New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1854-07-24
pB0GRESS or the LIQUOR TRIALS.

Tie frat Of the long lst of complaints for selling liquor
without license brought by the Temperance Alliance,
enIne on before VIM Il. Mech, Esq., Justice Monday,
18th John y. Haskins, Esq., City Attorney for the
prosecution; a. ID. Russell for the defense WIN. II.
Mnngre No. 400 Hudson-s ives charged with four vO-
stions OF law Mr.. Russell put in denying .he
charge and stating grea; variety Of matters which Mr.
Haskns moved the Court 70 strike out. He said the
Court should bot allow the tine Of the prosecution to be
consumed and the cost Of conducting this suit increased
by the introduction o. such entirely irrelevant matter.
M Russell fad that in the city the is different from
tho country. Here the Board have discretion but
must meet and discharge their duty, which is 10 grant
licenses He sed the Commissioners OF the Ninth Ward
had refused do their duty and had dissolved the Board
and that no one il authorized to give licenses
sequeny the door thrown wide open and every citizen
has liberty sell liquor much be plesses. Mr. ii IS
kns replied that the Board did meet and discharge their
duty and in the exercise OF their lawful discretion refused
license each applicant and that every sale OF liquor
il violation of law. Judge Mech took till Friday to
consider the motion Five of the first fifteen cases are
set down for trial Monday July 81. The defense de-
mands a separate jury each case:
THIRD DISTRICT COURT-Before Ws X MECH Justice.
The Msyor. SC OF New. YORK William hason.
This action Is brought to recover penalty for selling
liquor without license. The defendant IN his answer
denies the and also se up that he keeps PIo
ordinary yctuslng house in the Ninth Ward OF the
City of Newly Ork-whicb has been established aud H.
censed for several that he is citizen OF the United
Setes and of good moral character; that from May 1854
10 May 1855 there no persons authorized by law to
grant tavern excise licenses for the said Ninth Ward
the Aldermen and COunclmcD of said Ward having
fused to discharge the duties of Excise Commissioners and
dissolved their Board with the public announcement that
they would grant licenses that the defendant has made
apncation for license, which refused Ard that
licenses whatever have been granted in said Ward
The counsel for the plaintiffs moves TO strike all these
affirmative allegations from the answer on the ground that
a.. ttfuta ma d.feu IN
The statute upon which this action is brought Apn a.
1921 law rel to City, 344 provides that every person
who shall sell by retail in the CITY OF New York or DE-
liver in pursuance of auy sale in the said City any wine
strong spruous liquors to be drank IN hs or her
house clubhouse yard garden or premises without being
"icensed according law shall forfeit and pay the sum
of sos for every such oense to he recovered with costs
of suit in the name of the Mayor Aldermen and Com
"monaliy of the City of NewYok, for the use OF the
t hUH1 #. ''u '"'' HI ""' O''''
The issue to be tried, therefore is simply whether the
defendant sold any strong or srtuous liquors "taolt be-
ing licensed according 10 law IL should be proved tha'
he did sell liquors without being licensed he would clearly
have incurred the penalty provided in the statute.
TIE several matters set forth by the defendant cannot
constitute any defense TO this action.
BY the act of April TO- 1874, the Mayor Aldermen and
Assistant of each Ward created Commissioners of
Excise and authorized to grant licenses to such per-
sons as MZ should deem NJ and proper TO retal strong
liquors. and provided that eenss shoaid be granted
any who should not be- IN the opinion Of the COmms
sionoTs of gOoo moral character and citizens OF the
United States. The powers that have devOlved upon the
Assistant Aldermen belong to Councilmen in their
spective districts.
THE discretion vested in the Excise Commissioners
seems to be broad and unu tied except 10 the qua
cation requiring the licensed party TO be citizen of the
United States and il has been said to be discretion
which cannot be made subervie subordinate 10 the
discretion of the Courts in the language II the Supe-
or Court in the Of Leigh and others Excise Com
mssioners OF Ninth Ward. The defendant alleges facts
showing himself lawfully competent to receive license,
and therefore maintains that he, and of necessity all
others possessed OF like qualifications, by making apphca-
ton for license, entitled 10 II as matter of legal
right and Justify himself in this action by evidence of
these efforts and proceedings TO obtain IT, This PROPOSE
ton seems to be hardly tenable
license of whatever character is mere personal priv
ilepe generally without consideration not assignabe.
founded in personal confidence. and revocabe at the
pleasure of the party granting H. and parakes in no essen
ta feature of the nature OF grant for which legal claim
of right could be maintained.
The alleged refusal of the Excise Commissioners to per-
form their duties does not aid the defendant such
refusal would not constitute license to the deiendan, to
sell 90 far TO protect him in this action. IL would
seem however that in this allegation the defendant had
nisapprehended the facts for II no where appears that
tie Excise Commissioners obligated TO grant one or
more licenses duty by law imposed on them but only
that they mag grant them in such numbers and to such
parties as in their discretion they might fit and in this
case from the allegations OF the defendant appears they
discharged whatever duty incumbent upon them by de-
,ermining 10 grant no licenses whatever.
No principle of jurisprudence aud no authority OF law
has been found 10 cOunenarce the idea that the discretion
vested in these Excise Commissioners thus exercised can
be reviewed by inferior legal tribunal possessing only
the authority ana Jurisdiction of this Court The remedy
if any can only be obtained in the Supreme Court by
mandamus or otherwise.
But even if the defendant should eventually obtain
license either BY virtue of compulsory proceedings at law
or the voluntary action of the Commissioners must hold
it in this Court that he is defenseless IN this acton he
has sold LIQUOR before obtaining it, The motion Of the
plaintiff counsel must therefore be granted.