New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1854-12-09
OPINION OF THE HON. WM l.. DAYTON
on THE LIQUOR QUESTION.

The following is abstract Of the opinion recently
given by the Hon. WIN. l.. Dayton; of Trenton, ES-
ChefJustice relative TO the constitationaty of the
ordinances Of Jersey City, regulating inns aud tsv
ems and the legality Of the proceedings had under
them in the prosecution Of Illegal liquor sellers:
The first point in the opinion relates TO the extent Of
the power conferred by the City charter in relation to
the sale Of intoxicating drinks. He says that the
charter vests all legislative power in reference to the
subject matter therein referred TO in the Mayor aud
Common Council. They, in this subject are sub'ti-
tued in the place Of the Legislature and whatever
that might have done Il acting for itself the Mayor
and Common Council NAV do. The charter asthOr.
ICES the Common Council 10 llcease, regulate, or pro-
habit mrs tareras, and 10 prohibit oil trac IN or
"sale of Intoxicating drink or drinks The legal
power of the State Legislature 10 entirely prohibit the
sale Of Intoxicating drinks is ndRpu'abe, and II now
H. and for many has been, prar'c ally exercised
in New.Jersey The power by which the Legislature
assumes 10 regulate the mcGsuye by which liquor may
be sold is the same that by which il may prohibit
s sale altogether The question OF the right to pro-
hibit the sale ia Inanifestly abstract one. II the
legislature had the power TO regulate or prohibit the
traffic lof which be has no doubt it has by erDress
srords vested this right in the Common Council Of
Jersey City end that body may prohibit such traffic
within the limits Of that Corporation.
The second question ia Does the ordinance exceed
"the powers OF the charter ?" Mr.. Dayton says it
doe. not. The charter authorizes the Common Coan-
Gil 10 regulate prohi )t all traffic or sale OF inox
eating driRk or drinks The ordinance prohibits
any unlicensed person from selling ANY sprituous
"or intoxicating liquors, any mixed liquors. part Of
(which is intoxicating" Ii is contended that the
words Intoxicating liquors more extensive than in
toxicatng drink or drihks. This il refining too much
upon language. The charter in giving the pOSer aud
the ordinance in exercising II Is speaking of both
Inns and Iaverns.
Another question propounded to him was this
"Can defendant be denied, in these cases trial by
",Jury ?" The state Constitution Of 1876 provides
- he ri1hf Of trial nv .Iury sha IN Invio-
Late which is equiv alent only 10 the provision Of
the old Constitution of 1875. The meaning Of this
language is that the right 10 trial by Jury there
tOfore exercised shall remsin. Ayarety Of cssesh
arsen in which the right trial by Jury has been de-
MED Ii has been so from our earliest history Cases OF
this kind 10 assessing damages in taking private
property for public uses; in providing for the ion.
proyement OF drowned and other lands, and for the
Improvement Of public streets. The property rights
of individuals ere constantly interfered with and
trial by Jury allowed. Il is held that the words Of
1.-the Constitution are fully satisfied by preserving
the trial by jary in all criminal cases, and trials OF
Fright in suits at common law The violation of
the ordinance in question is not 8 crime, nor is the
proceeding before the Recorder a suit at common
law. There vast variety Of cases IN the statute
book Of like character where trial by jury IL not
allowed The act 10 prevent the disturbance Of
meetings held for the purpose OF religious worship
forfeits under certain circumstances mans entire
stock OF liquors and everything containing them, to-
geher with bis booth, STALL carriage, boat, vessel or
other place used Tor FenolIg tneHl, WITHOUT OF
eny kind. To extend the right OF trial by jury
10 all eases growing out Of the police rsguls-
tions of large city would be, not 20 embsr
rass, bat actually to destroy all healthy and ener-
getc action upon the part OF city magistrate.
The fourth point il further question 10 the right
Of Trial by Jury under and by virtue Of the Charter
and Ordinances Menseires. The Charter Sec III
empowers the Recorder hear all complaints for the
violation of City ordinances, and give Judgment,
without any pleadings fled; and. If Judgment be for
ulaiufiH xifh aQalnet the
gCods and chsttels and person. Of the defendant or
deiendsnts; provided that 10 all cases where the
sine or penalty shall exceed $50, or where the pun
shment ray be Imprisonment, there may be trial
BY Jury" ss in Justices Court, and on appeal,
&c. This Il confused section, relative 10 watch
there may be different opinions. Ii the ortini
authorized penalty exceeding eco or gave the
Recorder discretion 70 imprlson Tor rs Violsnon,
trial BY Jury could be demanded But does neither.
The addition Of costs TO the penalty is not, ia con-
temptation Of law, part Of the foe or penalty.
Another branch Of this question u, Does breach
"of this ordnance authorize the Recorder 10 i'm
"prison ihereforl' The answer is, Ii does not"
II authorizes fine, and that the defenden. be com
nited until il is paid. Ii paid, there il imprison-
ment. II not paid, the imprisonment Is not for VIC
latDg the ordinance but for nonpayment OF the 6ne,
to wit, disobeying the order Of the Court. For
cisobedieuce Of an order OF the Court, thsre
il 10 limit of imprisonment fixed and this pro-
vision il nothing than the common OF which
the statutes are full There is nothing in the Charter
or ordinances which entities the defendant 70 demand
a trial by Jury In these Another question is
Has the Recorder right TO give judgment against
defenden, for costs at al Upon this question the
author Of the opinion acknowledges some embarrass-
meni. COsts are always by reason Of some express
provision, or not at all. The section of the Charter
under which the Recorder acts in the trial Of these
says nothing about costs The title which points
out the powers of the Common Council does not seem
to include that subject. remans to in luire whethe,
there wa. not some prior ordinance under TIC oIa
Charter Of jersey City which is adopted by the present
Charter. Tboee ordinances not being before nm, ne
could not decide positively The tenth section Of tne
ordnance says that defendants shall pay the nne
" and costs Of prosecution but IF the common
Council has tbs pover 40 TO provide) VIVA; aucn cos0