The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1854-07-24

lhe HTeC VI tue lOuS HSL Oh COmpldtutS iOr
selling liquor without license, brought by the
Temperance Alliance. came on before VIM. b.
Mech, Esq, Justice, ON Monday, the 18th. John
B. Haskins, Esq, city attorney, for the prose-
cution, and A d. Russell, Esq, for the defence
VIM. Fl. Munger, No 400 Hudson street, wa
charged with four violations Mr.. Russell pu
in an answer denying the charge, and stating
great variety Of matters which Mr.. HaslSins
moved the Court to strike out. lie said tn
Court should not allow the time and labor Of
the prosecution to be consumed, and the cost Of
conducting this suit increased by the introduce
ton of such utterly jrrclcvant matter. Mr.
Russell said that in the city the case is differ
ent from the country. Here the Board Of Elk
else has no discretion, but must meet aud dis
charge their duty, which is to grant licens. !
He said the commissioners Of the Ninth ward
had refused TO do their duty, and had dissolved
the Board without granting any license; that
no one is now authorized to give license in the
ward, consequently the door is thrown wide
open and every citizen is at full liberty to sell
liquor as much as he pleases. Mr. Haskins re-
piled that the Board did meet, and in the exer-
else of their discretion refused license to every
applicant; and while the mandamus is pending,
and till the Board shall grant license, every
sale Of liquor in the ward is a violation Of law.
Judge Mech took till Friday To consider, and
this morning rendered the following opinion.
Five Of the ii,st fifteen Of the cases are set down
for trial OH Monday, July 3lst, at III A. N.
The defence demands separate jury in each
case. Respectfully, L. ). WARREN
THIRD DISTRICT COURT.
Before VIM u Mech, Justice.
The Mayor &C., Of Nsc YORK vs. Eyiiiiam Nd
sor.fLis acton. Ia brought TO recover penalty for
selling nor without license. The defendant 10 his
Answer denies the charge, AMI also set NJ tha. he
keeps public ordinary or victGaliDg house in tia
Ninth vsId Of tn, city OF New Yols, Thicb has been
Established aud licensed for several years; that he
!. citae, Of the United States aud of good moral
Character tfas nom Ma, 1854, to Nay, 1850 taerc
arc PERSONS authorized by law TO grant tavern or
e1cise fcenses for said Ninth ward, the Aldermen
Councilrncn OF said ward having refused to dis
chsrge the duties II Exile Commissioners and liz
that they wonid grent no icenscs tdat the Dc
ftndal has made application for a license, which
was refused and toat no licenses whatever have
Leen granted In said ward The counsel for the plain
tits owes TO strike Gil these Affirmative allegations
from the answ.I tile ground that they consulate
no defrucc to the action. Tic stetulc upon which
this action is brought april II, 1927, Law rel.
10 City, $40 provides that every person who
hall Sell by rftail IN the city OF New York,
or deliver in pursuance Of any sale, in the
said city, airy wine or strong or spifltuons
yard, garden, or premises without being licensed
according 10 law, shall forfeit and pay the sum OF
twenty five dollars for every such offence, to be re-
covered With costs OF suit, in the name OF the May.
or, Aldermen and Coinmonalty of the city OF New
York. ior the use Of y c poor OF said city, In any
conrt having cogpizance ihe;oof.n
Tho issue to be tried, therefore, il simply whether
tho defendant sold any strong spiritucns liquors
without Icing licensed according 70 law. re IL
should be- proved that he did sell liquors without
being licensed, he would clearly have incurred the
penalty provided IN the statute The several nat.
tiers SCI forth by tic DESCENDANT cannot con stifue
any defence 10 sls action. Be the act OF April 10,
1874, The Mayor, Alderman and Assistant Of each
~afd, are created Commissioners Of Excise, and
Merc authorized 10 grant licenses TO snch persons ia
they fhonlo deem ~ ard rrorer, 10 retail strong
liquors; rid provided that no licenses should
the opinion Of the Commissioners, Of good moral
character, and CITIZENS OF the United States.
me powers tnat have dcvalyed upon the Assist.
ant Aferinen now belong % Councilmen ia
he respective districts The discretion vcs.sd In the
Excise " mlssontrs ,e.ms to DO broad and unmit
ed, except as to hs qualification rcquiag the lcens
tipaTtJ 70 be citizen Of the United States, AMI n
has been said TO DO /" discretion which cannot be
mace 50 taeiyieDt or subordinate 10 the secretion 81
the Courts, in be language OF tho Superior Couf Ia
the case 81 leieb and OF. ers % Excise Commits.
sioDers OF Ninth Ward. The de cudaot alleres
facts showing himself lawfully competent 70 receive
o license, and therefore maintains that he and OF
necessity all ot possessed OF like qualifications
by making application for license, are enrtlci 20
Il as matter Of legal right, and can justify him
self In this action by evidence OF these efforts and
proceedings to obtain II. This proposition seems
to be hardly tenabe. license OF whatever char
acter IL mere personal privilege, generally with
out Consideration, rot aesignable, founded In per-
sppal confidence, and reyocabIc at the pleasure