at,
&c, on the l4th of May, 1882 it having been found
necessary, by them, certain bylaw or ordinance
was made and passed, entitled OF intelligence
(setting forth the 'aw:) 1.-The Mayor TO
issue licenses to such persons as he shall
think proper to keep intelligence offices.
amount to be- paid to the Mayo the use Of The city
by the persons licensed. IV-No person shall keep
any intelligence office in the city Of New York with
out having such license under the penalty Of $50 for
every such offence. s. The complaint sets forth that
by another ordinance, passed on the l4th Of May,
1882 it was ordained that fines and penalties, &C.
shall be sued for and recovered in the name Of the
Mayor, Aldermen and Commonalty Of the city Of
New York. 6. That the defendants, on the 18th of
January 1858, at the city Of New York, In certain
store or building, known &C., "did then and there
unlawfully keep an intelligence Office without having
license as required BY said ordnance contrary to
the said statutes bylaws and ordinances, by means
Of which the defendants owe the plaintiffs the
sum of fifty dollars penalty as aforesaid" To this
complaint the defendant, Nash, has interpOsed de-
murTer, assigning various causes therefor. 1.-That
intelligence Office is not defined either in the acts
Of the Legislature or the bylaws or ordinances nor
Is it stated therein what act or acts constitute the
keeping OF an intelligence office 2. That the COM
plant does not state what is meant by an intelligence
Office nor set forth any specific act or acts Of the de-
PENDANTS, showing in what respect they violated
the ordinance. 4. That the complaint does not show
that the Act Of the Legislature entitled OF intel
ligence Offices" was passed according to the require
ments Of the Constitution, e., by twothrds vote.
s. That it does not appear by the complaint that the
plaintiffs have right to sue for the violation Of the
ordinance The third and sixth causes of demurrer
will be presently noticed. In regard to the first
cause assigned for the demurrer, it must suffice to
say that the Legislature must be deemed to have
used the term Intelligence Office" in its ordinary
sense as used and known in the city OF New York at
the time the act was passed. They must be deemed
also to have used that term in reference to the condi
ton OF things then existing in the city. to which
alone the act applies and with full acquaintance
history Of the city, and the various pursuits and
business carried on therein, and of the terms des
ignation by which the various places of business
were known and characterized and OF the sense and
meaning universally attached to the terms employed
in the statute the Court understand what the Leg
isature intended by the term intelligence Office"
then the law is not in that respect liable to the obec
ton that it il vague and uncertain in its meaning,
nor is it void upon that ground OF all these Of
interpretation the Court bound to take judicial
notice; they are presumed to know whatsoever is
matter Of such public history and which is of unver
sal acceptati0n BY these means Of Interpretation
apprehend there is no difficulty in learning the true
intent of the laws in question and If So there no
occasion for further specification in the law ITSELF
The second ground of demurrer would not think,
be free from difficulty under our former system Of
pleading The law and the ordinance may be valid
and Ineligible and it be yet necessary in declaring
to aver the specific a,ts imputed to the defendants
them to the penalty. statute which declares that
he who is convicted of murder or burglary, or other
crime offence, designating it by name Of known
signi6cation) shall be punished by death. or other
Indictment which should merely charge the commits
sion OF murder without specifying the act or acts
which constitute the crime according to its known
definition, would hardly be insisted on us snicient
whereas it should contain statement Of such
facts and circumstances as constitute the crime
imputed to the defendant. But without pursuing
the subject, or inquirng how much less strict
ton of debt on penal statute this objection must
be disposed Of under the code, and on another
ground. The true character OF the objection Is not
that the complaint does not aver violation Of the
bylaw or ordinance, and 80 bring the defendants
within its very terms In such sense that the Court
must say that they liable to the penalty, but 1t is
that the pleading is defective for want OF sufficient
certainty and particularly in its specifications. On
demurrer it stands admitted that the defendants
have violated the ordinance by doing the very thing
which the ordinance forbids, and whatever acts con-
stute such violation are adm1tted 70 nave Deen done
by them. In this objection the defendants have mis-
taken their remedy. They should have moved, under
section $50 Of the Code, that the plaintiffs make their
complaint more definite and certain by such specifca
tionsof they uponas constituting the
violation OF the ordinance complained Of. The fourth
ground of demurrer, to wit, that the complaint does
not that the act Of the Legislature was passed
by vote Of twothirds of the members OF the Legis
lature conformably to article section Of the
stitution of 1921, will be briefly disposed Of by OBJ
serving that, On demurrer to q declaration which
AYERS the passage of an act Of the Legislature or
which proceeds upon right conferred by such an
act, the Court will always presume that the act was
passed in constitutional manner. (Thomas vs.. Da-
kin, % Wend., 0; Warner, &C., Beers, % ID, l02;
Hunt W.. Van Alstyne, rs I'D, 6083 So that,
if it were conceded that the law in question Is
within tho clause Of the constitution referred to, this
objection must, nevertheless, be overruled. Aside
from the views expressed by the Court in the cases
above referred to- il TO me that the Court would
be bound to know judicialy, whether public act
was passed consttutonay or not; and that the ques
-t~Io NJ faAt