The New York herald. [volume] (New York [N.Y.]) 1840-1920, 1855-07-12

0scssaon of Judge Blrdsail In the Liquor Case.
MARINE COURT.
Raf0ra Hon JadUe nrdsall

MARINE COURT.
Before Hon Jadgs Brdssl.
The People dc. cs. CAas. H. Smth.-The de'endsnt is
nharred with having violated section of IAN Act for
4hs Prevention of fIntenperance Paupersm and Crime
In having sold glass Of brandy to the 4th
Of July inst The proof Of the sale of tae liquor
plete Several questions raised by counsel Of
defendant TO the oonsttudonalty the law In the
nrst place, although know Of constitutional
4utary provisions restricting committing magistrate
from passing upon such questions when they arise yet
certainly doset the expsdiency Of q nm,tt.ng
gistrate in exercising that power 1t properly be-
longs to the court authorized to appellate court
The act OF 18th April having taken the uris lie
1on Of this Court, can only act police or commit
Ting msgisrrsoa From my judgment there can be no
apPA. consequently, to pass upon these questions
would only b &asau ng right or power ~h,ch could
NOT have any ect and sbich would not establish any
rights sdsr tase law. Had not eeen olstsd Of
jursdicop, tbeGa would have besa duty imposed to
have exsmDed thoroughly every question involved aud
(Which ! shoud have oons uphss'tat'Dg,y Then
pass from auca questions . to whether not "An
offence has been com mitted," or there prob able
cause for ms TO believe an offence has been com.
uor must nss ce sold in ths except as authorized
1nder and oy virtue OF the Law OF the unied States
~ provided BY this Law" Such conceive to De the
true to be placed tee law The question
then ali Whet liquors authorized by the of
the United sas1s< TO be sold in this state and
import" esatended by the learned counsel
csded: but hnwg-why only in the original packages.
1e sae Of hqaans 10 their original aod not
nen by the giSs The State has right to regulate the
a.e having The right to regulate the sale tae Law says
Zoo may sell 10 the extent Of the authority by the
DATED states snd no more" Taking this view an Of,
4enee has beep committed. concede that the law il
opsn to other csustrucons 1t may be construed
10 except Bqunr, such Imported lis trae If DOUBT
s. eoussrusd "a favor Of ths prisoner Yet
], sitting . magistrate, AMI 1t evidently having
1ssn the nt4oo 4 the Legislature to prohibit entire
inf 1srvm haa vaod ant h.ld IA
7sndant In ~ Doing both partas get the Judgment OF
1hs court aratorized by Law to try these cases and
aron whose o<eL@son an appeal may be had
Opinion or Jsnaaice Pearcy, OF the Second Dis
tr<ct Police Court.
The act for the HPrsventoo Of peran e Pauper
Ism and Crne passed by the Lessature Of this State
April 1856 eetains matter, the correct inter-
probation Of winch there may be honestly difference Of
opinion; but ID my intention to travel the
Whsle ascsPied presumed to be occupied by
Chat act. Wbapvor may bs my private op nion of the
aet, either frr against the opinions othsrs,
cannot justly he Gssed by any Of these consider atoms
q have ony to Esy that bave taken voluntarily a
solemn obigHstao u magistrate, which can neither
est aside nor cktxcgsrd, and consequently kuo~
friends rsgIM nd Gny enemies TO the above mentionsd
oct. In the before me, the accused was charged
With violating section H. being found in the street
2atoxicated and the charge distinctly ani clearly
proved BY tbS obi cer making the arrest also by t1e
animation OF te accused bmssh II is contended that
have right power to impose the doe mprison
In default f rIyxent That part OF the twelfth section
reads thus
shall he unlawful for any person TO be or become in
sad for e.eh shs BE- liable in. Of ssn dds
M T s II Ss sn m .a
ent thereof he sha stand nitted as provided said
BY reie1r mr. 10 section fourth we find
Every pescu hs violate any provision Of either Of
shs zee ions hs spop % eonyoson &C. ss pm
eass. y a.s q ssy deli.,s sas second ossncs
:: %
Dor ns:. S., 4. sensa, aad in as.s o.
.ss 'sss ot I'll ss, rs
than one eai p.r dsiiar Of the amount unpaid
Thus, BY exaafining beth ssctons-ths declaring
3hs cemmiasi<r nt certain act crime and impos ne
penalty theufS ae cher describing the msnner Of re-
coveriDs ttsf senaty, or 10 default Of payment the
MON, n nAGM<ate, designated by section hfth OF
6hs same sc d sstituts pro,sstngs on all violations OF
said &C., 1, H. o cuiy province but duty TO i'm
pose the hrc af $40 the for being intoxics
ted. The r1aE has been raised that the words sued
for and Ir,ovssod" have generic meaning and that
. suit pbcu instituted for the recovery OF the ins
dspt hy rix Law. do not think so. That It was
the ios<rt Of the Legislature that the psnalty
thus I'm posed ssuld 30 thus sued for At civil Law, no
person ~in oispxte for . moment. II It vas intended
That the 8c t. be sued for by the Corporson At
Ass9sated t.t couYs- usmed the officer insts.d OF
referring t6e fourth section. What be more ear
then thai 70 enc shall be paid on convict,oo IL the
words ssusa fc aud recovered, had in the sans
been in ,yd in section four then 1t wouc have al
ittsd Of 10 other construction; but such is not the
case; the foe Ia to be collected in the "sa ne
.nanner," ,h4s is to say, on conviction Again.
the po f,es been raised, that intoxcaton
Ii . mice ureanor, and the Special Sessions, by
virtue and in pursuance OF the "Act enlsrgipg
the juri-c,ct ri the Court OF Sessions passed April
IL, s'ou npcent 10 adjudcate upon and dispose
of such BY referring to the Revised statutes
col, pag. sst ,cc 54 fni where the performance
Of any scohibited BY aoy statute, and penalty
for the vion 81 such statute Imposed either In the
same aetin eontsining such prohibition or 10 any
Other sects1 or statute the doing sush act shall bs
prsvs.tiop Of tntenperance, &e imposes p.nsty of
$40. Thsy.sxr, Ia not misf4mesnos ano for V o.
lAtioa Of sss section, IN oo'pou 1T Is clearly the
duty tbs ssgstrate 70 inaict the imposed penalty
The Law In Brooklyn.
YssterGas, Hugh Fitzpatrick the keeper Of grocery
In Hadson soeoue, appeared before Justice smith, OF
ths Court st Special Sessions warrant charging
him With ,sUing liquor contrary TO law. s. d Morris
and J. Ks<, Esqs., counsel for the Kings County
Uquor Des xs' Association, appeared in his behalf and
J. M Van mott Esq, conducted the for the prose
rutiou hr Msrrs moved the discharge of the defsn-
dsnt sisx wing grous ds First, the ground OF
infsrmahy sf te warrant In not specifying offence,
rsstic; tsth did not appear by the said warrant
4bat the brsndy therein alleged to have been sold by
3hs dsftn att not imported the right TO sell which
Is given BY Sbe laws and treaties OF the United states
I'd II not armaayey appear that the dstsniant
Is not an sDrorter OF fore gn liquors, and that the
1ranly foL' no< Ia the original pa,tages.
ID. That the eec ton OF the act under which the pro
cespe In iyututed IL unconstitutional and void, aud
lhersfer~ rs, defendant should be discharged.
9Th. 1h. tse Gfth section Of the &C. under which the
authority of che Justice f any TO act 10 this procsed
Ing n de,,,,- fs also unconstitutional and void.
9TH. Thss he twelfth section OF said act, undsr which
3his PROSE 'ssn VAC commenced, is also un'onstitu
3ional sps v-,d
9Th TINS. warrant IL not authorized BY the act H.
ee not - csn oraty With section twelve Of the said
act.
Mors obi lions discussed by the respective coun
pe asS rvl-d by the Justice, aud the defendant
9ursd 70 a;, ~beo Mr. kios referring TO the Revised
etatutss rtef delay Of twenty four hours 70 plead
- tn prsea.gc Of def-udant charge Of m,sde
neasor, upr which bead this offence, " offence 1t
would the Jastics reserved his decision until
Friday, >sock 2. ~ until which time the csse va
further scj-4rvcd
In tls fu.vd OF Supervisors, which met yesterday
oveDjpg cec~outons previously offered BY Supervisor
Tepta1, srir the officers Of the count, to enforcs
4hs prof ~-yy Law and tnat Il vas observed ~sr
1ahss up -,s motion, aud witbou debate with bu
q. 49, L4x- zG.ft. l.